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Published online by Cambridge University Press: 04 July 2014
Sentencing reform has been the subject of much debate over the past two decades in North America, Europe and Australia. Among the concerns spurring this widespread reconsideration of sentencing principles and practices, there is the need to promote consistency in sentencing, the crisis in public confidence in the criminal justice system, and the constitutional argument for more legislative intervention in the area of sentencing. The reforms implemented in various jurisdictions to address these concerns have taken numerous forms: at the federal level in the United States, “base sentences” were assigned to each offense category, the final sentence being fixed in the light of the offender's prior criminal history and aggravating and mitigating circumstances; at the state level, several jurisdictions adopted a less detailed system of numerical guidelines, schematized by a two-dimensional grid of sentence ranges defined by classes of offenses and the offender's criminal record. Other jurisdictions, such as Canada, Britain and Sweden, eschewed the use of numerical guidelines as a vehicle to structure judicial discretion in favour of simpler statutory statements of principles in sentencing.
LL.B., Université de Montréal. LL.M. student, The Hebrew University of Jerusalem. Member of the Israel Bar Association. The author wishes to thank the readers of the Israel Law Review for their helpful comments and suggestions.
1 See generally Ashworth, Andrew, “Sentencing Reform Structures”, in Tonry, Michael, ed., Crime and Justice: A Review of Research (University of Chicago Press, Chicago, 1992) vol. 16, p. 181, at 213–225 Google Scholar.
2 See Kannai, Ruth, “Proposal for Sentencing Reform”, (1996) 13 Mehkarei Mishpat 227 Google Scholar; Talgam, Moshe, “The Need for a Multi-Purpose Punishment System”, (1996) 13 Mehkarei Mishpat 247 Google Scholar; Talgam, Moshe, ed., “On Punishment and Computerization”, (1995) 5 Criminological Studies (in Hebrew)Google Scholar; Shachar, Yoram, “Sentencing as Art”, (1991) 25 Is. L.R. 638 CrossRefGoogle Scholar; Kremnitzer, Mordechai, “Sentencing as a Just System”, (1991) 25 Is. L.R. 662 CrossRefGoogle Scholar; Lederman, Eliezer and Shachar, Yoram, “Comments on Chapters 4-5 to Draft Criminal Code, Preliminary and General”, (1985) 36 HaPraklit 499 Google Scholar; Feller, S.Z. and Kremnitzer, Mordechai, “Proposed Preliminary Part and General Part for a New Criminal Law and Short Explanatory Comments”, (1984) 10 Mishpatim 127 Google Scholar.
3 Report, The Committee for the Examination of Means to Structure Judicial Discretion in Sentencing, (October 1997) (hereinafter, the Report) at 5.
4 The members of the Majority were: Committee Chairman Eliezer Goldberg, Justice, Supreme Court; David Cheshin, Judge, District Court; Tzvi Zilbertal, Judge, Magistrates' Court; Nira Lidsky, Judge, Magistrates' Court; Elyakim Rubinstein, Attorney General; Prof. Kenneth Mann, National Public Defender; Dr. Ruth Kannai, Bar-Ilan University; Prof. Simcha Landau, The Hebrew University of Jerusalem; Gloria Weismann, Adv., The Ministry of Justice; Rachel Shiver, Adv., District Attorney's Office.
5 The members of the Minority were: Prof. S.Z. Feller, The Hebrew University of Jerusalem; Siviona Rotloy, Judge, District Court; Edna Arbel, State Attorney; Yehudit Karp, Deputy Attorney General; Dalia Ish Shalom, Adv., The Ministry of Justice.
6 Sec. 1 of the Israeli Penal Law, 1977, L.S.I. Special Volume (hereinafter, the Israeli Penal Law). A new Preliminary and General Part was recently enacted. See Criminal Code (Amendment No. 39) (Preliminary and General Parts) 1994, S.H. no. 1481, p. 348. An unauthorized English translation may be found in (1996) 30 Is. L.R. 5–27 CrossRefGoogle Scholar.
7 Report, supra n. 3, at 43, para. 7.
8 Yair Gaulan, Adv.
9 See e.g., Robinson, Paul H., “One Perspective on Sentencing Reform in the United States”, (1997) 8 Crim. L. Forum 1, at 5–7 Google Scholar.
10 Report, supra n. 3, at 8, para. 3; 39, para. 1; 121.
11 Report, supra n. 3, at 8, para. 3; 44, para. 8.
12 Report, supra n. 3, at 9, para. 6; 45, para. 9; 121. Thomas Weigend elaborates further on this point: “In a democratic system, the elected representatives of the people determine, first, the limits of socially acceptable conduct and, second, the conditions under which the state has the authority to deprive a citizen of freedom and property. This power cannot be delegated to the discretion of others, such as administrative or judicial agencies, because the same standards must apply to all citizens, and it must be possible to predict, within reasonable limits, the application of these standards”. See also Weigend, Thomas, “Norm Versus Discretion in Sentencing”, (1991) 25 Is. L.R. 628, at 628–629 CrossRefGoogle Scholar.
13 Report, supra n. 3, at 8, para. 7; 39, para. 1; 123.
14 See generally Kahan, Dan, “What Do Alternative Sanctions Mean?”, (1996) 63 U. Chi. L.R. 591, at 594–605 Google Scholar; Feinberg, Joel, “The Expressive Function of Punishment”, in Duff, Antony and Garland, David, eds., A Reader on Punishment (Oxford University Press, 1995) 73, at 89 Google Scholar; von Hirsch, Andrew, Censure and Sanctions (Oxford University Press, 1993) 9–12 Google Scholar; Rychlak, Ronald J., “Society's Moral Right to Punish: A Further Exploration of the Denunciatory Theory of Punishment”, (1990) 65 Tulane L.R. 299 Google Scholar.
16 See Rychlak, supra n. 14, at 332.
17 Ibid., at 319-321.
18 See Andenaes, Johannes, Punishment and Deterrence (University of Michigan Press, Ann Arbor, 1974) 110–126 Google Scholar.
19 Report, supra n. 3, at 10, para. 8; 12, para. 13.
20 “Depenalization” should not be understood here in the sense of “decriminalization”, i.e., removing an act from the reach of the criminal law, but rather in the sense of removing an unlawful act from the enforcement of the penalty to which it is subject.
21 Report, supra n. 3, at 10, para. 8. As such, the fundamental principle in sentencing underlying the Majority's proposal bears much affinity with the so-called “denunciatory” theory of punishment. The following excerpt from Rychlak, supra n. 14, at 332, a leading article on the subject makes clear: “Denunciation serves to satisfy the majority's need to know that its rules (reflecting its values and goals) are being enforced. In other words, denunciation shows law-abiding society not only that the criminal law system works, but that the society itself works. Utilitarian principles may lead to a safe society, by discouraging crime, but they do nothing to assure that law-abiding society is satisfied with the criminal law structure that it has put into place. Denunciation is focused on precisely that point”.
22 See Report, supra n. 3, at 123. See also Michael Tonry, “Proportionality, Parsimony and Interchangeability of Punishments”, in Duff and Garland, supra n. 14, at 136, 140.
23 Report, supra n. 3, at 122. Cf. Ashworth, Andrew, “Criminal Justice and Deserved Sentences”, [1989] Crim. L.R. 340, at 353–354 Google Scholar.
24 Andrew von Hirsch, “Proportionality in the Philosophy of Punishment”, in Michael Tonry, ed., Crime and Justice: A Review of Research, supra n. 1, at 79.
25 von Hirsch, Andrew, “Proportionality in the Philosophy of Punishment: From ‘Why Punish’ to ‘How Much’?”, (1990) 1 Crim. L. Forum 259, at 282 Google Scholar.
26 See sec. 1 of the Minority's proposal and the Dissenter's proposal at Report, supra n. 3, at 123.
27 Report, supra n. 3, at 122.
28 Report, supra n. 3, at 123-124.
29 Report, supra n. 3, at 12, para. 13. However, sec. 7(B)(2) of the Majority's proposal does allow for limited consideration of the deterrent effect of the sentence upon potential offenders. See infra n. 65 and accompanying text.
30 Report, supra n. 3, at 48, para. 13.
31 Report, supra n. 3, at 49, para. 14.
32 Report, supra n. 3, at 48-49, para. 14. Secs. 18-21 of the Minority's proposal provide for the employment of an offender serving a custodial sentence with a view to his rehabilitation.
33 Report, supra n. 3, at 49, para. 14.
34 Report, supra n. 3, at 9, para. 6-7. See also Weigend, supra n. 12, at 632.
35 Under secs. 33(A) and 46(A) of the Minority's proposal, the imposition of a conditional fine or custodial sentence and the making of a probation order are only permitted where “in consideration of the type of the offense and the seriousness of the incident… [and] in view of the sentenced person's past, his personal circumstances, and the circumstances of the commission of the offense, it is supposed that … [such a punishment] suffices for him to refrain from committing additional offenses in the future, and that the imposition of [such a punishment] will not detract from the general deterrent effect expected from all punishments”, (emphasis added) Furthermore, secs. 35 and 46 of the Minority's proposal preclude the imposition of a conditional fine or custodial sentence, or the making of a probation order, where the prescribed maximum punishment for the offense is respectively ten or seven years. Additional prerequisites relating to prior custodial sentences served and the type of offense of prior conviction are also set at secs. 35 and 49 of the proposal.
36 The basic modes of punishment and their substitutes are respectively set forth at secs. 4(A) and 4(B) of the Minority's proposal.
37 Cf. Roberts, Julian V. and von Hirsch, Andrew, “Statutory Sentencing Reform: The Purpose and Principles of Sentencing”, (1995) 37 Crim. L.Q. 220, at 225–226 Google Scholar.
38 Which according to sec. 11(B) of the Majority's proposal, should be determined in consideration of both current sentencing practice and the appropriate sentencing policy.
39 See “Consistency in Sentencing: Recommendation to Member States and Explanatory Memorandum”, (1993) 4 Crim. L. Forum 355, at 376–377 Google Scholar.
40 Report, supra n. 3, at 14, para. 18.
41 Report, supra n. 3, at 43, para. 7.
42 Report, supra n. 3, at 44-45, para. 9.
43 Report, supra n. 3, at 15, para. 19.
44 Report, supra n. 3, at 44-45, para. 9.
45 Contrast the Majority's emphasis on strong proportionality in sentencing, based solely on the offender's “just-deserts” as reflected in the seriousness of the criminal act committed, with the Minority's position that crime prevention concerns that are extraneous to the offender's conduct (incapacitation, deterrence, rehabilitation) should also operate in the determination of sentence. The difference in approach between the Majority and Minority as to the reductive impact of mandatory and facultative mitigating circumstances is also revealing. See infra n. 72 and accompanying text.
46 Report, supra n. 3, at 40, para. 4.
47 See also Feller, S.Z. and Kremnitzer, Mordechai, “Proposal for a General Part of a New Penal Law — Introduction”, (1996) 30 Is. L.R. 36, at 47 Google Scholar.
48 Report, supra n. 3, at 17, para. 24. See also Michael Tonry, “Mandatory Penalties”, in Michael Tonry, ed., Crime and Justice: A Review of Research, supra n. 1, at 243.
49 Report, supra n. 3, at 126-129. See also Tonry, Michael and Coffee, John C. Jr, “Enforcing Sentencing Guidelines: Plea Bargaining and Review Mechanisms”, in von Hirsch, Andrew, Knapp, Kay A. and Tonry, Michael, eds., The Sentencing Commission and Its Guidelines (Northeastern University Press, Boston, 1987) 142 Google Scholar.
50 Tonry, Michael, Sentencing Matters (Oxford University Press, New York, Oxford, 1996) 33-40, 68–69 Google Scholar; Frase, Richard S., “Sentencing Guidelines in Minnesota and Other American States: A Progress Report”, in Clarkson, Chris and Morgan, Rod, eds., The Politics of Sentencing Reform (Clarendon Press, Oxford, 1995) 169, at 188–189 Google Scholar; Steury, Ellen Hochsteler, “Prosecutorial and Judicial Discretion”, in Champion, Dean J., ed., The U.S. Sentencing Guidelines: Implications for Criminal Justice (Praeger, New York, Westport, Connecticut, London, 1989) 96–97 Google Scholar; Miethe, Terance D., “Charging and Plea Bargaining Practices Under Determinate Sentencing Systems: An Investigation”, (1987) 78 J. of Crim. L. & Criminology 155 CrossRefGoogle Scholar.
51 Frase, ibid.
52 Tonry and Coffee, supra n. 49, at 146-147.
53 Frase, supra n. 50, at 186.
54 Report, supra n. 3, at 14, para. 17.
55 See Andrew Ashworth, “Sentencing Reform Structures”, supra n. 1, at 181, 209.
56 See Kay A. Knapp, “Organization and Staffing”, in von Hirsch, Knapp and Tonry, supra n. 49, at 117, 118-119.
57 Report, supra n. 3, at 34.
58 See ibid., at 118.
59 Report, supra n. 3, at 45, para. 9.
60 Weigend, supra n. 12, at 628, 633.
61 See sec. 11(A) of the Majority's proposal.
62 See Anthony Bottoms, “The Philosophy and Politics of Punishment and Sentencing”, in Clarkson and Morgan, supra n. 50, at 39-41.
63 Report, supra n. 3, at 14, para. 17. See also Ashworth, supra n. 1, at 210-211.
64 Report, supra n. 3, at 127-128.
65 Ibid. See also Ashworh, supra n. 1, at 205-209; Tonry, Sentencing Matters, supra n. 50, at 60-61.
66 Report, supra n. 3, at 129-130. Although unprincipled penalty “jack-ups” pushed through by elected officials intent on capitalizing on public anxiety about crime are chiefly identified with American jurisdictions where grids devised by sentencing commissions are used to structure judicial discretion in sentencing, it is far from clear that an inherent relationship exists between the use of numerical guidelines and politically-motivated penalty increases — as implied by the Dissenter's counter-proposal. Cf. von Hirsch, Censure and Sanctions, supra n. 14, at 91-94. Indeed, legislative developments over the past few years in Canada, England and Australia (Victoria, Northern Territory, Western Australia) demonstrate that “populist punitiveness” can strike even where (or because) the task of working out ‘the numbers’ is left to the judiciary. See Thomas, D.A., “The Crime (Sentences) Act 1997”, [1998] Crim. L.R. 83 Google Scholar; Henham, Ralph, “Making Sense of the Crime (Sentences) Act 1997”, (1998) 61 Mod. L.R. 223 CrossRefGoogle Scholar; Dumont, Hélène, “De La Loi C-41 à la Loi C-55: La Détermination de la Peine avec une Main de Fer dans un Gant de Velours”, in Healy, Patrick and Dumont, Hélène, eds., Dawn or Dusk in Sentencing (Les Editions Themis, Montreal, 1997)Google Scholar; Editorial, “Mandatory Sentences for Young Offenders”, (1998) 22 Crim. L.J. 201 Google Scholar; Arie Freiberg, “Sentencing Reform in Victoria: A Case-Study”, in Clarkson and Morgan, supra n. 50, at 93-94.
67 See Mordechai Kremnitzer, “The Treatment of Punishment”, in Talgam, supra n. 2, at 35, 38; Andrew von Hirsch, “Numerical Grids or Guiding Principles?”, in von Hirsch, Knapp and Tonry, supra n. 49, at 47, 58-60; Manson, Allan, McDonnell and the Methodology of Sentencing, 6 C.R. (5th) 277, 283 (1997)Google Scholar.
68 Report, supra n. 3, at 124-126. See also Tonry, “Proportionality, Parsimony and Interchangeability of Punishments”, supra n. 22, at 145-156.
69 See e.g., the recent pronouncements by the Canadian Supreme Court, which do not augur well for judicially developed principles insofar as the achievement of greater proportionality and consistency in sentencing is concerned. Despite a legislative proviso to the effect that “a sentence should be similar to sentences imposed on similar offenders for similar offenses committed in similar circumstances”, (sec. 718.2(b) of the Canadian Criminal Code) the Court unanimously held that in the absence of a “substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes”, (emphasis added) appellate courts should not undertake a review of trial judges' sentencing decisions. Significantly, it was stressed in the same breath that “sentencing is an inherently individualized process”, that “there is no such thing as a uniform sentence for a particular crime”, and that “the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise in academic abstraction”. R. v. M. (C.A.), 46 C.R. (4th) 269, at 316 (1996). Furthermore, in R. v. McDonnell, the Court, albeit by a narrow 5-4 majority, even disapproved of the use of “starting points” as a means for appellate courts to foster uniformity in sentencing. R. v. McDonnell, 6 C.R. (5th) 231 (1997). See also Manson, supra n. 67.
70 Report, supra n. 3, at 124-126.
71 Report, supra n. 3, at 13, para. 14.
72 Ibid.
73 In addition, judges are permitted under sec. 91 to disregard the prescribed minimum penalty in especially exceptional cases.
74 See sec. 88(B) of the Minority's proposal.
75 Cf. Andrew von Hirsch, “Structure and Rationale: Minnesota's Critical Choices” in von Hirsch, Knapp and Tonry, supra n. 49, at 84, 102-105. For example, nothing in the Minority's proposal (save appellate review) would stop judges from invoking such dubious grounds of mitigation as the offender's prior acts of heroism, his employment or social status, or his consumption of drugs or alcohol prior to the commission of the offense. Cf. Ashworth, Andrew, “Justifying the Grounds of Mitigation”, (1994) 13 Criminal Justice Ethics 5, at 5–8 CrossRefGoogle Scholar.
76 Unlike the Minority's proposal, however, adjustments in the presumptive sentence operated on the basis of circumstances unrelated to the seriousness of the offense are strictly limited under the Majority's proposal, as they are not permitted to “entail a departure from the appropriate punitive response” (sec. 7(A)).
77 See Weigend, supra n. 12, at 636. This was the solution adopted in the Minnesota guidelines. See von Hirsch, “Structure and Rationale”, supra n. 75, at 103-104.
78 For more on this point see infra nn. 80-83 and accompanying text.
79 See Robinson, Paul, “Legality and Discretion in the Distribution of Criminal Sanctions”, (1988) 25 Harv. J. on Leg. 393, at 396–397 Google Scholar.
80 See Kannai, supra n. 2, at 241.
81 As George Fletcher argues: “The contemporary pressure to consider prior convictions in setting the level of the offense and of punishment reflects a theory of social protection rather than a theory of deserved punishment. The rule of thumb is that recidivists are more dangerous and that society will be better served if the recidivists are isolated for longer terms. This view raises empirical and methodological issues in gauging the dangerousness of recidivists and it poses serious ethical issues in punishing a person more severely on the basis of past crimes already once punished. These are issues that must be confronted directly, with no illusions about the camouflage offered by the concepts of retribution and desert”. Fletcher, George, Rethinking Criminal Law (Little, Brown, Boston, Toronto, 1978) 466 Google Scholar. See also von Hirsch, Andrew, “Deservedness and Dangerousness in Sentencing Policy”, [1986] Crim. L.R. 79 Google Scholar; Durham, Alexis M. III, “Justice in Sentencing: The Role of Prior Record of Criminal Involvement”, (1987) 78 J. Crim. L. & Criminology 613 Google Scholar.
82 See Feller, S. Z., Elements of the Criminal Law (Harry Sacher Institute for Legislative Research and Comparative Law, Jerusalem, 1992, in Hebrew) vol. 3, p. 323 Google Scholar.
83 Report, supra n. 3, at 56, para. 24. Mordechai Kremnitzer, one of the original drafters of the Minority's proposal (see Feller and Kremnitzer, supra n. 2) defends escalations in the punishment of recidivists in the following terms: “[I]t is not a question of punishment for “wickedness” but for a greater degree of guilt, expressed in the act itself, in view of a more intense and reprehensible anti-social attitude, where the perpetrator has been appraised of his duty to obey the law, not only in general, in common with everyone else, but also by means of individual penal treatment. Such treatment was calculated to strengthen internal forces of restraint. The failure thereof reveals blatantly an attitude of disdain and effrontery towards legal norms. This should be viewed against the background of the conception of guilt as consisting in a lack of sufficient will (motivation) to do good or refrain from evil, where such will is feasible. Clearly such an explanation also lays down the criteria and limits of the severity of punishment in this report, and in particular it provides an explanation as to when a past criminal record should not lead to severity in punishment”. Mordechai Kremnitzer, “Sentencing as a Just System”, supra n. 2, at 668 (emphasis in original). See also von Hirsch, Andrew, “Criminal Record Rides Again”, (1991) 10 Crim. Just. Ethics 2, at 55 Google Scholar (“Repetition after confrontation with censure also suggests a failure to make the extra effort at self-restraint — the effort which should be the response to being faced with censure”) (emphasis in original).
84 One notable exception being the United States Federal Sentencing Guidelines. See Roberts, Julian, “The Role of Criminal Record in the Federal Sentencing Guidelines”, (1994) 13 Crim. Just. Ethics 21, at 22–23 Google Scholar.
85 Cf. ibid., at 23.
86 Feller, supra n. 82, at 326.
87 Cf. von Hirsch, Andrew, “Desert and Previous Convicitions in Sentencing”, (1981) 65 Minn. L.R. 591, at 616, n. 56Google Scholar (“If someones commits a wrongful act and pleads for reduced condemnation on grounds that the act was uncharacteristic of his or her behavior, [the] kind of conduct one [would] consider relevant… are past acts that are similar in the moral principles they violate, not merely acts that are similar in their details of execution”) (emphasis added). But see Fletcher, supra n. 81.
88 Feller, supra n. 82, at 324-326.
89 Cf. von Hirsch, “Desert and Previous Convicitions in Sentencing”, supra n. 87, at 617,n. 56 (“The more one must reach into the distant past to find similar acts, and the longer the stretch of time prior to the current act during which the defendant has led a law-abiding life, the less plausible it becomes to claim that the current misdeed is, indeed, typical or characteristic of the way he has been behaving”.)
90 See e.g., von Hirsch, “Proportionality in the Philosophy of Punishment: From ‘Why Punish’ to ‘How Much’”, supra n. 25, at 272-274.
91 On the communicative role of censure in punishment see Duff, R.A., Trials and Punishments (Cambridge University Press, 1986) 233–266 Google Scholar.
92 Cf. von Hirsch, “Criminal Record Rides Again”, supra n. 83, at 55-56.
93 Kremnitzer, “Sentencing as a Just System”, supra n. 2, at 680.
94 The amendment to the Israeli Penal Law recently enacted by the Knesset in response to the public's discontentment with the leniency of the courts in punishing sex offenders is highly revealing in this respect. The amendment prescribes minimum sentences of two to five years for specified categories of sex crimes. See Penal Law (Amendment No. 51), 1998, S.H. no. 1676, p. 270. See also Alon, Gideon, “Minimum Penalty Law for Sex Offenders Approved”, Ha'aretz, July 15, 1998, p. A1 Google Scholar.
page 634 note * The preventive measures provided for at section 74 are: disqualification, prohibition to be found in a specific place, detention in a rehabilitative institution, suspension of a corporation's activities or its liquidation, confiscation and expulsion of aliens.
page 640 note * Under sub-section 41(B) the period of suspension may only be extended once.
