Cyrus Tata

Risk, responsibility and reconfiguration: penal adaptation and misadaptation

This article draws on the findings of an ethnographic study of social enquiry and sentencing in the Scottish courts. It explores the nature of the practice of social enquiry (that is, of social workers preparing reports to assist sentencers) and explores the extent to which this practice is being reconfigured in line with the recent accounts of penal transformation. In so doing, we problematize and explore what we term the ‘governmentality gap’; meaning, a lacuna in the existing penological scholarship which concerns the contingent relationships between changing governmental rationalities and technologies on the one hand and the construction of penality-in-practice on the other. The findings suggest that although policy discourses have, in many respects, changed in the way that these accounts elucidate and anticipate, evidence of changes in penal discourses and practices is much more partial. Drawing on Bourdieu, we suggest that this may be best understood not as a counter-example to accounts of penal transformation but as evidence of an incompleteness in their analyses which reflects the ‘governmentality gap’ and requires the development of more fully cultural penology drawing on ethnographies of penality.

Assisting and Advising The Sentencing Decision Process: The Pursuit of 'Quality' in Pre-Sentence Reports

Pre-sentence reports are an increasingly prevalent feature of the sentencing process. Yet, although judges have been surveyed about their general views, we know relatively little about how such reports are read and interpreted by judges considering sentence in specific cases, and, in particular, how these judicial interpretations compare with the intentions of the writers of those same reports. This article summarizes some of the main findings of a four-year qualitative study in Scotland examining: how reports are constructed by report writers; what the writers aim to convey to the sentencing judge; and how those same reports are then interpreted and used in deciding sentence. Policy development has been predicated on the view that higher-quality reports will help to ‘sell’ community penalties to the principal consumers of such reports (judges). This research suggests that, in the daily use and interpretation of reports, this quality-led policy agenda is defeated by a discourse of judicial ‘ownership’ of sentencing.

The application of judicial intelligence and "rules" to systems supporting discretionary judicial decision-making

This article critically examines approaches to the production of systems of support for discretionary judicial decision-making in sentencing. The aim of the article is to attempt to illuminate the character of discretionary judicial decision-making and how academic research has informed the attempt to model the exercise of judicial discretion. Briefly placing the development of decision support systems for judicial sentencing in the context of world-wide themes in sentencing reform, the article proceeds to focus on various attempts to produce systems of decision support for sentencing. It then briefly explores two of the key issues (‘impact’ and ‘institutional authority’) which may determine the future support of such systems. If systems of decision support for judges are to have a future then they must not only be accepted at an institutional level, but also be seen as valuable by those for whom they are designed. Thus, the application of ‘judicial intelligence’ is unavoidable. Underlying the judicial sentencing decision process is some conception of ‘similarity’ between cases. How, then, should this ‘similarity’ be represented? Traditionally, representations of similarity have tended to be informed by ‘the legal-analytical’ paradigm. The supposedly basic building blocks of case information (‘offence’ and ‘offender’ and ‘aggravating and mitigating’ factors) are critically considered. It is argued that systems based on a ‘legal-analytical’ paradigm are limited in their representation of the decision process. These limitations, it is suggested, may be overcome by adopting an approach which tries to represent the informal schema of understanding which decision-makers employ and the holistic way in which they think about a case. It is argued, therefore, that judicial decision-making is amenable to modelling through the use of computer technology, but that there is a need to re-model our conception of judicial ‘intelligence’ on which such technology relies.

A sense of justice: the role of pre-sentence reports in the production (and disruption) of guilt and guilty pleas

The criminal justice process in the lower and intermediate courts depends on defendants admitting guilt and being seen to do so voluntarily. Hitherto, there has been limited academic consideration of how pre-sentence reports and their associated processes interact with the dynamics of guilty pleas. Drawing on recent research following through the production, use, and interpretation of a sample of reports, this article concentrates on the troubling inconsistency with which legal professionals (especially judges and lawyers) are continually confronted: namely, between their ideals of ‘proper’ legal justice and the pragmatic daily reality in which they have to participate. How do legal professionals manage this sense of inconsistency? The article suggests that reports are vital to enabling legal professionals to process defendants in good, or at least not bad, conscience. In particular, reports pacify the lingering unease felt by legal professionals that the everyday summary court processes may be too abrupt, abstract and impersonal. Reports and their associated processes pacify this unease in three ways. Firstly, reports display to legal professionals that defendants are treated individually, and with a degree of respect and humanity. Secondly, report processes (including their anticipation) assist the management of defendants and facilitate the production of guilty pleas. Thirdly, reports, generally (but by no means always), help to facilitate the ‘closure’ of guilty pleas. In these three ways, the ‘efficienct’ mass processing of defendants via guilty pleas is enabled by a sense among legal professionals of the individualised justice which reports seem to them to display.

Decision support for sentencing in a common law jurisdiction

The inherent variability of each new conviction and the volume of potentially useful data complicate the provision of relevant information to judges carrying out sentencing activities. This paper describes a prototype sentencing information system which allows a judge to retrieve previous examples of sentencing behaviour by interactive instantiation of detailed templates. The case-based advisory system uses a direct manipulation interface to facilitate user interaction, The direct manipulation interface was well received and judges found that they were rapidly able to construct meaningful queries and retrieve appropriate data despite having limited prior experience of computer use. We identify the importance of dynamic query systems in relation to further development of applications of this type.

The Failure of Recall to Prison: Early Release, Front-Door and Back-Door Sentencing and the Revolving Prison Door in Scotland

This article seeks to explain the reasons for the sharp rise in prison recall rates in Scotland. It argues that recall practices need to be understood not as a technical corner of the justice system, but as part of a wider analysis of the politics of sentencing and release policy. While there are sound reasons for a policy of ‘early release’ (incentivizing good behavior and enabling the resettlement of prisoners), in practice early release has increasingly been used as a tool to try to limit the growth in the custodial population. Unable to control prison numbers through the ‘front door’ (judicial sentencing and bail/remand), successive governments have increasingly relied on early release as a surreptitious way of, in effect, re-sentencing prisoners. We argue that this political strategy is ultimately self-defeating, not least in feeding public cynicism about the penal system and community supervision in particular. This article reviews the changing legislative, policy and practice landscape of the regulation of non-compliance and recall practice, and draws on the desistance literature to illustrate how offender-supervisor relationships can be undermined by recall policies which threaten the legitimacy of both the supervisory relationship and the conditions of supervision orders.

Connecting legal and social justice in the neo-liberal world? The construction, interpretation and use of pre-sentence reports

The legitimacy of state-imposed punishment depends on more than the making of lawful decisions. The sentencing process is legitimated also by looking outwards beyond narrow legal criteria so as to accommodate individualized substantive justice, including some recognition of social disadvantage. Pre-sentence reports1 are the main way in which sentencing brings together these legal and social conceptions of justice. In their advice and assistance to sentencers, reports enable penal decision making to accommodate ‘external’ context, while also rapidly processing a high volume of cases. Indeed, the instrumentally ‘efficient’ disposal of cases may well hinge upon the expression of individualization and humanity

Introduction: Why study judicial decision support systems?

The aim of this Introduction is to draw together some key themes as to why the study of JDSS can be valuable and in so doing to place these themes in a wider frame of law, research and justice.