Sentencing Councils and Commissions: Exploring the Role of Advisory Bodies in the Contemporary Punishment Environment

Over the past thirty years, sentencing councils and commissions have been created in numerous locations around the world. While the earliest examples of such bodies developed sporadically in just a few jurisdictions in the United States, the past decade has seen an expansion in the number of councils and commissions, with a significant number of jurisdictions creating sentencing bodies to undertake a variety of functions. Although the specific functions and constitutions of these sentencing councils and commissions vary, they have generally become an important element of the contemporary punishment environment. As the proliferation of sentencing bodies continues, it is useful to consider the role they play in their various incarnations.

This article compares and contrasts the functions of a number of representative sentencing councils and commissions to examine how such bodies supplement the work of courts and government departments. The first section discusses the broader criminal justice environment in which sentencing councils have developed. Specific examples of sentencing councils and commissions are examined in the second section in order to illustrate how they may contribute to criminal justice practice and policy. The third section presents some optimal characteristics that successful sentencing councils and commissions possess, while the final section concludes that no single model can suit all jurisdictions; a successful commission will balance the needs of the community and criminal justice system it serves.

Until the 1960s, there were only two acknowledged parties in criminal justice processes: the offender and the state. This focus on offenders may be attributed to the broader theoretical framework within which criminal justice was practiced at the time: a strong rehabilitative ideal held sway, with social and welfare programs aimed at reducing inequality and the social disadvantage long associated with offending behavior.

However, in the 1960s the victims’ movement gained momentum. Victims came to be seen as an integral part of the criminal justice process, acting as a third party to the process alongside the offender and the state. Courts and governments established support services for victims of crime and funding programs, such as counseling services, and began providing financial compensation. The victims’ movement strengthened and became more organized into the 1970s as part of a general shift in the political and social landscape, giving voice to those who previously had not been heard. Formal mechanisms were established for incorporating the views of victims of crime into the criminal justice process, such as the tendering of victim impact statements in court and the placement of victims’ representatives on parole boards and other relevant criminal justice agencies. During this time, the criminal justice system in many Western countries was reshaped and refocused. Ultimately, the victim moved from third-party outsider to the center stage of the criminal justice process. Under the rubric of restorative justice, a raft of victim-oriented responses to crime were developed, including such approaches as family group conferences, sentencing circles, and victim/offender mediation schemes (Freiberg, 2003).

Following the formal incorporation of the victim into criminal justice processes, a “fourth pillar of justice” (Freiberg, 2003)—the public—became an integral part of the criminal justice environment. The voice of the public has come to play an important role not only in criminal justice practice but in the development of sentencing policy as well. Pratt (2002, p. 181) refers to the growing acknowledgement of public opinion, and the powerful symbiosis between the public and politicians, as a “new axis of penal power.”

As part of the erection of this fourth pillar of justice, the past forty years has seen a dramatic rise in the use of public opinion polls in all aspects of criminal justice, both by the media and by politicians of all persuasions. Polling results are used to show that the public fears crime, believes that sentences are too lenient, and supports ever harsher sentencing for ever broader groups of offenders, despite the fact that a large body of research from various countries has shown that more sophisticated methodologies for measuring public opinion (such as the use of vignettes or deliberative polls) evince far less punitive and more nuanced public judgment (see, e.g., Doob and Roberts, 1983, on their seminal Canadian study; Hough and Roberts, 1999, on findings from the United Kingdom; Diamond and Stalans, 1989, on findings from the United States; Lovegrove, 2007, on findings from Australia; and Gelb, 2006, 2008, for an overview of the research). Green (2006) suggests that this reflects the difference between abstract, top-of-the-head public “opinion” and considered, informed public “judgment.” Despite the difference between public opinion and public judgment, politicians have cited the public’s increasing concern with crime and dissatisfaction with sentencing as justification for their tough-on-crime political rhetoric since the late 1980s (Casey and Mohr, 2005), reflecting a significant element of penal populism. The term populist punitiveness was born to describe “the notion of politicians tapping into, and using for their own purposes, what they believe to be the public’s generally punitive stance” (Bottoms, 1995, p. 40). By tapping into public fears and founding criminal justice policy on public polling results, the tough-on-crime policies that proliferated during the 1980s and 1990s reflected just such an element of penal populism: allowing the electoral advantage of a policy to take precedence over its penal effectiveness in reducing crime or promoting justice (Roberts et al., 2003, p. 5).

Even before the rise of the public as the fourth pillar of justice, it had traditionally been involved in the criminal justice system via the institution of the jury. For example, in the United States the election of key decision-makers in the criminal justice system—including judges and prosecutors—has long provided a role for the public in sentencing practice via the political process. But in recent decades the increasing influence of the media has changed the nature of public participation. In criminal justice debate—in the United States and around the world—the views of the public are, more than ever, formed through the lens of the media, resulting in a less informed (and more concerned) community (Gelb, 2008). Within this environment, the “sentencing council” has developed in some countries to provide a more considered voice to the development of sentencing policy and practice.

As part of the increasing emphasis on the voice of the public in sentencing practice and policy, the first sentencing councils and commissions arose with the general aim of creating a sentencing system that could address both the inconsistencies and the complexities of sentencing. At the same time, public demands for harsher and more consistent sentencing could also be better reflected via the guidance provided by such bodies.

Following enabling legislation in 1978, the Minnesota Sentencing Guidelines Commission introduced its first guidelines on May 1, 1980 (Frase, 2005a)—the first American state to implement a system of sentencing guidelines. The penal environment in the United States was ripe for such guidance; an entirely indeterminate sentencing system had led to significant inconsistency and uncertainty in actual sentence lengths, with parole boards releasing prisoners only once it was decided that they had been sufficiently rehabilitated. Gross (and often unwarranted) disparity in sentencing practice was thus rife.

As a way of regulating the perceived unfettered judicial discretion in sentencing, a number of prescriptive regimes were mooted, including such policies as “mandatory minimum terms, narrowed ranges in legislatively prescribed sentences, and the elimination of the parole releasing authority” (Frankel and Orland, 1984–1985, p. 225). Within this climate, federal judge Marvin Frankel proposed a compromise: “the creation eventually of a detailed chart or calculus to be used… by the sentencing judge in weighing the many elements that go into the sentence” (Frankel, 1973, p. 113). The genesis of the idea was “an aversion to placing arbitrary power in the hands of any officials, including judges” (Frankel, 1993, p. 655). Frankel envisioned a sentencing commission that would involve full-time, expert members with the power to make and revise sentencing guideline ranges as “the best available approach to making criminal penalties rational, fair, and suitably adaptable to changing circumstances” (Frankel and Orland, 1984–1985, p. 225).

At the same time that Frankel despaired about the lack of consistency, fairness, and rationality in sentencing, evidence was surfacing about the failure of the rehabilitative ideal in penal policy. By the late 1970s, “nothing works” (Martinson, 1974) had become the mantra of many scholars examining the effectiveness of community correctional programming. With crime rates increasing during the 1970s and 1980s and public tolerance waning, a more structured and harsher approach to sentencing seemed inevitable.

David Garland (2001 , pp. 8–20) has identified a number of currents of social change that have influenced penal policy during the past four decades—forces that may be seen as equally contributing to the rise of sentencing councils and commissions: the decreased importance of rehabilitation in penal institutions; the reappearance of retribution as a generalized policy goal; the growth of, and increased salience of, public fear of crime; the new and urgent emphasis on protecting the public; the public’s loss of confidence in criminal justice; and the development of a highly charged political discourse around crime and justice.

Pratt (2008) complements Garland’s ideas by adding a number of other factors that have brought about dramatic changes to the distribution of penal authority: the decline of deference to authority, including the courts; the decline in trust in politicians and existing political processes; the increasing role of the media in misrepresenting the true nature and level of crime and punishment; and the democratization of news media, such that the emotive experiences and opinions of ordinary people have become the framework through which crime and punishment are understood. In his analysis of how these forces have manifested in New Zealand, Pratt shows how the “emotive, ad hoc and volatile forces of populism can now override scientific expertise and the rationalities of penal bureaucracies” (p. 33). From these broader forces of social change, the first sentencing commissions developed.

This section considers some specific examples of sentencing councils and commissions in order to illustrate how they may contribute to criminal justice practice and policy. While this analysis is far from exhaustive (as every council and commission has its unique aspects, making it unlike any other in every single facet of its form and function), the discussion presents an overview of the key types of sentencing bodies that have developed around the globe in the past few decades. The overview is organized geographically and examines sentencing bodies from different parts of the world.

The United States has the longest history of sentencing commissions, as well as the broadest coverage across its various jurisdictions: while some commissions were developed and subsequently disbanded, as of June 2014 there were twenty-two state commissions and councils listed on the website of the National Association of Sentencing Commissions (2014), in addition to the federal United States Sentencing Commission.

The original intention of many of the sentencing commissions in the United States was to address concerns about racial disparity in sentencing outcomes. Although the question of racial discrimination in sentencing “continues to evoke controversy and spark debate” (Spohn, 2000, p. 427), reviews of methodologically sophisticated studies conclude that race does play an important role in sentencing decisions, with minority offenders (in particular, African American young men) being treated more harshly by the criminal justice system than their equally culpable white counterparts. Indeed, racial disparity in criminal justice treatment and outcomes has been the subject of significant criminological research, with unwarranted disparities shown to exist in all stages of the criminal justice process: from policing practices to bail decisions, from court sentencing decisions to the use of solitary confinement in prisons, from reentry practices to responses to parole violations.

The major reforms to sentencing seen in the United States since the late 1970s—determinate sentencing, sentencing guidelines, mandatory minimum penalties, and variations on three-strikes laws—were, in large part, designed to address unwarranted racial disparity. For those who were politically liberal, constraints on judicial discretion held the potential to reduce unfair disparity in sentences that resulted in minorities being more likely to be sentenced to imprisonment and to a longer term. For political conservatives, on the other hand, constraints on judicial discretion would result in harsher penalties that would ultimately deter offending. For both political groups, a major aim of constraining judicial discretion was thus to reduce racial disparity and discrimination in sentencing (Spohn, 2000). The first of the American sentencing commissions was thus developed with the broad aim of reducing racial discrimination.

Sentencing commissions in the United States have adopted a model that controls judicial discretion through the primary tool of sentencing guidelines. Guidelines act to constrain judicial discretion, with the judge determining the appropriate sentence using legally relevant factors only: judges are precluded from considering an offender’s individual circumstances or characteristics in determining a sentence.

Sentencing guidelines in the United States typically take the form of a two-dimensional grid. The main dimension is the seriousness of the crime, such that the sentence is directly related to both offense seriousness and the offender’s level of culpability. The other dimension is the person’s criminal history: the more prior convictions, the more severe the sentence. Using these two axes, each offender is classified into a specific cell on the grid that identifies the acceptable range of sentence to be imposed (typically the acceptable duration of the prison term). Although there is some variation across sentencing commissions in the range of sentences allowed within each cell, this general approach to grid sentencing is consistent.

By constraining judicial discretion and reducing unwarranted disparity, the promulgation of sentencing guidelines may be seen as a way to improve public confidence in the courts. Surveys have shown that public confidence in the courts is at a critically low level (Roberts and Hough, 2005), primarily due to perceptions of lenient sentencing, leading some scholars to suggest that there is a crisis of confidence in the courts (Mattinson and Mirrlees-Black, 2000). To illustrate the kinds of commissions that have evolved in the United States, I consider two examples: the successful Minnesota Sentencing Guidelines Commission and the heavily criticized United States Sentencing Commission.

The first sentencing body explicitly mandated to produce guidelines was the Minnesota Sentencing Guidelines Commission. Originally established as a way of reducing sentencing disparity, the Minnesota guidelines promote uniform and proportional sentences, explicitly stating that sentences must be neutral with regard to gender, race, and socioeconomic status (Spohn, 2000). The guidelines are said to “embody the goals of the criminal justice system as determined by the citizens of the state through their elected representatives” (Minnesota Sentencing Guidelines Commission, 2014). The guidelines apply to all felony offenses except the most serious that are punishable with life in prison. For less serious crimes there are no guidelines, with judges retaining full sentencing discretion (Frase, 2008).

In its enabling legislation, the Commission was directed to formulate, implement, and monitor its guidelines. In formulating the guidelines, the Commission was instructed to consider both current sentencing practices and correctional resources in terms of the impact that any guidelines would likely have on state and local correctional facilities (Frase, 2008). The direction to consider current sentencing practices and to monitor the impact of the guidelines suggested implicitly that the Minnesota Sentencing Guidelines Commission would need to undertake a research and analysis role as part of its statutory functions.

Using the two-dimensional grid (see Figure 1), the guidelines make recommendations for sentences based on typical circumstances. As the guidelines are presumptive, a case that involves unique circumstances—either of the offender or of the offense—may justify a departure from the recommended sentence on the grid. When such a departure is made, the judge must state the reasons for the departure, and the decision may be appealed by either the prosecution or the defense. In this way, the presumptive nature of the guidelines is nonetheless enforceable, with the strength of the appellate process underlying the recommendations.

The statutory provisions also establish the Commission’s membership. According to legislation (Minn. Stat. § 244.09 subd. 2), its eleven members must include judicial officers, others who work in the criminal justice system, and three members from the general public, one of whom must be the victim of a felony crime. By involving members of the public (including a victim), the Minnesota Commission explicitly acknowledges the important role of the public in the development of sentencing policy and practice.

The Minnesota Sentencing Guidelines Commission is generally recognized to be one of the most successful sentencing commissions in the United States, acting as a model for other state guidelines reforms (Frase, 2005a). Like most state commissions, its membership is broad and representative, and it considers the resource implications of its proposed guidelines, with a particular focus on the predicted effect on prison populations. Perhaps most important, it is a permanent body that has adopted an approach of allowing some degree of flexibility to its judges, making the guidelines presumptive while at the same time ensuring accountability of decision-making by allowing appeals of the sentence imposed. This combination of sentencing flexibility within a general approach of judicial constraint—and the ability to update and amend the guidelines when necessary—has meant that the guidelines, and indeed the Commission itself, “are held in high regard by most commentators” (Terblanche, 2003, p. 867).

The Minnesota Commission has achieved most of its aims by reducing disparity without overburdening the correctional system. In fact, while reducing disparity, Minnesota has also “successfully avoided major prison overcrowding problems for almost two decades—a period in which most non-guidelines states experienced both overcrowding and court intervention” (Frase, 1999, p. 75). Frase also suggests that the Minnesota guidelines system has achieved “greater uniformity, proportionality, and Truth-in-Sentencing, while retaining enough flexibility to take account of unusual offender characteristics and rehabilitation potential, local values and resource limits, and emerging punishment theories such as restorative justice” (p. 76).

While the Minnesota Sentencing Guidelines Commission is broadly representative of many of the state commissions in the United States, variations exist among them. Guidelines vary in the decisions that they regulate, with some abolishing discretion on parole release, some regulating the use of intermediate sanctions, as well as imprisonment, and some regulating less serious misdemeanors in addition to felonies. Some states use a more narrative guideline or a point system guideline rather than the two-dimensional grid, and grids themselves vary in terms of the number of cells and breadth of sentence ranges within the cells. In some states, explicit aggravating and mitigating ranges are included in the guideline grid, and states vary in the extent of allowable departure (Frase, 2005b, pp. 1199–1206). Despite such differences in the specific nature of their guideline systems, these commissions have typically been more successful than the federal commission, which has been called “easily the most disliked sentencing reform initiative in the United States in this century” (Tonry, 1993a, p. 138).

The United States Sentencing Commission operates in the federal jurisdiction. In contrast to the Minnesota Commission, which was successful and well accepted from the start, the federal Commission has had a controversial and difficult history.

As with other commissions, the United States Sentencing Commission was established in an explicit effort to remove unwarranted racial disparity in sentencing outcomes, by focusing instead on relevant objective measures common to all offenders: crime seriousness and criminal history. It was originally conceived as a body that would provide guidance to sentencers in a way that would reduce unwarranted disparity but also restrict the courts from sentencing too severely.

In addition to its remit to research, produce, and monitor sentencing guidelines for the federal jurisdiction, the Commission must also evaluate the effects of its guidelines on the criminal justice system and recommend any amendments it considers necessary. Taking its role further than that of the Minnesota Sentencing Guidelines Commission, the federal Commission may also recommend to Congress changes of substantive criminal law and sentencing procedures as it sees fit. The Commission must also undertake a program of research and development on sentencing issues (United States Sentencing Commission, 2014).

As an independent agency that sits within the judicial branch of government, the primary purposes of the United States Sentencing Commission are (a) to establish sentencing policies and practices for the federal courts, including guidelines regarding the appropriate form and severity of punishment for offenders convicted of federal crimes; (b) to advise and assist Congress and the executive branch in the development of effective and efficient crime policy; and (c) to collect, analyze, research, and distribute a broad array of information on federal crime and sentencing issues, serving as an information resource for Congress, the executive branch, the courts, criminal justice practitioners, the academic community, and the public (United States Sentencing Commission, 2014).

The United States Sentencing Commission has faced challenges to its legitimacy since its inception. In 1989 the US Supreme Court rejected a challenge to its constitutionality on the basis of improper legislative delegation and violation of the separation of powers (Mistretta v. United States, 488 US 361 [1989]), but by 2005 another decision (United States v. Booker, 543 US 220 [2005]) found that the mandatory nature of the guidelines (although not the Commission itself) was unconstitutional, holding that courts, while not bound to apply the guidelines, must take them into account when sentencing (United States Sentencing Commission, 2014).

The United States Sentencing Commission was designed to be insulated from politics: “It would be able to do what Congress had been unable to do, namely resist public pressure to punish disproportionately whatever the ‘crime du jour’ happened to be” (Gertner, 2008, p. 103). But the reality was entirely different: it became captive to the Congress and the US Department of Justice. This “loss of institutional balance in federal sentencing” (Bowman, 2005, p. 1333) was seen after 2003, when the Department of Justice complained to Congress about an overuse of the power to depart from guidelines and Congress directed the Commission to amend the guidelines to reduce the rate of departures (Bowman, 2005, p. 1336). In addition, prosecutorial power increased significantly: in this fact-driven guidelines system, where establishment of certain aggravating facts would affect the sentence to which the defendant was subject, plea agreements could be made whereby prosecutors would agree to withhold evidence from the court. As Bowman (2005, p. 1337) notes, “If every offense characteristic and criminal history point were subject to negotiation between the parties, prosecutors could use the combination of their charging authority and their plea-bargaining power to dictate the precise sentencing range of every defendant who did not go to trial.”

The original members of the United States Sentencing Commission did not have specialist criminal justice experience, so it did not achieve the legitimacy and influence that it might have. The guidelines were not subject to review and became overly complex and rigid, with a focus on retribution rather than any other purposes of sentencing: they “undermined the very art of judging” to become “a bizarre pseudo-mathematical science” (Weisberg, 2007, p. 187). These factors all contributed to a lack of legitimacy, resulting in Congress being free to intervene aggressively in its work, ordering that sentences be increased in a “one-way upward ratchet” (Bowman, 2005, p. 1315) and rejecting the Commission’s reports. Thus, far from being insulated from politics, the United States Sentencing Commission was “constantly buffeted by it,” simply mirroring political rhetoric (Gertner, 2008, p. 104). Ultimately, as Gertner suggests, “for other jurisdictions seeking to implement sentencing reform through a sentencing commission, it is a cautionary tale” (p. 103).

Although the American model of sentencing guidelines has not gained a foothold outside of the United States, other jurisdictions have developed guideline schemes of a somewhat different nature. Of those, England and Wales has moved furthest in this direction: it is the only jurisdiction outside the United States to have developed a systematic approach to guiding the courts with both generic guidelines and specific ones for most offense types.

Prior to 1998, judges in England enjoyed wide discretion, restricted only by the appellate review process. However, the creation of the Sentencing Advisory Panel in 1998 marked a new era of structured sentencing. The Sentencing Advisory Panel advised the Court of Appeal, which then considered the Panel’s advice when formulating its formal guideline judgments, firmly keeping control of the development of guidelines in the hands of the senior judiciary. While the Court of Appeal was not obliged to accept the advice, it typically did.

By 2001 the Halliday Report recommended that new structures be implemented in order to move toward a comprehensive set of sentencing guidelines. After the passage of the Criminal Justice Act in 2003, the Sentencing Guidelines Council was born. It was chaired by the Lord Chief Justice and included eight members of the judiciary and four others: the director of public prosecutions, a senior police officer, a defense solicitor, and a representative of victims groups. The chair of the Sentencing Advisory Panel attended as an observer. Instead of advising the Court of Appeal directly, the Panel advised the Council, which then was tasked with conducting extensive stakeholder (including public) consultation in its development of definitive guidelines. The courts were required to regard these guidelines in imposing sentences (Roberts, 2013). The public consultation component thus provided the public with a formal role in the development of sentencing practice.

Since 2009 the sentencing landscape in England and Wales has changed yet again. The Sentencing Commission Working Group was convened to examine the bifurcated nature of the existing sentencing guidelines apparatus (with both the Panel and the Council) and to recommend a more effective and efficient way to develop and implement guidelines (Roberts, 2013).

The current sentencing guideline system commenced in April 2010 and is based on the work of the Sentencing Council for England and Wales, which was established after the passage of the Coroners and Justice Act in 2009 and replaced both the Sentencing Advisory Panel and the Sentencing Guidelines Council. It was designed to promote greater transparency and consistency in sentencing while still maintaining the independence of the judiciary (although it should be noted that the consistency to which the Council strives is a consistency of approach, rather than a consistency of outcome; Roberts, 2013, p. 21). It includes fourteen members: eight are members of the judiciary and six are nonjudicial members with lengthy experience in the criminal justice system.

The Sentencing Council for England and Wales is an independent, nondepartmental public body of the Ministry of Justice, and its primary role is to issue guidelines on sentencing that the courts must follow unless it is in the interests of justice not to do so (Sentencing Council for England and Wales, 2014). Thus the requirement for the courts to adhere to the guidelines has become more robust, with some degree of judicial discretion maintained. Prior to 2009, courts were required to “have regard to” the guidelines, but since the Coroners and Justice Act 2009, courts “must follow” them unless it is unjust to do so (Roberts, 2011, p. 997). The provision for sentences to be imposed outside of the guidelines is critical in that it retains a flexibility that allows judges and magistrates to tailor the sentence appropriately.

The Sentencing Council has a broad range of functions, including developing sentencing guidelines and monitoring their use and their effects; assessing the impact of guidelines on sentencing practice, in particular consistency of sentencing; considering the impact of policy and legislative proposals relating to sentencing when requested by the government; and promoting public understanding of, and increasing public confidence in, sentencing. This is a far broader remit than previously seen in the English bodies and indeed is broader than the functions of many other sentencing councils and commissions around the world.

In contrast to the sentencing commissions in the United States, the Sentencing Council for England and Wales has a clearly defined and important role in enhancing public confidence. In addition to publishing information to educate and inform the public, the Council regularly consults with the public, with government, and with criminal justice professionals on its draft guidelines. Feedback from these consultations is then incorporated into the guidelines before they are issued to judges and magistrates. In addition, the Council undertakes its own research with both members of the general public and victims of crime to ensure that its guidelines are able to reflect the harms caused by specific types of offending (Sentencing Council for England and Wales, 2014). In this way, there is “a direct link between the community and the guidelines” (Roberts, 2012, p. 1073).

The guidelines themselves are substantially different from the ones found in the United States, having been created without the grid that lies at the heart of the American guidelines. Instead, offenses are stratified into three levels of offense seriousness that reflect gradations in harm and culpability: category 1 is used for offenses that involve both greater harm and enhanced culpability, category 2 for those involving either greater harm or enhanced culpability, and category 3 for those that involve both lesser harm and reduced culpability. The court must match the case at hand to one of the three categories, which then has its own range of sentences and starting-point sentence (Roberts, 2013). From that point, aggravating and mitigating factors allow the sentence to be tailored to the specifics of the case; the overall sentence must still meet the principles of proportionality and totality (Ashworth, 2014).

Some initial evidence has shown that the English guidelines system has promoted greater consistency in sentencing. Using the Crown Court Sentencing Survey, Pina-Sánchez and Linacre (2014) compared sentences for assault before and after the release of the 2011 assault guideline. They found that unexplained variability in sentencing for assault decreased steadily during 2011, with a statistically significant reduction in the variance of sentence lengths across similar assault offenses. However, the authors were “unable to prove a definitive causal link between the new assaults guideline and the observed improvements in consistency” (p. 14). This finding builds on their earlier work that showed that the majority of legal factors were treated consistently at sentencing for assault across a number of English courts (Pina-Sánchez and Linacre, 2013). Indeed, the authors concluded then that “guideline factors are being taken into account in the way intended by sentencing guidelines” (p. 1130).

Some evidence also exists of high rates of judicial compliance with the English guidelines, suggesting that they have successfully found a balance between consistency and discretion—between providing sufficient guidance to judicial officers and maintaining enough flexibility to ensure that individual sentences are just. In fact, the English system might be seen as protecting sentencers from political attack to some extent in that individual sentences may be seen as arising from the guidelines rather than from the idiosyncratic whims of an individual judge. As the guidelines are formulated via an extensive consultation process with both criminal justice and community stakeholders, their role in guiding individual sentences may act as a “shield for unpopular sentences” (Ashworth, 2014, p. 20).

Sentencing councils in Australia have taken quite a distinct path from the ones followed by similar bodies in other countries. While those in the United States arose in the wake of perceptions of failed indeterminate sentencing, this was not the case in Australia. Instead, one of the key objectives of the Australian bodies was to provide an avenue for incorporating the public into the development of sentencing policy. As a result, the Australian version of the sentencing council has found itself with a broader remit than those in other jurisdictions but a less direct role in guiding judicial decisions. This section provides an overview of the Australian approach to sentencing councils, as they have been modeled closely on each other and may be considered a single variety of sentencing body.

The first sentencing advisory council to be established in Australia was the New South Wales Sentencing Council in 2003, followed closely by the Victorian Sentencing Advisory Council in 2004 and similar bodies in Tasmania and Queensland in 2010 (although the latter was subsequently disbanded in 2012) and in South Australia in 2012. All of these bodies were designed to conduct research and provide expert advice to the government on sentencing matters. They also all have an educative function whereby they are tasked with informing and educating the public on sentencing. In addition, they were intended to provide a mechanism by which to incorporate community views into sentencing law and practice, via both their diverse membership and their extensive community engagement and consultation activities. While many of the jurisdictions already had law reform commissions that performed similar advisory roles (albeit on a broader range of issues), the various sentencing councils were seen as discrete, expert bodies with the more targeted remit of examining sentencing issues, educating the public, and gauging public opinion. Arguably, their community engagement role may be seen as a key point of difference between existing law reform commissions and the new generation of sentencing councils.

All of the councils field a broad membership. While there are some differences between the councils in their specific membership (e.g., New South Wales has a retired judge at its helm, while Victoria has no judicial officers at all), all include experts in sentencing and criminal justice matters, as well as members of the general community, including those with experience in matters associated with victims of crime. This broad membership has been seen as a key strength in the Australian councils, bringing a variety of perspectives to bear on any areas under review. Indeed, part of the reasoning behind the Victorian Sentencing Advisory Council’s establishment was to address the need for “an on-going mechanism of feedback and review of sentencing that could replace episodic and reactive reviews, usually born out of a penal crisis or moral panic” (Freiberg, 2008, p. 151). By providing an opportunity for government to refer thorny issues to an expert body, these bodies are able to act as a buffer between media calls for harsher sentencing and the courts, allowing a considered policy response by government rather than a knee-jerk reaction to the latest moral panic. With their broad community and victim memberships, the Australian councils also provide a way for victims’ voices to be heard by sentencers in a thoughtful and reflective fashion, thereby distancing daily sentencing decisions from moral panics.

Thus unlike sentencing bodies in other parts of the world, which focus on developing and implementing sentencing guidelines, Australian sentencing advisory councils play a unique engagement role with their communities, in addition to providing policy advice and disseminating research. This engagement role has lent the Australian councils substantial legitimacy, as their research and advice is firmly founded within the communities they serve.

New Zealand’s efforts at creating a sentencing council have been rather less successful than other jurisdictions’. In February 2006, the New Zealand Law Commission was asked by the government to consider whether improvements could be made to New Zealand’s sentencing and parole structures. Part of this request was specifically to consider whether New Zealand should establish its own sentencing council that would provide guidance to judges. The work arose during a time of an increasingly vocal tough-on-crime lobby and frequent complaints about the adequacy of sentencing, despite an existing system of appellate review of sentences. However, the request also arose at a time when the New Zealand prison population was expanding rapidly, with the government looking for a new approach rather than simply incarcerating more and more people (Young and King, 2010).

Within this context, the New Zealand Law Commission adopted an approach similar to that in England and Wales by recommending the establishment of a sentencing council to draft sentencing guidelines in the hopes of restricting disproportionate and inconsistent sentencing while relieving some of the political pressures on judges to pass ever-longer sentences (Pratt, 2008). The objective of the council would therefore not be to implement harsher sentencing practices but to provide a measure of consistency to sentencing via guidelines that would also consider the impact on the prison population.

The New Zealand government accepted the recommendations in their entirety. The Sentencing Council Act of 2007 provided for the establishment of a sentencing council that would draft both sentencing and parole guidelines and provide information and advice on sentencing and parole issues. The purposes of the council were to produce guidelines to promote consistency and transparency in sentencing and parole policy and practice, based on a broad range of experience and expertise, and to inform and educate the public, thus promoting public confidence in the criminal justice system (Sentencing Council Act, 2007, Section 8). Membership would include both judicial and nonjudicial members, once again providing an institutionalized role for the voice of the public in the determination of sentencing policy.

Closely following the model for sentencing councils and commissions developed in England and Wales, the Sentencing Council Act of 2007 required that draft guidelines be produced for public consultation. In addition, any guideline had to be accompanied by a forecast of its impact on the prison population, thus providing an evidence base on which to have informed public and political debate about both the benefits and the costs of any proposed approaches (Young and King, 2010).

As in England and Wales, the guidelines were intended to be presumptively binding, where the court would sentence consistent with the guidelines unless the sentence would be contrary to the interests of justice. Once again, some degree of flexibility would be retained, with judges able to depart from the guidelines where justice demanded (although it was expected that departures would not occur in more than about one-fifth of all cases; Young and King, 2010).

In an unusual approach, however, the government asked that the Law Commission of New Zealand take on the task of developing a suite of draft guidelines for a range of offenses, to be finalized once the sentencing council was established. About sixty guidelines were drafted, covering both generic principles (such as discounts for guilty pleas) and specific offenses.

Although the Sentencing Council Act of 2007 came into force and a whole suite of guidelines was developed, a new government elected in 2008 indicated that it did not want to proceed with sentencing guidelines or indeed with a sentencing council. It is unclear why this occurred, but the plan had been criticized for unduly jeopardizing judicial independence and fettering judicial discretion. Nonetheless, the act has not been repealed; a New Zealand sentencing council thus remains a possibility.

In both the United States and England and Wales (as well as New Zealand, were the commission to have been established), the primary purpose of the various sentencing commissions and councils revolves around providing guidance to the courts on appropriate sentences. In this way, these bodies supplement the work of courts by establishing—based on the analysis of data on sentencing practices in the United States and on both sentencing practices and consultations in England and Wales—limits within which the courts are expected to sentence. While they have manifested in somewhat different ways in these two parts of the world, there are several characteristics that are common to the more successful guideline systems.

There tends to be broad agreement that sentencing—and therefore the sentencing guidelines—should reflect a variety of sentencing theories, reform goals, and systemic needs. While guidelines are explicitly designed to enhance proportionality and uniformity, they also address crime control purposes and take into account the resource implications of the system as a whole. There also seems to be a general agreement that sentencing guidelines “need to be developed, implemented, monitored, and periodically revised by a permanent, broadly based, independent sentencing commission” (Frase, 2005b, p. 1206). One of the key aspects of the successful independent commission is its research component: collecting and analyzing sentencing data is the only way to create robust guidelines and then monitor and revise implementation as needed.

Sentencing commissions and councils that create and promulgate sentencing guidelines supplement the work of the courts by undertaking the sort of research and analysis for which the courts would have neither the time nor the resources. In the process of developing guidelines, sentencing commissions are able to provide the courts with information on sentencing practices and also, in the case of some of the United States Commissions, the impact of various sentences on correctional resources.

There remain, however, a number of persistent challenges to the sentencing guidelines systems as they have developed in the United States. Frase (1999, p. 76) argues that even the best among the sentencing guidelines systems have failed to find an effective way to regulate prosecutorial discretion and plea bargaining, and there have been limited efforts to regulate and encourage the use of noncustodial sanctions. By shifting discretion from the judge to the prosecutor, substantial potential for disparity and unpredictability remains. In fact, “sentence bargains can nullify any system of guidelines” while “fact bargaining in systems based on conviction offenses… enables plea bargaining lawyers to pick the applicable guidelines range and thereby greatly limit the judge’s options” (Tonry, 1993b, p. 721).

In contrast, the English guidelines seem to strike a balance between providing guidance to sentencers and retaining judicial discretion to tailor a sentence to the circumstances of the case. By adopting a method to ensure consistency of approach rather than consistency of outcome, the English guidelines arguably avoid some of the challenges that are faced by guideline systems in the United States.

Another valuable characteristic for sentencing councils and commissions is strongly evident in the Australian sentencing advisory councils. With their remit to undertake their own research about sentencing, these councils supplement the work of the courts by providing detailed analyses of a variety of courts issues, such as statistics on sentencing practice, the effectiveness of sentencing, and a wide range of other topics that would be of interest to the courts.

Successful councils also clearly support the work of the government by providing advice on sentencing matters. Such advice allows governments to consider the input of a broad range of stakeholders but also to defuse calls for draconian reforms following high-profile cases, where knee-jerk reactions could threaten the development of thoughtful, evidence-based policy. Indeed, Tonry (1991, p. 307) noted that successful state sentencing commissions in the United States could “conserve state resources and buffer political pressures while achieving a reasonably consistent and accountable sentencing system.” Tonry’s observations, while directed specifically at sentencing commissions that produce guidelines, are also applicable more broadly. The key to a successful sentencing council or commission is in its relationships with the people it serves: with government, with the courts, and with its community.

As Gertner (2008, p. 105) notes, “a commission can arguably add value in one of three ways: (1) by its independence from the traditional political process; (2) by its specialized expertise; or (3) by its ability to mediate effectively between the political process and the public at large in a way that traditional political institutions cannot.” Indeed, the most successful councils and commissions are those that strive to achieve a balance in their approach: they provide guidance to sentencers yet retain room for flexibility; they consider external influences such as community perceptions or resources limitations; they reflect a variety of theories, goals, and systemic needs; and they conduct research to monitor and understand the impact of their work.

Sentencing councils and commissions are diverse; no two systems are exactly alike, and, as Frase (1999, p. 81) notes, “there is no single ‘model’ which can or even should be universally adopted,” Those that have succeeded are those that have achieved a balance among the diverse goals of the criminal justice systems in which they function and that reflect, at least to some extent, the local communities that they serve.