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Offender Agency in a State-Centred Sentencing Process: In Search of an Agentic Sentencing Model

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Abstract

Punishment is a grave intrusion into individual liberty, yet in most liberal criminal justice systems, including England and Wales, those punished are rarely directly engaged in determining their sentence. Consequently, the offender’s agency in respect of sentence—i.e. the offender’s capacity to play an active part in the sentencing process—is limited. Drawing on existing theories of punishment, the article argues that there may be justifications and scope for allowing offenders to exercise agency in a state-centred sentencing process, even though this scope is inevitably limited. It aims to develop a conceptual account of an ‘agentic’ sentencing system, arguing this should be based on the paradigm of a dialogue between the judge and offender. To preserve the state’s fundamental role in sentencing, constraints should be placed on the exercise of agency. The proposed model embodies a conception of sentencing as a decision-making process to be done with offenders, rather than to offenders. Nonetheless, while some objections can be rebutted, others demonstrate the gap between the theoretical ideal of respecting the offender’s agency at sentencing and how an agentic sentencing system might function in practice.

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Notes

  1. J Doak and L Taylor, ‘Hearing the Voices of Victims and Offenders: The Role of Emotions in Criminal Sentencing’ Northern Ireland Legal Quarterly 64 (1) (2013): 25–64, p. 35; A Kirby, J Jacobson and G Hunter, Effective Participation or Passive Acceptance: How Can Defendants Participate More Effectively in the Court Process? (Howard League for Penal Reform, What is Justice? Working Papers 9/2014, 2014).

  2. RA Duff, ‘Punishment, Retribution and Communication’ in A von Hirsch, A Ashworth and JV Roberts (eds), Principled Sentencing: Readings on Theory and Policy (Oxford: Hart, 3rd edn, 2009): 126–134, p. 133; N Lacey and H Pickard, ‘To Blame or to Forgive? Reconciling Punishment and Forgiveness in Criminal Justice’ Oxford Journal of Legal Studies 35 (4) (2015): 665–696, pp. 693–694.

  3. Criminal Justice Act 2003 (CJA 2003), ss 207(1), 207(3)(c), 209(2)(d), 215(2).

  4. Ibid, s 144; Sentencing Council, Reduction in Sentence for a Guilty Plea: Definitive Guideline (2017).

  5. See e.g. A Crawford and J Goodey (eds), Integrating a Victim Perspective within Criminal Justice: International Debates (Aldershot: Ashgate, 2000); A Sanders and others, ‘Victim Impact Statements: Don't work, Can't work’ Criminal Law Review [2001]: 447–458; I Edwards, ‘The Place of Victim Preferences in the Sentencing of "Their Offender"’ Criminal Law Review [2002]: 689–702; E Erez, ‘Integrating Restorative Justice Principles in Adversarial Proceedings through Victim Impact Statements’ in E Cape (ed), Reconcilable Rights: Analysing the Tension between Victims and Defendants (London: Legal Action Group, 2004): 81–96; J Chalmers, P Duff and F Leverick, ‘Victim Impact Statements: Can Work, Do Work (For Those who Bother to Make Them)’ Criminal Law Review [2007]: 360–379; JV Roberts, ‘Listening to the Crime Victim: Evaluating Victim Input at Sentencing and Parole’ Crime and Justice: A Review of Research 38 (2009): 347–412; A Bottoms and JV Roberts (eds), Hearing the Victim: Adversarial Justice, Crime Victims and the State (Cullompton: Willan, 2010); E Erez and JV Roberts, ‘Victim Participation in the Criminal Justice Process: Normative Dilemmas and Practical Responses’ in SG Shoham, P Knepper and M Kett (eds), International Handbook of Criminology (Boca Raton, FL: CRC Press, 2010): 599–618.

  6. See e.g. H Strang and J Braithwaite (eds), Restorative Justice: Philosophy to Practice (Aldershot and Dartmouth: Ashgate, 2000); L Walgrave (ed) Restorative Justice and the Law (Cullompton and Portland, Or.: Willan, 2002); A von Hirsch and others (eds), Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms? (Oxford: Hart, 2003); T Gavrielides, Restorative Justice Theory and Practice: Addressing the Discrepancy (Monsey, N.Y: Criminal Justice Press, 2007); C Cunneen and C Hoyle, Debating Restorative Justice (Oxford: Hart, 2010); J Shapland, G Robinson and A Sorsby, Restorative Justice in Practice: Evaluating what Works for Victims and Offenders (London and New York: Routledge, 2011).

  7. N Christie, ‘Conflicts as Property’ British Journal of Criminology 17 (1) (1977): 1–26.

  8. RA Duff, Punishment, Communication, and Community (Oxford: Oxford University Press, 2001), p. 131.

  9. K Beyens, S Snacken and D Van Zyl Smit, ‘Truth in (the Implementation of) Sentencing: Belgium and Elsewhere’ in T Daems, D Van Zyl Smit and S Snacken (eds), European Penology? (Oxford: Hart, 2013): 271–291, pp. 272–273.

  10. On the importance of actively involving offenders in their probation supervision see P Raynor, ‘Consent to Probation in England and Wales: How it was Abolished, and Why it Matters’ European Journal of Probation 6 (3) (2014): 296–307.

  11. M Emirbayer and A Mische, ‘What is Agency?’ American Journal of Sociology 103 (4) (1998): 962–1023, p. 964. See also S Lukes, Individualism (Oxford: Blackwell, 1973).

  12. D Garland, ‘"Governmentality" and the Problem of Crime: Foucault, Criminology, Sociology’ Theoretical Criminology 1 (2) (1997): 173–214, p. 196.

  13. N Lacey and H Pickard, ‘From the Consulting Room to the Court Room? Taking the Clinical Model of Responsibility Without Blame into the Legal Realm’ Oxford Journal of Legal Studies 33 (1) (2013): 1–29, pp. 17, 19. For a comprehensive account of criminal responsibility see e.g. V Tadros, Criminal Responsibility (Oxford: Oxford University Press, 2005); RA Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (Oxford: Hart, 2007); RA Duff, ‘Responsibility and Liability in Criminal Law’ in MH Kramer and others (eds), The Legacy of HLA Hart: Legal, Political, and Moral Philosophy (Oxford: Oxford University Press, 2008): 101–120; RA Duff, ‘Responsibility, Citizenship and Criminal Law’ in RA Duff and SP Green (eds), Philosophical Foundations of the Criminal Law (Oxford: Oxford University Press, 2013): 125–148; N Lacey, In Search of Criminal Responsibility: Ideas, Interests, and Institutions (Oxford: Oxford University Press, 2016).

  14. Lacey and Pickard, ‘From the Consulting Room’ (n 13), p. 2; Lacey and Pickard, ‘To Blame or to Forgive?’ (n 2), p. 666.

  15. Lacey (n 13), pp. 27–33.

  16. A Bottoms and others, ‘Towards Desistance: Theoretical Underpinnings for an Empirical Study’ Howard Journal of Criminal Justice 43 (4) (2004): 368–389, footnote 14; A Ashworth and J Horder, Principles of Criminal Law (Oxford: Oxford University Press, 7th edn, 2013), p. 24. Where defendants lack the requisite cognitive and/or volitional capacities to know what they are doing when they commit an offence and to have sufficient control over their actions, or if these capacities are diminished, they will be able to rely on complete or partial criminal defences, such as the defence of non-insane automatism, the insanity defence, or defence of infancy.

  17. See A Ashworth, ‘Desert’ in A von Hirsch, A Ashworth and JV Roberts (eds), Principled Sentencing: Readings on Theory and Policy (Oxford: Hart, 3rd edn, 2009): 102–109.

  18. JG Murphy, ‘Marxism and Retribution’ Philosophy and Public Affairs 2 (3) (1973): 217–243; A von Hirsch, Doing Justice: the Choice of Punishments (report of the Committee for the Study of Incarceration) (New York: Hill and Wang, 1976); A von Hirsch, Censure and Sanctions (Oxford: Clarendon Press, 1993), ch 2, specifically pp. 9–14; J Deigh, The Sources of Moral Agency: Essays in Moral Psychology and Freudian Theory (Cambridge: Cambridge University Press, 1996), p. 18; J Gardner, ‘Punishment—in Proportion and in Perspective’ in A Ashworth and M Wasik (eds), Fundamentals of Sentencing Theory: Essays in Honour of Andrew von Hirsh (Oxford: Clarendon Press, 1998), p. 35; RA Duff, ‘Punishment, Communication, and Community’ in M Matravers (ed), Punishment and Political Theory (Oxford: Hart, 1999): 48–68, p. 50; Duff, Punishment, Communication, and Community (n 8), pp. 27–30, 130; A von Hirsch and A Ashworth, Proportionate Sentencing: Exploring the Principles (Oxford: Oxford University Press, 2005), ch 2, specifically pp. 13, 17–19, 24–27; A Brudner, Punishment and Freedom: a Liberal Theory of Penal Justice (Oxford: Oxford University Press, 2009), ch 1; Duff, ‘Punishment, Retribution and Communication’ (n 2), p. 126.

  19. D O'Mahony and J Doak, Reimagining Restorative Justice: Agency and Accountability in the Criminal Process (Oxford: Hart, 2017), p. 70.

  20. R Assy, Injustice in Person: the Right to Self-Representation (Oxford: Oxford University Press, 2015), p. 36; A Owusu-Bempah, Defendant Participation in the Criminal Process (London: Routledge, 2015), p. 11. This power imbalance might be reversed, however, when the offender is a very wealthy individual or a multi-national corporation: see B Garrett, Too Big to Jail: How Prosecutors Compromise with Corporations (Cambridge, MA: The Belknap Press of Harvard, 2014).

  21. For a public law account of the criminal law see M Thorburn, ‘Criminal Law as Public Law’ in RA Duff and SP Green (eds), Philosophical Foundations of Criminal Law (Oxford: Oxford University Press, 2011): 21–43; M Thorburn, ‘Punishment and Public Authority’ in A du Bois-Pedain, M Ulväng and P Asp (eds), Criminal Law and the Authority of the State (Oxford: Hart, 2017): 7–32. See also e.g. A Harel, ‘Why Only the State may Inflict Criminal Sanctions: The Case against Privately Inflicted Sanctions’ Legal Theory 14 (2) (2008): 113–133; M Thorburn, ‘Constitutionalism and the Limits of the Criminal Law’ in RA Duff and others (eds), The Structures of the Criminal Law (Oxford: Oxford University Press, 2011); L Zedner, ‘What is Lost When Punishment is Privatised?’ in T Daems and T Vander Beken (eds), Privatising Punishment in Europe? (Routledge, 2019): 167–186.

  22. See e.g. B Hudson, ‘Victims and Offenders’ in A von Hirsch and others (eds), Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms? (Oxford: Hart, 2003): 177–194.

  23. A Ashworth, ‘Some Doubts about Restorative Justice’ Criminal Law Forum 4 (2) (1993): 277–304, p. 280.

  24. On the possibilities and limits of whether the two paradigms could be reconciled see e.g. L Zedner, ‘Reparation and Retribution: are they Reconcilable?’ Modern Law Review 57 (2) (1994): 228–250; M Cavadino and J Dignan, ‘Reparation, Retribution and Rights’ in A von Hirsch and A Ashworth (eds), Principled Sentencing: Readings on Theory and Policy (Oxford: Hart, 2nd edn, 1998); A von Hirsch, A Ashworth and C Shearing, ‘Specifying Aims and Limits for Restorative Justice: A ‘Making Amends' Model?’ in A von Hirsch and others (eds), Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms? (Oxford: Hart, 2003): 21–41.

  25. L Campbell, A Ashworth and M Redmayne, The Criminal Process (Oxford: Oxford University Press, 5th edn, 2019), p. 52.

  26. RA Duff, Trials and Punishment (Cambridge: Cambridge University Press, 1986); Duff, Punishment, Communication, and Community (n 8); RA Duff, ‘Penance, Punishment, and the Limits of Community’ Punishment and Society 5 (3) (2003): 295–312; Duff, ‘Punishment, Retribution and Communication’ (n 2).

  27. Lacey and Pickard, ‘From the Consulting Room’ (n 13); Lacey and Pickard, ‘To Blame or to Forgive?’ (n 2).

  28. Duff, ‘Responsibility, Citizenship and Criminal Law’ (n 13), pp. 125–126. See also RA Duff and SP Green, ‘Introduction: Searching for Foundations’ in RA Duff and SP Green (eds), Philosophical Foundations of the Criminal Law (Oxford: Oxford University Press, 2013): 1–18, pp. 7–10.

  29. Duff, Trials and Punishment (n 26); RA Duff, ‘Desert and Penance’ in A Ashworth and A von Hirsch (eds), Principled Sentencing: Readings on Theory and Policy (Oxford: Hart, 2nd edn, 1998): 161–167; RA Duff, ‘Law, Language and Community: Some Preconditions of Criminal Liability’ Oxford Journal of Legal Studies 18 (2) (1998): 189–206; RA Duff, ‘In Defence of One Type of Retributivism: A Reply to Bagaric and Amarasekara’ Melbourne University Law Review 24 (2) (2000): 411–426; Duff, Punishment, Communication, and Community (n 8); Duff, ‘Penance, Punishment, and the Limits of Community’ (n 26); RA Duff, ‘Punishment’ in H LaFollette (ed), The Oxford Handbook of Practical Ethics (Oxford: Oxford University Press, 2003): 331–357; Duff, ‘Punishment, Retribution and Communication’ (n 2).

  30. Duff, Punishment, Communication, and Community (n 8), p. 82. Matravers argues, however, that this aspect of Duff’s theory is not fully justified and consistent with the rest of his account: see M Matravers, Justice and Punishment: The Rationale of Coercion (Oxford: Oxford University Press, 2000), ch 3, specifically pp. 87–92; M Matravers, ‘Duff on Hard Treatment’ in R Cruft, MH Kramer and MR Reiff (eds), Crime, Punishment, and Responsibility: the Jurisprudence of Antony Duff (Oxford: Oxford University Press, 2011): 68–82.

  31. Duff, Punishment, Communication, and Community (n 8), pp. xix, 30, 106.

  32. Duff, ‘In Defence of One Type of Retributivism’ (n 29), p. 412; Duff, Punishment, Communication, and Community (n 8), pp. xix, 30, 106–109; RA Duff, ‘Probation, Punishment and Restorative Justice: Should Al Turism be Engaged in Punishment?’ Howard Journal of Criminal Justice 42 (2) (2003): 181–197, pp. 188–189; Duff, ‘Punishment, Retribution and Communication’ (n 2), p. 131.

  33. Duff, Punishment, Communication, and Community (n 8), p. 160.

  34. Ibid, p. 160.

  35. Ibid, pp. 79–80. See also RA Duff, ‘Alternatives to Punishment—or Alternative Punishments?’ in W Cragg (ed), Retributivism and Its Critics (Stuttgart: Franz Steiner Verlag, 1992): 43–68, pp. 51–52; RA Duff, ‘Penal Communications: Recent Work in the Philosophy of Punishment’ Crime and Justice 20 (1996): 1–97, pp. 32–33; Duff, ‘Punishment, Communication, and Community’ (n 18), p. 49.

  36. Duff, Punishment, Communication, and Community (n 8), p. 159.

  37. For a similar argument regarding the role of the offender’s remorse in a censure-based conception of punishment see H Maslen, Remorse, Penal Theory and Sentencing (Oxford: Hart, 2015), p. 102.

  38. Lacey and Pickard, ‘From the Consulting Room’ (n 13); Lacey and Pickard, ‘To Blame or to Forgive?’ (n 2).

  39. Lacey and Pickard, ‘From the Consulting Room’ (n 13), pp. 2–3, 20, 29.

  40. Ibid, pp. 3, 19; Lacey and Pickard, ‘To Blame or to Forgive?’ (n 2), p. 671. For further discussion of the concept of ‘affective blame’ see H Pickard, ‘Responsibility Without Blame: Empathy and the Effective Treatment of Personality Disorder’ Philosophy, Psychiatry and Psychology 18 (3) (2011): 209–224; H Pickard and L Ward, ‘Responsibility without Blame: Philosophical Reflections on Clinical Practice’ in KWM Fulford and others (eds), The Oxford Handbook of Philosophy and Psychiatry (Oxford: Oxford University Press, 2013): 1134–1150.

  41. Lacey and Pickard, ‘From the Consulting Room’ (n 13), pp. 9–10. On the strong association between punishment and blame that characterises the retributivist tradition of punishment see e.g. Murphy (n 18); von Hirsch, Doing Justice: the Choice of Punishments (report of the Committee for the Study of Incarceration) (n 18); von Hirsch, Censure and Sanctions (n 18), ch 2; Duff, Punishment, Communication, and Community (n 8), ch 3; von Hirsch, Ashworth and Shearing (n 24), pp. 25–26; von Hirsch and Ashworth (n 18), ch 2; Brudner (n 18), ch 1.

  42. Lacey and Pickard, ‘From the Consulting Room’ (n 13), p. 3; Lacey and Pickard, ‘To Blame or to Forgive?’ (n 2), p. 678.

  43. Lacey and Pickard, ‘To Blame or to Forgive?’ (n 2), p. 672.

  44. Ibid, pp. 668, 672, 683. Lacey and Pickard suggest that these ‘consequences’ imposed in response to offending will more often than not be negative (Lacey and Pickard, ‘From the Consulting Room’ (n 13), p. 3; Lacey and Pickard, ‘To Blame or to Forgive?’ (n 2), p. 669). Insofar as these predominantly negative consequences are imposed by courts rather than in a clinical context (Lacey and Pickard, ‘From the Consulting Room’ (n 13), pp. 13–14), there may be a risk that negative consequences may not be so different from hard treatment.

  45. Lacey and Pickard, ‘From the Consulting Room’ (n 13), pp. 5, 20.

  46. Ibid, p. 3.

  47. Lacey and Pickard, ‘To Blame or to Forgive?’ (n 2), p. 689.

  48. Ibid, p. 693.

  49. Lacey and Pickard, ‘From the Consulting Room’ (n 13), pp. 2–5, 11–20; Lacey and Pickard, ‘To Blame or to Forgive?’ (n 2), pp. 669–672.

  50. Lacey and Pickard, ‘To Blame or to Forgive?’ (n 2), pp. 693–694.

  51. R Canton, ‘Censure, Dialogue and Reconciliation’ in A du Bois-Pedain and A Bottoms (eds), Penal Censure: Engagements within and Beyond Desert Theory (Oxford: Hart, 2019): 253–275, p. 264.

  52. Duff, Punishment, Communication, and Community (n 8), pp. 79–80. See also Duff, ‘Alternatives to Punishment—or Alternative Punishments?’ (n 35), pp. 51–52; Duff, ‘Penal Communications’ (n 35), pp. 32–33; Duff, ‘Punishment, Communication, and Community’ (n 18), p. 49. More expressive accounts of punishment, which take a narrower view of the aim of censure and do not view punishment as a dialogue, have been defended by von Hirsch (von Hirsch, Censure and Sanctions (n 18); von Hirsch and Ashworth (n 18)) and Bennett (C Bennett, The Apology Ritual: a Philosophical Theory of Punishment (Cambridge: Cambridge University Press 2008); C Bennett, ‘Expressive Punishment and Political Authority’ Ohio State Journal of Criminal Law 8 (2) (2011): 285–318; C Bennett, ‘The Expressive Function of Blame’ in J Coates and N Tognazzini (eds), Blame: Its Nature and Norms (Oxford: Oxford University Press, 2013): 66–83; C Bennett, ‘Punishment as an Apology Ritual’ in C Flanders and Z Hoskins (eds), The New Philosophy of Criminal Law (Lanham, Maryland: Rowman & Littlefield, 2015): 213–230).

  53. Lacey and Pickard, ‘To Blame or to Forgive?’ (n 2), p. 693.

  54. Duff, Punishment, Communication, and Community (n 8), p. 160.

  55. Lacey and Pickard, ‘To Blame or to Forgive?’ (n 2), p. 693.

  56. In some continental jurisdictions, the defendant always has the ‘last word’: after all the evidence is assessed and the prosecution and defence lawyer have made their final arguments, the defendant is entitled to speak last at trial (G Sluiter and others (eds), International Criminal Procedure: Principles and Rules (Oxford: Oxford University Press, 2013), pp. 673–674. In the Netherlands: Article 311(4) Code of Criminal Procedure (Netherlands); F Pakes, Comparative Criminal Justice (London: Routledge, 4th edn, 2019), p. 126. In France: Article 346 Code of Criminal Procedure (France); RS Frase, ‘Comparative Criminal Justice as a Guide to American Law Reform: How Do the French Do It, How Can We Find Out, and Why Should We Care?’ California Law Review 78 (3) (1990): 539–683, p. 681. In Germany: Article 258(3) Code of Criminal Procedure (Germany)). While the proposed sentencing dialogue bears a resemblance to this established practice in continental jurisdictions, there are important differences. In contrast to US and Commonwealth jurisdictions, many continental jurisdictions do not bifurcate the phases in which issues of guilt and sentence are discussed (Frase (n 56), p. 680; W Pizzi, Trials without Truth: Why Our System of Criminal Trials Has Become an Expensive Failure and What We Need to Do to Rebuild It (New York and London: New York University Press, 1999), pp. 95–6, 99; T Weigend, ‘Sentencing and Punishment in Germany’ in M Tonry and RS Frase (eds), Sentencing and Sanctions in Western Countries (New York: Oxford University Press, 2001): 118–221, p. 188; K Beyens and V Scheirs, ‘Encounters of a Different Kind. Social Enquiry and Sentencing in Belgium’ Punishment and Society 12 (3) (2010): 309–328, p. 321). Consequently, in these jurisdictions, the defendant has the ‘last word’ at a stage when guilt has not yet been established. The absence of a bifurcated trial puts the defendant at a disadvantage as he is not allowed to wait until guilt has been established before deciding whether and how to present mitigating factors relevant to sentence (Frase (n 56), p. 681, footnote 730; J Rozie, ‘Tegenspraak in de Bestraffing’ Nullum Crimen 2 (2014): 91–117, p. 98). Anything the defendant says can influence the question of guilt or innocence, as well as the possible sentence. It is thus hard to imagine how any sentencing dialogue of the kind proposed here can take place when the offender has a vested interest in maintaining innocence at the stage when he is offered the opportunity to speak. The proposed sentencing dialogue would require a bifurcated trial, and for that reason alone it is to be distinguished from the defendant’s right to speak last in continental jurisdictions. Additionally, in contrast to the proposed sentencing dialogue, it is doubtful that the defendant’s right to have the ‘last word’ in continental jurisdictions is underpinned by a principled commitment to respect the offender’s agency regarding sentence.

  57. M King, ‘The Therapeutic Dimension of Judging: the Example of Sentencing’ Journal of Judicial Administration 16 (2) (2006): 92–105, p. 103.

  58. In a similar sense see ibid, p. 102.

  59. In the context of review hearings in mainstream courts adopting a therapeutic approach: ibid, p. 103.

  60. In drug courts: J Nolan, ‘Therapeutic Adjudication’ Society 39 (2) (2002): 29–38, p. 34.

  61. King (n 57), pp. 94–95.

  62. E Erez, ‘Who's Afraid of the Big Bad Victim? Victim Impact Statements as Victim Empowerment and Enhancement of Justice’ Criminal Law Review [1999]: 545–556; I Edwards, ‘An Ambiguous Participant: The Crime Victim and Criminal Justice Decision-Making’ British Journal of Criminology 44 (2004): 967–982, pp. 976, 978; P Cassell, ‘In Defence of Victim Impact Statements’ Ohio State Journal of Criminal Law 6 (2009): 611–648, pp. 619–621.

  63. See e.g. L Hyde, ‘Individualization in Criminal Punishment’ Iowa Law Review 31 (2) (1945): 200–204; BA Koons‐Witt, ‘Equal Justice versus Individualized Justice: Discretion and the Current State of Sentencing Guidelines’ Criminology & Public Policy 8 (2) (2009): 279–283; M Tonry, ‘Individualizing Punishments’ in A von Hirsch, A Ashworth and JV Roberts (eds), Principled Sentencing: Readings on Theory and Policy (Oxford: Hart, 3rd edn, 2009): 354–358; JV Roberts, J Pina-Sanchez and I Marder, ‘Individualisation at Sentencing: The Effect of Guidelines and "Preferred" Numbers’ Criminal Law Review 2 (2018): 123–136.

  64. For a similar argument in respect of mandatory information-provision by victims see Edwards, ‘An Ambiguous Participant’ (n 62), p. 976.

  65. C Hoyle, ‘Empowerment through Emotion: The Use and Abuse of Victim Impact Evidence’ in E Erez, M Kilchling and J Wemmers (eds), Therapeutic Jurisprudence and Victim Participation in Justice: International Perspectives (Durham, NC: Carolina Academic Press, 2011): 249–284, pp. 275–279.

  66. X v UK (1972) 40 CD 64; X v UK (1973) 45 CD 1 at [11]–[12]; X v UK (1975) 3 DR 10; Findlay v UK (1997) 24 EHRR 221 at [69]; Phillips v UK App no 41087/98 (ECtHR, 5 July 2001) at [39].

  67. Brandstetter v Austria (1993) 15 EHRR 378 at [66]; Belziuk v Poland (2000) 30 EHRR 614 at [37]; Fitt v UK (2000) 30 EHRR 480 at [44]; Jasper v UK (2000) 30 EHRR 441 at [51]; Rowe and Davis v UK App no 28901/95 (ECtHR, 16 February 2000) at [60]; IJL, GMR and AKP v UK (2001) 33 EHRR 11 at [112]; PG and JH v UK (2008) 46 EHRR 51 at [69].

  68. Brandstetter v Austria (n 67) at [66]–[67]; Lobo Machado v Portugal (1997) 23 EHRR 79 at [31]; Fitt v UK (n 67) at [44]; Jasper v UK (n 67) at [51]; Rowe and Davis v UK (n 67) at [60]. To accommodate both civil law jurisdictions with a predominantly inquisitorial system, and common law jurisdictions with a predominantly adversarial system, the ECtHR has said that there are various ways in which national law may secure that the right to an adversarial trial, and the requirements it encompasses, are met. Whatever method is chosen, national law ‘should ensure that the other party will be aware that observations have been filed and will get a real opportunity to comment thereon.’ (Brandstetter v Austria (n 67) at [67].) This way, the ECtHR requires that both civil law and common law member states adjust their criminal proceedings accordingly, while allowing scope for the states to keep their own pre-established norms and regulations (M Langer, ‘The Long Shadow of the Adversarial and Inquisitorial Categories’ in MD Dubber and T Hörnle (eds), The Oxford Handbook of Criminal Law (Oxford: Oxford University Press, 2014): 887–912, p. 901).

  69. N Lacey and H Pickard, ‘The Chimera of Proportionality: Institutionalising Limits on Punishment in Contemporary Social and Political Systems’ Modern Law Review 78 (2) (2015): 216–240.

  70. E Pincoffs, ‘Are Questions of Desert Decidable?’ in JB Cederblom and W Blizek (eds), Justice and Punishment (Cambridge, MA: Ballinger, 1977): 75–88.

  71. As developed by Morris, Frase, and Tonry: N Morris, The Future of Imprisonment (Chicago: University of Chicago Press, 1974); N Morris, ‘Towards Principled Sentencing’ Maryland Law Review 37 (1977): 267–285; N Morris, Madness and the Criminal Law (Chicago: University of Chicago Press, 1982); N Morris and M Tonry, Between Prison and Probation: Intermediate Punishments in a Rational Sentencing System (New York: Oxford University Press, 1990); M Tonry, ‘Proportionality, Parsimony, and Interchangeability of Punishments’ in RA Duff and others (eds), Penal Theory and Practice: Tradition and Innovation in Criminal Justice (Manchester: Manchester University Press in association with the Fulbright Commission, London, 1994): 59–84; RS Frase, ‘Sentencing Principles in Theory and Practice’ in M Tonry (ed), Crime and Justice: A Review of Research, vol 22 (Chicago: Chicago University Press, 1997): 364–433; RS Frase, ‘Limiting Retributivism’ in M Tonry (ed), The Future of Imprisonment (Chicago: University of Chicago Press, 2004): 83–120; RS Frase, ‘Limiting Retributivism and Other Hybrid Theories’ in RS Frase (ed), Just Sentencing: Principles and Procedures for a Workable System (New York and Oxford: Oxford University Press, 2013): 81–120.

  72. Duff places a similar constraint on his model of negotiated sentences: see Duff, Punishment, Communication, and Community (n 8), pp. 141–143.

  73. RS Frase, ‘Limiting Retributivism’ in A von Hirsch, A Ashworth and JV Roberts (eds), Principled Sentencing: Readings on Theory and Policy (Oxford: Hart, 3rd edn, 2009): 135–142.

  74. In a similar sense regarding the victim and offender’s role in the negotiating process in a ‘making amends model’: von Hirsch, Ashworth and Shearing (n 24), p. 39.

  75. In the same sense: Duff, Punishment, Communication, and Community (n 8), p. 160.

  76. Contra Christie (n 7).

  77. On the relevance of remorse as a contribution to the dialogue about the offence on a communicative account of punishment see Maslen (n 37), ch 5.

  78. Neutralization theory is primarily a framework for understanding deviant behaviour. Its central proposition is that the excuses and justifications offenders use to rationalise their offending behaviour might themselves explain (in part) why people (continue to) offend. See GM Sykes and D Matza, ‘Techniques of Neutralization: A Theory of Delinquency’ American Sociological Review 22 (6) (1957): 664–670; D Matza, Delinquency and Drift (New York: John Wiley, 1964); D Matza, Becoming Deviant (New York: John Wiley, 1969); S Maruna and H Copes, ‘What Have We Learned from Five Decades of Neutralization Research?’ Crime and Justice 32 (2005): 221–230. Particularly sex offenders tend to deny and minimise their offences at the beginning of treatment: D Scully and J Marolla, ‘Convicted Rapists’ Vocabulary of Motive: Excuses and Justifications’ Social Problems 31 (1984): 530–544; WL Marshall, ‘Treatment Effects on Denial and Minimization in Incarcerated Sex Offenders’ Behaviour Research and Therapy 32 (5) (1994): 559–564; SL Schneider and RC Wright, ‘Understanding Denial in Sexual Offenders: A Review of Cognitive and Motivational Processes to Avoid Responsibility’ Trauma, Violence, and Abuse 5 (1) (2004): 3–20.

  79. See C Hoyle and M Sato, Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission (Oxford: Oxford University Press, 2019).

  80. Offenders are required to follow the appropriate appeals procedures to challenge convictions. In England, after the appeal process has been exhausted, the case may be referred to or taken up by the Criminal Cases Review Commission (see Campbell, Ashworth and Redmayne (n 25), ch 12).

  81. On individualisation of sentences see n 63.

  82. See E Erez and L Rogers, ‘Victim Impact Statements and Sentencing Outcomes and Processes: The Perspectives of Legal Professionals’ British Journal of Criminology 39 (2) (1999): 216–239; Hudson (n 22), p. 180; Victim Support, Victims' Justice? What Victims and Witnesses Really Want from Sentencing (2010), p. 21.

  83. C Hoyle and others, Evaluation of the "One-Stop Shop" and Victim Statement Pilot Projects (Bristol: Home Office Research Development and Statistics Directorate, 1998), pp. 30, 33, 43.

  84. Ibid; R Morgan and A Sanders, The Uses of Victim Statements (London: Home Office Research Development and Statistics Directorate, 1999). See also e.g. E Erez and P Tontodonato, ‘Victim Participation in Sentencing and Satisfaction with Justice’ Justice Quarterly 9 (3) (1992): 393–417; E Erez, ‘Integrating a Victim Perspective in Criminal Justice Through Victim Impact Statements’ in A Crawford and J Goodey (eds), Integrating a Victim Perspective within Criminal Justice: International Debates (Aldershot: Ashgate, 2000): 165–184.

  85. I Edwards, ‘Victim Participation in Sentencing: The Problems of Incoherence’ Howard Journal of Criminal Justice 40 (1) (2001): 39–54, p. 40; Sanders and others (n 5), p. 454; Edwards, ‘An Ambiguous Participant’ (n 62), pp. 977–979; Roberts (n 5), p. 358; Hoyle (n 65), pp. 259, 264.

  86. Ministry of Justice, Code of Practice for Victims of Crime in England and Wales (2020), para 7.1, p. 25. The revised Code came into force on 1 April 2021. The previous version of the Victims’ Code stated explicitly that victims ‘may not express [their] opinion on the sentence or punishment the suspect should receive as this is for the court to decide’ (Ministry of Justice, Code of Practice for Victims of Crime (2015), para 1.12, p. 21), but this was omitted in the revised version.

  87. Edwards, ‘An Ambiguous Participant’ (n 62), pp. 978–979.

  88. Sanders and others (n 5), pp. 454–455; A Sanders, ‘Involving Victims in Sentencing: A Conflict with Defendants' Rights?’ in E Cape (ed), Reconcilable Rights? Analysing the Tension between Victims and Defendants (London: Legal Action Group, 2004), pp. 102–104.

  89. Sanders (n 88), p. 103; Roberts (n 5), p. 371.

  90. J McGuire, ‘Can the Criminal Law Ever be Therapeutic?’ Behavioural Sciences and the Law 18 (4) (2000): 413–426, p. 422.

  91. Raynor (n 10), p. 301.

  92. von Hirsch, Censure and Sanctions (n 18), ch 2, especially pp. 9–15; von Hirsch and Ashworth (n 18), ch 2, especially pp. 21–27; Duff, Trials and Punishment (n 26), ch 9; Duff, Punishment, Communication, and Community (n 8), pp. xiv–xv, ch 3; L Zedner, ‘Penal Subversions: When is a Punishment not Punishment, Who Decides and On What Grounds?’ Theoretical Criminology 20 (1) (2016): 3–20, p. 7.

  93. ‘Natural justice’ in J Law (ed.), Oxford Dictionary of Law (Oxford: Oxford University Press, 2018).

  94. See e.g. R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2) [2000] 1 AC 119; Porter v Magill [2001] UKHL 67, [2002] 2 AC 357; Davidson v Scottish Ministers [2004] UKHL 34, [2005] SC 7.

  95. Canton (n 51), p. 265.

  96. R Moore, ‘The Use of Financial Penalties and the Amounts Imposed: The Need for a New Approach’ Criminal Law Review [2003]: 13–27, p. 23.

  97. M Maidment, ‘Toward a "Woman-Centred" Approach to Community-Based Corrections: A Gendered Analysis of Electronic Monitoring’ Women and Criminal Justice 13 (4) (2002): 47–68; JV Roberts, The Virtual Prison: Community Custody and the Evolution of Imprisonment (Cambridge: Cambridge University Press, 2004), pp. 97–98.

  98. I.e. a person breaches the law because he does not accept the legitimacy of the particular law he has broken, or because he wishes to draw attention to laws or policies he believes require reassessment or rejection: see K Brownlee, ‘Civil Disobedience’ in The Stanford Encyclopedia of Philosophy (Fall edn, 2017) at < https://plato.stanford.edu/archives/fall2017/entries/civil-disobedience/ > (last visited 1 September 2020).

  99. R Delgado, ‘"Rotten Social Background": Should the Criminal Law Recognize a Defence of Severe Environmental Deprivation?’ Law and Inequality 3 (1) (1985): 9–90; PH Robinson, ‘Are We Responsible for Who We Are? The Challenge for Criminal Law Theory in the Defenses of Coercive Indoctrination and Rotten Social Background’ Alabama Civil Rights and Civil Liberties Law Review 2 (1) (2011): 53–78.

  100. Maslen (n 37), p. 104.

  101. King (n 57), p. 94.

  102. Kirby, Jacobson and Hunter (n 1), p. 9.

  103. Ministry of Justice, The Pre-Custody Employment, Training and Education Status of Newly Sentenced Prisoners (2012), pp. 7–17; Prison Reform Trust, Bromley Briefings Prison Factfile (Winter 2019), p. 20. See also Delgado (n 99); C Sirdifield, ‘The Prevalence of Mental Health Disorders Amongst Offenders on Probation: A Literature Review’ Journal of Mental Health 21 (5) (2012): 485–498; J Peay, ‘Mental Health, Mental Disabilities and Crime’ in A Liebling, S Maruna and L McAra (eds), The Oxford Handbook of Criminology (Oxford: Oxford University Press, 6th edn, 2017): 213–238.

  104. A Aliverti, ‘Researching the Global Criminal Court’ in M Bosworth, C Hoyle and L Zedner (eds), The Changing Contours of Criminal Justice (Oxford: Oxford University Press, 2016): 73–86; A Aliverti and R Seoighe, ‘Lost in Translation? Examining the Role of Court Interpreters in Cases Involving Foreign National Defendants in England and Wales’ New Criminal Law Review 20 (1) (2017): 130–156.

  105. R Willis, ‘"Let's Talk About It": Why Social Class Matters to Restorative Justice’ Criminology and Criminal Justice (11/10) [2018]: 1–20, p. 2.

  106. SJ Charlesworth, A Phenomenology of Working Class Experience (Cambridge and New York: Cambridge University Press, 2000), ch 7, pp. 203–274.

  107. C Alder, ‘Young Women Offenders and the Challenge for Restorative Justice’ in H Strang and J Braithwaite (eds), Restorative Justice: Philosophy in Practice (Aldershot and Dartmouth: Ashgate, 2000): 105–120, p. 108.

  108. M Davidheiser, ‘Race, Worldviews, and Conflict Mediation: Black and White Styles of Conflict Revisited’ Peace and Change 33 (1) (2008): 60–89; B Albrecht, ‘Multicultural Challenges for Restorative Justice: Mediators' Experiences from Norway and Finland’ Journal of Scandinavian Studies in Criminology and Crime Prevention 11 (1) (2010): 3–24; T Gavrielides, ‘Bringing Race Relations into the Restorative Justice Debate: An Alternative and Personalized Vision of "The Other"’ Journal of Black Studies 45 (3) (2014): 216–246.

  109. PSCs are ‘specialized tribunals established to deal with specific problems, often involving individuals who need social, mental health, or substance abuse treatment services.’ (BJ Winick and DB Wexler (eds), Judging in a Therapeutic Key: Therapeutic Jurisprudence and the Courts (Durham, NC: Carolina Academic Press, 2003), p. 3.) The most well-known of these PSCs with criminal case jurisdiction are drug courts, domestic violence courts, community courts, and mental health courts (BJ Winick and DB Wexler, ‘Drug Treatment Court: Therapeutic Jurisprudence Applied’ Touro Law Review 18 (2002): 479–485, p. 480; P Bamberger, ‘Specialized Courts: Not A Cure-All’ Fordham Urban Law Journal 30 (3) (2003): 1091–1104, p. 1091; BJ Winick, ‘Therapeutic Jurisprudence and Problem Solving Courts’ Fordham Urban Law Journal 30 (3) (2003): 1055–1103, pp. 1057–1059; R Boldt, ‘A Circumspect Look at Problem-Solving Courts’ in P Higgins and MB Mackinem (eds), Problem-Solving Courts: Justice for the Twenty-First Century? (Santa Barbara, CA: Praeger, 2009): 13–32, p. 13; J Nolan, Legal Accents, Legal Borrowing: The International Problem-Solving Court Movement (Princeton and Oxford: Princeton University Press 2009), ch 1; G McIvor, ‘Beyond Supervision: Judicial Involvement in Offender Management’ in F McNeill, P Raynor and C Trotter (eds), Offender Supervision: New Directions in Theory, Research and Practice (Abingdon: Willan, 2010): 215–238, p. 216).

  110. K Cook, ‘Doing Difference and Accountability in Restorative Justice Conferences’ Theoretical Criminology 10 (1) (2006): 107–124, p. 121.

  111. Alder (n 107), p. 108.

  112. R Hood, Race and Sentencing: a Study in the Crown Court: a Report for the Commission for Racial Equality (Oxford: Clarendon Press, 1992); R Kennedy, Race, Crime and the Law (New York: Pantheon, 1997); S Shute, R Hood and F Seemungal, A Fair Hearing? Ethnic Minorities in the Criminal Court (Cullompton: Willan, 2005); K Hopkins and others, Associations Between Ethnic Background and Being Sentenced to Prison in the Crown Court in England and Wales in 2015 (Ministry of Justice, 2016); N Uhrig, Black, Asian and Minority Ethnic disproportionality in the Criminal Justice System in England and Wales (Ministry of Justice, 2016); D Lammy, The Lammy Review: An Independent Review into the Treatment of, and Outcomes for, Black, Asian and Minority Ethnic Individuals in the Criminal Justice System (Ministry of Justice, 2017).

  113. J Nolan, Reinventing Justice: the American Drug Court Movement (Princeton, NJ and Oxford: Princeton University Press, 2001), p. 124.

  114. Ibid, p. 124.

  115. JJ Choi and M Severson, ‘"What! What Kind of Apology is this?": The Nature of Apology in Victim Offender Mediation’ Children and Youth Services Review 31 (7) (2009): 813–820, p. 818.

  116. S Levrant and others, ‘Reconsidering Restorative Justice: The Corruption of Benevolence Revisited?’ Crime and Delinquency 45 (1) (1999): 3–27, p. 16.

  117. Ibid, p. 16.

  118. 32 per cent of court judges and 46 per cent of tribunal judges are women. 7 per cent of court judges, 11 per cent of tribunal judges, and 17 per cent of non-legal members of tribunals are Black, Asian, or from a minority ethnic background (Ministry of Justice, Judicial Diversity Statistics 2019 (2019)). 65 per cent of senior judges attended independent schools and 71 per cent graduated from Oxbridge (The Sutton Trust and Social Mobility Commission, Elitist Britain? The Educational Backgrounds of Britain's Leading People (2019), pp. 6–7, 53, 55, 60, 96–97). For a critique of the unrepresentative composition of the judiciary in relation to socio-economic background, gender, and ethnicity see L Barmes and K Malleson, ‘Lifting the Judicial Identity Blackout’ Oxford Journal of Legal Studies 38 (2) (2018): 357–381.

  119. Pakes (n 56), p. 134.

  120. Kirby, Jacobson and Hunter (n 1), p. 11.

  121. In therapeutic jurisprudence and problem-solving courts: King (n 57), p. 97. It is known that the formal, complex, and sometimes archaic language of the law courts can be an impediment to offenders’ effective participation at trial: Kirby, Jacobson and Hunter (n 1), p. 9.

  122. Nolan, Reinventing Justice: the American Drug Court Movement (n 113), ch 4; P Bean, ‘Drug Courts, the Judge, and the Rehabilitative Ideal’ in J Nolan (ed), Drug Courts: In Theory and in Practice (New York: Aldine de Gruyter, 2002): 235–254, p. 236; Cabinet Office, Engaging Communities in Criminal Justice, Green Paper, Report Cm 7583 (2009), p. 27; Nolan, Legal Accents, Legal Borrowing: The International Problem-Solving Court Movement (n 109), p. 16; McIvor (n 109), p. 233; J Nolan, ‘Problem-Solving Courts: An International Comparison’ in J Petersilia and KR Reitz (eds), The Oxford Handbook of Sentencing and Corrections (Oxford: Oxford University Press, 2012): 150–166, p. 152; J Donoghue, Transforming Criminal Justice?: Problem-Solving and Court Specialization (Abingdon: Routledge, 2014), pp. 16–17.

  123. Nolan, Reinventing Justice: the American Drug Court Movement (n 113), pp. 8–9.

  124. The interaction between a judge and defendants in a Californian domestic violence court—which is another type of PSC—displays similar elements. The domestic violence court judge speaks loudly and clearly to the defendants during their court appearances, at a sufficiently slow pace so that defendants can understand what is being said, and refers to defendants by their name as opposed to using the term defendant. The judge’s tone of voice conveys concern for the defendant rather than pity or condescension, and the judge regularly asks if the defendant has any questions (CJ Petrucci, ‘Respect as a Component in the Judge-Defendant Interaction in a Specialized Domestic Violence Court That Utilizes Therapeutic Jurisprudence’ Criminal Law Bulletin 38 (2) (2002): 263–295, p. 285–286). See also Nolan, Reinventing Justice: the American Drug Court Movement (n 113), ch 3, especially pp. 51, 70–75 on the therapeutic idiom and altered role of the judge in PSCs.

  125. Bean (n 122), p. 236.

  126. For criticisms of therapeutic jurisprudence see e.g. J Petrila, ‘Paternalism and the Unrealized Promise of Essays in Therapeutic Jurisprudence’ New York Law School Journal of Human Rights 10 (3) (1993): 877–905; C Slobogin, ‘Therapeutic Jurisprudence: Five Dilemmas to Ponder’ Psychology, Public Policy, and Law 1 (1) (1995): 193–219; MB Hoffman, ‘Therapeutic Jurisprudence, Neo-Rehabilitationism, and Judicial Collectivism: The Least Dangerous Branch Becomes the Most Dangerous’ Fordham Urban Law Journal (2002): 2063–2098. For criticisms of problem-solving courts see e.g. Nolan, Reinventing Justice: the American Drug Court Movement (n 113), pp. 190–208; Bamberger (n 109); T Casey, ‘When Good Intentions Are Not Enough: Problem-Solving Courts and the Impending Crisis of Legitimacy’ Southern Methodist University Law Review 57 (2004): 1459–1519; E Miller, ‘Embracing Addiction: Drug Courts and the False Promise of Judicial Interventionism’ Ohio State Law Journal 65 (2004): 1479–1576; MC Quinn, ‘An RSVP to Professor Wexler's Warm Therapeutic Jurisprudence Invitation to the Criminal Defense Bar: Unable to Join You, Already (Somewhat Similarly) Engaged’ Boston College Law Review 48 (2007): 539–595.

  127. Nolan, Reinventing Justice: the American Drug Court Movement (n 113), pp. 10–11.

  128. C McCoy, ‘The Politics of Problem-Solving: An Overview of the Origins and Development of Therapeutic Courts’ American Criminal Law Review 40 (4) (2003): 1513–1534.

  129. M King and J Wagner, ‘Therapeutic Jurisprudence and Problem-solving Case Management’ Journal of Judicial Administration 15 (1) (2005): 28–36, p. 33.

  130. Kirby, Jacobson and Hunter (n 1), p. 11.

  131. Nolan, Reinventing Justice: the American Drug Court Movement (n 113), pp. 75–81; Nolan, ‘Problem-Solving Courts: An International Comparison’ (n 122), p. 152; Donoghue (n 122), pp. 38–40.

  132. Donoghue (n 122), p. 40.

  133. R Boldt, ‘Rehabilitative Punishment and the Drug Treatment Court Movement’ Washington University Law Quarterly 76 (4) (1998): 1205–1306, p. 1264; M Blake and A Ashworth, ‘Ethics and the Criminal Defence Lawyer’ Legal Ethics 7 (2) (2004): 167–189, p. 169; Assy (n 20), p. 48.

  134. See JUSTICE, In the Dock: Reassessing the Use of the Dock in Criminal Trials (London: JUSTICE, 2015), p. 32.

  135. Hudson (n 22), p. 192.

  136. Ashworth draws this distinction between formal equality and equality of impact, albeit in respect of fines for offenders with different financial resources (A Ashworth, Sentencing and Criminal Justice (Cambridge: Cambridge University Press, 6th edn, 2015), pp. 105, 264–266) and imprisonment for offenders with special mental or medical conditions or of very young or old age (ibid, pp. 105, 194–195).

  137. B Hudson, ‘Doing Justice to Difference’ in A Ashworth and M Wasik (eds), Fundamentals of Sentencing Theory: Essays in Honour of Andrew von Hirsh (Oxford: Clarendon Press, 1998): 223–249, p. 248.

  138. King and Wagner (n 129), pp. 32, 35.

  139. MS Frazer, The Impact of the Community Court Model on Defendant Perceptions of Fairness: A Case Study at the Red Hook Community Justice Center (New York: Center for Court Innovation, 2006), p. iv.

  140. CA Saum and AR Gray, ‘Facilitating Change for Women? Exploring the Role of Therapeutic Jurisprudence in Drug Court’ in T Anderson (ed), Neither Villain nor Victim: Empowerment and Agency Among Women Substance Abusers (New Brunswick, NJ: Rutgers University Press, 2008): 102–116, pp. 113–114.

  141. On the defining characteristics of problem-solving courts see PF Hora, WG Schma and JTA Rosenthal, ‘Therapeutic Jurisprudence and the Drug Treatment Court Movement: Revolutionizing the Criminal Justice System's Response to Drug Abuse and Crime in America’ Notre Dame Law Review 74 (2) (1999): 439–537, p. 453; Winick and Wexler, ‘Drug Treatment Court: Therapeutic Jurisprudence Applied’ (n 109), p. 480; Winick (n 109), pp. 1060–1061; Boldt, ‘A Circumspect Look at Problem-Solving Courts’ (n 109), p. 22; Nolan, Legal Accents, Legal Borrowing: The International Problem-Solving Court Movement (n 109), p. 11; Nolan, ‘Problem-Solving Courts: An International Comparison’ (n 122), p. 154; J Ward, ‘Problem-Solving Criminal Justice: Developments in England and Wales’ Utrecht Law Review 14 (3) (2018): 7–18, p. 7.

  142. Hudson, ‘Doing Justice to Difference’ (n 137), p. 248.

  143. Ibid, p. 249.

  144. House of Commons Justice Committee, Criminal Legal Aid: Twelfth Report of Session 2017–19 (HC 1069, 2018), pp. 33–36; M Chalkley and Bar Council of England and Wales, Funding for Justice 2008 to 2018: Justice in the Age of Austerity (2018).

  145. Lacey and Pickard, ‘From the Consulting Room’ (n 13), p. 10.

  146. R Simmons, ‘Quantifying Criminal Procedure: How to Unlock the Potential of Big Data in Our Criminal Justice System’ Michigan State Law Review [2016]: 947–1017; R Brownsword and A Harel, ‘Law, Liberty and Technology: Criminal Justice in the Context of Smart Machines’ International Journal of Law in Context 15 (2) (2019): 107–125; RM Re and A Solow-Niederman, ‘Developing Artificially Intelligent Justice’ Stanford Technology Law Review 22 (2019): 242–289.

  147. D Kehl, P Guo and S Kessler, Algorithms in the Criminal Justice System: Assessing the Use of Risk Assessments in Sentencing (Responsive Communities Initiative, Berkman Klein Center for Internet & Society at Harvard Law School, 2017); N Stoobs, D Hunter and M Begaric, ‘Can Sentencing Be Enhanced by the Use of Artificial Intelligence?’ Criminal Law Journal 41 (5) (2017): 261–277; G Van Eijk, ‘"Socioeconomic Marginality in Sentencing": The Built-in Bias in Risk Assessment Tools and the Reproduction of Social Inequality’ Punishment and Society 19 (4) (2017): 463–481; K Hannah-Moffat and K Struthers Montford, ‘Unpacking Sentencing Algorithms: Risk, Racial Accountability and Data Harms’ in J W de Keijser, JV Roberts and J Ryberg (eds), Predictive Sentencing: Normative and Empirical Perspectives (Oxford: Hart, 2019): 175–196.

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I am grateful to Professor Lucia Zedner for her very helpful comments.

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    Elise Maes

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Maes, E. Offender Agency in a State-Centred Sentencing Process: In Search of an Agentic Sentencing Model. Criminal Law, Philosophy 16, 575–609 (2022). https://doi.org/10.1007/s11572-021-09578-5

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