In a recent e-mail exchange concerning an upcoming Australian judicial technology conference, my attention was drawn to sentencing technology now in use in New South Wales, Australia. One of the originators of that project was kind enough to fax me Informing the Discretion: The Sentencing Information System of the Judicial Commission of New South Wales, 6 International Journal of Law and Information Technology 99, by Ivan Potas, David Ash, Murali Sagi, Stephen Cumines, and Natalie Marsic. (1998 ).

I will summarize the article and the project as I understand it, and suggest how it compares to our sentencing support project in Multnomah County and statewide.

Apparently in negative reaction to what was perceived as encroachment on judicial sentencing discretion in the form of sentencing guidelines and other legislative sentencing mandates, New South Wales adopted in 1986 a "Judicial Officers Act 1986 (NSW)," which established a "Judicial Commission of New South Wales," and authorized that commission to "monitor or assist in monitoring sentences imposed by courts" and "disseminate the information and reports on sentences imposed by courts." Reflective of its genesis, the Act proclaims that "Nothing in this section limits any discretion that a court has in determining a sentence." Section 8(2).

The Commission functions in an environment in which criminal sentences may be appealed by either side and reviewed to determine whether the sentence exceeds in "severity" or "leniency" an appropriate exercise of discretion. From what I can tell, it's not an abuse of discretion standard, and much more like de novo review, although appellate courts usually defer to the trial court's analysis. I've attached a recent example of an appellate opinion sent to me by an Australian magistrate (the one the opinion reverses). The Commission set out to build a technological tool to allow judges to access sentencing statistics, case law, and legislation, as well as an electronic text book on sentencing principles, including "guidelines upon:

• the factors which are commonly held to aggravate or mitigate the penalty;
• the polices which should be followed in relation to particular offence or offender types
• the practices and procedures which should be adopted during the sentencing process"

An example of an Australian appellate opinion issuing sentencing guidelines is at http://www.attgendept.nsw.gov.au/sc/sc.nsf/pages/CASE_3,Regina V Henry Barber Tran Silver Tsoukatos Kyroglou, Jenkins [1999] NSWCCA 111. It's enormous, so I've simply attached the court's synopsis of the guidelines to this paper, in hopes that it conveys the flavor of this approach.

Oregon plans for and, in Multnomah County, modest beginnings at technological support for sentencing have some similarities and some major differences from the Australian model. We do provide on-line access to sentencing guideline regulations and statutes (including those that provide for sentences) and program information through such devices as the Multnomah County Judges homepage (http://mulsrv01/browser/default.htm currently unavailable outside our firewall); Westlaw and Lexis give judges the ability to research appellate decisions that bear on sentencing (although the scope of review of sentences is far more restricted than in Australia). It is expressly the intent to integrate these information sources into sentencing support applications (see generally, Criminal Sanction Effectiveness Measurement,) to facilitate access to them while using the statistical tools as well.

The critical departure, however, is the driving purpose of access to statistics. In the NSW model, the purpose is to avoid legislative "encroachment" on judicial discretion while fostering consistency in sentencing:

Consistency of punishment is fundamental to any rational and fair system of criminal justice, and courts are obliged to pursue even-handedness in the exercise of sentencing discretion.

The driving purpose of the statistical core of sentencing support in Oregon is quite different -- it is embodied in 1997 Judicial Conference Resolution #1:

THEREFORE, BE IT RESOLVED BY THE OREGON JUDICIAL CONFERENCE that in the course of considering the public safety component of criminal sentencing, juvenile delinquency dispositions, and adult and juvenile probation decisions, judges should consider and invite advocates to address the likely impact of the choices available to the judge in reducing future criminal conduct.

BE IT FURTHER RESOLVED that judges are encouraged to seek and obtain training, education and information to assist them in evaluating the effectiveness of available sanctions, programs, and sentencing options in reducing future criminal conduct.

A major difficulty with "consistency" is that it is often feigned by ignoring some differences and obsessing on others.  For example, most schemes fail to distinguish the psychopath incapable of empathy from an otherwise similar defendant guilty of serious assault -- though anyone in corrections or psychology would immediately recognize the disparity in likely correctional outcomes.  Other examples include schemes that raise the presumptive sentence with the value of the property subject of crime -- thus the show limousine in the garage of the wealthy is protected by heavier punishment than the old car which serves as the only transportation for a single parent struggling to get by.  I even had an arsonist who had the good fortune to burn the house of a firefighter; his presumptive sentence was far lower because the firefighter was better at suppressing the spread of the fire than his neighbors would have been.

Even if we actually achieve some level of consistency, I emphatically reject consistency as an objective if it means doing what we've always done -- because what we've always done doesn't seem to work: For example, according to Portland Police statistics, of the 20 persons jailed for burglary in May of 2000, 17 had been in jail in Portland for something in the previous year, as had 13 of the 16 robbers, 11 of the 16 jailed for felony assault, seven of the nine jailed for Theft I, 67 of the 93 jailed for drug offenses, 17 of the 25 jailed for Theft II, and 29 of the 37 jailed for car theft. Encouraging us to sentence people in the most popular way may give some relief from the emotional burden of making difficult choices, but it doesn't spare us responsibility for the consequences of our decisions.

It's no surprise that what we generally do doesn't work -- primarily because we don't make any effort to learn what has happened after we've done what we've done to previous defendants; we have made no effort in the past to learn what has and hasn't worked on which defendants. Instead, we've enmeshed ourselves in essentially immeasurable "objectives" such as "sending a message," "deterrence," "aggravation," "mitigation," and "just deserts." With such criteria, our measure of success is the same as that of the clergy: if no one complains about our sermon, we've passed the test; if we are articulate and of apparent profundity, it is a "good" sermon. In this fashion, sentencing analyses like that in the appellate opinion I attach from Australia (not at all atypical of courtroom discussions in contested sentencing hearings in our system) generate the typical which the Australian approach enshrines as preferred. This liturgy has the dubious virtue of sparing us emotional or political accountability for our failures to reduce crime by those we sentence. Particularly where the typical generally coexists with outrageous rates of recidivism, consistency is not all that attractive a goal. If we are consistent in not avoiding new victimization which we might have prevented by doing something new that would more likely divert the offender from a criminal career, consistency is to be avoided. Put another way, consistency in pursuit of failure is not a virtue.

This is not at all to say that consistency is not of value, but just that we ought to learn and consistently apply what works on which offenders. And, because what works depends on host of variables, including such attributes as age, details of criminal history, level of substance abuse, mental health status, program availability, and so on, we can and should treat like offenders alike -- once we learn what it is that works (including incapacitation through jail or prison, as well as community-based and incarcerative counseling, treatment and sanctions). The challenge is to learn what it is about offenders that makes them susceptible or not to improvement with which sentencing dispositions; once we've learned that, we can satisfy the most careful scrutiny of equal protection because we will be acting on differences that correlate with chances of success in reducing recidivism. We will have learned what attributes truly make offenders alike in terms of that susceptibility, and will end up treating like offenders alike. This serves fairness and equal treatment; it also serves public safety. Ignoring these differences in the name of equal treatment is not required by any system of fairness; it has no claim to rationality.

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(c) Guidelines

A category of case which is sufficiently common for the purposes of determining a guideline comprises the following elements:

(i) Young offender with no or little criminal history

(ii) Weapon like a knife, capable of killing or inflicting serious injury

(iii) Limited degree of planning

(iv) Limited, if any, actual violence but a real threat thereof

(v) Victim in a vulnerable position such as a shopkeeper or taxi driver

(vi) Small amount taken

(vii) Plea of guilty, the significance of which is limited by a strong Crown case.

Per Simpson J:

A plea of guilty should not be included in the definition of the kind of offence to which the guideline applies.

(d) The appropriate range

A sentencing range is appropriate in relation to this offence because the seven identified characteristics do not exhaust the factors relevant to sentencing, and many of the characteristics contain within themselves an inherent variability.

Sentences for an offence of this character should generally fall between four and five years for the full term. Aggravating and mitigating factors will justify a sentence below or above the range, which is itself a starting point.

Per Hulme J:

The guideline should be set so as to include a total term of penal servitude of 5 years and, except in unusual circumstances a minimum term of 3 years.

(e) Circumstantial factors

A number of circumstances are particular to the offence of armed robbery, including: (a) nature of the weapon; (b) vulnerability of the victim; (c) position on a scale of impulsiveness/planning; (d) intensity of threat, or actual use, of force; (e) number of offenders; (f) amount taken; and (g) effect on victim/s.

Per Spigelman CJ:

Drug addiction is a circumstance relevant to the sentencing exercise, but it is not itself a mitigating factor. The existence of a causal relationship between drug addiction an the commission of an offence should not automatically result in a lesser sentence.

Per Wood CJ at CL:

Discussion of general principles of deterrence and drug addiction. Drug addiction is not analogous to mental abnormality in respect of which the element of general deterrence may be given less weight. The relevant principles are as follows:

(a) The need to acquire funds to support a drug habit is not an excuse to commit an armed robbery, and of itself not a matter of mitigation.

(b) The fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence, insofar as it may throw light on matters such as (i) the impulsivity of the offence and the extent of any planning for it; (ii) the existence or non-existence of any alternative reason that may have operated in aggravation of the offence; and (iii) the state of mind or capacity of the offender to exercise judgment.

(c) It may also be relevant as a subjective circumstance, insofar as the origin or extent of the addiction, and any attempts to overcome it, might (i) impact upon the prospects os recidivism/rehabilitation; (ii) suggest that the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible; and (iii) justify special consideration in the case of offenders to be at the "cross roads": Osenkowski (1982) 5 ACrimR 394.

Per Simpson J:

Discussion of general principles of rehabilitation and drug addiction. Where a combination of the following two circumstances exist, then general deterrence and other sentencing objectives such as retribution, may yield to rehabilitation: (i) a background to the addiction that may explain the offender's decision to use drugs, and diminish his or her moral culpability for that decision; (ii) demonstrated progress towards rehabilitation.

1. Another is apparently to separate the burden of "too close a personal involvement with the case in hand." Id at 100-01. I'm not so sure sparing us regret at the misery we cause and the future victimization we fail to prevent is altogether a good thing.

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