Sentencing: A social process re-thinking research and policy C. Tata, Cham, Switzerland: Palgrave Macmillan. 2020. 177pp. €58.84 (hbk); €46.00 (ebk) IBSN: 978-3-030-01059-1; 978-3-030-01060-7

Tata's Sentencing: A social process re-thinking research and policy argues that far from being a mere technical exercise, sentencing is a culturally reflective process, offering emotional resolution and a democratic function to the public – it allows us to discuss what we all view as legitimate levels of punishment.

His central thesis is that sentencing is a social process comprising of three key ideas: it is interpretive, ‘a collaborative process of sense-making’ (p.6), processual, a ‘collaborative activity among a range of professionals signalling meanings to each other’ (p.6), and performative (p.8).

Tata skilfully addresses the supposed conflict between the ‘two giants of sentencing thought’, the legal-rational tradition and the judicial-defensive tradition (p.14). This debate is commonly referred to as the debate between consistency in sentencing (e.g., in the form of guidelines) and judicial discretion.

He draws on scholarship from the 1960s onwards which called for sentencing reforms to structure decision making: Frankel (1972), for example, castigated the lawless state of sentencing in America, calling discretionary sentencing practices a ‘wasteland of law’ (p.16). Highly discretionary practices lead to unjustifiable inequalities at sentencing stage, including the race or ethnicity of the defendant (Hood, 1992).

Opposing legal-rationalism in sentencing is the judicial-defensive tradition, sometimes referred to as individualised sentencing: the idea that each case turns on its own facts, and a sentence should be tailored to the offence but also the offender. Tata cites a volume of academic work that supports the judicial-defensive view. The literature charts a move away from welfare-oriented ideas and individualisation to new risk and managerial logics, and a dehumanised and mechanistic approach to sentencing: Tata calls this the ‘criminological warnings about the drift into a managerialist dystopia’ (p.19).

Tata sets out in his view that the two traditions share the same underlying assumption of liberalism – the belief in the rights of the individual, equality before the law and the consent of the governed. He highlights that discretion only exists because the law permits discretion, drawing on Dworkin's doughnut analogy (p.27): ‘Discretion, like the hole in a doughnut, does not exist except as an area left open by a surrounding belt of restriction …’ (Dworkin, 2013, p.48). Foucault's (1977) work on power is relied upon, wherein he states that power is dispersed more simply than the commands of the state, it is ‘diffused in a range of subtle, capillary, micro-relations’ (p.28).

In abstract discourse, law and discretion are opposite forces, however, Tata argues in Chapter 3 that in practice these concepts are exercised simultaneously. In decrying their helplessness and lamenting the law's harsh results, individual judges are themselves exercising discretion in choosing to strictly apply the rules and denying themselves any residual discretion that may exist (p.54).

The book later addresses in some detail the Scottish Sentencing Information System (SIS). Tata disputes the view of Aas (2005) that judicial discretion is ‘increasingly being replaced by the imposition of impersonal data’. Aas (2005) and Tombs (2008) assume incorrectly that the Scottish SIS imposed a technology on sentencing judges, and restricted their ability to tailor sentence to the individual circumstances of a case, and was part of a wider shift towards ‘technocratic justice’ (p.123). Tata highlights that encouraging judges to pursue consistency in sentencing by having publicly available information about sentencing is not a new idea – Norval Morris (1953, quoted in Frase, 1997, p.366) proposed the idea so judges may ‘see clearly where they stand in relation to their brethren’. Tata puts forward the argument that publicly available sentencing data help inform public understanding about sentencing and moreover, senior members of the Scottish judiciary suggested the SIS initiative themselves, and was for their voluntary use, far from it being a system imposed upon them. The SIS project was used politically to ‘head-off the threat of “interference” by parliament or the government, and then after that threat had receded, the next cohort [of judges] was able to quietly distance itself from that initiative’ (p.131). In this light, the Scottish SIS can be seen as more of an act of ‘judicial defensiveness’, and the binary opposition between rules and discretion ebbs further away.

Sentencing decisions aim to be socially effective, and are a type of performance of balancing competing interests and values (p.70). Tata writes that individual professionals are required to ‘take on’ social problems in each individual case. The court process downplays social structural commonalities of criminal defendants, like poverty, neglect and social deprivation, as the law can do little about such issues – instead the law focuses on individuals ‘presumed to be autonomous and rational’ (p.86). The daily recitation of adverse conditions creates a ‘weary insouciance’ or even a feeling of irrelevance on the part of the sentencing professionals. Tata stresses that this is not to criticise individuals working in the criminal justice system, but to recognise the damaging ‘cultural trope of the heroic individual professional who can somehow save souls from the compounding effects of disadvantage and criminal justice’ (p.87). Tata gives an example of where a defendant is considered unusual, or privileged, for having gone to a school like Eton or Oxford, that becomes an exception to the unremarkable normalised backgrounds of criminal defendants usually before the courts.

Tata refers to ‘humanisation work’ in the sentencing process in Chapter 5, which he says is vital to all penal systems which claim legitimacy: ‘the sentencing process is … seen to examine carefully, the whole person’, that is, their unique background story. He importantly notes that sentencing can only deal with one case at a time, and thus the ‘humanising work in sentencing necessitates individualisation: a process which marginalises social explanations and renders the problem as the responsibility of autonomous individuals. It can do little else’ (p.98).

The humanising process of sentencing is thus central to whether or not the sentencing system in and of itself is viewed as legitimate: ‘it is vital to the convincing performance of justice’ (p.100). Rather than viewing this humanisation process as virtuous, and mitigating against the harshest aspects of the decontextualised and managed sentencing system, Tata states that humanisation work enables the efficient disposal of cases. Humanisation, taking the form of ‘a bit of rapport’ between a defence lawyer and client, for example, legitimises the process for the individual being sentenced, rather than ‘feeling degraded by the indifference of a mechanical system’. The humanisation process affirms fairness. In this author's view, the humanisation process affirms the fairness of the system for the professionals more so than for the individual defendants, and Tata links this in with why the criminal justice system is so ineffective in reducing offending, and particularly talented in ‘recycling its clientele’ (p.9). He cites (p.105) Van Oorschot, Manscini & Weenink (2017) where they describe the anger professionals can feel in court where a defendant displays insouciance, with court actors noting a defendant ‘was just sitting there’. If it appears that the defendant regards the system with contempt, then the legitimacy of the court comes into question more so. This is why judges ‘are ineluctably enthralled with the search for signs of remorse’ (p.106).

Humanising the defendant ‘yields a voice which tends to accept punishment’, and what can be more convincing that the process is fair than ‘the person who is to be sentenced to be seen to accept its fairness and that punishment is deserved?’. As such, the court is presented with an opportunity to legitimise its own violence, through the defendant ‘articulating their acceptance of culpability’ as part of the process that is forced upon them (p.105).

Humanisation in this light has a ‘janus-faced quality’ (p.112) and Tata encourages us to revisit commonly held beliefs that humanisation opposes punitiveness: the performance of humanisation, in witnessing defendants admitting responsibility and accepting the fairness of their punishment, allows judges to ‘see and feel’ justice being done (p.114).

Tata concludes by suggesting further directions for sentencing research, stating that it is ‘remarkable, even shameful, how little research, including [his] own, has achieved in understanding the experiences of those subjected to sentencing’ (p.157). He recommends radically rethinking legal aid such that defence practitioners are paid for referring clients to welfare, housing and addiction services, a service that they are uniquely able to provide. This would be a more effective way of doing criminal justice. We need to recognise that sentencing is a symbolic and ceremonial performance, and that ‘we should resist attempts to make sentencing more mechanical and remote, but also that we should develop relational approaches which take communicative performance more seriously’ (p.168).

This book offers great food for thought for those working in sentencing, both in academia and in practice. Importantly, it turns on its head the age-old debate between rules and discretion, showing that both systems centre on the notion of individualised liberalism. In this individualised system where defendants are ‘humanised’ through a range of discourses before the courts, Tata's work goes some way to explaining why judges, lawyers and professionals view the system as legitimately enforcing punishment, whereas, arguably, the most important person in the sentencing process, the defendant, might not. In this light, Tata's work skilfully addresses how sentencing may be done more effectively. The book offers an insightful discussion of sentencing and crucially the legitimacy of the sentencing process, for those participating in the sentencing system, and those governed by it.