Sentencing

In countries following the Anglo-American legal tradition, sentencing is a function that is distinguished from that of determining guilt and innocence and is normally the responsibility of the judge rather than of the jury, although in some parts of the United States the jury is empowered to determine the sentence. Most such systems of law traditionally give the judge a wide discretion in determining both the kind of penalty to be imposed (imprisonment, fine, probation) and its extent. As modern sentencing systems provide an increasingly wide range of forms of sentence, the choice of sentence becomes a more complex task.It has long been recognized that the quality of the decisions made by judges in sentencing depends on the information available to them. In a case in which there has been a contested trial, the judge will have heard all of the evidence related to the immediate background of the offence but will not necessarily know much about the background of the offender. This gap is filled in many jurisdictions by a report prepared by a probation officer and submitted to the court after the offender has been convicted or has pleaded guilty.

The Death Penalty

Death was formerly the penalty for all felonies in English law. In practice the death penalty was never applied as widely as the law provided, as a variety of procedures were adopted to mitigate the harshness of the law. Many offenders who committed capital crimes were pardoned, usually on condition that they agreed to be transported to what were then the American colonies.

In the 18^th century England concern with rising crime led to many statutes extending the number of offences punishable with death. By the end of the 18^th century English criminal law contained about 200 capital offences. The application of the death penalty was extremely erratic, as in any capital case the judge was entitled to reprieve the offender so that he could petition for mercy; but the judge was not obliged to do this, and if he decided to “leave the offender for execution”, the death sentence was normally carried out immediately, without appeal.

The erratic application of the death penalty in the late 18^th and early 19^th centuries led to demands for reform. Between 1820 and 1840 most of the capital statutes were repealed, and by 1861 only four offences retained the death penalty – murder, treason, arson in a royal dockyard, and piracy with violence.

Until the mid-19^th century executions in England were public, and throughout the 18^th century great crowds attended the regular executions in London and other cities. Often an execution was followed by scenes of violence and disorder in the crowd, and it was commonly believed that pickpockets were busy among the spectators at executions. Public opinion eventually turned against the idea of executions as spectacles, and after 1868 they were carried out in private in prisons.

Although treason remained a capital crime in England, and persons convicted of treason were executed after both world wars, in practice the only capital crime for which criminals remained liable to be executed was murder. (Arson in a royal dockyard ceased to be capital in 1971.) From the 1930s until the mid-1960s, reformers campaigned for the abolition of the death penalty for murder. Parliament enacted in 1957 a statute restricting the death penalty to certain types of murder, known as “capital murders” – murder in the course of theft, murder of a police or prison officer, murder by shooting or causing an explosion, and murder on a second occasion. All other murders were to be punished by a mandatory life sentence (although murderers sentenced to life imprisonment were eligible to be released on license at any time during their sentence).

The operation of the system of capital murder created great dissatisfaction, as it led to some executions that the public viewed as unjustified, while other types of murderers escaped the death penalty simply because of the method used to commit the crime (in particular, deliberate poisoners were not subject to the death penalty, but the emotional murderer who had happened to seize a gun was liable to execution). Such objections led to a further move for change, and in 1965 the Murder Act (Abolition of Death Penalty) was passed, replacing the death penalty for all murders with a mandatory life sentence in all cases. Despite two parliamentary motions to restore the death penalty, both of which failed, this remained the position in England and Wales and Scotland in the mid-1980s. Northern Ireland retained the death penalty under a law designating certain murders as capital but abolished it in 1973.