From The Law and Politics Book Review

Vol. 8 No. 12 (December 1998) pp. 450-451.

THE FRAMEWORK OF JUDICIAL SENTENCING: A STUDY IN LEGAL DECISION MAKING by Austin Lovegrove. Cambridge: Cambridge University Press. 294 pages. Cloth $59.95. ISBN 0-521-58427-2.

Reviewed by Mary W. Atwell, Department of Criminal Justice, Radford University. E-mail: matwell@runet.edu.

 

Austin Lovegrove is a Reader in Criminology at the University of Melborne in Australia. THE FRAMEWORK OF JUDICIAL SENTENCING is the second part of a study of sentencing conducted in Victoria. Lovegrove maintains that in Australia, England, and elsewhere (presumably in some American jurisdictions) sentencing law is written in general terms, leaving to judges’ discretion the development and application of working principles. In his first monograph, the author examined how judges associated the various characteristics of a single offense, such as organization and violence, to determine an appropriate sentence. He then developed a model that included both a decision strategy and sentencing guidelines. The second study deals with how judges fix appropriate sentences in multiple count cases. The author intended to describe the judges’ decision-making strategy, including the working principles that governed their determination of sentences. He than expected to develop an algebraic model that related the possible length of sentence for the total of the counts to the effective sentence. Such a model could be used to provide judges with a comprehensive set of sentencing guidelines.

In the first chapter, Lovegrove sets out the purpose of the study, places it in the context of sentencing reform, explaining the desirability of proportionality between offense and sentence, and the assumption that desert is the primary purpose of punishment. He justifies the utility of comprehensive decision policies and numerical guidelines and provides a review of the literature on sentencing decisions. Finally, he describes the problems associated with sentencing offenders convicted of multiple counts.

Chapter two reiterates the author’s earlier decision model, which described how judges arrived at sentences in cases with either a single count or multiple counts of the same offense. The model looks only at the characteristics of the offenses, not at the qualities of the offenders. It does not account for judicial prejudices, the failures of human information processing, or judicial ignorance. The author therefore refers to it as a model of ideal decision making. According to the model, judges used a "global strategy" for sentencing multiple offenders. Rather than adding together the various offenses, the judges apparently determined the seriousness of the criminal conduct as a whole. Lovegrove then used the model developed for multiple counts of the same offense as a basis to build a model for sentencing the offender whose crimes crossed several different offense categories.

In the third chapter, the author offers sixteen principles governing how judges calculate sentences for offenses from different statutory categories. The principles apparently represent attempts to describe how judges view the relative weight of the seriousness of the principal offense and the lesser related offenses and how they arrive at standards for combining the sentences for the various offenses into a reasonable total that will be neither disproportionate nor crushing.

Chapter four explains the propositions being tested and the sentencing problems used to test the model. The problems were set up simply as a list of offenses, for example 1AR + 1RB. No contextual information was provided. The next chapter describes the collection of data. Lovegrove used three methods to gather his data:.

  1. he asked a sample of judges to impose sentences on the problem cases,
  2. he completed verbal protocols derived from the judges’ immediate retrospective reports on their thinking as they worked the problems, and
  3. he compiled reflective retrospective reports in which the judges were asked to write about whether they employed the model principles in their sentencing decisions.

Chapter six goes through fourteen principles and analyzes the judges’ responses in light of the author’s model of decision making. In chapter seven, having plowed through 150 pages, the reader learns that the hypothesized decision model was "roundly rejected."

Forced to reject the first decision model, Lovegrove developed an alternative. The revised model needed to take into account the role of judicial intuition in sentencing. The author asserts that intuition was used "for want of analysis," and that the judges’

thinking was "weakly calculative." He insists that justice requires a more deliberative approach to sentencing, and therefore makes an attempt at a second model.

The second set of data gathering involved detailed descriptions of fictitious cases. Eight judges were given 28 cases, divided into three sets, to review. The judges were then asked to explain the process, which they used to arrive at their sentencing decisions. A total of four judges finished the exercise, only three of them during the time allotted. It also seems significant that while the research was being conducted, a new sentencing law came into effect in the state of Victoria. Lovegrove argues that a sample of four (actually three) was sufficient for his analysis because at this stage he was engaged in "requisite modeling." A requisite model would provide a "simplified representation of a shared social reality of what is correct by way of approach for a decision problem." The ultimate result of this very densely written book, then, is the author’s statement that progress has been made toward the determination of more detailed guidelines and principles for sentencing. He promises to continue the research in a third study.

THE FRAMEWORK OF JUDICIAL SENTENCING is designed, apparently, for a very specialized audience. The heaviness of the prose and the amount of detail used to describe the research put the book beyond the reach of any but the most dedicated and intensely interested reader. When one adds the relative obscurity of the subject and the limited applicability of the results, it seems destined to be read—at least in its current form—by only a few.


Copyright 1995