UNIVERSITA’ DI PISA
Dipartimento di Giurisprudenza
Corso di Laurea Magistrale in Giurisprudenza
Tesi di Laurea
JUDICIAL DISCRETION IN SENTENCING:
An analysis of English and American judicial experiences
Il Candidato
Il Relatore
Bianca Vai
Chiar.mo Prof. Paolo Passaglia
Take a sad song and
make it better
i
ABSTRACT
Il presente elaborato consiste in una disamina, in lingua inglese, della discrezionalità nell’irrogazione delle pene dei giudici negli Stati Uniti d’America ed Inghilterra.
Per prima cosa, è stato delineato il principio di legalità, definendolo in un’ottica comparatistica nella sua applicazione sia in un contesto di civil law che di common
law. Nell’analizzare l’esperienza anglo-americana si è partiti
dall’Inghilterra, analizzando il suo modello giuridico poi esportato anche in America. Successivamente, ci si è focalizzati sullo studio delle cosiddette mandatory minimum
penalties statunitensi e delle corrispondenti sentencing guidelines, in una prospettiva di analisi anche diacronica. Si
sono, inoltre, andate ad analizzare le disposizioni normative presenti a livello federale con le loro possibili conseguenze, tra cui il rischio di discriminazione e l’inefficacia nel prevenire i reati.
Infine, nel terzo ed ultimo capitolo, è stata riportata l’attenzione su Inghilterra e Galles per valutare se la creazione di linee guida dirette ai giudici per la formulazione di sentenze sia stata dovuta ad un’influenza prettamente americana oppure abbia risposto ad esigenze emergenti nel contesto europeo. Ci si è così soffermati sullo studio dei vincoli imposti dalla Convenzione europea dei diritti dell’uomo e del diritto dell’Unione europea in materia di condanne penali.
ii
TABLE OF CONTENTS
Introduction…….………...p.1
CHAPTER ONE
THE PRINCIPLE OF LEGALITY: ITS HISTORY AND MEANING IN CIVIL LAW AND COMMON
LAW JUDICIAL SYSTEMS
1.1. The Civil Law: The Enlightenment with Cesare
Beccaria’s On Crime and Punishment and its
legacy………….……...………...…p.6
1.2. The continuity of the Common Law: From Magna Carta
to the nineteenth century in
England……….…p.24
1.3. A comparative analysis of sentencing powers in both
systems………...……...p.42
CHAPTER TWO
THE FOUNDATION OF MANDATORY MINIMUM SENTENCING
2.1. The USA: from omnipotence to impotence, a historical
analysis of American judicial discretion
2.1.1. From colonial jurors to the Indeterminate
iii
2.1.2. The Guideline Movement and the Sentencing Reform Act……….……....p.57 2.1.3. The effects of less discretion on federal
sentencing………...……p.62 2.2. Mandatory Minimum Sentencing
2.2.1. An introduction to mandatory minimum
penalties.……….p.74 2.2.2. Federal Provisions………...………….p.79 2.2.3. Mandatory Minimum in a Guidelines
system……….p.93 2.3. Sentencing disparities and other potential outcomes
2.3.1. Lack of uniformity and deterrence…………p.97 2.3.2. Inefficiency at attaining drug and crime
prevention goals………..………..p.106 2.3.3. Racial disparity………..……….p.110
CHAPTER THREE
SENTENCING GUIDELINES IN ENGLAND AND WALES WITHIN THE IMPACT OF
AMERICAN LAW AND EUROPEAN OBLIGATIONS
3.1. The evolution and nature of sentencing in England and
Wales
3.1.1. Origins of the English Sentencing Guideline System…………...………p.117
iv
3.1.2. The structure of the English Guidelines...p.125 3.1.3. The Duty of Courts to Comply…...………p.132 3.2. Sentencing Guidelines and European Union Law
3.2.1. EU Sentencing Law…………..………..…p.139 3.2.2. Compliance and accountability under EU
Law………..….p.148 3.2.3. Responsibilities and Implications for the
Sentencing Council………...p.152 3.3. The impact of the European Court of Human
Rights………..p.160
3.4. The resemblances with the U.S. Models…………..p.175 3.5. Sentencing Guidelines: The result of American or
European influence?...p.182
Concluding Remarks……….………p.186
Bibliography………..……….p.190 Case Law………....p.201 Statutes and Regulations………...p.202
1
Introduction
Whereas the United Kingdom and the United States share a common law heritage, they may diverge as to the process which brought to assessing consistency and uniformity in sentencing. Indeed, as the principle of legality represents the foundation of the continental criminal legal system of the Nineteenth Century, it has also been a criterion for comparison towards common law judicial experiences. Whilst the principle developed, it became commonly known as nullum poena, nullum crimen sine lege and has been recognised both in continental law and in the Anglo-American system, though elaborated through different historical processes.
Precisely, the United Kingdom gave life to the common law with its system of government and legal institutions, which trace back to the Anglo-Saxon Period. Thus, as a process of centralisation began across the land, customary law gradually evolved in national law, the law common to the whole country. Nevertheless, as the Magna Carta declared that no free man should have been seized or imprisonment, or outlawed or exiled, except by the lawful judgement of his equals or by the law of the land1, the “lawful judgment of his equals” became the foundation of the jury trial and “nor will we proceed with force against him except by the law of the land” gave life to the concept of the due process of law
2
which will become one of the pillars of common law judicial systems.
Notwithstanding, through the early years of English criminal law, sentencing was, indeed, a simple matter as the penalty for felony was death and the penalty for a misdemeanour was unlimited imprisonment or an unlimited fine. However, gradually the judiciary developed procedures to mitigate the severity of the law and the power of the judges grew founder. Even though Beccarian ideas were scrutinised by well-known scholars such as Blackstone and Bentham, English sentencing law was extremely arbitrary and discretionary decisions formed a dominant feature in many criminal justice systems, nominating the Eighteen Century as
the golden age of judicial discretion.
On the other hand, as English sentencing law had been long exported to the colonies of the British Empire, its model was taken as sample particularly in the United States of America. Therefore, we will see that, before American independence, the role of the juries was an essential part of the forming country as they sentenced with substantial power. Indeed, the applicable criminal law resulted from the jurisdiction of different states and cases which the jurors were familiar with.
Henceforth, as American sentencing law continued to evolve, judges, like any other judge in a common law judicial system, believed sentencing to be an area reserved to their special competence. American judges, in particular,
3
refused any external sentencing restrictions. Sentencing discretion was perceived as essential to their work, a pillar
representing judicial independence.
Broad discretionary powers meant that different judges could impose a range of different sentences for different reasons, without having to give an explanation in court. Besides, even the same justice could not always be consistent in his or her sentencing. It appeared to be no agreement between judges as to which criteria ought to be taken into account in the sentencing decision and what weight should have been given to third factors such as prior record and age.
Whilst normative statutes and codes proliferated in Continental Europe, common law countries strived to find consistency. In particular, both in the United States and England a concern about the rising prison population helped to shape the minds of the public opinion and slowly summoned criminal law reforms which will be further examined. Accordingly, the possibility of controlling the wide discretion of the judges slowly became an essential part of the emerging weapon of managing of the criminal justice systems. Thus, for a combination of factors, a movement which believed that judicial discretion had to be controlled and sentencing disparity had to be eliminated was born. A need for “truth in sentencing” was felt, demanding equal sentences for the same offences, with objective parameters. As different judges could have different conceptions of
4
which sentence was deserved in a particular case, what was needed was a mechanism for ensuring that judicial discretion was controlled by forcing judges to sentence in accordance
with agreed and objective standards.
As indeterminate sentencing imploded, new ways to contrast the arbitrariness of sentencing developed in favour of procedural fairness, transparency and predictability of the system. The first and best-known example of such a goal was, indeed, achieved with the sentencing reforms in the
United States.
Sentencing guidelines were primarily introduced with the idea that they would enhance the problems regarding discrimination and the idea of equal treatment under the law. Indeed, so was believed for the introduction of mandatory minimum penalties which require judges to sentence offenders to a specified minimum prison term for a specific crime as established by the Congress, through the United States Sentencing Commission. Whilst they were further incorporated into the sentencing guidelines in order to measure the severity of the offence and the culpability of the offender, they are now believed to be too restrictive and questionable grounds for discrimination arose, within the federal criminal justice system.
Respectively, as the same need for consistency and uniformity was felt in the U.K., similar sentencing guidelines were introduced. Therefore, after an extensive evolution, the Coroners and Justice Act 2009 promulgated
5
important changes both to the sentencing environment and
the development of guidelines.
In further analysing this legal process, this composition will ultimately emphasise the main influences on English sentencing and, indirectly, highlight whether there are consistent differences when compared to the American model. Most precisely, it will evaluate whether the impact of the European Convention on Human Rights together with the European Union has cast the U.K. judicial system, generating two distinct models of sentencing guidelines within a common law context which was once the same.
6
CHAPTER ONE
THE PRINCIPLE OF LEGALITY: ITS HISTORY AND MEANING IN CIVIL LAW AND COMMON
LAW JUDICIAL SYSTEMS
1.1. The Civil Law: From its history to the
Enlightenment with Cesare Beccaria’s On
Crime and Punishment and its legacy
The principle of legality represents the cornerstone of the continental criminal legal system of the nineteenth century, which characterises the ideas of the Enlightenment and the French Revolution.
As the notion of the centrality of law as opposed to the discretion of the Ancien Régime, the law should be strictly
and abstractly defined by the lawmakers.
Accordingly, every citizen should have the right to know precisely and in advance, the penalty applied to each
offence2. This principle is commonly known as nullum
poena sine lege and is recognised both in Continental Law
and in the Anglo-American legal experience, although characterised in a particular manner and elaborated through a different historical process.
The long history which characterises the Civil Law originates back to Roman Law, as it is known that the term
2 M. Pifferi, Reinventing Punishment: A comparative History of Criminology and
7
itself derives from the Latin Ius Civile which was the law
applicable to all roman cives, or citizens.
Therefore, in the continental legal experience, this model finds its origins in the monumental compilation of Roman law, commissioned by the Emperor Justinian in the sixth century CE. Whereas this compilation was lost within decades of its creation, it was revived and became the foundation for legal instruction in Italy, back in the eleventh century, whilst came later to be known as Corpus iuris
civilis.
As generations of legal scholars throughout Europe adapted such principles to contemporary needs, Medieval scholars of Catholic canon law were also influenced by Roman law. While they compiled existing religious legal sources into their own comprehensive system of law and governance, the Church became a central institution to medieval culture, politics and higher learning. By the late Middle Ages, these two laws, civil and canon, were taught at most universities and formed the basis of a shared body of legal thought common to most Europe and essential to European legal development.
Notwithstanding, the period of urban powers, identified between the thirteenth and the fifteenth century, created institutions and thus original sources of law which can be identified as normative sources, narrative texts and administrative and judicial sources. The normative sources
8
were generally written and included urban statuti, drafted by Italian communes, charters of freedom wrested from the local landlord and ordinances or customs written in the late Middle Ages. From the standpoint of traditional legal history, these documents generally made it possible to define local norms. However, few scholars have viewed them as the result of negotiations among the various powers competing for social control, as camouflaging the variety of authorities behind an appearance of uniformity3.
The narrative texts were generally used to clarify the facts and figures found in official records or the standards
formulated in normative texts. Such chronicles served
primarily to develop a political, social, or cultural history of crimes and criminal procedure. Thus, one marked example of this tendency is the book Violence and Civil Disorder in
Italian Cities, 1200-1500.
Nevertheless, the types of administrative and judicial records were highly diverse and showed a different number of authorities exercising social control in any one territory. As the volumes of the family of Malatesta, which showed sentences handed by the podestà, the judice dei malefici, the official in charge of fortress munitions and the consul des
marcandises, and so on. Likewise, in Paris, nearly thirty
authorities were competent to hear cases within the city whilst in the fourteenth-century Zurich, not only the Council
3 C. Emsley and L. A. Knafla, Crime History and Histories of Crime, Greenwood Press, 1996.
9
Court could sentence in case of civil and criminal matters, but there were multiple courts established to pronounce specifically on trade matters in addition to the ecclesiastical courts.
Henceforth, within an agency of social control, it was not always easy to distinguish between administrative and legal archives, and their differentiation developed gradually. The earliest urban registers usually record both decisions taken by the town oligarchy on an administrative or normative matter and repressive measures. For instance, in Nuremberg, the records for 1285 and 1400 regards books of decisions, prohibitions and settlements of peace.
Later on, separate books showed verdicts usually pronounced by the city council and for political decisions. The remarkable variety of records and institutions created multiple archival structures according to the characteristics of the local system of law, whether written or oral procedure,
and the balance of force between the legal actors4.
Moreover, the early modern period, approximately from 1450 to1650, is marked by technical advances in judicial institutions. On the one hand, records became more specialized and thus more diversified. Indeed, they were standardized and rationalized during the sixteenth century under the twofold influence of the normative organisation of
criminal procedure and legal scholars into many
4 C. Emsley and L. A. Knafla, Crime History and Histories of Crime, Greenwood Press, 1996.
10
jurisdictions. Gradually, these archives supplanted the documents of the Middle Ages.
Around 1500 in most parts of Europe, written records became common, were rationalized and produced a few series of generic documents common to most western European local courts: preliminary hearings or judicial inquiries, minutes of audiences, verdicts and written criminal records.
Furthermore, as the inquisitorial system prevailed, the majority of criminal dispositions were typically found in the
statuti of different boroughs, a part of which were dedicated
to the administration of justice and ruled on how judges should have proceeded.
From the 15th century in Italy, criminal law found its nearly
exclusive source in royal legislation, slowly abandoning the
ius comune. The structure of the inquisitorial process was
defined by ordinances, among which we must acknowledge the Constitutio Criminalis Carolina of 1532, recognised as the first body of German criminal law commissioned under the reign of Charles V emperor of Germany, and the l’Ordonnance sur le faict de la justice promulgated in 1539 from King Francois I of France. As for Italy, Constitutiones
Dominii Mediolanensis (Nuove Costituzioni) were promulgated by Francesco II Sforza in 1541 for the state of Milan whilst Nuovi ordini, published in 1560 by Emanuele Filiberto the Duke of Savoia, entirely regarded criminal
11
procedure. Henceforth, criminal proceedings had been written in vulgar, clearly distinguished from civil proceedings and systematically organised.
However, as sentencing was concerned, the earliest form of state-imposed social control was by means of ordering financial compensation. This practice, prevalent in the Middle Ages, involved offenders being ordered to pay a certain amount of money to the victim or their family. The motivation behind it was the need to prevent feuds and the amount of money to be paid depended on the status and the position of both the offender and the victim. Accordingly, a high-status offender would have to pay more toward the victim or his/her family than a wrongdoer of lower status. These levels of compensation would normally be set by rulers and such financial penalties appeared to have been preferred over corporal punishment in the early Middle
Ages, clearly aimed at preventing escalation5.
Alas, this changed with the rise of the inquisitorial system introduced by the Church with Boniface the 8th, in the seventeenth century. The judges gained more control as they were in charge of pursuing the truth at all costs and in secret, even through the use of torture.
The poor who could not afford to pay amends were condemned to corporal punishments whilst the wealthy contributed to enrich magistrates and public officials.
12
As the centralisation of legal authorities developed, the power laid in the hands of the few and the use of torture grew exponentially, generating dissent6.
Notwithstanding, as civil law came into practice throughout Europe, a desire was generated to systematise scattered,
legal provisions and local customary laws.
With the eighteenth century, the “Age of Reason”, the reforming aspirations of the Enlightenment (1685 - 1815) aligned with the desire of the jurists to rationalise the law to
produce comprehensive, systematic legal codes.
Sadly, in a state of social and political revolutions grotesque examples of inhumanity and cruelty still abounded, even under the most enlightened legal codes. This was more evident in the area of criminal legislation and judicial
punishment than anywhere else.
In France, habeas corpus had no place in the due process and the widespread use of the letter de cachet, the instrument which permitted the crown to use warrants for the arrest and indefinite detention of suspects without a court hearing, continued until 1789 as it did the indiscriminate use of torture against defendants as a mean to gain confession. Dreadful trials of individuals, involving both the church as well as the state, such as the torture and execution of the young teenager, the Chevalier de La Barre, in 1766, became
13
a European symbol of needed reform.
In Prussia, Frederick II abolished torture, except for reasonable offences, in 1740. However, torture continued to be used in higher courts in Russia until 1801, and the Spanish Inquisition continued to use it until 1816.
Nevertheless, examples of excesses of judicial sentencing were eventually to recede with the growing impact of humanitarianism.
The demands of Enlightenment thinkers for reform of the criminal law gathered rapid momentum between 1762, with the trial of Jean Calas who was tortured and sentenced to death on the wheel for the murder of his son although professed himself innocent, and 1789, with the French Revolution.
The most celebrated reformist statement came from Italy with the publication in 1764 of On crimes and punishments
(Dei delitti e delle pene) by Cesare Beccaria. Beccaria’s treatise was an eloquent appeal for penal reform, elaborated within a broad social, moral and political context. His purpose was to discredit all systems of government and justice which drew their legitimacy from class privileges and hereditary rights, replacing them with codes of public administration, whether in the realm of taxation or criminal procedures, thereby embodying that central Enlightenment principle of progressive jurisprudence, namely equality before the law.
14
Furthermore, with the influence of Montesquieu, Beccaria professed the supremacy of the rule of law, rigorously, consistently and universally applied on a system of punishments devised by the law and not by magistrates, on the sovereign primacy of the law over all aspects of courtroom practice and above all in his insistence on the need for the application of a principle of rational proportionality in the judicious adjustment of sentences to the gravity of offences, gravity being measured strictly by
criteria relating to the harm done to the state7.
Accordingly, sentencing should be prompt and
uncompromising, without appeal, applied equally to all classes of criminal, irrespective of moral or personal considerations.
For Beccaria the state’s right to punish had its origins in political rather than moral or theological authority, being a function of the surrender of natural liberty to which individuals had consented when they entered the civil order and by which security and peace were the principal
advantages resulting to them in consequence.
Therefore, any system of punishment and deterrence with regards to individuals who might threaten the security and peace of others must emanate from the state itself. Thus, no judge could punish an offender on his own authority. Punishments, moreover, were to be prescribed in light of specific objectives:
15
“The purpose of punishment is not that tormenting or affecting any sentient creature, nor of undoing a crime already committed … The purpose of punishment, therefore, is nothing other than to prevent the offender from doing fresh arm to his fellows, and to deter others from doing otherwise … If punishment is to be just, it must be pitched at just that level of intensity which suffices to deter men from crime”8
Nevertheless, Beccaria was concerned with both effective deterrence, retribution and advocated the introduction of a rational, consistent and systematic set of legal procedures as
the most effective way to guarantee both.
As a result, punishments were perceived as necessary in order to protect the public well-being against law-breakers only if justified by clear and tangible motives. The first consequence of this principles is that laws alone could and can decree punishments for crimes whilst such authority can reside only with the legislator, who represent the whole of society united by the concept of social contract, as professed by Jean-Jacques Rousseau. No magistrate, who is, therefore, a member of such society, could impartially establish of his own accord any punishment for any affiliate of the same society. For Beccaria, a punishment which exceeded the limits laid down by the law was a punishment with another one added to it and, therefore, excessive and
16
wrong. Yet, the sovereign should promulgate laws which are clear and general, in order to bind all members of the society. Accordingly, the sovereign could not rule on whether an individual had violated the social pact because that would have divided the nation into two parts: one, represented by the sovereign, who asserted the violation of the contract, and the other, represented by the accused, who denied it.
As second a consequence, there is represented, therefore, the need for a third party to judge the truth on the matter. Thus, here lied the need for the judge, whose sentences should have admitted no appeal and have consisted in simply confirming or denying particular facts.9
Furthermore, in seeking to ensure that the criminal law would effectively deter crime, Beccaria was at the same time concerned to create a system that would not destroy the still fragile concept of human rights. If it could be demonstrated that severity did not, in fact, have the intended deterrent effect, then its maintenance would be contrary to reason, justice and to the requirements of the social contract itself. In advocating a less brutal system of punishment with an arguably less effective deterrent impact, Beccaria laid the foundations of post-Enlightenment approaches to questions of individual responsibility for criminal acts and of equality above the law.
17
The best deterrence was derived, therefore, not from the ferocity of the punishment per se but rather from public confidence in law’s impartiality, infallibility and certainty. In order to ensure this, laws must also be clear, precise and devoid of any ambivalence which might facilitate arbitrariness.
If the laws are clear, then they will be more fully and widely understood and, in consequence, more widely respected and obeyed. Henceforth, the principle of legality was established.
Cesare Beccaria’s ideas were received enthusiastically by enlightened thinkers across Europe, although they were strongly resisted by many jurists and theologians. In Italy, the opposition was led by Ferdinando Facchinei, a Dominican cleric, whose Notes and observations on the
book on crime and punishment (1765) was written on behalf
of the Council of Ten in Venice. Beccaria’s treatise became known in France through the translation of Morellet, which went through seven editions in the space of six months. Jurists expressed astonished disapproval on the notion of equality in the legal process and strongly defended the use of torture, such as in Refutation of the principles advanced in
the treatise on crime and punishment (1767) by Muyart de
Vouglans.
Besides, among Beccaria’s supporters, there was Voltaire, to which On crimes and punishments made a deep impression as he was still involved in the public confrontation with the
18
legal authorities over the case of Calas.
In 1766 Voltaire published a lengthy commentary on Beccaria’s work which at its end contained an appeal for
urgent reform on French judicial procedures.
After the French revolution, the 1670 Criminal Ordinance was abolished whilst the French penal code of 1791, which echoed much of Beccaria’s thinking, would herald the reforms to be implemented under the Napoleonic codes.
Notwithstanding, the Enlightenment shaped the future of the continental legal experience of the nineteenth century and onwards. New codes were promulgated all around Europe, regarding both civil and criminal law. Such codes, shaped by the Roman law tradition, set the model for today’s civil law systems. Thus, after the 1804 Napoleonic Civil Code, others followed.
As for criminal law and punishments, Napoleon imposed a French Penal Code in 1810 which was later on extended to the Kingdom of Naples in 1812, despite efforts made by Italian jurists to enact autonomous penal codes. After the Congress of Vienna and the restoration of previous sovereigns in 1814, there were multiple penal codes enacted all around continental Europe, such as the Austrian Penal Code of 1803, the Bavarian Penal Code of 1813 or the Baden Penal Code of 1845, which were equally characterised by a French imprint rather than an Austro-German inspiration.
19
Eventually, in Italy, The Zanardelli Code was promulgated
in 1889and was the first penal code of the unified nation, as
the outcome ofa thirty-year theoretical discussion dominated
primarily by liberal scholars10.
Furthermore, the principle of legality was later on defined by Feuerbach (1755-1833), a renowned German jurist, as
“nullum crimen, nulla poena sine lege”.
These two maxims had been identified as the safeguard of the citizen against the omnipotence of the State; protecting the individual against the ruthless power of the majority, against the figure of what was defined as the Leviathan. However paradoxical it may sound, the Criminal Code had been defined as the criminal’s Magna Carta. Accordingly, it certified, and still does, his right to be punished only in accordance with the statutory requirements and only within those statutory limits.
The newly promulgated criminal codes could not be replaced by single clauses as they were considered too dangerous to public safety. To this notion, the listing of preconditions under which alone the State punishment may come about and the elements of the individual criminal offences could be defined only by those codes, analysed by scholars according to the judicially logical method, and applied by the
magistrates according to the same method11.
10 M. Pifferi, The Roots of Italian Penal Codification: Nation Building and the Claim
for a Peculiar Identity in Criminal Law, Springer.
11 F. Von Liszt; The Rationale for the Nullum Crimen Principle, Journal of
International Criminal Justice, Volume 5, Issue 4, 1 September 2007, Pages 1009–
20
For him, the power of the law to intimidate the individual laid on the concept according to which the persecuted behaviour, and the sanction prescribed for it, had to be
clearly and unquestionably described.
Therefore, the criminal commandment had to be contained in a norm which had to be clear and precise, avoiding to succumb to any kind of judicial interpretation, as a way for the magistrates and individuals to not to misinterpret any of the words used.
In the late 19th century, those theories expressed by
Feuerbach and Beccaria were once more at the centre of the attention. Some affiliates of the Scuola Classica, who had always supported the idea of the primacy of the law, immediately welcomed such conceptions whilst members of the Scuola Storica still argued and supported the use of the analogy in criminal proceedings as a mean to choose and apply punishments. However, despite the existing theoretical disputes, in the most part of modern criminal codes norms which imposed the observance of the principle of legality were introduced. Accordingly, in the Italian Penal Code of 1930, the 1st Article banned the use of judicial interpretation regarding criminal law, conforming to the provisions contained in the Art. 4 of the preliminary dispositions of the Napoleonic Civil Code of 1865.
Thus, little room was left to magistrates as only the law prescribed what could and could not be defined and
21
Later on, the principle of legality grew on modern continental judicial experience and could also be found at
the foundation of some international conventions.
Therefore, increased its importance in the European
Convention on Human Rights (ECHR) of 1950 regarding the
interpretation of the concept of “punishment”.
Henceforth, the nullum poena sine lege principle can now be found at the Art. 7 of the aforementioned convention and has been thus interpreted by the Strasbourg Court as a way to attribute the notion of “punishment” to otherwise labelled measures in different judicial systems of the Member States. Yet again, it can as well be found in the Article 22 of the Rome Statute of the International Criminal Court, continental national constitutions and criminal codes, such as Article 1 of the German Criminal Code and Article 16 of the Dutch Constitution.
However, Vladimir Zagrebelsky during the international convention held for the celebration of the 250 years of Dei
delitti e Delle Pene in 2014 underlined how historical
developments brought, both in France and in Italy, to outdo
one of the most famous Beccarian ideas12.
As undoubtedly the principle of legality still stands, the use of the judicial interpretation given by the courts appears to have grown exponentially. The increasing importance of
12 L. Picotti, Alle radici del diritto penale moderno: l’illuminismo giuridico di Cesare
22
criminal precedents, the role given to modern Constitutional Courts and the recognition of a “living law” as a way to ensure norms to have a sufficient degree of certainty can demonstrate how impractical his vision would be nowadays and how the role of the judiciary is growing even in
continental Europe.
The absolute supremacy of national law had been outclassed by the promulgation of superior normative statutes, such as constitutions and, most importantly, by European or international conventions. Thus, such norms require by nature significant powers conferred to the judiciary in order to interpret wide principles in those contained. The idea itself of a “perfect” judicial interpretation would no longer be attainable as some “dissenting opinions” by foreign or supranational courts show. Alas, creative interpretations are spreading both in civil and in criminal matters.
Ultimately, as highlighted by Zagrebelsky, the mere concept of clear whilst simple norms as decreed by Beccaria is dissolving. Yet, laws are becoming more complex in response to the continuous expansion of activities which needs to be ruled upon. Consequently, even the notion of general applicability of the law now depends on individualising factors often provided by the courts.
Whilst celebrating Beccaria and his tremendous legacy in regards to the rationalisation of criminal law and the establishment of the principle of legality of punishments, it is safe to say that we are now witnessing a major
23
transformation with the expansion of judicial discretion in continental Europe, where, as we have retraced, was not a custom.
24
1.2. The continuity of the Common Law: From
Magna Carta to the nineteenth century in England
The United Kingdom system of government and the legal institutions which form part of it are only explicable in terms of their long history and continuity. Whereas most continental legal systems rely, as we have seen, on legal principles derived from Roman Law adopted during the Renaissance and the Enlightenment, the English legal system has remained comparatively uninfluenced by this source13.
The earliest English Laws of which we have documentary evidence date back from the Anglo-Saxon period. However, these would not qualify strictly as English Laws since they would relate to a particular tribal area, such as Kent, Wessex or Mercia as they were based on the customs of local colonisers.
The Norman Conquest with the Battle of Hastings in 1066 led to William the Conqueror ascending the English throne, determining a process of centralisation. Thus, He imposed a strong national government by causing his Norman groups to become major land-owners throughout the Country. The system which was created so-called “subinfeudation” under which all land belonged to the monarch and was by him granted under certain conditions. In return, those followers could grant their land to their tenants and, subject to conditions, those could make a similar grant on their own.
25
This system gave life a feudal system under which the tenants owned duties to their lord, who in turn owned duties
to their lord, so on up to the monarch.
What may appear superfluous for the purpose of our argument, actually generated the concept of a central legal and governmental authority.
As a centralised system of law developed, customary law gradually evolved in national law, which became known as the Common Law. Hence, it was called “common” since it became common to the whole country, as opposed to local customs. Nevertheless, since the inevitably different customs conflicted, the judges’ decisions absorbing certain customs and rejecting others came to be of predominant importance as they were creating “the law of the realm”. Accordingly, the Norman Kings, not long after the Conquest, started to appoint the judges as royal commissioners, charged with royal powers, to travel across the country in order to deal
with both civil and criminal matters.
In addition to settling national legal principles, the courts began to establish formal procedural rules and the system
eventually became rigid.
While the Normans operated in a more centralised governance, the Kingdom acquired an established set of constitutional characteristics which regularly presented key features of them in written form. A substantial and important document was known as the “Charter of Liberties of Henry
26
injustices and oppressive actions carried out by the previous monarchs. The document addresses raising extra money by selling vacant church posts, charging aristocrats for receiving inheritances and to annul a “common tax money” collected through counties and cities, not much more. In 1135, King Stephen issued a charter guaranteeing “all the
liberties and good laws” agreed by his uncle, Henry, as well
as “all the good laws and customs” derived by the Anglo-Saxon era.
In 1164, under Henry II, came the Constitution of Clarendon, which was the product of conflict between the King, the Church and the barons, portraying King Henry II as a resolver of disputes. By the close of the twelfth century, certain tendencies were well established in England, centred on the production of texts which share certain features with
modern written codifications.
Kings played a prominent part in instigating these texts, generally issuing them in their own names and often using them to assert or increase their own authority. Yet, these texts rested on the consent of a wide group of notables and the Church was often an important part in their creation. Clerics could provide the expertise that was vital to what could be a demanding task of drafting as well as influence the content, which was often dwelt on Christian values and the privileges of the Church.
27
The codes dealt with matters which were fundamental to the functioning of society, such as basic values and rules to discourage violence, facilitate economic activity and
promote social welfare.
Besides, they set out to provide for certain privileges and protections, including for women, though not “rights” in the contemporary sense of the term. The texts also defined some official powers and functions, and could at the same time serve to constraint public authority through imposing conditions upon it. All of these characteristics would find their fullest expression in a well-known agreement imposed
upon King John, in June 1215, called Magna Carta14.
Nonetheless, by 1215 it was a firmly established practice of the kings of England to issue documents which shared features with the written constitutions of later eras and Magna Carta drew upon this tradition yet it gave life to something new. A central thrust of the Magna Carta of 1215 was the protection of baronial interests against the arbitrary behaviour of the King in his financial demands, through the violation of property and personal security, his manipulation of the law and his style of government. It was an effort made by an established group to prevent perceived abuse of the system on which its own privileges rested. Thus, the chapters 39 and 40, which merged into one and ultimately numbered chapter 29 in the final issue of 1225, stated that:
14 A. Blick, Beyond Magna Carta, a Constitution for the United Kingdom, Hart Publishing, Oxford and Portland Oregon, 2015.
28
"No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land".15
Accordingly, what was previously defined as “lawful
judgment of his equals” became the foundation of the jury
trial and, most importantly, “nor will we proceed with force
against him except by the law of the land” gave later life to
the concept of the due process of law which will become one of the pillars of common law judicial systems, as opposed to
the notion of nullum poena sine lege16.
However, the expression first appeared in a statutory rendition of the Magna Carta, in 1354, during the reign of Edward III of England.
Notwithstanding, with the break from the Catholic Church in 1535, Henry VIII was recognised both as head of the English Church and, of course, the realm. By assuming supreme power over spiritual and secular matters together, the King broke the separation of duty towards God and the duty owed to the King. Thus, the obedience to the sovereign became a
religious as well as a political duty.
Not long after the Reformation, in 1608, Sir Edward Coke
15 Magna Carta.
16 M. Pifferi, Reinventing Punishment: A comparative History of Criminology and
29
(1552-1634) expressed the idea of a higher authority, where laws derived from Parliament and the power of Parliament was subject to common law, accordingly: “When an Act of
parliament is against the common right or repugnant or impossible to be performed the common law will control it and adjudge such Act to be void”17. Thereafter, An Act Declaring the Rights and Liberties of the
Subject and Settling the Succession of the Crown, formally
known as the Bill of Rights, was signed in 1689, as the result of the long Seventeenth Century struggle between the Stuart kings and the English people and Parliament. The main purpose of the Act was unequivocally to declare
illegal various practices of James II.
Among such, there was the royal prerogative of dispensing with the law in certain cases, the complete suspension of laws without the consent of Parliament, and the imposing of taxes and the maintenance of a standing army in peacetime without specific parliamentary authorization. Yet, another step towards legality had been taken by condemning excessive fines and illegal and cruel Punishments to be
inflicted18. Consequently, the doctrine of parliamentary supremacy, the prerogative of the common law and the notion of the rule of law were established.
Still, even though the first steps towards the principle of legality were being made, in the late Seventeenth Century, in
17 Dr. Bonham’s Case (1610).
30
early English criminal law sentencing was a simple matter. The penalty for felony was death; the penalty for a misdemeanour was unlimited imprisonment on an unlimited fine. Gradually the judiciary developed procedures to mitigate the severity of the law and the judges evolved the
concept of the “benefit of clergy”.
This concept depended on the principle that a priest should be punished by the courts of the Church rather than by the State. If a defendant convicted of a felony or otherwise liable to be sentenced to death could show that he was a priest, he was released from the criminal court on the assumption that the bishop would deal with him in the ecclesiastical court. As there were no records of who was and was not a priest, the courts developed a test of literacy, on the assumption that anyone who could read was likely to be a priest. What happened in practice was that a defendant convicted of felony was given the chance to demonstrate his ability to read by reading a particular verse from the Bible: if he could do so, or at least make a reasonable attempt to do so, it was assumed that he was a priest and that he would be released19. In fact, many felons who were not priests and could not read tried to learn the test verse by heart so as to be able to recite it from memory20. Eventually, the doctrine of the benefit of
clergy declined in importance during the Eighteenth
19 M. McConville & G. Wilson, The criminal justice process, Oxford University Press, 2002.
20 M. McConville & G. Wilson, The criminal justice process, Oxford University Press, 2002.
31
Century, as the Parliament enacted numerous statues abolishing the doctrine for particular cases.
In the late Seventeenth and early Eighteenth Centuries, various experiments were made in the desire to find a satisfactory second punishment, as an alternative to death.
The Transportation Act of 1718 replaced the doctrine of
benefit of clergy by the practice of transportation. Hence, that provided the removal out of the Kingdom of those offenders who, for a variety of reasons – as their youth, nature of their offence, etc. – were not considered to be deserving of the death penalty but more than flagellation and a discharge. The sentence was generally for periods of seven
or fourteen years but sometimes for life.
In 1751 a committee of the House of Commons had proposed hard labour in the Royal Dockyards as a suitable alternative, but it was never implemented.
While crime and social disorder were recognisably rising at the end of the eighteenth century, a number of solutions were thus advanced and a strong line of argument emerged that minor offences derived from the habits and way of life of the working population. Alas, stronger measures of social defence were being called for, in order to correct such behaviours before they were committed and the lack of proportion between offences and punishments started to emerge as a notion.
32
Over the 1750s and 1760s, the failure of the law to deter offenders became increasingly evident due to the long criminal calendars at all the courts and their evident failure encouraged a loss of faith in the entire system, allowing Cesare Beccaria’s Of crime and Punishments to become as influential as it was.
Consequently, Beccarian arguments against capital
punishment undoubtedly became an important reference point for reformist ideas in England, once published in London in 1767. Blackstone’s idea ideas on punishments
show evidence of such influence.
In the fourth volume of his Commentaries, which dealt with “public wrongs” and was published two years after Beccaria’s English edition, Blackstone addressed general questions of punishment directly and he was in fact very critical of English criminal law. Therefore, Blackstone condemned the indiscriminate reliance on the death penalty, and while he defended it in principle, he confessed to finding it “difficult to justify the frequency of capital punishment
inflicted by a multitude of successive independent statues, upon crimes very different in their natures”21. The above-mentioned passage continues with an approving reference to Beccaria’s view that “crimes are more
effectually prevented by certainty than by the severity of
21 J.M. Beattie, Crime and the Courts in England 1600-1800, page 556, Oxford University Press.
33
punishment”.22
Thus, Blackstone recognised that the elevated number of capital offences presented great problems for conventional justifications of the system, and agreed with Beccaria that such severe penalties were potentially indicative of the
‘distemper of any state, or at least of its weak constitution’23. Furthermore, with an increasing number of opportunities provided for the avoidance of punishment, there could be no effective deterrence, despite legislative threats of the most severe kind. Clearly, the call for proportion presented by Beccaria supported Blackstone’s belief that the number of capital sentences needed to be substantially reduced. Similarly, the lack of certainty of punishment produced by the threatened application of the same severe penalty to an increasing mass of offences widely different in their nature was a defect for which Blackstone believed Beccaria
indicated a valuable response24.
In fact, as we know, Beccaria suggested that all states ought to produce ‘an exact and universal scale’ of punishments to offences and should further ensure the publication of such a statement. Blackstone, however, although visibly fascinated by such notion, believed it to be both unattainable and inapplicable in practice, and called this, “too romantic an
22 J.M. Beattie, Crime and the Courts in England 1600-1800, page 558, Oxford University Press.
23 Blackstone, Commentaries, p.17.
24 A. J. Draper, Cesare Beccaria’s influence on English discussions of punishment
34
idea”25.
The concept of a fixed scale of crimes and punishments was therefore rejected by the English scholar, but there is no doubt that he sought to incorporate the suggestion of a better proportioning in punishments into his own theory as an aid to the certainty of application, and hence to improve the deterrent threat provided.
How far positions shifted in the third quarter of the Century is made clear by the work of a committee of the House of Commons set up in 1770 to consider of so much of the
criminal laws as relating to capital offences.
The inquiry was moved by Sir William Meredith, a Rockingham Whig of liberal political and religious views, who urged the need to renovate the criminal laws so that punishments might be made more moderate and uniformly applicable.
Later, in November 1770, Sir W. Meredith, urged the Commons to mount an enquiry into the criminal law, influenced by Beccarian ideas and stated:
“none should be punished with death, but those who could not be made safely useful, except in cases of murder, where a capital punishment, as it would be less common, would operate more forcibly in terrorem and consequently more effectually answer its end”26
25 Blackstone, Commentaries, p. 18.
26 C. Emsley, Crime and Society in England, 1750-1900, Page 263, Longman, 2nd Edition.
35
Ultimately, the committee recommended that eight capital statues to be repealed; the House agreed in the case of six and that agreement was embodied in the Penal Laws Bill
(1772).
By the early 1770 articles calling for the revision of criminal law were common in the press and such program was
suggested in a number of influential papers.
In 1771 William Eden, the future Lord Auckland who was then a young lawyer, published the Principles of Penal Law, rejecting the existing system centred on capital punishment and recommending a useful punishment, querying the value of transportation27. Again, clearly influenced by Beccaria. Besides, like many others in England, he was not ready to abandon the death penalty entirely but wanted to repeal the capital provisions of a large number of statues, many of which he thought had been composed with vague, unfeeling,
undistinguishing carelessness28. More importantly, Eden advocated a consolidation and codification of the law to a
much narrower range of offences.
Ultimately, Jeremy Bentham also agreed that a reduction in the general level of penal severity was required whilst emphasising the need to account for the individual circumstances of the offender when punishing. He, as well,
sought consistency and certainty in punishment.
27 C. Emsley, Crime and Society in England, 1750-1900, Longman, 2nd Edition. 28 J.M. Beattie, Crime and the Courts in England 1600-1800, Oxford University Press.
36
While following the legacy of Beccaria’s thought in those beliefs, he also developed a method of proportionating the
punishment to the offence.
Bentham believed it ought to be possible for the operation of the law to be arranged in such a way as to accord always with the principle that the greatest happiness of the greatest number is the true aim of government. Thus, the true purpose of statute law was to increase general social happiness.
Besides, punishment itself was a clear social negative as Bentham said ‘is an evil inflicted by lawful authority upon
an offender on account of some offence’ in order either to
reform, deter or disable29.
For Bentham to justify any punishment it was necessary, therefore, to establish the quantity of pain, or evil, produced by an offence, and to formulate a painful punishment which would ultimately lead to a surplus of social happiness30. Bentham’s theory examined circumstances, sensibilities and intention. With his thirteen ‘rules or canons’ for calculating the required quantity of punishment to be applied, Bentham made an essential attempt at a scientific and systematic theory of penal law as a pillar for the theory of proportion.
However, those eminent theories were hardly put into practice and, by the end of the Eighteenth Century, over 200
29 University College London, Bentham Manuscripts (henceforth UC).
30 A. J. Draper, Cesare Beccaria’s influence on English discussions of punishment
37
capital offences were punishable by death, fixed and
regulated by Law with different statues.
This list of crimes, contained in various acts, came to be later known as The Bloody Code. Henceforth, it was argued that the aforementioned Code of the Eighteenth Century and the visible increase in capital statutes was central to the aim of the elite, to uphold a social system based on unequal distribution of property. In the courts, judges tempered justice with mercy and alleged impartiality, insisting that all were equal before the law but, in reality, the law was mainly concerned with the defence of property and wealth. In particular, English capital statues lacked general definitions, especially for embezzlement and larceny31.
Nevertheless, at this time, the fate of the prisoner was entirely in the hands of the judge as the defendant could have been granted a temporary reprieve or a royal pardon. With a royal pardon, the offender would have been submitted to transportation in one of the royal colonies to
work as a labourer for a specific period.
If the judge refused to grant a temporary reprieve, the prisoner would be executed shortly after the conclusion of
the court session.
Contemporary observers described this system as extremely arbitrary and defined it as “a lottery of justice”32. Yet, this
31 C. Emsley and L. A. Knafla, Crime history and histories of crime, Greenwood Press, 1996.
32 M. McConville & G. Wilson, The criminal justice process, Oxford University Press, 2002.
38
period in the history of English sentencing law was of fundamental importance as it established the central principle of the British system, the discretion of the judge. Observing England during the early 1830s Alexis Tocqueville, a French diplomat of the time, concluded that the law was, indeed, functioning as such fashion:
“The English have left the poor but two rights; that of obeying the same law as the rich, and that of standing on an equality with them if they can obtain equal wealth. But those two rights are more apparent than real, since it is the rich who make the laws and who create for their own or their children’s profit, the chief means of getting wealth”33.
Discretionary decisions formed a central strand in many criminal justice systems in the modern and Victorian England, nominating the long eighteenth century as the golden age of discretionary justice, particularly in regards to
property crime.
Jury nullification and mitigation had been at their peak, since a very high proportion of property offenders escaped punishment, while the continued growth of the Bloody Code expanded the range of charges which juries could reduce using partial verdicts. Until the repeal of that code, in the second quarter of the Nineteenth Century, the pardoning system created a rich discretionary justice. The judges’ right
39
automatically to reprieve many capital convicts also extended their sentencing options.
Indeed, between the 1770s and 1820s, the major courts could call upon the widest range of sentencing option they had ever enjoyed. The growing use of varying lengths of imprisonment in the final quarter of the eighteenth century significantly extended the range of secondary punishment available, such as the above-mentioned Transportation Act. At this time, judges could choose between fine, privately whip, publicly whip, enlist, imprison, imprison and whip, or transport of those accused of non-capital crimes, whilst offenders convicted of a capital crime could either be hanged or reprieved and then given either a free pardon or transportation for life34. Still, the opportunity to exercise
discretion was available to any individual within the criminal justice system by a number of criteria, such as age and gender.
Notwithstanding, by the 1850s the decline of public hanging and transportation, the end of corporal punishments and the
rise of the prison had been established.
Accordingly, even though the attempts to codify English criminal law in the 1850s failed, in 1861 most of the criminal law was consolidated in a series of major statues which provided the foundations of English criminal law for
years to come.
34 P. King, Crime, Justice and Discretion in England 1740-1820, Oxford University Press, 2000.
40
By the Consolidation Act of 1861 was enacted, transportation had given way to a new sentence known as
“penal servitude”, the principle of judicial discretion in
determining the lengths of sentences had become fixed by the law and the death penalty reduced to the offence of
murder, eventually abolished in 1965.
Moreover, with the Introduction to the Study of the Law of
the Constitution, the principle of nulla poena sine lege was
acknowledged in the British Judicial System by A.V. Dicey in 1885. Dicey, considered the father of the doctrine of the rule of law whilst in part reminiscing the social contract theory of Jean-Jacques Rousseau, envisioned a balanced democratic relationship between the State and the individuals, where no government should have put in place arbitrary laws arbitrary or retrospective laws, in order to limit discretionary powers that were expanding at the time35.
However, during the later part of the Nineteenth Century, the primary cause of debate was sentencing, concerned principally with the problem of establishing a consistent approach on the part of the judges and magistrates who now had formal responsibility for deciding on the sentences. The main concern was over the disparity of sentences, particularly in the treatment of persistent but relatively minor offenders.
Multiple suggestions for the control of judicial sentencing
41
discretion were proposed, many of which had been later revived in the American debate on sentencing reform. Among those: sentencing commissions, the development of conventions through an informal and formal process of consultations among judges, sentencing conferences, appellate review and a rudimentary form of a system of “guidelines” based on a statistical analysis of actual sentencing practice36. Different judges adopted different policies and, eventually, the solution which found favour with the Parliament was the creation of a system of appeals
against sentence.
In 1907, a Court of Criminal Appeal was established. This court had authority to hear appeals from the higher criminal courts throughout the country and it was hoped that through its decisions would bring a measure of consistency to the sentencing offenders.
Thus, an important development began at the turn of the twentieth century: the introduction of wider sentencing powers.
42
1.2. A comparative analysis of sentencing powers
in
both
systems
Judicial discretion developed proportionally to its historical backgrounds, creating different patterns which strongly characterised both continental legal experience and the Common Law. Accordingly, England has been the model for the foundation of the Anglo-American judicial system and Italy, with few others civil law countries, was the obvious choice in order to analyse the development of the continental western experience.
As stated by the eminent Tuscan jurist Piero Calamandrei
“statute laws are statute laws”, superbly defending the
legality principle. Apparently alluding to a script by L. De Oňate on the certainty of the law of 1942, legality was defined as “the logic instrument that western civilization
invented by centuries in order to express the law in a general yet abstract way”37. Accordingly, even though the use of judicial interpretation given by the courts appears to be growing significantly as previously stated, in western countries the principle of legality was and still is a pillar of continental judicial systems and the role of the judiciary had been shaped accordingly. Nonetheless, in most civil law countries, the principle of legality developed so that the
37 F. Colao, “leggi sono leggi”. Legalità, giustizia e politica nell’Italia di Piero
