The other day, during a bit of an introductory chit-chat with our team in one of our weekly meetings, the topic of quantum mechanics came up. It was shortly followed by the phenomenon of emergence in physics and chemistry and other sciences: that a complex system can exhibit macroscopic properties that its individual parts do not have in isolation. Naturally, it flared up whether and how this could be observed in the sentencing context. The thoughts below attempt to sketch a loose analogy of how legal actors operate and how their roles intervene at different levels. Since we have now stepped into the world of Law, I am presenting the idea through the notion of the Separation of Powers in the Civil Law system. Apart from a few individual excursions, it is written from an ideal general conceptual perspective, not based on any concrete national jurisdiction. As such, it may not necessarily fully mirror real-life arrangements and occurrences in every detail.
Judicial Discretion and the “Master of Sentencing”
The final call rests with the Judge, perceived as the “Master of Sentencing”.
The micro level in the scope of this debate presents a singular criminal procedure. Assuming for the existence of a zone of discretion in sentencing – which I would argue is true for most European jurisdictions, then sentencing practice is virtually Judge-made Law. The final call rests with the Judge, perceived as the “Master of Sentencing”.
The Judge may choose any type and length of sentence the statute provides. From the legal perspective, they have to stay within the statutory ranges, whereas from the (narrower) perspective of the proportionality of the punishment, they are guided by the established sentencing practices at best [1]. Again, these are practices that were set up organically within the Judiciary itself. The Prosecutor, representing the State at this level, situated close to or even within the Executive [2] can, although, propose a type and length of the sentence, while the Judge is not bound by such a proposal. The Legislator is meanwhile mostly in a role of bystander – they have no active role in the procedure beyond being expressed in the fixed statute [3].
The Architecture of Criminal Policy
At the macro level, the roles of our actors substantially interchange. It is the Legislator who gets to pull the strings by setting the terms of punishment in the abstract – basically deciding how tough the system should be by defining criminal offences and attaching the types of punishments and ranges to them. Meanwhile, the Executive, through the Prosecution and other agencies, can operationally steer the system and aim the point of its spear toward certain crimes or social areas deemed of special concern, forming a criminal policy, often in concert with the Legislator, especially when the two are politically on friendly terms. Now the Judiciary seems to have less of a say in these matters at high-level. True, Courts may provide for a general sentencing practice at the aggregate level, but that practice still pertains only to conduct originally criminalized by the Legislator, within sentencing options prescribed by the Legislator, and in proceedings brought forth by the Prosecution. In other words, Courts cannot choose their cases.
Courts have often tended to be either reluctant to delve into such an adjudication or have generally been permissive.
At first glance, it may seem that I neglect the Judiciary’s pivotal role in adjudicating the Constitutionality of the Legislator’s acts. In the sentencing matters however, (Constitutional) Courts have often tended to be either reluctant to delve into such an adjudication or have generally been permissive,[4] granting the Legislator a fairly wide margin of discretionary authority in prescribing criminal sanctions [5].
Unless the Legislator were to flagrantly breach a constitutional provision (for example, by prescribing a death sentence), were not to allow required individualisation of a sanction [6]. or were perhaps to prescribe a grossly disproportionate sentencing range, the Courts have routinely been reserved to interfere with the Legislator’s decisions [7] treating the issue predominantly as a one of (criminal) policy rather than Constitutional Law.
Macro-Micro Convergence
At the macro level in the field of sentencing, the Judiciary therefore appears in a subdued position, especially in relation to the Legislator. Nevertheless, in an ideal jurisdiction, when the macro and micro levels converge, when we observe the system holistically, things seem to come to an equilibrium. It is for the Legislator to provide a stable and predictable sentencing environment in the abstract sense by prescribing an exhaustive assortment of criminal sanctions with proportional ranges, while providing the Judge with a sufficient margin of decisional discretion to enable them to fine-tune the sentence in each individual case. Precisely because punishment in Criminal Law has such a profound impact on an individual’s freedoms, it is justified that this decision should ultimately rest with the Judge as the professionally trained, and above all, the truly impartial actor, being independent institutionally and hierarchically, formally free from both external pressure and internal influence. As Gray put it, “It is axiomatic that sentencing is an exclusively judicial function.“[8] I believe this neatly wraps the aspect of the Separation of Powers in sentencing.
Legislative Encroachment and the Erosion of Judicial Sentencing Discretion
What once belonged to judicial discretion is increasingly being reclaimed by the Legislator.
As well as indirectly, more subtly, by altering the relations, namely between the Prosecutor and the Judge, thereby also affecting the Defendant’s position. Several procedural mechanisms come to mind: penal orders and special abbreviated criminal proceedings following an admission of guilt or a negotiated plea agreement. A common denominator is that they circumvent the main hearing phase of the trial: either by simply issuing a written penal order, in some jurisdictions without judicial review altogether, or through a streamlined guilty plea approval hearing. Named mechanisms typically strengthen the Prosecutor’s role at the detriment of the Judge, often effectively reducing the role of the latter to approving or rejecting a prosecutorial proposal rather than determining sentence freely. Such proceedings may superficially still uphold the appearance of fairness. The Defendant, of course, retains the option to object to a penal order, plead not guilty, or refuse a plea agreement, thus triggering “full” criminal proceedings with a main hearing.
Conclusion
Is the Legislator pursuing a greater degree of legal certainty at the expense of individualization? Are they combating unfair sentencing disparities? Are they pragmatically trying to reduce judicial backlogs and trying to shorten overdue procedures? Are the Judges too lenient? Or is perhaps that the Judicial system is just another victim of “McDonaldization of society”?[9] Do the Judges’ sentencing decisions not fit the Legislator’s value (political) compass? Probably the combination of all of the above sometimes. Zoom in and sentencing may still appear judicial – the Judge may still formally retain their title of “Master”. Take just one step back, and it may be the Prosecutor who really predetermined the sentencing outcome. Zoom out further, and the Legislator will emerge as the swift engineer who sometimes openly, sometimes tacitly re-tailored the sentencing game, not only by managerially reallocating power between actors in the courtroom and thus reconceptualizing the Separation of Powers in sentencing, but also by compromising the pivotal principle of the individualization of a criminal sanction. Indeed, sentencing patterns are structurally and conceptually transforming. Until reforms address those moments, or rather, until the architecture of prevention is given more attention than the architecture of punishment, Italy’s femicide law will remain what it is (and if we are a bit mean, what it is probably meant to be?): a powerful symbol, and a weak response.
written by Marko Balažic
Footnotes
[1] This pertains to jurisdictions that uphold such a standard of sentencing equality.
[2] The position of the Prosecution differs across Europe – while some fall directly under the Executive branch, others are provided with more autonomy.
[3] I acknowledge the possibility of statutory amendments during an individual procedure; however it does not occur often enough to be pivotal for this debate.
[4] See Nieto Martín, A., Saudade of the constitution: The relationship between constitutional and criminal law in the European context, New Journal of European Criminal Law 2019, Vol. 10(1), pp. 28-33.
[5] At this point I am not delving into the issue of whether this is the most appropriate solution.
[6] For example, see German Federal Constitutional Court (Bundesverfassungsgericht), Judgment of 21 June 1977, 1 BvL 14/76.
[7] One of the notable exceptions is the Italian Constitutional Court (Corte Costituzionale) which has in the last 10 years adjudicated several times that statutory ranges in certain offences were disproportionate and thus unconstitutional – see Judgments n. 236/2016, n. 222/2018, n. 40/2019 and n. 63/2022.
[8] Gray, A. quoting Chu Kheng Lim v. Commonwealth (1992) 176 CLR 1, 27 (Brennan Deane and Dawson JJ, with whom Mason CJ agreed (10)); R v. Nur [2015] 1 S.C.R 773, 816 (McLachlin CJ, Le Bel, Abella, Cromwell, Karakatsanis, and Gascon JJ), in:Mandatory Sentencing Around the World and the Need for Reform, New Criminal Law Review, Vol. 20, Number 3, pp. 391–432, p. 427
[9] See Ritzer, G., The “McDonaldization” of Society, Journal of American Culture, Volume 6 Issue 1 Spring 1983, pp. 100-107; in sentencing – for example see Hamilton, M., McSentencing: Mass Federal Sentencing and the Law of Unintended Consequences, Cardozo Law Review Vol. 35:2199 2014. pp. 2199-2262
