At the end of May, I had the pleasure of attending the fourth virtual Sentencing Forum. This edition explored the theoretical and practical implications of researching sentencing as a social practice. More specifically, it examined the theoretical possibilities and commitments that arise from close observation of sentencing practices and from the use of shadowing judges as a research method. The two presenters, Professors Cyrus Tata and Irene van Oorschot, each shared their views, experiences, and joy in making sense of the social messiness that shapes sentencing and the wider judicial process.
For me, the key takeaway from the forum was that close empirical observation of sentencing practices is intertwined with theoretical openness. On the one hand, ethnographic methods open a multitude of possibilities for theorising sentencing. On the other hand, avoiding entrenched theoretical dogmas allows us, as researchers, to appreciate the complexity of sentencing as a social practice.
Sentencing as a social practice and theoretical openness
Cyrus Tata dedicated his contribution to the theoretical possibilities and commitments involved in researching sentencing as a social practice. He began by dismantling the dogma of autonomous individualism, the dominant theoretical foundation on which most sentencing research has been built. Autonomous individualism invites the researcher to compartmentalise and divide the social world into separate, individualised pieces of information. In the case of sentencing, this leads to researchers focusing on a single decision-maker (the judge) at the expense of others’ contributions and the community, on a single moment in time (the sentencing proclamation) at the expense of other important moments, and on a single step in the criminal process (the determination of sentence), as if it were isolated from what comes before and after it. From this perspective, the debate over whether there should be greater individual freedom or more restrictions on individual judges, which remains the principal fixation in the academic literature on sentencing, is reductive and limiting.
What Cyrus invited us to consider is that sentencing is far more complex than it may seem at first sight. When approached through ethnographic methods, sentencing emerges as a social practice produced through collaboration and competition among actors, institutions, and discourses. As such, sentencing is an interpretive practice, and nothing within it can be understood in isolation. Instead, all actions, events, and moments are given meaning in relation to other social factors. When viewed as a social practice, the illusion of a single crucial moment in time becomes absurd. Instead, sentencing is better seen as a process that evolves over a longer period. Finally, sentencing is performative. It is shaped through rounds of communication and dynamic exchanges among different actors. As Cyrus underlined, such an approach to sentencing comes from close ethnographic engagement with the actors and processes that form it. Among many methods, he mentioned court observation, shadowing judges and other actors, shadow writing of sentencing reports, and interviews. This exploration of methods was the cue for the second presentation, in which Irene van Oorschot shared her experiences with shadowing judges.
Close observation of the sentencing practice: Shadowing judges
Sentencing is performative. It is shaped through rounds of communication and dynamic exchanges among different actors.
Van Oorschot explained that shadowing is one of the most rewarding (and hardest) research methods, as it allows deep immersion in the daily practices and routines of decision-makers. To understand how judges get things done, how they work, and what social relations shape their work, one needs to become acquainted with all aspects of their professional lives and thus get close to them. In her study, Irene was especially interested in how court spaces, material objects, and technology contribute to and shape judges’ sense-making and decision-making.
Focusing on the method itself, Irene explained how shadowing allows the researcher to move beyond the ‘talking’ methods and gain a better sense of the craft of judging. At first, when interviewing judges, she usually received elaborate, legalistic justifications for how they do their work and for determining guilt and sentencing. Only through shadowing was she able to delve deeper into the action and, by extension, into the complexity of the sense-making process that judges go through when dealing with a case. For example, she observed how a judge interprets a case file from the moment it first lands on their desk until it leaves their hands months later. This sustained observation of a longer period of judicial work gave her a sense of how judges construct judicial narratives, aided by reflections, mental shortcuts, and stereotypes that support their thinking.
Serious engagement with sentencing as a social practice creates space for theoretical exploration.
Inevitably, we also discussed ethics, what to do with what you hear, and the importance of the professional trust that has been vested in you, along with the access it entails.
Overall, this was an incredibly rewarding Sentencing Forum. It reinforced my conviction that serious engagement with sentencing as a social practice creates space for theoretical exploration. The methodological insights and theoretical depth I gained will be crucial over the next few months as our team finalises the plan for the qualitative component of our Sentrix project.
Miha Marčenko
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