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Principles Of Sentancing Recidivist Offenders In Europe

9462 words - 38 pages


Paper delivered at Conference on “The Limits of the Criminal Law” at Leiden University, January 23, 2008 and subsequently published in Cupido (ed), Limits of Criminal Law (Nijmegen, 2008).[1]

Tom O’Malley
Senior Lecturer in Law
National University of Ireland Galway

First, I would like to extend my warmest congratulations to the students of Leiden Law School for having organised this conference. Thanks to their vision and energy, representatives from several European countries have gathered in this historic venue to discuss some key aspects of criminal law and criminal procedure. More often than not, we think of ...view middle of the document...

In fact, he himself would soon fulfil the demand with a book that ran to several editions.[5] In 1970 David Thomas of Cambridge University produced the first edition of his pioneering work, Principles of Sentencing[6], which paved the way for a great deal of other scholarship. Today, in England and elsewhere, there are numerous books and even some journals devoted to sentencing and penal policy.[7] The various sentencing reform movements in the United States since the mid-1980s have turned sentencing into something of an academic growth industry over there.

The study of sentencing is important for several reasons. In those jurisdictions which permit guilty pleas, sentencing is often all that matters. Once a person pleads guilty to an offence, no matter how serious, all that remains to be done is to select sentence. A case which might have occupied several days or weeks had it gone to trial can be disposed of in a few hours (or sometimes a few minutes) in the event of a guilty plea.[8] Even international criminal tribunals found it necessary to accept guilty pleas, if only in the interests of efficiency.[9] Secondly, it seems clear that in many Western jurisdictions punishment is getting increasingly harsh. Custodial sentences are generally becoming longer and more frequent, prison populations are growing and popular sentiment seems broadly supportive of these trends. This is particularly true of the United States where scholars have struggled to understand the apparently incessant growth of punitive attitudes and policies. Garland’s Culture of Control[10] is perhaps the best known of these efforts although Whitman’s Harsh Justice[11] has a more thoughtful exploration of the cultural factors that may explain recent divergences between American and European criminal justice policies. But perhaps the most fundamental reason for devoting attention to sentencing is that, irrespective of procedural and policy differences among the various European states, sentencing practices affect a great many of our citizens in profound ways. Rights to liberty, property and freedom of choice are among the more treasured values of Western democracies, and criminal punishment almost invariably restricts or removes the enjoyment of at least one of these rights. This is not to deny a state’s entitlement to punish criminal offenders. But it should remind us that respect for fundamental rights demands that penal measures should be grounded on rational policies and implemented in accordance with coherent principles.[12]

There are, however, certain other factors which underscore the importance of studying sentencing from a comparative perspective, and particularly within a European context. When legislators, lawyers and judges in English-speaking jurisdictions seek inspiration from elsewhere, they tend to confine their research to the laws and practices of other common-law (and almost invariably English-speaking) jurisdictions. Irish lawyers, for example, are far...

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