Sentencing and the Legitimacy of Trial Justice
By Ralph Henham
Routledge – 2011 – 368 pages
This book discusses the under-researched relationship between sentencing and the legitimacy of punishment. It argues that there is an increasing gap between what is perceived as legitimate punishment and the sentencing decisions of the criminal courts.
Drawing on a wide variety of empirical research evidence, the book explores how sentencing could be developed within a more socially-inclusive framework for the delivery of trial justice. In the international context, such developments are directly relevant to the future role of the International Criminal Court, especially its ability to deliver more coherent and inclusive trial outcomes that contribute to social reconstruction. Similarly, in the national context, these issues have a vital role to play in helping to re-position trial justice as a credible cornerstone of criminal justice governance where social diversity persists. In so doing the book should help policy-makers in appreciating the likely implications for criminal trials of ‘mainstreaming’ restorative forms of justice.
Sentencing and the Legitimacy of Trial Justice firmly ties the issue of legitimacy to the relevant context for delivering ‘justice’. It suggests a need to develop the tools and methods for achieving this and offers some novel solutions to this complex problem.
This book will be a valuable resource for graduate students, academics, practitioners and policy makers in the field of criminal justice as well as scholars interested in socio-legal and cross-disciplinary approaches to the analysis of criminal process and sentencing and the development of theory and comparative methodology in this area.
'Henham examines the relationship between public perceptions of the legitimacy of criminal punishment, generated by a diverse society with often conflicting standards of empathy and moral satisfaction, and the actual sentencing practices and penal ideologies operating in the criminal justice system. One of the core aims of the book is to translate a looming crisis of legitimacy into practical terms of the future role of criminal justice. Henham takes a broad view of criminal punishment as reflecting community concerns as well as the specific guilt of an individual. He draws on international courts, such as the tribunals of Yugoslavia and Rwanda, and domestic common-law systems of Western Europe.'
'The book artfully explores unchartered territory. It attempts to explain the void in the discussion between sentencing outcomes and the public’s perception of the legitimacy of our criminal justice system. Current theory and research of the structure, policies, and processes that affect sentencing do not adequately reflect, or even acknowledge, society’s perception of individual sentencing outcomes as it relates to the public’s broader sense of justice. Henham seeks to fill this void by describing how public perception may reflect, and affect, criminal justice system within the concept of legitimacy. While other scholars have presented legitimacy as a part of the criminal justice dialogue, Henham explores legitimacy through the lens of morality and the sometimes conflicting community norms and values.'
'For anyone interested in more broadly considering criminal justice and its widening detachment from societal perception and diverse community norms and morality, Sentencing and the Legitimacy of Trial Justice is wonderfully eye-opening. Henham compels the reader to reevaluate one’s views about the court’s discretion at sentencing, specifically how such discretion can be mobilized to evade the impending perils that he outlines in the book. Against the backdrop of legitimacy, and perceived legitimacy, Henham invites us to reconsider the fundamental underpinnings of trial justice and our criminal justice systems. The sentencing court, in fact, does communicate with the community it protects in individual cases upon pronouncing its sentencing outcomes in individual cases. We should pay greater attention to the message conveyed. To read Henham’s latest work is to be convinced that any level or form of government must engage in thoughtful consideration of morality, societal norms and values, and diverse public perceptions when wrestling with issues of judicial discretion and sentencing.'
-Wes Reber Porter, Golden Gate University School of Law, San Francisco, in Criminal Law and Criminal Justice Books, March '12
Introduction 1. Challenging Existing Paradigms 2. Issues of Theory and Method 3. Punishment Rationales in a Comparative Context 4. Discretionary Power and Sentencing 5. Procedural Justice and Due Process 6. Victimisation and Sentencing 7. Deconstructing Evidence for Sentencing 8. Access to Justice, Rights and Accountability 9. Punishment and Sentencing as Governance
Ralph Henham is Professor of Criminal Justice at Nottingham Law School, Nottingham Trent University. Recent publications include Sentence Discounts and the Criminal Process (2001); Punishment and Process in International Criminal Trials (2005); Transforming International Criminal Justice: retributive and restorative justice in the trial process (2005) and Beyond Punishment: Achieving International Criminal Justice (2010) (with Mark Findlay) in addition to numerous articles on theoretical, comparative and policy-related aspects of sentencing. He has held visiting positions at the Universities of Cambridge, Oxford, Sydney and the European University Institute, Florence.