CiNii 図書 - The sentencing process

This text focuses upon the study of the recognition of the sentencing process, which has formed a field of study, quite recently, in its own right. The earliest essays in this volume date from 1963, and the topic began to receive more systematic attention across different jurisdictions, by the early 1970s. At this time, practioners and academics from the UK and the USA were realising that while much reforming effort had been directed towards the substantive criminal law and its procedures, little had been done about the law and procedure of sentencing. A rather sharp distinction between the "trial stage" and the "sentencing stage" had been assumed. Characteristic of the trial stage were adversarial proceedings and the operation of strict rules of admissibility and proof. However, when it came to the sentencing stage, these rules were relaxed. The sentencing aims at that time were utilitarian with the focus on the rehabilitation of the offender. The adversarial contest gave way largely to a diagnostic or problem-solving model. Information about the background, personal circumstances and motivation of the defendant, was presented to the sentencer and used as a basis for the sentence to be imposed. At the time of his writing his article in 1972, Judge Marvin Frankel described sentencing as "a wasteland in the law". He saw sentencing procedure and practise, which was highly discretionary and, since it was so subjective to the prefered approach of the individual judge, one which generated massive disparity in outcome. The aim of this work is to describe and assess developments and reform in the sentencing process which have taken place since that essay was written.

Part 1 Establishing facts and providing reasons. Part 2 Having a say on sentence. Part 3 Issues of evidence and process

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The sentencing process

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