Issues with cafeteria sentencing and how sentencing should operate:
Cafeteria Sentencing:
Most controversial area of sentencing law and practice is fitting the punishment to the
crime.
Due to a wide array of mitigating and aggravating factors that have been held relevant to
sentencing, judges generally enjoyed a wide array of discretion in imposing punishment.
This has resulted in a large disparity in sentencing, and undermines the consistency and
fairness of the rule of law.
The unprincipled nature of sentencing practices has led to what Ashworth labels a
cafeteria system of sentencing, which permits sentencers to pick and choose with little
constraint a rationale which seems appropriate at the time.
Too much discretion in sentencing can result in the sentence revealing more about the
judge than the offender.
The simplest solution to this problem is the introduction of sentencing guidelines to as
well as maximum and minimum sentences to curb excessive judicial discretion.
A primary rationale should be adopted
The main reason for the ill-defined state of sentencing law and practice is that legislatures
and courts have not adopted a primary rationale or coherent justification for punishment.
As with most endeavours, without a standard goal, one is unlikely to make any positive
changes.
While no guideline system could hope to be sufficiently flexible or sensitive to incorporate
even a fraction of these.
But if a primary rationale for punishment is adopted, this would facilitate a far more
coherent and exacting approach to sentencing.
There are two primary advantages to adopting a coherent rationale in sentencing, it will
produce a sentencing which is more consistent and fairer. It will also result in considerable
economic savings to the community.
Valuable court time will not need to be spent ascertaining every minute detail concerning
the offence and the offender.
Proportionality required.
The principle of proportionality is widely acclaimed by judges and (most) philosophers as
the principal consideration in setting penalty levels.
While other factors, such as community protection should still be included, they should
not come at the expense of proportionality.
The cornerstone of modern-day punishment in many areas such as Canada and Australia
are that the punishment must fit the crime.
Andrew Von Hirsch is largely responsible for the revival and dominance of the just deserts
theory, asserting that sentences are to be proportionate in their severity to the gravity of
criminal conduct.
Prison should only be used for those who have committed serious felonies, and for those
who have committed less severe crimes should be given penalties less severe than prison.
Proportionality and retributivism should be highly valued within a larger utilitarian theory
of punishment. Proportionality underpins utilitarianism well.
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