What is a sentence supposed to achieve?

AnalysisConviction establishes that a person did something the law forbids. It does not follow from that finding alone what should happen next, and the range of possible answers is enormous — a fine, supervision, unpaid work, a suspended term, years of custody. Something has to narrow it, and the choice is between narrowing it by rule and narrowing it by whatever the individual judge thinks appropriate.

AnalysisStating purposes is one way of narrowing without dictating. A list of purposes does not tell a court what to impose; it tells the court what considerations the decision must be answerable to. That is a weaker constraint than a tariff and a stronger one than nothing, and it makes the reasoning reviewable — a sentence can be challenged for having ignored a purpose the statute names.

England and Wales sets out a list. Section 57 of the Sentencing Act 2020 provides that where a court is dealing with an offender aged 18 or over when convicted, the court must have regard to five purposes of sentencing: the punishment of offenders; the reduction of crime, including its reduction by deterrence; the reform and rehabilitation of offenders; the protection of the public, including victims of crime; and the making of reparation by offenders to persons affected by their offences.

The section also states where it does not bite. Subsection (3) provides that subsection (1) — the provision that makes the section apply at all — does not apply to an offence in relation to which a mandatory sentence requirement applies, nor in relation to the making of hospital orders, interim hospital orders, hospital directions or limitation directions under Part 3 of the Mental Health Act 1983.

AnalysisThe effect is that the purposes govern the discretionary sentencing decision: where Parliament has removed the discretion, the provision structuring how it is exercised goes with it.

Canada uses a different structure for the same material. Section 718 of the Criminal Code states one fundamental purpose — to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society — and then makes everything else subordinate to it: this is achieved by imposing just sanctions that have one or more of the following objectives. The six objectives are denunciation, deterrence, separation of offenders from society where necessary, assisting in rehabilitation, reparation, and promoting a sense of responsibility in offenders and acknowledgment of the harm done.

Canada then adds a constraint the English section does not contain. Section 718.1, marginal-noted the fundamental principle, provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 adds further principles: aggravating and mitigating circumstances, with an enumerated list of circumstances deemed aggravating; parity, that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; totality, that where consecutive sentences are imposed the combined sentence should not be unduly long or harsh; restraint, that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate; and that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

Germany does not open with purposes at all. Section 46(1) of the Criminal Code states instead that die Schuld des Täters ist Grundlage für die Zumessung der Strafe — the offender’s guilt is the basis for determining the sentence — and that the effects to be expected from the sentence for the offender’s future life in society are to be taken into account. Section 46(2) then lists what the court weighs: the motives and aims of the offender, expressly including racist, xenophobic, antisemitic, gender-specific and otherwise dehumanising motives; the attitude expressed by the act; the degree of breach of duty; the manner of execution and the culpable effects; the offender’s prior life and personal and economic circumstances; and conduct after the act, particularly efforts to make good the damage and to reach a settlement with the victim.

Brazil’s Article 1 of the Lei de Execução Penal states that penal execution has as its objective to give effect to the provisions of the sentence and to provide conditions for the harmonious social integration of the convicted person; Germany’s Prison Act section 2 names the capacity to live in social responsibility without offences as the goal of execution, adding that execution also serves the protection of the general public. Neither provision tells a sentencing court anything about what sentence to impose.

• Common belief: All legal systems recognise the same purposes of sentencing.

  In practice: They do not. England and Wales names five purposes a court must have regard to; Canada names one fundamental purpose served by any of six objectives; Germany names culpability as the basis of measurement and states its reintegration goal in its prison law rather than its criminal code. These are different provisions doing different work.

• Common belief: Naming several purposes means the law has failed to decide.

  In practice: It means the resolution has been assigned to the sentencing court rather than fixed in advance. The purposes conflict in hard cases by design, and a statute that resolved the conflict in the abstract would be resolving it without the facts.

• Common belief: Proportionality is a general principle every system applies to sentencing.

  In practice: Canada states it in its Criminal Code as the fundamental principle, tied to gravity of the offence and degree of responsibility. That is a specific statutory provision in one country, and it should be cited as such rather than assumed everywhere.

• Common belief: Statutory purposes apply to every sentence a court passes.

  In practice: Not necessarily. In England and Wales the five purposes do not apply where a mandatory sentence requirement applies, or to specified orders under the Mental Health Act 1983. Where the legislature has removed the discretion, the purposes that structure the discretion go with it.

• Common belief: A sentencing statute tells you what sentence an offence attracts.

  In practice: The provisions described here do not. They state purposes and principles the decision must answer to. What any particular case attracts depends on the offence, the facts, the applicable framework and the court — none of which this page addresses.

Four systems, four structures for the same subject matter.

• A list of five co-ordinate purposes the court must have regard to, with stated exclusions — England and Wales, Sentencing Act 2020 s. 57.
• One fundamental purpose served by any of six objectives, plus proportionality as a separately named fundamental principle — Canada, Criminal Code ss. 718–718.2.
• Culpability as the basis of measurement, with the reintegration goal placed in the law of execution rather than the criminal code — Germany, StGB § 46 and StVollzG § 2.
• Purpose stated in the opening article of the execution statute, pairing social integration with giving effect to the sentence — Brazil, LEP Art. 1.

AnalysisStated purposes make a sentence reviewable on grounds other than length. If a statute requires a court to have regard to reparation, a sentence passed without regard to it is challengeable for that reason, independently of whether the outcome was severe or lenient.

The parity principle does similar work from the other direction. Canada’s section 718.2(b) makes a sentence answerable to what comparable cases have attracted, which converts consistency from an aspiration into something a court can be asked about.

• Four statutory frameworks were read from primary text. They are four answers, not a survey — most countries are not described here, and some state no purposes in legislation.
• This page describes what statutes require courts to have regard to. It says nothing about what sentence any offence attracts, and nothing about how any court weighs the purposes in practice, which is a matter of case law the platform has not researched.

Related: why correctional systems exist, custodial and non-custodial sentences, and what courts do.