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Sentencing guidelines: the problem of conditional sentences.

In recent years there has been considerable interest in the rationale underlying custodial, community and financial sentencing, and a resurgence in the importance of desert principles.(1) Standard forms of sentence involve the imposition by the sentencing court of an immediate sanction upon the offender. Yet in many sentencing systems, sanctions may be imposed by the court conditionally, rather than immediately. Commonly encountered though they are, conditional sentences are a form of sentencing option rarely considered in the sentencing literature. The purpose of this article is to examine conditional sentences and to assess to what extent they are compatible with modern sentencing systems which take desert principles seriously. This topic is a large one, and the discussion is exploratory.

The development of conditional sentences has its roots in European jurisdictions in the late nineteenth century.(2) During the period through which conditional sentences have since been used by the courts, the dominant penological approach has been crime-preventive and utilitarian. It is clear that the introduction of conditional sentences was driven by utilitarian concerns. Sir Leon Radzinowicz, writing in 1970, described the emergence of conditional sentences in Europe as a "humane intervention," representing a break with the "iron equation of crime and punishment" in the classical codes of the mid-nineteenth century.(3) Allowing the sentencing judge the option of imposing a sanction conditionally, rather than immediately, bestowed greater flexibility to individualize sentences--to take account of the perceived needs of the offender as well as the seriousness of the offense. Crime prevention has also been the standard against which the effectiveness of conditional sentences has been judged. Later in the same essay Radzinowicz asserts that "the only justification there could be" for the use by the courts of the suspended prison sentence in England is that it "would more effectively prevent future delinquency."(4) Since the 1970s, however, many sentencing systems have been adopting sentencing schemes which are now based upon, or pay considerable regard to, principles of desert.(5) It is timely, therefore, to consider whether, or to what extent, conditional sentences may be accommodated within desert principles.

The Parameters of Conditional Sentences

A wide variety of different orders might be included within the category of conditional sentences. A working definition of the term is required for our purposes and, in the absence of a more generally available summary, the following is proposed. A conditional sentence is:

1 a sentence passed by a criminal court,

2 which imposes no immediate deprivation upon the offender,

3 but which places the offender under a condition not to reoffend,

4 for a stated period of time.

5 A sanction, to be imposed in the event of the offender's failure to comply with this condition, may be announced by the court at the time of the original sentence and,

6 in the event of failure by the offender to comply with the condition, the offender will be sentenced by the court at a further hearing for the original offense as well as for the new offense. To put it briefly, conditional sentences are inchoate sanctions, held over the offender by the court and brought into effect only in the event of commission of a further

It is helpful to distinguish conditional sentences (as outlined here) from (A) community sentences and (B) deferred sentences.

(A) Community sentences (like conditional sentences) are served "in the community." Community sentences, however, also contain "requirements," such as the obligation of regular meetings with a probation officer, or more onerous requirements, such as community service. As with a conditional sentence, an offender's failure to comply with the terms of a community sentence (such as where he ignores probation conditions or fails to show up for community service) may well result in the offender being returned to court. At that stage, one option for the sentencer is to bring the community sentence to an end and to re-sentence for the original offense. The crucial difference between community sentences and conditional sentences is, however, that the former are immediate punishments and the latter are inchoate ones. Community sentences impose an immediate deprivation of some kind, but conditional sentences do not.

(B) Deferred sentences (like conditional sentences) involve no immediate sanction. They may well also contain "conditions," such as a requirement to respond positively to an impending event, perhaps an employment opportunity. One difference between the conditional sentence and the deferred sentence, however, is that while the former is an inchoate sentence, the latter involves no decision about sentence at all. A deferred sanction is one yet to be decided upon, and what it will be depends upon certain intervening events (typically, the offender's response during the period of deferment). A second difference is that with a conditional sentence, if there is no further offense committed by the offender, there is no further court appearance to be made by him, but with a deferred sentence there is always a further hearing, at which time the sanction for the offense (adjusted where appropriate to take account of the subsequent events) is imposed.

These distinctions are important in principle, but may not always be clear to see in practice. Of course, the details of particular sentences vary from one jurisdiction to another, and there are differences of nomenclature, but it is thought that the distinctions sketched here have a general validity across sentencing systems. In Denmark(6), for instance, two varieties of "suspended sentence" are allowed for by the Penal Code. The first is where the "setting of the sentence is deferred" under s.56(1), and the second is where the "execution of the sentence (which must be a fine or imprisonment) is deferred" under s.56 (2). In Germany(7) courts may "suspend the imposition of sentence" for various minor offenses or may "suspend the execution of sentence" (including a custodial term of up to one year). In both these countries the first option seems to correspond to "deferred sentence" and the second to "conditional sentence," as described in the above scheme. We may turn now to consider the main characteristics of conditional sentences. In order to keep the discussion within bounds, we will take as central examples three such sentences from the jurisdiction which the author knows best--that of England and Wales. The three conditional sentences are:

1 the suspended fine (which in England takes the form of a bind over to keep the peace),(8)

2 the conditional discharge, and

3 the suspended prison sentence. Where this would be helpful, occasional brief reference is made by way of contrast to comparable sentences in other jurisdictions.

The Specificity of the Threatened Punishment

Conditional orders vary according to the specificity of the threat and, hence, the predictability of the penalty for breach. Let us consider the three conditional sentences listed above. In England, breach of a bind over in a certain sum announced by the court can only be punished by way of forfeiture of that certain sum (or, where it is deemed appropriate by the court, a lesser sum). Breach can in no circumstances be punished by imprisonment. Sentences of imprisonment of up to two years' duration may be suspended, and breach of a suspended prison sentence would normally be dealt with by implementation in full of the prison term which was originally specified by the court. This is what occurs in seventy per cent of breach cases, although less severe sanctions are available in the court's discretion, where it would be "unjust" to activate in full.(9) The penal threat inherent in a conditional discharge is much more vague, however, since breach of a conditional discharge may be dealt with by the passing of any sentence which the court had power to impose for that offense in the first place, and it is left to the discretion of the court to fix what that sentence shall be. The criminal statistics for England and Wales show that in the majority of cases breach of conditional discharge is dealt with by way of fine, but custodial sentences are imposed in around twenty per cent of cases.

The Duration of the Threat

The second variable in conditional sentences is the duration of the threat. In England and Wales there is a surprising lack of guidance for the courts on this matter. A bind over can last for whatever period the sentencer deems appropriate, since no minimum or maximum is specified in the law, but in practice the normal duration fixed by the courts is around twelve months, A conditional discharge lasts for a fixed period, to be specified by the court at the time of sentence, up to a maximum of three years. In practice, it seems that most conditional discharges are for periods of six months or twelve months. There is no reported judicial guidance on how the court should determine the duration of a bind over, or a discharge, in any particular case.(10) The suspended prison sentence lasts for a period, again fixed by the court, of between one year and two years. Although there is Court of Appeal authority that the length of the custodial term should not be increased in consequence of its being suspended,(11) there is no appellate guidance on how a sentencer should fix the operational period of the suspended sentence.

What Constitutes Breach of the Condition?

The sole condition which obtains in the conditional discharge (and hence the only way in which it can be breached by the offender) is that the offender should commit no further offense during the relevant period. The sole condition in the suspended prison sentence is that the offender should commit no offense punishable with imprisonment during the period of suspension. The bind over is made subject to the offender's not committing any further "breach of the peace," and in some cases also subject to the offender's being of "good behaviour," during the relevant period. These terms are rather vaguely defined in English law, and a breach may certainly be occasioned by conduct which falls short of commission of a further offense.

The Relationship Between the Sentences for the New Offense and the

Original Offense

When the offender does commit a further offense during the currency of the conditional order, the task of the court is two-fold. It must sentence for the new offense and it must normally revoke the conditional sentence, to re-sentence for the original offense. The relationship between these two new sentences is problematic. Two extreme cases need to be catered for, as well as a range of cases in between. At one extreme is the case where the new offense is much more serious than the original offense, so that the conditional order becomes little more than a background matter (such as where a serious violent crime is committed by an offender subject to a conditional discharge for a minor theft). At the other extreme is the case of a person under a conditional sentence for a serious offense, who commits a minor lapse. Even where these extremes are not in issue, and the original offense and the new offense are broadly comparable, there is still the question of where in the sentencing exercise the main focus should lie. Is the importance of the new offense mainly in acting as a trigger for the activation of the conditional sentence? If so, the offender's overall conduct might now be seen as highly reprehensible since, by committing the second offense, he has spurned the opportunity offered by the court when it passed the conditional sentence. Or should the prime focus of the sentencing decision be on the circumstances of the new offense, adjusted only slightly to take cognizance of the breach?

In England and Wales sentencers are given discretion to deal with such matters, but often with little appellate guidance on how to exercise that discretion. In the case of the suspended prison sentence, the legislation is drafted so as to create a presumption that whenever a later court is dealing with an offense committed during the period of suspension, the original offense must be dealt with by activation of the full term of the suspended sentence, such term running consecutively to any custodial sentence imposed for the new offense. Some degree of flexibility is, nonetheless, written into these provisions. This is augmented by appellate decisions to the effect that, for instance, the commission, towards the end of the period of suspension of an offense which is itself only minor, need not be visited by activation of the suspended sentence in full or, perhaps, at all.(12) There appears to be comparable flexibility when dealing with breach of conditional discharge or breach of bind over, though here there is little published guidance on how the courts should exercise their discretion.

Benefits Claimed for Conditional Sentences

As mentioned above, conditional sentences were originally conceived and implemented within a utilitarian framework. The advantages claimed for conditional sentences are, therefore, utilitarian in nature. The perceived benefits overlap, and more than one may be claimed in respect of any given conditional sentence. But not every conditional sentence will contain all of them.

Avoidance of a More Severe Sanction

A driving factor behind the implementation and development of conditional sentences has been the wish to divert offenders from more punitive sanctions: to provide "alternatives" to immediate custody. The idea is that, by the use of a conditional sentence, the court will be able to denounce the crime, but stop short of imposing an immediate sanction, the threat inherent in the condition being sufficient to achieve the required control over the offender's behavior. This sort of claim is empirically testable. It ought to be possible to see whether conditional sentences are effective in rescuing offenders from more severe punishments. On the face of it, the claim appears to be self-evidently true. If an offender is given a suspended prison sentence rather than an immediate one, and if he completes the period of suspension without reoffending, immediate imprisonment has thereby been avoided. This is true, however, only if the suspended sentence really was used as an alterative to immediate custody. If the suspended sentence was in fact used (or misused) by the court as an alternative to a community sentence, then obviously custody has not been avoided. There is a well known literature in England which establishes that suspended prison sentences have had only limited success in diverting offenders who would otherwise have gone to jail.(13) It is estimated that the alternative would really have been immediate custody in only fifty percent of cases where a suspended sentence is imposed. Thus, the claim that the use of conditional sentences avoids the imposition of more severe sanctions, while undeniably true in some cases, needs to be qualified and treated with care.

Special Deterrence

All conditional sentences can, to a greater or lesser extent, be characterized as special deterrents. The idea is that the conditional sentence will focus the offender's mind on avoiding trouble during the period of the order because of the fear of the consequences if he does not. The suspended prison sentence in England has often been characterized in this way, as a "Sword of Damocles" hanging over the offender's head. Deterrence theory assumes that the conditional sentence will be the more effective where the sanction to be visited upon breach is known by the offender to be severe and where the chances of the court imposing these consequences are perceived by him to be high.

Again, the claims for special deterrence are empirically testable. The breach rate for suspended prison sentences in England and Wales is relatively high, running at over twenty percent. This compares unfavorably with the breach rate for other conditional sentences, such as the milder conditional discharge, where the breach rate is around ten percent. Such a comparison cannot, of course, be taken per se as a measure of sentencing efficacy. But in research which has tried to compare matched samples of offenders, the suspended prison sentence has still not fared very well.(14)

There are considerable risks in the special deterrence strategy. As explained above, conditional sentences designed to maximize deterrent impact will contain specific warnings of severe consequences of breach. These tend to tie the hands of the later court which is dealing with breach and can result in a rather trivial breach triggering a severe sentence. When coupled with the point made above, that the courts have sometimes passed a suspended prison sentence where immediate custody would not really have been justified, the result can be the imposition of a long custodial sentence on an offender who has committed two offenses, neither of which would have occasioned custody if they had been dealt with immediately, rather than conditionally.

Individualization of Sanction

Some conditional sentences seem to serve as a method of individualizing sentence. They offer sentencers a choice--to impose the immediate sanction or to take a "step back" and suspend it. The suspended fine (as it exists in several European jurisdictions) is a sentence of this kind, as is the suspended prison sentence. Decisions on suspension tend to be made on grounds related to the offender, rather than the offense. Consider again the example of the suspended prison sentence in England. This sentence is not to be imposed unless the offense is so serious that only custody can be justified. It follows that the decision to pass a suspended, rather than an immediate, custodial sentence would be offender-specific rather than offense-related. The chain of reasoning recommended by the Court of Appeal is to ask, first, whether imprisonment is justified and, if so, what length of term is appropriate and then, secondly, to ask whether in all the individual circumstances of the case immediate custody might be avoided and a suspended sentence used instead.(15)

Other conditional sentences, however, do not exist solely as "step back" alternatives to their immediate sentence equivalents. The conditional discharge is an example of such a sentence in England. It occupies a distinctive place in the sentencing hierarchy and is very widely used by sentencers. Another example is the Swedish "conditional sentence plus fine" option, which is discussed below.

Addressing Persistence

Also inherent in many conditional sentences is the penological idea that it may be proper to deal with a first offender, or one who is lightly convicted, by giving him "a chance"--treating him leniently this time, but warning of more severe consequences to follow if there is persistence in lawbreaking. Thus we see that, traditionally, conditional sentences were aimed at "first offenders."(16)

In England and Wales there are no designated "first offender" sentences, but it remains true that many first offenders commit offenses which are not in the front rank of gravity and/or have the benefit of significant mitigation, so that a suspended fine or a conditional discharge is seen as an appropriate sentence. A striking example of a jurisdiction in which conditional sentences are used specifically and exclusively for first offenders is the state of Washington. The Sentencing Reform Act of 1981 introduced a desert-based sentencing scheme in that state, but the Act "provides a statutory alternative to the standard sentence range, available at the sentencing judge's discretion, for all who qualify as first-time offenders."(17) The "first-time offender option" has been specifically designed to stress rehabilitative considerations over desert constraints for this category of offender.

Conditional Sentences and Desert Principles

Much recent sentencing reform has involved a re-thinking of sentencing aims and objectives. A number of sentencing systems now give greater prominence to desert principles. In England, the Criminal Justice Act 1991 treats commensurability between offense seriousness and penalty severity as its guiding principle.(18) The resurgence of interest in desert theory, and its implementation in practice, initially focused on custodial sentencing, but the debate has now been extended to address community sentences and financial orders within a desert rationale.(19) Conditional orders have, so far, hardly figured in the discussion. It might be assumed that, since conditional sentences owe their development to utilitarian assumptions, they are simply not amenable to a desert-based sentencing system. While this is not entirely true, there are serious problems in incorporating conditional sentences within a desert-based scheme, as we shall see.

No Immediate Sanction

Desert theory stresses proportionality between offense seriousness and penalty severity. Does it follow from this that a sentencing option which offers no immediate sanction is, in itself, incompatible with desert principles? Not quite. For the least serious offenses the stigma of prosecution and conviction (and their attendant disqualifications and disadvantages) might well be regarded as sufficient sanction on a desert model, The absolute discharge is such a sentence in England,(20) and comparable disposals exist widely elsewhere. Desert theory does have problems, however, with sentences which impose no sanction now, but contain the threat of additional punishment to be visited at the time of the next offense.

The first problem is that, as we have seen, the use of conditional sentences in practice may mean that repetition of the crime brings about a sharp increase in the severity of the response, not justified by the seriousness of the criminal conduct. Thus, if an offender receives a suspended sentence of imprisonment for stealing low value items from a shop, this is a wrong sentence in desert terms. This is because the commission of any new crime, even a minor one, could well activate the suspended sentence and result in the offender's imprisonment. Imprisonment, however, is too severe a sanction to be warranted by the original shoplifting offense; and the new offense likewise may not deserve such a response.

The second problem is that for the proportionality constraint in desert theory to be meaningful, the scale of punishments must be articulated and reasonably clear. Sanctions need to be ranked in order of severity. This can only be done if their relative severity is apparent on their face or can be ascribed some principled weighting. Of course, there are always difficulties in ranking penalty severity. Such problems arise in community sentences, but there the problems can be overcome by addressing the relative degree of onerousness which particular community sentences place upon the offender.(21) There are, however, limits to this. It would be unacceptable, within a desert sentencing framework, to have a sentence labelled "box 13," which offered no immediate sanction on the outside but contained a wide range of penal consequences which might or might not flow in the event of the commission of the next offense. Sometiems conditional sentences give very little indication of the likely outcome on breach, and afford sentencers considerable discretion. Such a sentencing option could not be ranked in desert terms because the sanction it would represent would be unknown.

Combining Immediate and Conditional Sentences

One possible strategy to overcome the lack of an immediate sanction in the use of conditional sentences is to encourage sentencers to add an immediate penalty to a conditional sentence. This approach has been endorsed for the suspended prison sentence in England by the Criminal Justice Act 1991. The Act provides that whenever the court imposes a suspended prison sentence a fine should be imposed in addition.(22) The reason for this was to continue to allow sentencers to make use of the suspended prison sentence, while trying to avoid giving the impression that the offender would leave the court with no sanction at all. While the attractions of this approach are clear, there are problems with mixing together immediate and conditional sentences. One danger is that the fine can be seen by sentencers as the "price" or suspending the sentence so that suspension becomes more readily available for the rich (who can afford to pay the price) than for the poor. This is discriminatory since the poor receive immediate imprisonment, while the rich are able to avoid it. Another problem is the uncertain relationship between the two parts of the combined sentence. If a fine is added to a suspended prison sentence, should the term of the suspended sentence be thereby reduced? If so, is the offender thereby permitted to "buy his way out of prison?" If not, can one avoid the conclusion that the offender has been doubly punished?

A combination of conditional sentence and fine could, however, be made more amenable to desert principles. This seems to have been achieved in Sweden,(23) where the combined sentence is a regularly used disposal for offenses of middle range seriousness. Some of the problems described in the above paragraphs have been avoided in the Penal Code. The conditional sentence is not a discretionary, "step-back" alternative to an immediate sanction. It very rarely stands alone in Sweden--and it is almost always to be found in combination with a fine. This means that the Code can allocate a coherent place in the middle range of the penal hierarchy for this combined sentence. The choice for sentencers in the mid-range sanctions lies between various forms of supervision in the community and the conditional sentence combined with a fine. Eligibility for this level of sanction depends primarily on offense seriousness, but the choice between the "desert equivalent" sentences of probation on the one hand, and conditional sentence plus fine on the other, turns on factors relevant to the offender. Thirdly, the back-up sanctions for the combined sentence are specific and clear, and they do not entail a substantial "jump" in the case of minor breach.

Persistence and Desert

Desert theory lays primary emphasis upon the seriousness of the instant offense, but it is consistent with desert principles to mitigate the penalties of offenders who have clean, or light, criminal records.(24) Desert theory requires that the first offender discount principle be properly worked out and be universally available, or be subject only to rational exceptions (such as where the first offense is a very serious one). A problem with a sentencing system which contains conditional orders, however, is that it tends to offer such "first offender" discounts in some cases but not in others, subject to no discernible principles. Thus, the use of the first offender option in the Washington Guidelines rests entirely upon judicial discretion, and no guidance exists for its appropriate use.(25)

Once the mitigation afforded to an offender by virtue of his light record is used up, desert principles state that repetition of offending at the same level of seriousness does not in itself justify a more severe sentence for the repetition.(26) Those conditional sentences which contain no current deprivation, but carry a real threat of imprisonment on conviction of any new crime, clearly offend against this principle. They involve much too great a step up in sentence severity, solely on account of repetition. The Swedish example, mentioned above, where the conditional sentence is combined with a fine and lies in the central portion of the sanction range, is less problematic. There, the step up to imprisonment in the face of repetition may sometimes be justified. Even so, imprisonment should not result where the new crime is a minor one.

Conclusions

It seems clear from the difficulties enumerated above that, if one were to sit down to design a deset-based sentencing scheme from first principles, it is unlikely that one would retain conditional sentences. Desert theory rests upon proportionality, and a sentencing system which utilizes both immediate and conditional sentences makes the necessary weightings and comparisons much more difficult to achieve. It is hard to see how an immediate prison sentence and a "step back" suspended prison sentence can be ranked against each other in "desert-equivalence."(27)

Sentencing reforms, however, generally proceed by incremental change, rather than by starting afresh with a blank sheet. It may not always be the best course to seek abolition of conditional sentences. They may be coherent within a given system (for example, the Swedish example, given above), and their abolition might make a given system operate more harshly than before. It was explained, above, how conditional sentences have two competing effects. They generally avoid the imposition of immediate sanctions on some offenders in the short term, but they may entail the imposition of harsher sentences on other offenders in the long term. Some have proposed the abolition of the suspended prison sentence in England.(28) The crucial question, though, is what would replace it? Would its passing result in the transfer of offenders to community sentences, or would the bulk of them receive immediate custody instead?

It has been suggested in the above discussion that some conditional sentences, in some sentencing systems, may be less problematic for desert principles than others. A conditional sentence will offend desert principles less where it is situated in the mid-range of the penal hierarchy; where the sentence can be perceived as a sentence in its own right (perhaps when found in combination with an immediate sanction, such as a fine) rather than as a mere "step back" alternative; where the operational period of the conditional sentence is relatively short; where what is expected of the offender during that time is made clear; and where the sanctions for breach are subject to clear principles. The main consideration on breach should be the seriousness of the new offense. The original offense should be dealt with in a manner proportionate to the seriousness of the original offense, but allowing for a modest degree of aggravation where appropriate, to reflect the offender's increased culpability. This should be determined from the facts and circumstances of the breach.

NOTES

My thanks to Andrew von Hirsch for his most helpful comments on earlier drafts of this article.

(1)See A. VON HIRSCH & A. ASHWORTH, PRINCIPLED SENTENCING (1992).

(2)See M. ANCEL, SUSPENDED SENTENCE (Cambridge Studies in Criminology No. XXII, 1971) describing Belgian and French statutory initiatives in 1888 and 1891 respectively. For historical developments in England see Williams, Suspended Sentence at Common Law, 1971 PUB. L. 441.

(3)Radzinowicz, Foreword in M. ANCEL, SUSPENDED SENTENCE vii (1971).

(4)Id. at viii.

(5)In England, change has been brought about by the Criminal Justice Act 1991 (hereinafter cited as 1991 Act). See M. WASIK & R. TAYLOR, BLACKSTONE's GUIDE TO THE CRIMINAL JUSTICE ACT 1991 (2nd ed., 1993).

(6)U. GREVE, CRIMINAL JUSTICE IN DENMARK (1990); and see ch. 7 of the Danish Penal Code.

(7)Weigend, Sentencing in West Germany 42 MD. L. REV. 3 (1983).

(8)The suspended fine does not formally exist as a sanction in England, though it is quite widely available elsewhere in Europe: see G. GREBING, THE FINE IN COMPARATIVE LAW: A SURVEY OF 21 COUNTRIES (1982). In England and Wales the bind over tends to be used for rather minor infractions of the law. See BINDING OVER: THE ISSUES (Law Commission Working Paper No. 103, 1987), Part IV of which traces comparable sentences in Scotland, Northern Ireland, Canada, Australia, New Zealand, and some American states (so-called "peace bonds"). See now BINDING OVER (Law Commission Report No 222, 1994) which recommends abolition of the relevant powers.

(9)Powers of Criminal Courts Act [sections] 23(1) (1973).

(10)For discussion of this point, see R CROSS, THE ENGLISH SENTENCING SYSTEM 11 (3rd ed., 1981).

(11)Mah-Wing, 5 CR. APP. R. (S) 347 (1983).

(12)See, e.g., Brook, 12 CR. APP. R. (S) 756 (1991); Bee, 14 CR. APP. R. (S) 703 (1993).

(13)Sparks, The Use of Suspended Sentences (1971) CRIM. L. REV. 384; Bottoms, The Suspended Sentence in England, 1967-78, 21 BRIT. J. CRIM. 1 (1981).

(14)G. PHILLPOTTS & L LANCUCKI, PREVIOUS CONVICTIONS, SENTENCE AND RECONVICTIONS, (Home Office Research Study No. 53, 1971), discussed in N. WALKER, SENTENCING THEORY LAW AND PRACTICE, ch. 6 (1985).

(15)O'Keefe 2 Q. B. 29 (1969); Mah-Wing 5 CR.APP. R. (S) 347 (1983).

(16)Radzinowicz, supra note 3, at xiii.

(17)D. BOERNER, SENTENCING IN WASHINGTON para. 7.1.8. (1985).

(18)1991 Act [sections] 1(2)(a) and [sections] 2(2)(a).

(19)On community sentences see Von Hirsch, Wasik & Greene, Punishments in the Community and the Principles of Desert 20 RUTGERS L. REV. 595 (1989). On financial orders see Greene, Day Fines: Monetary Sanctions Apportioned to Income in A. VON HIRSCH & A. ASHWORTH, supra note 1.

(20)See Wasik, The Grant of an Absolute Discharge 5 OXFORD J. LEGAL STUD. 211 (1985).

(21)Von Hirsch, Wasik & Greene, supra note 19.

(22)Powers of Criminal Courts Act 1973 [sections] 22(2A) (as inserted by the 1991 Act).

(23)Ministry of Justice, The Swedish Penal Code, ch. 30, paras. 8 & 10. see further Von Hirsch and Jareborg, Sweden's Sentencing Statute Enacted, 1989 CRIM. L. REV. 275.

(24)See A VON HIRSCH, PAST OR FUTURE CRIMES, ch. 7 (1985).

(25.)D. BOERNER, supra note 17, at para 7.6,

(26)VON HIRSCH, supra note 24, at ch. 7. For a recent discussion of the English context, see Wasik & Von Hirsch, Section 29 Revised: Previous Convictions in Sentencing, 1994 Crim. L. Rev. 409.

(27)A point recognised by the government in its White Paper, CRIME, JUSTICE AND PROTECTING THE PUBLIC, 1990, para 3.21: "The suspended sentence does not fit easily into the proposed new sentencing arrangements."

(28)Proposed, for example, by Bottoms, supra note 13.. The suspended prison sentence was abolished for offenders under 21 by the Criminal Justice Act 1982, and its use by the courts for adults is now confined to "exceptional" cases: Powers of Criminal Courts Act 1973 [sections] 22(2)(b) (as inserted by the Criminal Justice Act 1991). See further A.ASHWORTH, SENTENCING AND CRIMINAL JUSTICE 274-77 (1992).
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Title Annotation:Symposium on Sentencing Guidelines and Guidance
Author:Wasik, Martin
Publication:Criminal Justice Ethics
Date:Jan 1, 1994
Words:5572
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