Reducing Prison Sentencing Through Pre‐Sentence Reports? Why the Quasi‐Market Logic of ‘Selling Alternatives to Custody’ Fails

Abstract

A central aim of successive generations of penal reformers and governments has been to reduce the use of imprisonment in relatively less serious cases. In their various guises, pre‐sentence reports (PSRs) have been a key vehicle to promote non‐custodial ‘alternatives’ to the judicial sentencer. Yet, after decades of pursuing this strategy, a significant reduction in prison sentencing remains elusive. This article suggests that the failure of this policy strategy is, at least in part, rooted in its quasi‐market logic. It tends to construct the judicial sentencer as a metaphorical consumer in a penal marketplace, to whom the report writer must convincingly ‘sell alternatives’ to custody. Applying and developing theories of consumption as a cultural practice, it is proposed that, by its very nature, a consumerist model is bound to fail to deliver penal reduction.

Judicial independence: The master narrative in sentencing practice

“…For these retired judges, some sense of shifting role boundaries emerged from their accounts of their late judicial careers, with implications for the balancing role of judicial independence today. In particular, new approaches to judicial work which require sentencers to communicate directly with offenders, to establish a 'therapeutic' relationship with them and to understand the social context of offenders' lives, raise questions about the extent to which judges are equipped to balance these new interpersonal dimensions of their sentencing work, and the broader range of communication and management skills now needed in the everyday performance of their judicial role (Tata, 2018).…”

The struggle is real: Theorising community justice restructuring agonistically

“…This evinces a consumerist logic of criminal sentencing, with the sentencer as 'consumer' with the sovereign right to choose between various options. Tata (2018), focusing on pre-sentencing reports, argues that this logic places the onus on criminal justice social workers (who cannot influence sentencing decisions) to persuade the sentencer towards a community penalty, and away from prison -thereby reinforcing the idea that prison is the 'backstop' to any criminal sentence. Hence, a consumer logic undermines efforts towards decarceration, making sentencers less likely to impose a community sentence in place of prison.…”