Resisting risk assessment? Pre-sentence reports and individualized sentencing in Denmark

Abstract

This article places the use of pre-sentence reports in Danish courts in the context of recent transnational trends toward the increasing use of risk assessments. Based on empirical studies of court decision-making processes, the article describes the production and use of pre-sentence reports on three levels of communication in the process of sentencing: preparation of reports; formal and explicit use in the courtroom; and informal and implicit use in the courtroom. The findings reveal two different modes of construction of individual defendants. One represents a modernist-welfare narrative, institutionalized in the framework of pre-sentence reports already in 1930. This narrative applies individualized assessments of the defendant’s relevant social resources to target the use of alternatives to imprisonment. The other construction echoes more recent penal changes and brings categorical risk assessment to the strategic targeting of high risk offenders for imprisonment. The empirical evidence suggests that the courtroom decision-making process is formally and explicitly dominated by a modernist-welfare account. However, at the same time and at the level of informal and implicit communication, the courtroom process provides ample room for constructions echoing more recent penal change toward risk assessment.

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

“…The provision of Reports may be called for by the court at its discretion, or, mandated by law in certain kinds of cases, as has increasingly been the case in both England and Wales and in Scotland. The provision of such Reports (which go by different names across time and jurisdictions), has become both increasingly prevalent and pivotal to sentence decision making in a range of jurisdictions, including Belgium (for example, Beyens and Scheirs ); Canada (for example, Cole and Angus ; Hannah‐Moffat ; Quirouette ); Denmark (Wandall ); New Zealand (Deane ); the USA (for example, Fruchtman and Sigler ); England and Wales (for example, Gelsthorpe and Raynor ; Jacobson and Hough ; Robinson , ); Ireland (Carr and Maguire ); Australia (for example, Hickey and Spangaro ); and Scotland (for example, Tata ; Tata et al . ).…”

“…From its origins in, at least (Nellis ; Robinson ) the last quarter of the 19th Century in the enquiries of police court missionaries in a few courts (Mair ; McWilliams ; Whitehead , p.179), the provision of Reports has, over the course of nearly 150 years, grown dramatically (though erratically), in both size and scope in Scotland as well as in England and Wales and other countries (for example, Beyens and Scheirs ; Carr and Maguire , p.55; Cole and Angus ; Deane ; Hickey and Spangaro ; Wandall ) . By 1910, the Home Office of England and Wales saw inquiries as normal: ‘Reports to the court continued to be used informally and became a routine part of the process … helping to establish the probation order as a sentencing option’, so that by the 1930s such investigation was seen as the foundation of probation (Mair , p.63).…”

“…The provision of Reports may be called for by the court at its discretion, or, mandated by law in certain kinds of cases, as has increasingly been the case in both England and Wales and in Scotland. The provision of such Reports (which go by different names across time and jurisdictions), 6 has become both increasingly prevalent and pivotal to sentence decision making in a range of jurisdictions, including Belgium (for example, Beyens and Scheirs 2010); Canada (for example, Cole and Angus 2003;Hannah-Moffat 2010;Quirouette 2017); Denmark (Wandall 2010); New Zealand (Deane 2000); the USA (for example, Fruchtman and Sigler 1999); England and Wales (for example, Gelsthorpe and Raynor 1995;Jacobson and Hough 2007;Robinson 2017Robinson , 2018; Ireland (Carr and Maguire 2017); Australia (for example, Hickey and Spangaro 1995); and Scotland (for example, Tata 2010; Tata et al 2008). Especially in nominally adversarial systems in the lower and intermediate courts, where guilty pleas obviate the need for an evidentially-contested trial, in considering a custodial sentence, the court will typically hear little or nothing of substance from, or about, the defendant, except through the information garnered through a Report.…”

“…To be more open, it is feared, would lead sentencers to see reports as biased 'with obvious negative consequences for credibility of probation' (Mair 2016, p.77). 7 From its origins in, at least (Nellis 2007;Robinson 2017) the last quarter of the 19th Century in the enquiries of police court missionaries in a few courts (Mair 2016;McWilliams 1983;Whitehead 2016, p.179), 8 the provision of Reports has, over the course of nearly 150 years, grown dramatically (though erratically), in both size and scope in Scotland as well as in England and Wales and other countries (for example, Beyens and Scheirs 2010;Carr and Maguire 2017, p.55;Cole and Angus 2003;Deane 2000;Hickey and Spangaro 1995;Wandall 2010). 9 By 1910, the Home Office of England and Wales saw inquiries as normal: 'Reports to the court continued to be used informally and became a routine part of the process .…”

“…When research has moved beyond questionnaires to seek to understand how Reports are used in their practical daily context, a more complex and less positive picture tends to be revealed (Beyens and Scheirs 2008; Field and Nelken ; Parker, Sumner and Jarvis , pp.142–65; Tata et al . ; Taylor, Clarke and McArt ; Wandall ).…”