How much do defendants understand the sentences they are given?

Work with offenders on new research by the Sentencing Academy

A new report from the Sentencing Academy by the barrister Jessica Goldring examines how much defendants understand the sentences that are passed on them. The sentencing framework is constructed on the assumption that defendants understand how the process works and will respond accordingly.

For example, that they will be deterred by the prospect of longer sentences or will enter a guilty plea at the first opportunity to maximise their sentence reduction. If defendants don’t fully understand the nature and consequences of their sentence, they will be less likely to accept the legitimacy of the sentence, and, quite possibly, less likely to comply with any conditions.

This is the theory of Procedural Justice, sometimes known as Procedural Fairness, which argues that experiencing fair and just procedures leads people to view the law and authority figures as legitimate, and, as a consequence, to greater compliance with, and commitment to obey, the law. Procedural Justice involves four components:

Voice: People need to have the chance to tell their side of the story and to feel that authority figures will sincerely consider this before making a decision.

Neutrality: People need to see authority figures as neutral and principled decision-makers.

Respect: People need to feel respected and treated courteously by authority figures.

Trust: Finally, people need to see authority figures as people with trustworthy motives, who are sincere and authentic.

However, it is difficult to achieve any sense of Procedural Fairness if people just don’t understand what is happening to them. Anyone who has spent time in a courtroom and watched lawyers and sentencing talking back and forth with little attention paid to the defendant will know that this is often not the case.

Findings 

Disappointingly, if a little predictably, there is a limited amount of research on this subject. Nonetheless, some of the findings are interesting; the report organises the research evidence chronologically as we go through the legal process.

It seems that while most people whose case is in the Crown Court understand that they get a discounted sentence if they plead guilty at the earliest opportunity, many don’t know that this applies at the Magistrates’ Court too. Most people rely on their legal representatives when making this sort of decision and it is clear that those without legal representation are at a disadvantage. It appears that there are more not guilty pleas because some people don’t understand the difference between a defence and mitigation. They might agree that they did what they are charged with but plead not guilty because they feel they had a good reason to do it.  In these cases, most people will be found guilty and won’t be eligible for the sentencing discount.

At the sentencing hearing 

The limited research available concludes that defendants often lack understanding of the law and procedure surrounding their trial and sentence and that the court process itself does little to address any gaps in understanding. Indeed, its failure to engage defendants combined with the use of complex language caused those gaps to widen even further. Research also found that some people felt unable to have an effect on the outcome of their court appearance. Interestingly, many people interviewed for one study were unable to remember what was said by their advocate in mitigation, or by the judge in their sentencing remarks.

After sentencing: complying with conditions 

As regular readers will know, everyone (serving more than one day in custody) is now subject to licence conditions on release and the number of people being recalled to prison has shot up in the last six years.  The report questions the extent to which a lack of understanding of licence conditions is part of the reason for so many recalls.

Conclusion 

Overall, despite the paucity of research on this subject, the report concludes that there are gaps in understanding before defendants get to court and these can potentially be widened by factors such as the formal language and procedure of a court hearing. Although much of the evidence in this area is anecdotal, the risk of misunderstanding seems to be higher among defendants who are vulnerable, unrepresented or on video link. The report says that more needs to be done to ensure that defendants have an adequate level of understanding of the sentencing process.

Interested readers can read the report in full here.