By Bugmy Bar Book Committee

Launched in 2019, the Bugmy Bar Book is a free, evidence-based resource hosted on the website of the NSW Public Defenders.

The project publishes accessible summaries of key research on the impacts of the experience of disadvantage and strengths-based rehabilitation. It provides objective research across several areas of disadvantage, to support both the application and decision-making processes, when subjective information is unable to be obtained.

The project is directed by a Committee comprised of representatives of key stakeholders in the criminal justice system (including the NSW Public Defenders, NSW Office of the Director of Public Prosecutions, Aboriginal Legal Service (NSW/ACT) Limited and Legal Aid NSW), the judiciary (including the Supreme Court of NSW, District Court of NSW, Local Court of NSW, ACT Magistrates Court and NSW Judicial Commission), legal academics (including senior academics from UNSW, ANU and UTS) and members of the private legal profession. Although the project originated and is based in NSW, the resources are designed for use across all Australian jurisdictions and the committee engages with stakeholders Australia-wide.

Who is the Bugmy Bar Book For?

It aims to promote greater understanding of the impacts within the legal profession and judiciary, with the key function being to assist in the preparation and presentation of evidence to establish the application of the sentencing principles in Bugmy v The Queen (2013) 249 CLR 571.

The application of the materials in the Bugmy Bar Book can also be used in other contexts, including bail and mental health diversionary applications, various civil practice areas, coronial inquests and other inquisitorial jurisdictions.

By Chad M. Topaz, Shaoyang Ning, Maria-Veronica Ciocanel & Shawn Bushway

Race-based inequity in federal criminal sentencing is widely acknowledged, and yet our understanding of it is far from complete. Inequity may arise from several sources, including direct bias of courtroom actors and structural bias that produces racially disparate impacts. Irrespective of these sources, inequity may also originate from different loci within the federal system. We bring together the questions of the sources and loci of inequity. The purpose of our study is to quantify race-based disparate impact and differential treatment at the national level and at the level of individual federal judicial districts. We analyze over one-half million sentencing records publicly available from the United States Sentencing Commission database, spanning the years 2006 to 2020. At the system-wide level, Black and Hispanic defendants receive average sentences that are approximately 19 months longer and 5 months longer, respectively. Demographic factors and sentencing guideline elements account for nearly 17 of the 19 months for Black defendants and all five of the months for Hispanic defendants, demonstrating the disparate impact of the system at the national level. At the individual district level, even after controlling for each district’s unique demographics and implementation of sentencing factors, 14 districts show significant differences for minoritized defendants as compared to white ones. These unexplained differences are evidence of possible differential treatment by judges, prosecutors, and defense attorneys.

Published in: Humanities and Social Sciences Communications, Volume 10, Article Number 366 (2023). doi: 10.1057/s41599-023-018By Bugmy 9-5.

By Mari McGilton; William Adams; Julie Samuels; Jessica Kelly; aND Mark A. Motivans

This report provides details on the sentences of persons in federal prison at fiscal yearends 2013–2018. Since 2012, federal policy changes related to both U.S. sentencing guidelines and the use of mandatory minimum penalties have affected persons held in Federal Bureau of Prisons (BOP) facilities for drug offenses. The report describes four policies that are particularly relevant to this population: Smart on Crime, Drugs Minus Two, the Clemency Initiative, and the First Step Act. Findings in this report are based on fiscal yearend 2013–2018 prison records from the BOP that were linked to fiscal years 1994–2018 sentencing records from the U.S. Sentencing Commission.

Highlights:

• At fiscal yearend 2018, about 47% (71,555) of persons in Federal Bureau of Prisons (BOP) custody were sentenced for drug offenses.

• The number of people in federal prison for drug offenses decreased 24% during the 5-year period from fiscal yearend 2013 to fiscal yearend 2018.

• The number of people in BOP custody decreased from fiscal yearend 2013 to fiscal yearend 2018 for marijuana (down 61%), crack cocaine (down 45%), powder cocaine (down 35%), and opioids (down 4%), while there were increases for heroin (up 13%) and methamphetamine (up 12%).

• The number of people in federal prison for drug offenses who were eligible for mandatory minimum penalties declined 33% during the 5-year period, as did the number who ultimately received penalties (down 26%) and received relief from penalties (down 52%).

  Washington, DC: U.S. Department of Justice Office of Justice Programs Bureau of Justice Statistics, 2023. 28p.

Edited by Michiel Van der Wolf

This edited collection provides an interdisciplinary and cross-national perspective on safeguarding the quality of forensic assessment in sentencing offenders. Taking an in-depth look at seven different Western countries, each chapter provides an overview of the role of assessment in sentencing offenders, as well as a focus on formal ways in which the respective country’s legal system and disciplinary associations protect the quality of forensic assessment. Each chapter explores how to assure better decision making in individual cases based on assessments of psycholegal concepts such as mental disorder/insanity, criminal responsibility and dangerousness. Combining the perspectives of lawyers, legal scholars, and clinicians working in the field, this book is essential for those working in and with forensic assessment.

New York; London: Routledge, 2022. 281p.

By The Working Group

The Minister for Justice Helen McEntee T.D has today published the final report and recommendations of the Working Group examining the Disregard of Convictions for Certain Qualifying Offences Related to Consensual Sexual Activity between Men. The report contains 95 recommendations regarding the introduction of a statutory scheme to enable the disregard of relevant criminal records.

“Nearly 30 years on from decriminalisation, Ireland has become a much more tolerant society. But there are many people who still feel the hurt and stigma created by the laws that criminalised consensual sexual activity between men.

By Allison P. Harris

How does racial diversity impact institutional outcomes and (in)equality? Discussions about diversity usually focus on how individuals’ identities shape their behavior, but diversity is a group-level characteristic. Scholars must, therefore, consider the relationship between group composition and the individual decisions that shape institutional outcomes. Using felony data from a large U.S. court system, I explore the relationship between racial diversity among the judges comprising a court and individual judges’ decisions. I find that as the percent of Black judges in a courthouse increases white judges are less likely to render incarceration sentences in cases with Black defendants. Increases in racial diversity decrease the Black–white gap in the probability of incarceration by up to 7 percentage points. However, I find no relationship between judge’s racial identities and disparities in their decisions. This study highlights the importance of conceptualizing diversity as a group characteristic and the relationship between institutional context and outcomes.

  American Political Science Review (2023) 1–16  

By Phil Bowen

  As the Government’s recent White Paper states, “failures in sentencing lead to never-ending cycles of criminality, with low-level offenders stuck in a revolving door of crime…in many cases their offending is fuelled or exacerbated by poor mental health or substance misuse. Yet our system of sentencing is not properly equipped to support them to address these and other causes of their offending. This means they have little hope of rehabilitation and we as a society have little hope of cutting the crime they commit in the longer term.” Taking inspiration from a number of different jurisdictions, we outline ways that deferred sentences can be used in England and Wales as part of structured and targeted approaches to address these issues. In suggesting these innovative approaches, we see deferred sentence schemes of these types as part of a vital spectrum of responses to the otherwise endless cycle of offending that some people are caught in. Starting with diversion at the arrest stage for lowlevel and first time offenders, through to problem-solving substance misuse courts providing an alternative to longer periods of custody, we see innovation in deferred sentencing as playing a crucial role in ensuring we have a justice system that is “agile enough to give offenders a fair start on their road to rehabilitation.”

London: Centre for Justice Innovation , 2020. 7p.

By Julian V. Roberts,  Elaine Freer and Jonathan Bild (Sentencing Academy)

This report provides an introduction to the concept of deferred sentencing. Courts in England and Wales have long had the power to defer sentencing for up to six months. The Government’s 2020 White Paper, A Smarter Approach to Sentencing, expressed an intention to encourage greater use of deferred sentencing. To date, very little research has explored this little-known element of sentencing law. The only peer-review publications exploring the subject appeared approximately 40 years ago. This report summarises the limited research on this topic and reports recent trends in the use of deferred sentencing in England and Wales. The power to defer sentence was conceived to respond to those individuals whose personal and professional circumstances are most likely to be in transition and evolving in ways that have consequences for the sentencing decision. For this reason, deferred sentencing may be particularly appropriate for young adults whose personal and professional lives are changing rapidly. The idea behind the deferred sentence is that the offender has a limited time (up to six months) to address the problems which gave rise to the offending for which he or she is being sentenced. When a court defers sentencing, the offender is required to comply with a number of requirements during the period of deferral. If the offender complies successfully with these requirements, there is a strong presumption that a non-custodial sanction will ultimately be imposed. This may mean imposing a suspended sentence order or community order in a case which would normally have resulted in a short immediate prison sentence. The deferred sentence therefore should serve as a powerful incentive for the offender to take steps towards desistance and away from offending. The deferral order commonly involves completing or undertaking a drug or alcohol treatment programme. The deferred sentencing provision was introduced in 1973 to provide an opportunity for the offender to demonstrate a change in personal circumstances during the period of deferral. Compliance with requirements designed to promote desistance normally resulted in the imposition of an alternative to immediate imprisonment. Deferred sentencing thus targeted offenders convicted of an offence serious enough to justify the imposition of a custodial sentence. The limited statistics available from the early period showed that almost all cases deferred ultimately attracted a non-custodial sentence. The volume of deferred sentences has declined considerably from a high of almost 10,000 cases a year in the mid-1970s although it is unclear why courts have moved away from exercising the power to defer sentence. Most deferrals (approximately half of all cases) over the more recent period covered by the statistics we have been provided with by the Ministry of Justice in response to requests under the Freedom of Information Act (2005-2020) involved theft or minor fraud. Crimes involving violence or sexual offences accounted for 3% or less of all cases. No data are currently available on the requirements imposed as part of a deferred sentence, the outcome of the deferment, or the sentence ultimately imposed.  

London: Barrow Cadbury Trust, 2022. 39p.

By Nancy J. King; Fred L. Cheesman II; Brian J. Ostrom

The purpose of the study discussed in this report was to provide empirical information about habeas corpus cases filed by state prisoners in U.S. District Courts under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). This report first provides an overview of federal habeas review and the current statutory scheme before discussing the five categories of empirical information about habeas review: time before filing; claims for relief; operation of defenses; time for processing; and merits review and case outcomes. The report is divided into five sections, with the introduction providing the federal habeas review and research review, as well as a discussion of the study design and methodology. The second section provides descriptive findings of: petitioner demographics; state proceedings; representation of petitioner in federal court; timing of petitions; type of proceedings challenged; claims raised; intermediate orders; litigation steps; processing time; non-merits dispositions; merits dispositions; and appeals. The third section provides comparative findings, of post- and pre-AEDPA studies, capital and non-capital cases. The fourth section provides explanatory findings of capital and non-capital cases, and discusses factors associated with likelihood of relief in capital cases. And the fifth section consists of Appendices, providing statistical tables, cases, writs granted, and lists of districts and variables collected.

Nashville: Vanderbilt University, Law School, 2023. 127p.

By Steve Yeong and Elizabeth Moore

A new study by the NSW Bureau of Crime Statistics and Research (BOCSAR) has found that Aboriginal people who participate in Circle Sentencing have lower rates of imprisonment and recidivism than Aboriginal people who are sentenced in the traditional way.

Circle Sentencing is an alternative sentencing method for Aboriginal offenders, which is available in 12 NSW Local Courts. Under Circle Sentencing, the magistrate works with Aboriginal elders, victims and the offender’s family to determine an appropriate sentence.

The BOCSAR study examined three issues:

The probability of imprisonment.

The probability of at least one reoffence within 12 months.

The number of days between sentencing and the offender’s first reoffence.

After controlling for a variety of defendant-case characteristics (e.g., prior offending, offence severity, age, gender and socioeconomic status), the study found that, when compared to Aboriginal offenders sentenced in the traditional way, offenders participating in Circle Sentencing:

Are 9.3 percentage points less likely to receive a prison sentence.

Are 3.9 percentage points less likely to reoffend within 12 months.

Take 55 days longer to reoffend if and when they do.

Sydney, AUS: NSW Bureau Bureau of Crime Statistics and Research, 2020. 22p.

By Ilya Klauzner and Steve Yeong

The Early Appropriate Guilty Plea (EAGP) reforms were introduced in April 2018 to incentivise the entry of guilty pleas early in the court process. The reforms included early certification of charges, increased and earlier negotiation between the defence and prosecution, continuity of legal representation, and statutory sentencing discounts for early guilty pleas. The reforms substantially changed the court processes for defendants charged with the most serious (i.e., indictable) offences. We examine whether the EAGP reforms achieved its main aims. The reforms were intended to increase the proportion of cases with an early guilty plea as well as a guilty plea at any point in the court process. The increased efficiency associated with avoiding a committal to trial was also expected to contribute to: • A reduction in the time to case finalisation; • An increase in the weekly number of case finalisations in the District Court (DC). Our study examines these outcomes by comparing cases initiated after the EAGP reforms (i.e., with a charge date on or after the 30th April 2018 and finalisation date before the 16th March 2020) to cases initiated before the reforms (i.e., with a charge date after 13th June 2016 and a finalisation date before 30th April 2018).

Sydney, AUS: NSW Bureau Bureau of Crime Statistics and Research, 2021. 22p.

By Micaela M. Alvarado

The author of this theses examines the multifaceted factors that are in play during sentencing in the criminal justice system and to fill a gap in the literature regarding sentencing disparities based on race and sex across types of counties, such as rural or urban counties, and whether those patterns have changed over time. The author lists three reasons for the importance of this research: it helps inform recent sentencing reforms aimed at targeting inequalities in the criminal processing system; filling a research gap on county-by-county variation in sentencing disparities by demographic characteristics; and examining longitudinal trends in sentencing constitutes an important step in better understanding influential factors in judicial decision making. The thesis examines trends over time as it addresses two specific research questions: do individuals from urban counties receive harsher sentences than those from rural counties; and does an offender’s race, sex, and county of residence influence the sentencing severity. Results showed that individuals in rural counties received harsher sentences, and revealed evidence of overall increased punitiveness for both urban and rural counties over the last several years. Results also revealed differences in sentencing outcomes based on race/ethnicity and sex between rural and urban counties; specifically, Black males experienced the most severe punishment in both rural and urban counties as well as receiving the most punitive form of punishment over time. Results also demonstrated that rural counties provided more punitive sentences in general, while urban counties have more offenders. The author suggests that urban counties may, as a result, rely on different punishment options due to limited resources. Analyses revealed more lenient sentences for females across rural and urban counties over time.

Huntsville, TX: Sam Houston State University, 2019. 105p.

By Andrew Jordan, Ezra Karger and Derek Neal

We examined 70,581 felony court cases filed in Chicago, IL, during the period 1990–2007. We exploit case randomization to assess the impact of judge assignment and sentencing decisions on the arrival of new charges. Our estimates of the impact of incarceration on recidivism show that, in marginal cases, incarceration creates large and lasting reductions in recidivism among first offenders. Yet, among repeat offenders who are marginal candidates for prison, incarceration sentences create only short-run incapacitation effects and no lasting reductions in the incidence of new felony charges. These treatment-impact differences inform on-going legal debates concerning the merits of sentencing rules that offer leniency for first offenders but encourage or mandate incarceration sentences for many repeat offenders.

Chicago: University of Chicago, Becker Friedman Institute for Economics, Working Paper, 2022. 66p.

By Catherine Heard and Jessica Jacobson

In all countries across the globe, the prison sentence is a primary means by which the state censures and seeks to contain behaviours deemed illegal. States vary widely in terms of which types of illegal conduct are deemed to merit custody rather than non-custodial sanctions, and the lengths of prison terms imposed for conduct that does cross the custody threshold. Accordingly, people who are convicted in relation to similar conduct may receive widely differing penalties, depending on the country in which they are convicted and sentenced. This report examines the extent and nature of international disparities in custodial sentencing. It is the fourth in a series of research reports produced under the banner of ICPR’s international, comparative project, ‘Understanding and reducing the use of imprisonment in ten countries’, launched in 2017. The ten jurisdictions which are the focus of this research span all five continents: Kenya, South Africa, Brazil, the USA (and more specifically, New York State), India, Thailand, England and Wales, Hungary, the Netherlands, and Australia (more specifically, New South Wales). On the basis of legal and policy analysis and interviews with 70 legal practitioners across the ten jurisdictions, the report outlines the sentencing frameworks and probable sentencing outcomes for three hypothetical offences: a domestic burglary by a man with previous convictions for similar offences; drug importation (400 grams of heroin or cocaine) by a woman from a less developed country; and the intentional homicide, involving a knife, of one young man by another.

• More.....

  Each offence presents distinct policy challenges for sentencing law and practice, and each offers lessons for reform aimed at curbing the relentless rise in prisoner numbers seen in much of the world in recent decades. The emerging lessons for sentencing reform, and a series of high-level policy recommendations, are presented with reference to the broad themes of: • The role of previous convictions in sentencing – rationales and repercussions • The vexed and persistent problem of short prison sentences • Drugs policies and the scope for alternatives to harsh sentencing of drug offences • The meaning and implications of life sentences • Approaches to the sentencing of murder.  

London: Institute for Crime & Justice Policy Research, 2021. 26p.

By Linda Ross Meyer

Exactly how is it we think the ends of justice are accomplished by sentencing someone to a term in prison? How do we relate a quantitative measure of time—months and years—to the objectives of deterring crime, punishing wrongdoers, and accomplishing justice for those touched by a criminal act? Linda Ross Meyer investigates these questions, examining the disconnect between our two basic modes of thinking about time—chronologically (seconds, minutes, hours), or phenomenologically (observing, taking note of, or being aware of the passing of time). In Sentencing in Time, Meyer asks whether—in overlooking the irreconcilability of these two modes of thinking about time—we are failing to accomplish the ends we believe the criminal justice system is designed to serve. Drawing on work in philosophy, legal theory, jurisprudence, and the history of penology, Meyer explores how, rather than condemning prisoners to an experience of time bereft of meaning, we might instead make the experience of incarceration constructively meaningful—and thus better aligned with social objectives of deterring crime, reforming offenders, and restoring justice.

Amherst, MA: Amherst College Press, 2017. 118p.

By Sigrid Geralde Clara van Wingerden.

The sentencing decision of the judge might be the most important decision in the criminal proceedings, not only because of the impact the punishment has on the offender, but also because the sentencing decision is a cornerstone of the legitimacy of the entire criminal justice system. Nonetheless, there still are questions about the factors judges take into account when making their sentencing decision. This study aims to improve our understanding of the sentencing decisions judges make.The developments in criminal justice practices as regards the emergence of ‘actuarial justice' have directed the focus of this study to risk-based sentencing: are offenders with a high risk of reoffending more likely to be sentenced to imprisonment and to longer prison terms than low-risk offenders? To what extent do judges take information into account on the risk-related personal characteristics of the offender, such as unemployment, ties to family or friends, or drug usage, when making their sentencing decision?Using uniquely detailed data on risk-related social circumstances of the offender, and advanced quantitative and qualitative research methods, this study provides in-depth insight into sentencing.

Leiden: Leiden University, 2014. 215p.