This blog relates to the Criminal Sentencing and Penology Discussion Group meeting from March 17. The next meeting will be held on Friday May 26, at 16.00 in the Hinton Seminar Room in the Nazrin Shah Centre, Worcester College, and the subject will be ‘Sentencing Murder: Issues and Answers’.

Does anything change when an offender is being sentenced for a crime committed 30 years earlier? Many examples of delayed conviction and sentencing arise, including historic sexual assaults; 1960s radicals (Weathermen/ SDS) who committed politically-motivated crimes against the government; and war criminals whose crimes often occurred decades before their ultimate arrest, trial, and sentencing. The volume of stale sexual prosecutions has grown significantly in England and Wales in recent years. Prosecution and punishment may have been delayed by any number of factors relating to the victim or the offender. In many cases of historic sexual abuse the victim has only recently come forward to the police; the offender may have lived in relative security assuming the crime will not emerge. Alternatively, the prosecution may have been triggered by criminal justice databases. The offender may have simply avoided prosecution without taking any extraordinary steps, or he may have actively avoided detection by acquiring a new identity and moving to another jurisdiction. Whatever the reason, sentencing cases where there is a significant gap between crime and sentencing creates challenges for courts.

It is surprising that the issue of the passage of time has not been discussed in the literature. In addition, few sentencing regimes explicitly acknowledge the passage of time as a relevant sentencing factor. When reference is made to this circumstance, the rationale and consequences for sentencing remain obscure. For example, the Swedish sentencing statute (which establishes proportionality as the guiding principle) directs a court to consider ‘whether considering the nature of the crime, an unusually long time has elapsed since the commission of the crime’. (Chapter 29, S. 5(7)).  This provision is cited by Ashworth and von Hirsch in the Appendix to Proportionate Sentencing (2005). They say little about the provision but appear to accept the passage of time as a ‘basis for compassion… with the lapse of time, the possibility increases that the actor may have changed significantly – so that his long past act does not reflect badly on the person he now is.’ (p. 278).

Contemporary or Historic Sentencing levels?

Perhaps the most fundamental practical question is whether the offender should be sentenced under the regime applicable at the time of the offence, or the current sentencing regime (assuming that the two are disparate)? Jurisdictions have taken different approaches to this question. In England and Wales, recent judgments from the Court of Appeal in sexual offences appeals and a new sexual offences guideline have clearly established that the offender should be sentenced according to contemporary, not historical standards. This position is subject to a very permissive provision in the European Convention on Human Rights. Article 7 of the Convention prohibits the imposition of a more severe punishment than was available at the time the crime was committed. Courts have interpreted this to mean that any sentence within the maximum penalty available at the time of the crime may be imposed, and remains compliant with Article 7.

Courts in Minnesota, bound by the Minnesota sentencing guidelines, have taken the opposite view. If an offender is being sentenced for a crime which was, say, level six at the time of commission, level six sentence ranges will apply even if the offence has subsequently been regraded upwards to a higher seven by the Commission. Australian courts have taken the same general approach of applying historic rather than contemporary sentencing levels.

There may be many utilitarian reasons to modify sentencing in historic cases. For example, the offender – particularly if elderly – may present a very low risk to re-offend, in which case a mild punishment or discharge may be appropriate. But does a proportionality-based analysis change when the crime and sentencing are separated by significant interval of time? This session explores the significance of the passage of time as a factor in a proportional sentencing scheme. The claims arise in three principal domains: the offense, the offender, and the crime victim.  

A.        The Offense

The mere passage of time cannot alone justify differential sentencing. A crime committed 20 years ago may have become a distant memory but it has not been effaced. Something needs to have changed with respect to the offense before a proportionality analysis justifies a different approach. The most obvious change is an evolution in the objective or perceived gravity of the conduct, which then generates a different response to the question ‘What is the proportionate punishment in this case?’.

Crime seriousness is central to the determination of a proportional sanction, so we may ask the following question: If the State’s calibration of the harm of the offense has changed over the years, should the offender be sentenced on the view of the crime at the time, or on some revisionist approach? Some crimes have ‘become’ more serious in recent decades (e.g. domestic violence; drink driving), as our calibration of harm and gravity has evolved. Others are seen as being less serious than in previous times. Assisting a person to take their own life may be one example of the latter category. Ordinal proportionality rankings obviously evolve over time, whether they are derived from some objective analysis of case files (victim impact statements; medical reports etc.) or perceptions of seriousness derived from samples of the public.

One approach would be to hold the offender fully accountable for the harm caused or threatened all those years ago. This will require the court to calibrate seriousness according to historic evaluations: how serious was the offense considered in 1977? One source of information would be any historical seriousness rankings in terms of community perception: Public opinion thus serves as a proxy for desert. Historical sentencing standards provide a more direct and penal measure of crime seriousness. A court may for example attempt to match the current historic crime to historical precedents sentenced 30 years ago and then impose a sentence aligned with these earlier judgments. A contrary view would hold the offender accountable for the crime according to contemporary standards: what level of sentence is currently imposed for such crimes? There may be claims for an asymmetry in the defendant’s favour: the defendant may benefit from a lesser sentence if current sentencing levels are more modest than in the past, but should not pay a heavier price for any recalibration of sentence severity which has taken place over 30 years.

B.        The Offender: Temporal Mitigation and Aggravation?

One view would entail punishing the offender as though the crime had just occurred. A fundamentalist Kantian might argue that the offender’s liability remains unchanged over the passage of time. A character based retributivist might argue the opposite: 40 years of compliance with the law means that the stale offence was sufficiently out of character to be ignored for the purposes of punishment.

If the crime occurred say 40 years ago, the State is sentencing a different individual from the one that committed the offense. The 60 year-old offender being sentenced for a 40 year-old crime committed when he was 20 is at once the same and also a different person from the one who committed the crime. He is a living embodiment of the problem of Theseus’s ship, slowly being replaced plank by plank. But is the difference between the offender then and now retributively significant? As the offender moves in time away from the crime, why exactly does his liability diminish?

A key consideration may be his conduct during the period between crime and punishment. Assuming that the offender has led a law-abiding life since the crime, he has surely strengthened his claim for mitigation. The first offender claims mitigation based on a protracted period of compliance prior to the offence; the historic offender can place post-offending compliance alongside this claim.  First offenders claim mitigation on the basis that the offence was preceded by a sustained period of law-abiding living and compliance with the law. Historic offenders can point to more than just a period of law abidance prior to the crime; they can use the same argument to claim mitigation for the sustained compliance occurring after the crime occurred?

Another passage of time mitigator emerging related to culpability might be the prevalence of, and social response to the conduct at the time of the crime. If the crime was particularly common, or regarded as of borderline criminality during this earlier period then the offender is surely less culpable.

C.        The Crime Victim

The role of the victim seems relatively uncontroversial. To the extent that a victim impact statement contains legally-relevant information to help a court determine the seriousness of the offence, this input should cover the lengthy period between crime and punishment. If the offender’s moral trajectory since the crime is taken into account (to his benefit), it would appear reasonable to consider any harm arising from the crime over the same period to his detriment. This liability protracted beyond the normal period prior to sentencing should be subject to some restriction based on the reasonably foreseeable nature of the lasting harm.