Re-Constructing Sentencing: A Multidimensional Study of Judicial Discretion in Continental Europe

forthcoming

Consistent sentencing is a cornerstone of modern rule-of-law criminal justice systems. To enable judges to consider diverse circumstances at sentencing, legal frameworks provide judges with discretion (some countries also supply guidelines to increase consistency). The challenge is to provide judges with the right amount of discretion and guidance. This can be done in various ways, but there has not yet been any comprehensive assessment of these or of the limits they set across continental Europe. Attempts to evaluate the disparity of judicial practices run into the difficulty of identifying comparable cases. Typical sentencing studies consider behaviours to be the same if they fall within the same legal offence definition. However, each offence encompasses a wide range of behaviours, which impedes proper identification of disparities. This project will redefine our understanding of sentencing discretion and its application by making a complex assessment of discretion within three dimensions: legal frameworks, judicial practices, and guidelines. I will analyse and classify approaches to structuring discretion in every European continental legal framework and quantify their discretion and punitivity. I will combine innovative data and methods – thorough court descriptions of criminal behaviour and natural language processing – with detailed administrative data to examine sentencing practices in two similar, yet also different countries: Finland and Czechia. I will design European guidelines for a single jurisdiction currently not employing them and experimentally evaluate their overall effectiveness, mechanisms and punitivity. By deconstructing sentencing along these three dimensions and examining each in detail, I will paint a holistic picture of sentencing discretion, its extent, how it is structured across Europe, and its impact on punitiveness. The project will open multiple new research pathways and counterbalance the prevailing common-law-centric discourse.