SENTENCING IN THE AGE OF INFORMATION: FROM FAUST TO MACINTOSH SENTENCING IN THE AGE OF INFORMATION: FROM FAUST TO MACINTOSH Katja Franko Aas First published in Great Britain 2005 by The GlassHouse Press, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom Telephone: + 44 (0)20 7278 8000 Facsimile: + 44 (0)20 7278 8080 Email: [email protected] Website: www.cavendishpublishing.com Published in the United States by Cavendish Publishing c/o International Specialized Book Services, 5824 NE Hassalo Street, Portland, Oregon 97213-3644, USA Published in Australia by The GlassHouse Press, 45 Beach Street, Coogee, NSW 2034, Australia Telephone: + 61 (2)9664 0909 Facsimile: +61 (2)9664 5420 Email: [email protected] Website: www.cavendishpublishing.com.au © Franko Aas, K 2005 All rights reserved. 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British Library Cataloguing in Publication Data Aas, Katja Franko Sentencing in the age of information: from Faust to Macintosh 1 Sentences (Criminal procedure) I Title 345'.0772 Library of Congress Cataloguing in Publication Data Data available Paperback ISBN 1-904385-38-9 Paperback ISBN 978-1-904-38538-7 Hardback ISBN 1-904385-39-7 Hardback ISBN 978-1-904-38539-4 1 3 5 7 9 10 8 6 4 2 Printed and bound in Great Britain For Eva and Maria Preface This is a deep book on how we are prevented from going deep. The book presents a picture of modern judges in modern courtrooms equipped with computers, electronic information systems, and with sentencing tables that prescribe the ‘right’ punishment – it simplifies decision-making. Right decisions, or wrong decisions? Right, if the predetermined procedure is followed correctly; wrong if the procedure is not followed correctly. But the deep problems, those Faust wanted to penetrate, those he deposited his soul to understand, become redundant in this new setting. What is it all for? What sorts of problems are there to make decisions on? Most importantly: are the decisions not only technically right, but also morally right? Are they kind? Are they decent – or wise? These large questions are forced into the background by a situation now defined in terms of strict rules on how to decide on the base of an assembly of pre-determined elements. Maybe the judge has more wisdom than she or he can be programmed for? Maybe we all have? The old-fashioned judge in a penal case attempts to understand what sort of person she or he is facing. Slowly, the judge builds a story of what has happened. To the judge, and hopefully also to others, this is a comprehensible story; in the best case, a creation of a piece of art. Through that story, the judge intuitively comes to a conclusion – the final sentence. But this is a complicated process – one with many variables at play. It is a process often based on most of a life on the bench and on experience and intuition. It is also a story where the outcome, the final sentence, is difficult for politicians and their managers to control. Today it appears that all these problems are to be solved through the modern trend of using sentencing tables or statistical information on the standard sentence. These pre-determined forms will capture the judge and eliminate discretion, while the accused will be converted from a whole person in a whole story to a carrier of a risk configuration according to a grid of pre-determined factors. But then come the costs: the original meaning of individual was ‘indivisible’ – that is, something that cannot be divided. Now, it seems, the individual can be divided into a set of factors. But, thinking of Faust, maybe this is when the devil comes back; when we are not individuals any more, but only divided parts without souls – parts that can be handled like parts. That is what this important book is about. Nils Christie Oslo, January 2005 Acknowledgments I am grateful to a number of people who have contributed in various ways to this book. In particular, Nils Christie, who provided guidance and inspiration. Grateful acknowledgments also to the former and present colleagues and students at the Institute of Criminology and Sociology of Law in Oslo, including Hedda Giertsen, Ragnhild Hennum, Nicolay Johansen, Heidi Mork Lomell and Lill Scherdin. Helene Oppen Gundhus has been all one could hope for in a colleague and a friend. I am also grateful to Craig Calhoun, Thomas Hylland Eriksen and Clifford Shearing for their inspiring courses, as well as to other participants for the discussions. Further thanks to Richard Jones, Thomas Mathiesen, Iver B Neuman, Annick Prieur and Jonathan Simon for their constructive criticism. Different versions of some of the material also appeared in Punishment & Society, Journal of Scandinavian Studies in Crime Prevention and The New Punitiveness (edited by John Pratt, David Brown, Simon Hallsworth, Mark Brown and Wayne Morrison). I am grateful to the editors and the reviewers for their comments. Norwegian Research Council generously provided the financial support for the project. Finally, thanks to Beverley Brown and Sanjeevi Perera from GlassHouse Press for making the book possible. The mistakes, of course, are mine alone. Special thanks to my families, Slovenian and Norwegian. First, as always, to Per Christian, Eva and Maria, and to Iztok and Tanja for their frequent visits and the joy they brought with them. To my mother and to my grandparents for making me feel I still had a home with them. And finally, to my father. Katja Franko Aas Oslo, January 2005