Public attitudes to the sentencing of drug offences

Historical context and the problem of penal populism

When exploring whether or not it is wise for sentencing bodies to engage the public in debates around sentencing policy, it is useful to consider the recent historical context of these debates. Fifty years ago the concept of ‘dealing the public in’ (Indermaur, 2008) would have seemed somewhat unthinkable from a policy perspective. There was a consensus among politicians, senior civil servants and the judiciary – ‘Platonic guardians’, to use Loader’s (2006) term – that public opinion was something to be managed rather than listened to. The presumption was that the weight of public opinion was unremittingly punitive, and that there could be no meeting between enlightened liberal policy and opinion; thus policy and practice should be insulated from this punitive pressure, preserving ‘civilized values’ (Loader, 2006: 563) and balancing effectiveness and humanity and order and liberty. It was felt that the public emotions stirred by crime were dangerous and in need of containing; for the Platonic guardians, there was no clearer example of the impossibility of responding to public opinion than debate surrounding abolition and possible reinstatement of the death penalty (Loader, 2006).

The paternalistic self-confidence of policy elites in criminal justice began to be eroded in the final two decades the 20th century – from the time of the Thatcher government onwards (Loader, 2006). Giddens (1991) has described how late modernity marked the weakening of the role of policy elites and experts, and the rise of the public ‘voice’. Responsiveness to the public was increasingly a feature of government reform, most obviously reflected in the ‘marketization’ of public services such as health and education; but this process began to be felt in penal policy from the early 1990s. The immediate trigger for this, as has been well documented (see, for example, Downes and Morgan, 2007; Loader, 2006; Pratt, 2007), was the effective challenge marshalled by New Labour to the Conservatives as the ‘party of law and order’. Debate surrounding crime and disorder became progressively politicized and punitive throughout the 1990s and the views of the public became ever more of a direct concern to government (Loader, 2006). ³ The late 1990s saw this politicization of public opinion coincide with evidence of low levels of public confidence in the criminal justice system. This was documented for the first time via the 1996 Crime Survey for England and Wales, particularly with regard to judges and sentencing practice. For example, over 80 per cent of participants in the 1996 Crime Survey for England and Wales thought that judges were out of touch with the public and nearly four-fifths felt that sentences were too lenient (Hough and Roberts, 1999).

It was around this time that some social commentators began to express concerns about penal populism: arguing that excessive reliance on public opinion, particularly the ‘top of the head’ style of general opinion that can be elicited in opinion polls (Hough and Roberts, 1999), could give rise to public opinion being exploited by politicians to justify punitive practices. The logic of penal populism has been well described by Pratt (2007) and Roberts et al. (2003), who proposed that populist policies are those that are promoted because of their popularity with the public rather than their effectiveness at reducing crime. Populist rhetoric from both the main political parties included claims that ‘criminals’ have been favoured at the expense of the ‘law-abiding majority’ and crime victims. For Pratt, the manipulation that can occur as a result of penal populism is responsible for the ‘gulf’ that exists between expectations of the public with respect to criminal justice policy and the policies and practices that are currently in place (Pratt, 2007: 13). ⁴ Similar views have been expressed by many commentators over the last decade and a half; Indermaur (2008), for example, has expressed concern that penal populism has dominated the response to the crisis in public confidence and Hutton (2008) argued that politicians set great store on how public opinion is presented in the media but pay insufficient attention to whether this is accurate or not.

In light of these concerns, various researchers have sought to understand this trend in responsiveness to perceived public punitiveness, and to provide a more textured account of public opinion within which to assess the populist response. Thus, for example, Hough and Roberts (1999) used the Crime Survey for England and Wales to demonstrate that the public held more varied and nuanced views than was generally recognized at the time, particularly regarding sentencing practice. On the one hand there was a marked lack of confidence in judges and a sense that sentencing practice was too lenient; on the other hand there was clear and systematic ignorance about sentencing practice, with majorities underestimating the use of custody, and people’s sentencing preferences for a specific case of burglary seemed broadly in line with current sentencing practice (Hough and Roberts, 1999). ⁵ Meanwhile in a study that explored public attitudes to the principles of sentencing, Hough et al. (2009) found that participants considered the weight and relevance of specific sentencing factors when asked to decide upon the appropriate sentence in specific cases, rather than reacting with ‘thoughtless punitiveness’ (Hough et al., 2009: 67). Similarly Chapman et al. (2002) found that when participants were provided with information about crime and the criminal justice system, they were less likely to think that sentencing practice was too lenient and, more recently, Roberts et al. (2012) found that the provision of information about sentencing reduced public punitiveness.

Therefore despite valid concerns about the potential negative impact of penal populism, it appears that in the era of Platonic guardianship politicians and their civil servants were overly pessimistic about the risks of giving the public a greater voice in penal policy – notwithstanding the evidence that, at one level, there is indeed plenty of cynicism and anger about sentencing.

Legitimacy and moral authority: Intuitive justice and the case for public involvement

The law is, rather, a vehicle by which the community debates, tests, and ultimately settles upon and expresses its norms. (Robinson and Darley, 1997: 473)

In light of findings that show that the public are capable of making thoughtful contributions to sentencing debates, there is a growing body of research arguing that the public have a key role to play in informing criminal justice policy (Hutton, 2008; Indermaur, 2008; Loader, 2010; Robinson and Darley, 1997). In order to explore this fully it is first important to locate the argument in the broader theoretical framework of normative compliance, as this helps to lay the foundation as to why engaging with the public could be viewed as important to sentencing policy.

The full range of factors that might stimulate or inhibit normative compliance is very broad indeed, and it is well beyond the scope of this article to review them. Suffice it to say that there are extensive sociological literatures on the respective roles of socio-economic factors, social and economic inequality, parenting, education and religion in predisposing people to compliance with, or defiance of, the law (see, for example, Calhoun et al., 2012; Rock, 2012).

By comparison, the role of the agencies of formal social control in stimulating normative compliance is relatively under-researched and under-theorized. For our purposes there are two significant bodies of work, that make claims about the impact of procedural and distributive (or outcome) justice respectively. Procedural justice theory, which is associated most closely with Tom Tyler (see, for example, Tyler, 2003, 2006, 2007, 2010) argues that fair and respectful treatment by legal authorities is the factor that most readily builds trust in justice and public perceptions of the legitimacy of justice institutions. Elaborations of procedural justice theory in the UK, drawing on David Beetham’s (1991) work, have proposed that perceptions of ‘moral alignment’ between the public and justice institutions, derived from the quality of interactions between officials and the public, may be a critical mediating factor in legitimating the justice system (Hough et al., 2013; Jackson et al., 2012).

By contrast, Robinson and Darley (1997) have argued that distributive justice may be a significant shaper of institutional legitimacy. They propose that court outcomes – or the sentences handed down by judges – must be aligned at least to some degree with public sentiments if the courts are to command legitimacy. Whether one labels this a theory about distributive justice or outcome justice is really a matter of labelling; but it is clearly at odds with procedural justice theory’s pre-occupation with processes. However in common with procedural justice theory, Robinson and Darley are proposing relationships between perceived fairness, perceived legitimacy and commitment to the rule of law. They argue that in order for criminal justice systems to achieve moral authority and credibility, outcomes – such as new legislation and sentencing decisions – need to be compatible with the ‘moral intuitions’ (Robinson and Darley, 1997: 485) of the community. Engaging the public in the creation of new legislation and sentencing practice is, they argue, one way of achieving this. They suggest that this could be done through research studies which ask the public to ‘pass sentence’ on selected cases and to assess the seriousness of certain offences.

The implication of this is that when disparity occurs between community perceptions and policy, something should be done to bring the two back into line. This could involve adjustments to policy or, equally, efforts to justify and explain to the public the thinking behind the policy. If law makers do not engage the public in this decision-making process, and make efforts to understand why new legislation does not correspond with the intuitions of the public, then they run the risk of jeopardizing their legitimacy, and damaging the credibility of the new legislation (Robinson and Darley, 1997). It follows from this that public engagement can play an important role in promoting the legitimacy of governmental institutions, such as sentencing bodies like the Sentencing Council.

Theories of intuitive justice clearly have the potential to draw liberally minded criminologists into difficult and risky terrain. Once can see, for example, how intuitive justice theories could be deployed to argue for very harsh sentences for sexual offenders, and paedophiles in particular, and for the reintroduction of capital punishment. On the other hand, it would be ideologically obstinate to refuse to examine the degree of alignment between sentencing policy (and practice) and public opinion. Of course the Sentencing Council does not have the luxury of making such a choice. In devising its guidelines, it is required to take account of the views of the general public – reflecting its statutory obligation ‘to work to improve public confidence in sentencing’ (Sentencing Council, 2010; see also the Coroners and Justice Act 2009).

How can sentencers engage with the public?

If there is a prima facie case, on both theoretical and empirical grounds, for ‘dealing the public in’ (Indermaur, 2008), it is worth looking at possible ways in which this can be done (and at tactics which should be avoided). Roberts (2008) has argued that for public consultation to be achieved it will be necessary for sentencers to be less insulated from the public and for continuous formal consultation to emerge; the challenge is to have some level of public engagement without descending into penal populism. Indermaur (2008) shares the view that meaningful public engagement should be sought, advising that the public should be empowered and ‘dealt into’ the process of forming sentencing policy. His concern is that current efforts to involve the public have been ‘piecemeal’ and ‘tokenistic’ (Indermaur, 2008: 45) rather than based on any thoughtful assessment of the nature of public dissatisfaction about sentencing policy. The root of dissatisfaction may be a lack of trust in criminal justice policy; and current attempts at public involvement could suggest a political strategy of appeasement, whereby gestures at public participation have emerged without the commitment to follow them through. A key challenge is the depth versus breadth ‘trade-off’ between a selective consultation and a representative one; open consultations that are often used by sentencing bodies – whereby members of the public are free to respond if they wish – offer neither. Instead, deliberation which is incorporated within a multi-layered strategy is necessary to achieve meaningful engagement with the public. This would involve:

Measuring public preferences is central to this process. Arguments for meaningful engagement with the public fall in line with advocates of ‘penal moderation’, a philosophy with the aim of reducing the severity and scale of the current penal system in order to create a ‘milder and smaller’ system (Loader, 2010: 352). Penal moderation is based on restraint in communication about, and the delivery of, punishment and seeks to build on the moral ambivalence that people may have about punishment (Loader, 2010). Loader argues that there are two ways in which this can be achieved: ‘moderation by stealth’ and ‘moderation as politics’, both of which encompass the already mentioned challenges to public involvement. ‘Moderation by stealth’ would involve avoiding public views when they do not fall in line with penal moderation. This could involve neutralizing opinions or even discarding them completely. Loader explains several ways in which this could be achieved including matching punitive rhetoric with lighter measures, such as the increased use of drug treatment programmes, and citing the poor financial climate as a reason for being more sparing with the use of prison. However, this will leave the concerns of the public unaddressed and could even aggravate members of the public who will feel left out of the process (Loader, 2010).

Criticism of this strategy of ‘moderation by stealth’ bears similarities with Indermaur’s (2008) concerns about the political strategy of appeasement in public consultations. On the other hand, ‘moderation as politics’, Loader argues, does not treat public opinion as a ‘ticking bomb’ to be avoided or diffused. Instead it involves creating dialogue with members of the public and seeking to challenge and move current understandings about the meaning of punishment: ‘it means, in short, engaging with, rather than neutralizing or cooling down, the passions that crime and punishment provokes’ (Loader, 2010: 363). This echoes Indermaur’s assertion that meaningful public engagement is required to enhance sentencing policy.

Background and aims

The Sentencing Council for England and Wales commissioned the authors and colleagues in 2011 to carry out a study of public attitudes to the sentencing of drug offences. The research was designed to inform the development of a guideline on the sentencing of drug offences. The Council has now produced its definitive guideline on drug offences (Sentencing Council, 2012a); hitherto there had been no such guideline for the Crown Court, although the Magistrates’ Court Sentencing Guidelines, which was first produced in 2008, ⁶ includes a guideline on the most common drugs offences dealt with in magistrates’ courts (Sentencing Guidelines Council, 2008). ⁷ Thus the study under discussion here was commissioned as part of the process by which the Council developed its new drugs sentencing guideline. Its findings fed into the draft guideline that was published at the same time as the report on the study (Sentencing Council, 2011).

In its exploration of public attitudes to the sentencing of drug offences, the study addressed the following issues:

Methodology

The study adopted a qualitative approach; specifically, the use of focus groups. The researchers were of the view that a focus group methodology was ideal for researching attitudes to sentencing. The subject of sentencing raises a range of complex issues about which members of the public are likely to have nuanced and perhaps, in some cases, ambivalent views, and these views can be closely scrutinized over the course of a focus group discussion. Focus groups allow for an open and reflective discussion where different arguments can be presented and comparisons can be made (Bristol and Fern, 2003); participants are able to challenge one another’s views, and possibly, revise their own opinion on certain aspects. Focus groups have been advocated as an appropriate method for sentencing bodies to engage with the public and can be used to complement public consultations (Hutton, 2008; Indermaur, 2008).

The focus group methodology can be criticized on grounds of lack of representativeness. Other options that would have ensured representativeness could have included surveys with limited sample sizes or non-probability samples, and high quality surveys with probability samples that accurately reflect the general population. While it is desirable to maximize precision and representativeness, methods such as these are expensive – and probably unaffordable as the aim was to cover sentencing practice in relation to drug offences comprehensively across a range of offence types and offender characteristics within a limited time frame. Researchers have found remarkably consistent findings using small-scale surveys based on quota samples in combination with focus group work (see Hough et al., 2008, 2009) as well as studies that are entirely qualitative (Hough, 1996). In short, generalizable findings from representative sample surveys are an ideal to be aimed for, but compromises can often make sense, where research using less than ideal, but affordable, methods is much better than nothing at all. The use of focus groups in the manner set out below, presents a strong case for ensuring that a structured, replicable methodology is in place.

For the study of attitudes to sentencing of drug offences, a total of 15 focus groups were conducted in five locations across England and Wales: London; Birmingham; Leeds; Swansea; and Bristol. Thirteen of the focus groups were recruited by a market research agency. Recruitment was undertaken by means of a screening questionnaire administered in public places in the research sites. The screening questionnaire allowed the recruiters to select participants based on age, gender, socio-economic group and ethnicity, to ensure that the groups were broadly reflective of the local populations where they were held and to increase the representativeness of the findings (within the constraints of qualitative research). For three of the groups, additional criteria were prior use or lack of prior use of illegal drugs. The remaining two groups were conducted in localities associated with open drug markets; in both areas, participants were recruited among members of local community associations, and no further selection criteria (such as age, gender or ethnicity) were applied.

Most groups had between seven and nine participants, giving a total of 121 participants. There was a roughly equally split of male and female participants, with a slightly higher proportion of women participating than men. Ages ranged from 18 to 82 years old and the majority of participants came from White backgrounds. Twenty-five per cent of participants reported having used illegal drugs at some point during their life. ⁸

All the focus group discussions opened with a small number of questions about the purposes of sentencing, and how the ‘seriousness’ of drug offences should be defined. Following these general questions, the remainder of the discussions were devoted to consideration of six sentencing ‘vignettes’. Each vignette specified the details of a different offence, and the role and circumstances of the offender. All participants were invited to suggest an appropriate penalty for the offence in question, and to explain the reasons for their choices. They were then asked to consider whether, how and why the penalty should change if the circumstances of the offence or offender differed (for example, if another type of drug was involved, if the quantity of the drug was smaller or if the offender’s personal circumstances were particularly difficult). This process was then repeated for the remaining vignettes, with different variations introduced for each one. The six offences presented in the vignettes were as follows:

Prior to this, participants were not given information about current sentencing practice; nor was their existing knowledge about drug offences or sentencing explored.

The use of vignettes, or scenarios, within attitudinal research has received widespread support. As highlighted above, Indermaur (2008: 53) feels that this type of deliberative research is the most promising way forward for engaging the public in sentencing policy:

The process of not only providing information but also allowing for deliberation through some mechanism of probing and debate is central to serious attempts to ascertain informed views that are relevant to developing sentencing policy. The best known way to do this is to arrange a process whereby information is presented by experts to respondents, who subsequently have an opportunity for questions, debate and deliberation on selected policy issues.

Findings

The focus groups were analysed using thematic analysis based primarily on the vignettes, and to a lesser extent, the topics discussed at the beginning of the focus groups (purposes of sentencing and seriousness of offences). In addition to this, the Sentencing Council requested that notes be made of the sentence selected by each participant for each of the vignettes.

Participants clearly differentiated between offences according to gravity and culpability. In ‘passing sentence’ on vignettes involving more serious offences, participants tended to favour sentences that were more punitive than current sentencing practice. This was particularly true of the heroin importation offence, for which most participants selected a life sentence with minimum terms of between 15 and 50 years, whereas in reality the offender would likely receive a determinate custodial sentence in the region of 25 years. Participants also tended to sentence large and medium-scale supply offences harshly, relative to the practice of the courts. Because most of the focus group discussions were lively and evoked the expression of strong and powerful views, there is a possibility that the generally quite punitive responses emerged because the participants talked up their fears and frustrations about drug crime: that is, sentencing selections may have been exaggerated by the discussion process. ⁹ This echoes Bristol and Fern’s (2003) concern that focus groups can generate bias when persuasive arguments create attitude shifts. Nevertheless, participants evidently felt free to express minority viewpoints as they did so in all groups. The following exchange (the vignette of which is described in further detail below) exemplifies some of the vigorous discussions that arose:

She’s a [drugs] mule – it’s a shame.

The other guy’s a student – that’s a shame!

I feel sorry for her…

[The student has] a flipping millstone around his neck – to pay for his education.

Same difference!

I’d do anything for my kids … You don’t know the circumstances. I’m telling you – I’d do anything for my kids.

Despite the emergence of punitive responses for importation and large- to medium-scale supply offences, one of the key findings of the study is that participants were fairly tolerant of less serious offences. Possession and small-scale supply offences generated sentences that were, on the whole, closer to current practice and – importantly – participants did not wish to see substantial custodial penalties for small-scale supply and small-to medium-scale.

The one vignette which was consistently sentenced more leniently by participants than it would be by the courts was a case of importation of cocaine. There were two variants: in one, the offender was a 26-year-old single mother from Nigeria who had four young children; in another, the offender was a 20-year-old male British student. In neither case were participants notably punitive, but very few participants wished to sentence the Nigerian mother to the kind of eight to 10 year custodial sentence that she would be likely to receive according to what was (at the time the study took place) current practice: a little over half wanted a non-custodial sentence for her. For the most part these participants simply wanted her to be deported. Others wanted a custodial sentence, mostly of between a few months and five years in duration.

Of all the scenarios discussed in the focus groups, this one provoked the widest range of responses and caused the most difficulty to participants as they sought to pass sentence. Many sighed and shook their heads when they were confronted with this case. The following examples provide a flavour of the conflicting views expressed:

I’d say she was a vulnerable adult; it’s a whole different ball game.

I know they don’t mean to … and there are extenuating circumstances but nevertheless these people play a crucial role in the importation of drugs. Therefore she’s got to be looking at a custodial sentence.

Deport her. Why waste our money?

Understanding sentencing preferences

Three major issues appeared to shape participants’ responses to the six vignettes that they were asked to sentence:

Discussion of all three factors was largely couched in terms of harm: the factors were seen as important because, in combination, they determined the degree of harm caused by any given offence. ¹⁰ The harm caused by the offence is one of the two statutory components that define offence seriousness in the Criminal Justice Act 2003, section 143(1); the other is the offender’s culpability in committing the offence. Each of these three harm-related factors will now be looked at in turn. This will be followed by a brief consideration of participants’ attitudes towards offender culpability.

Distinction between possession and other types of offences

In passing sentence focus group participants made the distinction between possession offences and other kinds of drug offences. ¹¹ This distinction centres on the notion that possession offences cause harm to oneself, while offences such as supply and importation cause harm to others. For many, the shift from the first vignette, which involved possession of cannabis, to the second, which involved supply of cannabis, was very significant. This was despite the fact that the drug under discussion in each case was the same, and the supplier in the second case was dealing in small quantities of the drug.

Type of drug

A second factor that focus group participants were primarily concerned with when passing sentence was the type of drug involved in the offence. All participants viewed the type of drug involved in an offence, or at least the class of drug, as directly relevant to the sentence. Offences involving the Class B drug cannabis were very largely viewed as meriting less serious sentences than those involving any of the Class A drugs under discussion (heroin, cocaine, crack cocaine and ecstasy). This applied regardless of the nature and scale of offence: most participants selected tougher sentences when cannabis was replaced by ecstasy or heroin in the possession and small-scale supply vignettes; and lighter sentences when heroin was replaced by cannabis in the large-scale importation vignette.

Participants tended to differentiate between drugs primarily with reference to the physical and psychological damage that they cause to their individual users. Often they spoke of this damage in the starkest terms: the potential of certain drugs to kill. Addiction tended to be a secondary concern, although many did refer to the knock-on effects on families and communities of dependent drug use. Many participants appeared to associate heroin with the greatest problems – in terms of its impact at the individual, family and community level.

Quantity of drugs

Most importantly, when looking at the sentencing preferences for the vignettes as a whole, it appears that the greatest shifts in severity of sentence follow shifts in the scale of the offence – effectively, the quantity of drugs that the offence involves. Hence, for example, the majority sentence for the supplier of moderate amounts of crack cocaine was two to 15 years’ custody; for the larger-scale heroin supplier it was 10 to 20 years’. Reflecting a greater difference in scale, the one-off importation of a moderate amount of cocaine (by a British student) largely produced sentences of one to 10 years’ custody. The repeated importation of large amounts of heroin provoked calls for life sentences with very lengthy minimum terms.

The scale of the offence was important to participants because, in part, they saw it as a reflection of the offender’s culpability – which will be discussed in further detail below. However, principally, participants’ concerns about quantity were concerns about harm. They stressed that the lives of many more people will be impacted – directly or indirectly – by an individual who imports or sells large quantities of a drug than by an individual who is handling small quantities.

Culpability

Interestingly, issues of culpability – the other dimension of offence seriousness according to the Criminal Justice Act 2003 – were of less significance overall than concerns with harm, and provoked a more mixed reaction from participants. Both generalized and more specific concerns about culpability emerged in much of what the participants said about the vignettes. The phrase that was perhaps repeated more than any other in the focus group discussion was ‘he knows what he’s doing’. This comment was frequently used to signify a level of seriousness of offending and to justify tough sentencing.

The precise role of the offender, and particularly his or her seniority within the supply and importation chain, was an issue of culpability that many participants focussed on. Many participants wanted severe sentences for large, sophisticated supply and importation operations not just because of the scale of impact of such offending, but also in recognition of the professionalism and, particularly, the profits made by the offenders involved. While most participants did not speak of this explicitly, an allied issue of concern to some was the seniority of individual offenders within the supply and importation chain. They referred to the need for the ‘big fish’ to be captured if there is to be any kind of real reduction in the damage caused by drugs and drug-related offending across society. Some complained that it is all too easy for the authorities to tackle the low-level dealers and users – the ‘minnows’ – while they fail to get to grips with those who really matter.

The vignettes also introduced some other more specific factors that could be seen as, variously, aggravating or mitigating offence seriousness on grounds of greater or lesser culpability (although these factors were not explicitly defined in these terms when presented to the participants). Perhaps unsurprisingly, and in line with other research on public attitudes to sentencing (see, for example, Hough et al., 2008; Roberts et al., 2009), focus group participants tended to view an offender’s criminal history as a serious aggravating factor and the offender with previous convictions was viewed as more culpable than the first time offender. Similarly, most participants viewed the exploitation of minors in drug offending as a seriously aggravating factor which merited harsher – and often much harsher – punishment. However neither of the two mitigating factors presented which could be described as lessening offender culpability – supply of drugs on a non-profit basis and absence of planning – carried a great deal of weight with participants. Most participants argued that the supply of drugs on a non-profit basis lessened offence seriousness and hence the appropriate sentence, but a substantial minority deemed it irrelevant. There was wide agreement that the absence of planning in the commission of the offence had little or no bearing on offence seriousness and sentencing. ¹² This corresponds with Hough et al.’s (2009) finding that aggravating factors tend to carry more weight than mitigating factors when the public are asked to make decisions about sentencing.