The chapter addresses the penal regime of international criminal jurisdictions, focusing primarily on the law and practice of the UN ad hoc tribunals and the International Criminal Court (ICC). It sets out the categories of penalties which may be imposed by international criminal courts and tribunals for the core crimes and the offences against the administration of justice. The chapter sets out the commonly-adduced general purposes for punishing perpetrators of international crimes (retribution, deterrence, rehabilitation, etc.) and addresses the extent to which the punishment rationales acknowledged at the national level remain valid within the international penal regime. It analyses the international jurisdictions’ sentencing principles and practice, in particular the need for the individualization of penalties while ensuring consistency in sentencing and the relative weight accorded to aggravating and mitigating circumstances in determining the appropriate sentence. The chapter also surveys the procedures at sentencing, in particular the option of following the unified or bifurcated process for the determination of the guilt or innocence and, if appropriate, the sentence, as well as the arrangements adopted for pardon, early release (commutation) and review of sentences.

Recent historians usually see Home Secretary Robert Peel as a committed opponent of real criminal law reforms, content to hang large numbers of people. He did indeed enter office determined to diffuse reform momentum in parliament and succeeded in doing so, but only for a time. In fact, in pursuing the two reforms that William Paley deemed crucial to relinquishing the “Bloody Code” – preventive policing and more deterrent secondary punishments – Peel behaved like someone who believed his concessions might not hold back the tide of urbane public opinion for long. This was also apparent in his alterations to sentencing practices at assizes and his increasingly careful attention to execution levels in London. Even his consolidation measures were of more genuinely humane consequence than is usually recognized. Indeed, so adaptable to urbane opinion did Peel seem to his older, more determinedly conservative colleagues that by 1830 he inspired their distrust.

The sentencing guidelines for the sliding scale of sentence discounts in both England and Wales and Hong Kong have provided for judicial discretion to depart from the recommended sentence reductions. This chapter investigates the consistency of applying the sentencing guidelines in the two jurisdictions. It is found that in general, both English and Hong Kong courts adhere to the recommended guidelines. Multivariate analyses, however, using the sentence discount as the outcome reveal gender and confession to be significant factors for departing from guidelines, with female defendants and defendants who have confessed given a higher sentence discount. Moreover, when reviewing the sentencing process, inconsistencies occur when judges apply aggravating and mitigating factors, as well as the sentence discount for guilty pleas, which may lead to inconsistencies in sentence outcomes.

Sentencing is the next critical step after arrest and conviction. This chapter turns to the types of sentences that judges hand down and, with the next chapter, sketches the important role that judges play in Mass Incarceration. It shows that during the era of Mass Incarceration, judges sent more people to prison than they had in previous eras and for longer periods.

Chapter 3 investigates how age shapes Palestinians’ lives in four contexts. The first is Israeli military trials of Palestinians. The chapter reveals how military judges have treated Palestinians’ young age as an aggravating factor; how Palestinians’ physical appearance affects their sentences; how the age categories applicable to Palestinians evolved from colonial British law; and how the Israeli judiciary has been inconsistent on all these issues. Broader insights are provided into both Israel’s governing through uncertainty and the inherent fluidity of childhood and age. Second, this chapter examines legal disputes over Israel’s open-fire regulations (rules of engagement). It shows how these regulations, which in principle forbid shooting at under-14s, have been interpreted to authorize firing at younger Palestinians whom Israeli forces perceive to be dangerous or older. Third, the chapter discusses the age-based food quotas imposed on the Gaza Strip. A critical light is cast on the logic guiding this form of biological warfare, as well as on Israel’s attempts to justify it in humanitarian and legal terms. Fourth, the chapter interrogates the deployment of age as a risk management tool within Israel’s movement restrictions, as well as Palestinians’ resistance to these restrictions by deceiving Israeli authorities about their age.

Predictive technologies are now used across the criminal justice system to inform risk-based decisions regarding bail, sentencing and parole as well as offender-management in prisons and in the community. However, public protection and risk considerations also provoke enduring concerns about ensuring proportionality in sentencing and about preventing unduly draconian, stigmatising and marginalising impacts on particular individuals and communities. If we are to take seriously the principle of individualised justice as desert in the liberal retributive sense, then we face serious (potentially intractable) difficulties in justifying any sort of role for predictive risk profiling and assessment, let alone sentencing based on automated algorithms drawing on big data analytics. In this respect, predictive technologies present us, not with genuinely new problems, but merely a more sophisticated iteration of established actuarial risk assessment (ARA) techniques. This chapter describes some of the reasons why principled and social justice objections to predictive, risk-based sentencing make so elusive any genuinely synthetic resolution or compromise. The fundamental question as regards predictive technologies therefore is how it might even be possible to conceive such a thing without seriously undermining fundamental principles of justice and fairness.

Day fines were introduced in 1939 as an alternative to short-term custodial sentences and to punish rich and poor equally hard. Thus, the daily unit must be fixed according the average daily earnings of the offender (taking account of living conditions, capital resources, family responsibilities etc.). The number of day fines must be fixed between 1 and 60, having regard to the seriousness of the offence. Day fines can be applied for violations of the Criminal Code only in court (no administrative day fines). Thus, day fines are relatively rare compared to the total number of fines, but used for a broad range of violations of the Criminal Code, including negligent manslaughter and assault. The Danish experience shows that there is a risk of the system not being applied in accordance with its purpose. In some cases, judges calculate the fine by determining first the over-all amount of the fine and therefrom deduct the number of day fines and the daily unit. There is no research on the level of acceptance of day fines among the general population. It has been proposed to abolish the system, but there has not been much public criticism for the last 20 years.

This chapter examines how the police and courts became the main audience for competing revolutionary narratives of guilt and victimization. People wanted to punish others and rehabilitate themselves. The courts functioned both as a sounding board for narratives through which one found resonance and affected verdicts and sentencing and also as a transmitter of new narratives to the public, as court verdicts seemed to be the official or “true” story of the revolutions. The transnational comparison of Budapest and Munich shows that the narrative developed in each was quite different and led to differential severity of verdicts and sentencing, with the courts in Hungary being more punitive. This situation in turn further radicalized Hungarians on the Left and the Right in the interwar period, with the “judicial terror” added to the fraught narrative of revolution and counterrevolution. In Bavaria, though memoirs such as Ernst Toller’s sought to rally supporters with examples of legal mistreatment, the revolution did not play as central a role in the symbolic world of Weimar German politics, overshadowed by even limited events such as the January 1919 Spartacus Uprising and the martyrdom during that revolt of the communist leaders Karl Liebknecht and Rosa Luxemburg.

This chapter presents our core argument – the close association of prisons and crime – and shows that more imprisonment may have increased criminality. It presents several hypotheses for the prison growth and studies the nature of policies enacted in response to the rise in criminality and which led to the prison explosion. We use an in-depth analysis of three representative countries: Colombia, Mexico, and Chile. We maintain that high turnover and the increased severity of punishment for very serious crimes account for the prison explosion, impacting critical living conditions within correction facilities throughout Latin America. We argue that prison growth has endogenously produced more crime on the streets because high inmate turnover has created large new cohorts who reenter society and rapidly reengage in criminal acts. We test this hypothesis by modeling a regression analysis of incarceration rates for property crime in order to prove that imprisonment has a delayed-lagged effect on property crimes, providing substantial evidence for the criminogenic effect of prisons.

Risk assessment – measuring an individual’s potential for offending – has long been an important aspect of most legal systems, in a wide variety of contexts. In most countries, sentences are often heavily influenced by concerns about preventing reoffending. Correctional officials and parole boards routinely rely on risk assessments. Post-sentence commitment of “dangerous” offenders (particularly common in connection with sex offenders) is based almost entirely on determinations of risk, as is involuntary hospital commitment of people found not guilty by reason of insanity and of people who are not prosecuted but require treatment. Detention prior to trial is frequently authorized not only upon a finding that a suspect will otherwise flee the jurisdiction, but also when the individual is thought to pose a risk to society if left at large. And police on the streets have always been on the look-out for suspicious individuals who might be up to no good.