discrimination. This is supported by Hood’s (admittedly dated but still interesting) 1992 study, which concluded that differences in sentencing between BAME defendants and white defendants were largest with offences regarding which judges had more discretion.28 Such an unstructured range of purposes may also create vulnerability to societal trends. Populist punitiveness, for instance, seems to be sweeping England and Wales, as is reflected in decline in community orders and increase in custodial sentences in recent years (see: Hills and Mews, 2018)29 – in 2020, there was a 24% increase in offenders sentenced to immediate custody for drug offences compared to the year ending March 2019 (MoJ, 2020).30 Thus, while allowing flexibility in punishment purposes allows more ambitions to be taken into account, this could undermine the CJS’s legitimacy and simply undermine various ambitions and purposes at the whim of policy-makers. While those who agree with policy-makers’ values at that particular point in time may be satisfied by this, others would not be.
28
Hood, R. and Cordovil, G., 1994. Race and sentencing. Oxford: Clarendon Press. Ministry of Justice, 2019. e impact of short custodial sentences, community orders and suspended sentence orders on reoffending. 30 Ministry of Justice, 2021. Criminal Justice Statistics quarterly, England and Wales, October 2019 to September 2020. 29
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