More than one Crime? Sentencing for Multiple Offences

In December 2015, the Centre for Criminology co-hosted an international seminar on the problem of multiple offence sentencing. Participants came from a range of jurisdictions as far apart as Israel and the US to hear papers from legal scholars, empiricists, and philosophers. A volume of essays arising from the seminar will be published by the Oxford University Press (New York) in the Penal Theory series in 2017. Funding for the event was provided by the Centre for Penal Theory in Cambridge, the Centre for Criminal Justice Ethics in Roskilde Denmark, and the Centre of Criminology, University of Oxford.

What’s it all about then? Most people assume that when offenders appear for sentencing they have been convicted of a single crime. In reality, almost half the offenders at sentence are sentenced for multiple crimes: these are multiple crime offenders. The court must now sentence for more than one offence. How should the sentencing court deal with such a case? That is, how severely should such an offender be punished relative to one who has committed only one of the crimes in the series, or relative to another who has committed a single crime which in itself is more serious than any of the crimes committed by the multiple offender?

Two approaches are possible. The first adopts a purely cumulative strategy: the seriousness of each crime and the punishment each crime merits are determined separately, and the overall punishment is simply the sum of all the individual punishments. For example, if residential burglary warrants one year in prison and the offender has committed five burglaries, s/he receives a five-year prison term. Despite its intuitive appeal and simplicity, the cumulative approach has not been adopted in penal practice. The reason for this is that an offender convicted of five burglaries and who receives a prison term of five years is being punished as severely as an offender convicted of a much more serious crime―manslaughter, for example. This violates the principle of proportionality, which requires the severity of the sentence to correspond to the seriousness of the offence for which it is imposed.

The second strategy ―which is enacted in the law of most countries―is to provide a ‘discount’ in cases where an offender has committed more than one crime, that is, to give what has been called a ‘bulk discount’ for multiple offending. For example, in the case of five burglaries, a court may impose a two-year sentence for the first burglary and then four further terms of one years for the other crimes, but these terms will be served concurrently. The total time in prison is therefore two years, a significant discount from the first example. The problem with this approach is that the seriousness of each individual crime is being depreciated―the offender is being ‘rewarded’ for committing all the crimes in one evening. Had s/he committed the burglaries once a month, and been prosecuted for each separately, the outcome may well be very different.

In fact, if you compare the offender who commits five burglaries in one evening with an offender who commits five burglaries over a two-year period, and who is sentenced for each consecutively, the difference between cases becomes even more striking. As a result of a recidivist premium, in many countries the repeat offender may receive sentences of one, one and a half, two, three, and four years for the five burglaries―adding up to over ten years for the same amount of criminality. Is this difference between the two offenders―one convicted of concurrent crimes, the other of consecutive crimes―defensible? What principles justify the different approaches? Can it be justified to give a penal reduction in cases in which a criminal has managed to commit a series of crimes before being apprehended? The purpose of this seminar was to consider these and the above questions and to provide an analysis of the practical and theoretical challenges of how the state should sentence multiple offending. The seminar and its attendees provided a very rich discussion with competing views as to the strongest justificatory basis for a multiple offence sentencing discount.

Turning to more basic penal theoretical considerations, it’s clear that the justificatory challenges arising in relation to the punishment of multiple offenders have been addressed by few theorists. From a consequentialist perspective―such as traditional utilitarian penal theory―a bulk discount may be justified by reference to the fact that there is no extra crime preventive effect related to the longer prison terms that would follow from the use of a purely cumulative scheme. Whether there are such desirable consequences is obviously an empirical question. However, given the dominance of retributivism in the modern era of penal theory, it is not surprising that the justification question has been addressed mainly from a desert-theoretical perspective. Two approaches have been defended.

One idea has been to invoke the concept of overall proportionality. While (ordinal) proportionality considerations usually concern the relative punishments of individual crimes, overall proportionality concerns the comparison of types of crime. More precisely, the idea is that no number of less serious crimes can be as morally wrong―and therefore deserve a more severe punitive response―as a single instance of a crime of a more serious type. For instance, it might be held that no number of offences of stealing cars can be regarded, as a consequence of cumulation, as the moral equivalent of a single rape.

A different proposal has been that a bulk discount for multiple offending is justified by reference to mercy. As an illustration, suppose that an offender, aged 25, has committed 100 separate residential burglaries and that each of these offences might, if committed as a single offence, be deemed to merit a custodial sentence of six month’s duration. One hundred times six months equals 50 years of nominal prison time, which may mean at least 25 years’ real time for the offender. However, this will deprive the offender of an excessive proportion of the prime years of his/her life. Therefore, the court should reduce the punishment out of mercy.

Determining rules to govern the sentencing of offenders convicted of multiple crimes is a therefore very challenging. To date, no volume has brought together scholars to address the complex issues involved―hence the need for this seminar and subsequent volume.