Sentence Reductions for a Guilty Plea in England and Wales: Exploring New Empirical Trends

• Published date: 01 June 2015
• DOI: http://doi.org/10.1111/jels.12069
• Author: Ben Bradford,Julian V. Roberts
• Date: 01 June 2015

Sentence Reductions for a Guilty Plea in

England and Wales: Exploring New

Empirical Trends

Julian V. Roberts and Ben Bradford*

Although most jurisdictions award sentence discounts to defendants who plead guilty, the

exact magnitude of reductions awarded, and the factors determining the levels of reduction,

remain underresearched. In addition, the limited research conducted to date in England

and Wales has drawn on data sources that prevent the researcher from excluding the effect

of factors correlated with the plea. This article reports original findings from a new sentenc-

ing database that draws its data directly from the sentencing judge. This jurisdiction is

interesting also because courts must follow a sentencing guideline that contains specific

recommendations regarding the appropriate discount. Analyses reveal that the plea-based

discounts are more modest than reported by previous researchers. In addition, the data

reveal a significant degree of judicial compliance with the guideline, although some depar-

tures from the guideline are identified and discussed.

I. Introduction

Sentencing practices vary greatly around the common-law world, but all jurisdictions share

one controversial feature: defendants entering a guilty plea generally receive a reduction in

the sentence ultimately imposed compared to similarly placed defendants convicted fol-

lowing a contested trial. The practice is controversial for several reasons.

First, a number of scholars have highlighted the danger that large sentence reduc-

tions for a guilty plea may encourage innocent defendants to plead guilty and undermine

the presumption of innocence affirmed in Europe by Article 6.2 of the European Conven-

tion on Human Rights (Ashworth 2010:179–80). Second, plea-based sentencing differen-

tials may be regarded as creating a penalty for defendants who exercise their right to trial

(see Darbyshire 2000; Renaud 2004; Mackenzie 2007; Victoria Sentencing Advisory Council

2007).

Third, although all sentencing regimes reflect both utilitarian and retributive

considerations, some are more firmly based on proportional sentencing. For example, in

Canada the principle of proportionality has been assigned the status of “the fundamental

*Address correspondence to Julian V. Roberts, Faculty of Law, University of Oxford; email: julian.roberts

@worc.ox.ac.uk. Bradford is at the Faculty of Law, University of Oxford.

The authors express their gratitude to this journal’s anonymous reviewers for their very helpful comments on a

previous draft of this article.

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Journal of Empirical Legal Studies

Volume 12, Issue 2, 187–210, June 2015

187

principle” of sentencing.1In such jurisdictions, plea-based sentence reductions are con-

tested because plea is unrelated to the critical retributive concepts of seriousness of the

offense or the offender’s level of culpability (for discussion, see Ashworth 2010). Indeed, if

a guilty plea results in a significant reduction in severity, it will have the effect of under-

mining ordinal proportionality in sentencing, as offenders pleading guilty to a serious

charge may receive a sentence less severe than that imposed on offenders convicted

following trial of a less serious offense.

From a variety of perspectives then, as Leverick noted, “sentencing discounting is a

practice that requires convincing justification” (2004:369; see also Lippke 2011). In light of

the retributive objections to plea-based discounts, it is unsurprising that most sentencing

regimes explicitly justify guilty plea reductions on utilitarian grounds, namely, to spare

victims and witnesses from having to testify and to save the criminal justice system the costs

of running a trial (e.g., Sentencing Guidelines Council 2007; New South Wales Sentencing

Council 2009; Law Reform Commission of New Zealand 2008).

A great deal rests on the magnitude of the reductions offered to defendants who

plead guilty. As the magnitude of the discount increases, so, too, does the likelihood that

innocent defendants will enter a guilty plea. Similarly, very large discounts will significantly

undermine proportionality, as a factor unrelated to harm or culpability assumes greater

importance in determining sentence outcomes. It is important, therefore, from practical as

well as theoretical perspectives, to have an accurate understanding of the magnitude of

discounts offered to defendants.

The convention of plea-based sentencing discounts may be near-universal, but the

magnitude of reductions awarded appears to vary considerably. We use the phrase “appears

to vary” advisedly because in the absence of comprehensive sentencing statistics it is hard to

estimate the size of plea-based reductions in any jurisdiction, or to make systematic com-

parisons between jurisdictions. Despite the importance of this factor at sentencing, few

jurisdictions routinely collect sentencing data detailed enough to establish the exact mag-

nitude of plea-based reductions or to permit multivariate research into the factors deter-

mining levels of reductions. In England and Wales, the focus of this article, to date there has

been only limited empirical research into plea-based sentence reductions, and this has used

data with important limitations. Scholars have repeatedly called for systematic research into

the practice: Ashworth, for example, noted in 2010 that “empirical evidence is needed”

(2010:178; see also Torre & Wraith 2013).

A. The Need for Clarity and Awareness of Actual Reductions

Academic researchers concerned about sentencing practices need sentencing statistics

broken down by plea in order to explore issues such as proportionality in sentencing. Yet

many other parties also have an interest in understanding the likely benefits of sentence

reductions for a guilty plea. Defense lawyers need a realistic understanding of the

1Section 718.1, Criminal Code of Canada. For discussion, see Roberts and von Hirsch (1998).

188 Roberts and Bradford