Why Do People Disagree About Sentencing?

Towards the end of our Kids Who Kill in Scotland event, I ask the audience a simple question:

"How do you feel about the sentencing of young people in Scotland?"

By this point, we have spent almost two hours exploring real cases, discussing criminal responsibility, examining sentencing decisions, and looking at the factors that judges must take into account.

We have also explored something that often surprises people. Many assume judges have complete freedom to impose whatever sentence they feel is appropriate. In reality, sentencing is often far more structured than people realise.

Kids who Kill in Scotland, Crieff

Judges may have offence-specific sentencing guidelines to consider. They may also need to apply broader guidance, including Scotland's general sentencing guideline, The Sentencing Process.

In cases involving young people, there are additional guidelines and considerations, such as the 'Sentencing young people' guideline, effective from January 2022. There are also statutory requirements, legal presumptions, and limits on sentencing powers depending on the court involved. A High Court judge, Sheriff, and Justice of the Peace do not all have the same sentencing options available to them. In other words, judges are not simply reacting to headlines or making decisions based on instinct. They must weigh a range of competing factors whilst applying legal principles consistently and fairly.

Only after we have explored all of this do I ask the audience how they feel about the sentencing of young people in Scotland.

At our recent Edinburgh event, 46% believed we are largely getting it right. 39% believed we are not harsh enough. 15% believed we are too harsh.

Kids who Kill in Scotland, Edinburgh

However, what I find fascinating is not the percentages themselves. It is the fact that every option attracts support. Everyone in the room has heard the same information. Everyone has considered the same cases. Everyone has been introduced to the same legal framework. Yet people still reach very different conclusions.

For Scotland's judiciary, this presents an almost impossible challenge. No matter what sentence is imposed, there will almost certainly be people who believe it is too harsh, people who believe it is too lenient, and people who believe it is about right. In fact, I have seen this pattern emerge every single time I have asked this question, regardless of where in Scotland the event is taking place.

So why does this happen?

Part of the answer lies in the fact that people value different things. Some place particular emphasis on punishment and accountability. Others focus more heavily on rehabilitation and reducing future offending. Some are strongly influenced by the harm caused to victims, their families and to wider community. Others give greater weight to the offender's age, background, or prospects for change, holding on to the belief that something positive can still emerge from even the most difficult cases.

These differences are not necessarily right or wrong. They simply reflect different ideas about what the purpose of sentencing should be. What public discussions repeatedly remind me is that sentencing is rarely as straightforward as it first appears. The further people move away from headlines and into the detail of a case, the more complicated the questions become. That does not mean everyone will agree with the final outcome. In fact, my experience suggests the opposite.

Even when people understand the legal framework, reasonable minds can still differ.

Kids who Kill in Scotland, Findhorn

Perhaps that is one of the most important lessons about sentencing. The question is often not whether a sentence is objectively right or wrong. The question is whether, in a society made up of people with different values, experiences, and expectations, there could ever be a sentence that satisfies everyone. With the challenging nature of the cases that we consider in Kids who Kill in Scotland, this of course, really places these decisions under the microscope.

Sentencing sits at the intersection of law, morality, public safety, punishment, rehabilitation, and human emotion. When so many competing values are involved, disagreement is almost inevitable. Judging by the audiences at Scots Law Talks, there is unlikely to be a sentence that satisfies everyone. Perhaps that is less a criticism of the courts and more a reflection of the complexity of the task they face.