The work submitted here conceives of sentencing as an interpretive social process. Although previous research has shown sentencing to be an individualistic judge-centred interpretive decision process (e.g. Hogarth 1971), the features which appear to structure the decision process have tended to be taken as given, fixed, discrete, universal forces (often :alled 'factors'). My argument is that what appear to be fixed, stable, structuring forces in fact operate in combination with and through the particular (e.g. the instant case; the contextual circumstances; local court culture etc) in shifting and unstable ways.

Remorse can be a powerful source of mitigation at sentencing. However, there is a lack of formal justification for this practice and a paucity of theoretical literature engaging with this issue. Addressing this gap, this thesis offers a comprehensive justification for why an offender’s remorse should mitigate the punishment he receives. It begins by discussing the emotion of remorse – its nature and value. With reference to broadly-retributive theories of punishment, it then considers various arguments that could be offered to justify the mitigating effect of remorse on the offender’s sentence. It rejects two arguments: either remorse constitutes some of the offender’s deserved punishment or remorse reduces the seriousness of the offence. Instead, it develops a justification inspired by philosophical work distinguishing blameworthiness and blaming. The thesis argues that, in the context of sentencing, a broadly-conceived dialogical model of censure is the most legitimate. Remorse, as the offender’s ideal input into the dialogue about the offence, modifies the subsequent censure required. If censure seeks a response, and this response is already forthcoming, to nonetheless continue to seek this response as if it were absent devalues the censure. Von Hirsch and Ashworth’s assertions that censure appeals to the offender as a rational moral agent, and their adherence to certain quasiretributive values, are shown to provide further support for these arguments. If the deserved censure is mitigated, then so is the corresponding punishment communicating this censure. The thesis next explores how this justification for mitigation compares with ‘mercy’ justifications, arguing that the justification offered in this thesis operates more internally to deserved censure, and is more principled, so is preferable on these grounds. In conclusion, the thesis considers the implications of its arguments for sentencing practice and whether it is a concern that they are valid only within ‘censure’ theories of punishment.

The thesis constitutes a detailed historical reconstruction of the creation, contestation and subsequent amendment of the Imprisonment for Public Protection sentence, the principal ‘dangerous offender’ measure of the Criminal Justice Act 2003. Underpinned by an interpretive political analysis of penal politics, the thesis draws on a detailed analysis of relevant documents and 53 interviews with national level, policy-oriented actors. The thesis explores how actors’ conceptions of ‘risk’ and ‘the public’ interwove with the political beliefs and political traditions relied upon by the relevant actors. It is argued that while there was general recognition of a ‘real problem’ existing in relation to dangerous offenders, the central actors in the creation of the IPP sentence crucially lacked a detailed understanding of the state of the art of risk assessment and management (Kemshall, 2003) and failed to appreciate the systemic risks posed by the IPP sentence. The creation of the IPP sentence, as with its subsequent amendment, is argued to highlight the extreme vulnerability felt by many government actors. The efforts of interest groups and other pressure participants to have their concerns addressed regarding the systemic and human damage subsequently caused by the under-resourcing of the IPP sentence is explored, and the challenge of stridently arguing for substantial change while maintaining ‘insider’ status is discussed. As regards senior courts’ efforts to rein in the IPP sentence, it is argued that the increasingly conservative nature of the judgments demonstrate that the judiciary are not immune from the creep of a ‘precautionary logic’ into British penal politics. Regarding the amendment of the IPP sentence, the Ministry of Justice’s navigation between the twin dangers of a systemic crisis and a political crisis are explored. In conclusion, the IPP story is argued to demonstrate a troubling ‘thoughtlessness’ by many of the key policymakers, revealing what is termed the ‘banality of punitiveness.’ The potential for a reliance on political beliefs and traditions to slip into this thoughtless state, and possible ways of ensuring that such policy issues are engaged with in a more inclusive and expansive manner, are discussed.