10. Visible and Invisible Sentencing

This chapter starts from the premise that the sentencing decision-making process should not be understood simply as decisions by individual judges but as a form of collective action involving the work of other actors, human and non-human. The chapter then looks at the evidence we have of these decision making practices and concludes that while some sentencing work is visible, mainly through the documents produced for the case file by police, prosecutors, social workers and others, much sentencing work remains “invisible”. This has important implications for how discretion should be understood. The traditional legal understanding of discretion conflates an empirical account of decision making practices with a normative account of these practices. The chapter argues that these need to be distinguished and that discretion should be understood as a mode of justification rather than as an empirical practice. A decision justified by the claim of discretion is based on trust in professional knowledge and expertise. This is necessarily invisible. Decisions justified by accounts of rule-following or the completion of a template are public and visible. Sentencing decisions are justified by a mix of visible and invisible work. The balance between those and how they are distributed in the collective process of sentencing, are matters of political choice.