Offender Agency in a State-Centred Sentencing Process: In Search of an Agentic Sentencing Model

Punishment is a grave intrusion into individual liberty, yet in most liberal criminal justice systems, including England and Wales, those punished are rarely directly engaged in determining their sentence. Consequently, the offender’s agency in respect of sentence—i.e. the offender’s capacity to play an active part in the sentencing process—is limited. Drawing on existing theories of punishment, the article argues that there may be justifications and scope for allowing offenders to exercise agency in a state-centred sentencing process, even though this scope is inevitably limited. It aims to develop a conceptual account of an ‘agentic’ sentencing system, arguing this should be based on the paradigm of a dialogue between the judge and offender. To preserve the state’s fundamental role in sentencing, constraints should be placed on the exercise of agency. The proposed model embodies a conception of sentencing as a decision-making process to be done with offenders, rather than to offenders. Nonetheless, while some objections can be rebutted, others demonstrate the gap between the theoretical ideal of respecting the offender’s agency at sentencing and how an agentic sentencing system might function in practice.