The prison service in the United Kingdom is heavily over-crowded with young males. In England and Wales alone there were 69,700 males prisoners in October 2003. Of this, a shocking 15% were aged just 15 – 20 years old (www.homeoffice.gov.uk). Further, in October 2003, the number of juvenile males in the prison system increased by age – with 221 aged 15 years, 548 aged 16 years and 968 aged 17 years. Figures from the Home Office show that number of prisoners increase with age until aged 20 years where they begin to level out.
Research into age as an influential factor on sentence severity has been scarce and what little research that has been done, has focused on the age of the juror as a contributing factor. Hepburn (1980) and Sealy (1981) 1 both found that the age of jurors strongly correlated with their verdicts and, older jurors were more likely to render a guilty verdict than younger ones. Sealy (1981), in particular, found that jurors age 25 and under were more likely to render a not guilty verdict than jurors over age 41 and over.
Further research into age has focused on the age of the juror and the defendant. Higgins, Heath & Grannemann (2004) conducted a study on mock juror age and defendant age and how they might affect the mock juror’s decisions. They found that although sentencing was not largely affected by juror age, younger jurors did in fact view the older defendant more favourably. It was thought that the older juror’s perceived the defendant to be “more responsible for his condition” than the younger jurors. This research however focussed on many variables however, most notably the type of excuse used by the defence and, therefore, is not wholly supportive of age as a contributing factor.
Bergeron & McKelvie (2004) studied both archival and experimental research and found that younger defendants aged 23 and under received more lenient sentencing than middle-aged defendants aged up to 53 years. This research was based upon previous studies by Faulkener & Steffensmeier (1979); Smith & Hed 2(1979); Kebotys & Roberts (1987) and Zamble & Kalm 3(1990) whereby, with the exception of Smith & Hed, there was much inconsistency as to whether age was indeed a significant factor in sentencing. Smith & Hed (1979) found that jurors gave older defendants of age 53 plus more severe sentences that they did younger defendants aged 23 and under. This research, however, was not replicated by Loeffler & Lawson (2002) who found that older defendants with a high occupational status were considered to have a better future.
Bergeron & McKelvie also found that of defendants convicted of second degree murder, 20 year olds and 60 year olds were sentenced less harshly than 40 year old defendants.
Other research that is relevant here but not directly linked to age is that of Grifitt & Jackson4 (1973). They found that jurors saw defendants with different attitudes to them, for example, regarding racial integration, as guiltier, gave them longer, more severe sentences and generally judged them as less favourable than defendants with similar attitudes. It is possible that similar attitudes do not necessarily correlate with similar ages between juror and defendant however.
Research into gender has also proven particularly deficient (Frazier & Hunt, 1998). Studies exist that assess juror and defendant gender but relatively few have focused on the relationship between the two. Research into defendant gender alone is scarce.
However, Dane & Wrightsman 5(1992) examined decision making in homicide of spouses and found that jurors were more likely to convict a defendant of the same sex. In studies involving sexual assaults, Foley6 (1993), Kanekar & Vaz 7(1983) and Key, Warren & Ross 8(1996) all found that females were more likely to convict male defendants than their male peers were and indeed, render much harsher sentences.
Finn & Stalans (1997), Nagel & Johnson 9(1994) found that female offenders receive more lenient sentencing than males for similar offences. Polk 10(1993) found that females who murdered their children were treated less harshly than males. These findings clearly highlight the need for further research on gender and sentencing.
Steffensmeier, Ulmer & Kramer (1998) attributed sentencing disparity to Focal Concern Theory and, in particular 3 types that frame judicial decisions:
1. Blameworthiness – sanctions are based on conventional, consensus-based legal factors ie. offence severity, circumstances, offender’s possible active/passive role in the offence, prior criminal history and any mitigating factors, such as prior victimisation.
2. Protection of the Community – a desire to incapacitate the offender and punish him/her to deter others. Blameworthiness factors are also considered here together with offender attributes that may be indicative of social bonds, for example, employment, marital status, education.
3. Practical Constraints and Consequences – Individual limitations such as offender attributes that may decrease the defendant’s ability to serve time, for example, their health, disruptions of family, age particularly if elderly.
Does the jury adopt a “perceptual shorthand” when assessing the offender for sentencing? Do age, gender and perhaps race even influence the juries’ perception of community protection as suggested by Steffensmeier et al (1998). Seeing defendants as a threat simply because of their age or gender brings in extra-legal discriminatory biases into sentencing (Weinrath, 2007). Extra-legal factors or “participant characteristics” according to Devine, Clayton, Dunford, Seying ; Price 11(2001) “have no probative value and should not influence jury verdicts” Much research however found these factors can potentially affect the decisions made by jurors (Dane ; Wrightsman, 1982).
Very young offenders may in fact be awarded more lenient sentences given that they are seen to have little life experience and poor parental supervision therefore making them less blameworthy. Conversely, young adults in the 18 – 40 age group having had a chance to mature may be seen as more criminal. The blameworthiness of an older adult of 60 plus may be lessened by having a greater chance to accrue employment experience or marital bonds. Older offenders are typically seen as not so much a threat to society, especially when elderly. Also, elderly offenders may have health problems that require consideration. Steffensmeier et al state that there is few empirical research that test age effects in sentencing.
Steffensmeier et al (1998) found that judicial decisions were heavily based on factors of age, gender, and race. Focal Concerns Theory also highlights more lenient sentencing, particularly for female offenders. Females are seen as less of a threat and less likely to re-offend. They may have family commitments that are often taken into consideration prior to sentencing and, prior victimisation may even be seen as mitigating circumstances.
Focal Concerns Theory gives greater prominence to age as a conditioning factor in sentencing. Steffensmeier ; Motivans (2000) found that more lenient sentencing also extends to the elderly population in judicial decisions. This is, according to Steffensmeier ; Motivans a much neglected area of research into sentencing severity.