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This article places the use of pre-sentence reports in Danish courts in the context of recent transnational trends toward the increasing use of risk assessments. Based on empirical studies of court decision-making processes, the article describes the production and use of pre-sentence reports on three levels of communication in the process of sentencing: preparation of reports; formal and explicit use in the courtroom; and informal and implicit use in the courtroom. The findings reveal two different modes of construction of individual defendants. One represents a modernist-welfare narrative, institutionalized in the framework of pre-sentence reports already in 1930. This narrative applies individualized assessments of the defendant's relevant social resources to target the use of alternatives to imprisonment. The other construction echoes more recent penal changes and brings categorical risk assessment to the strategic targeting of high risk offenders for imprisonment. The empirical evidence suggests that the courtroom decision-making process is formally and explicitly dominated by a modernist-welfare account. However, at the same time and at the level of informal and implicit communication, the courtroom process provides ample room for constructions echoing more recent penal change toward risk assessment.

This article contends that it is time to take a critical look at a series of binary categories which have dominated the scholarly and reform epistemologies of the sentencing decision process. These binaries are: rules versus discretion; reason versus emotion; offence versus offender; normative principles versus incoherence; aggravating versus mitigating factors; and aggregate/tariff consistency versus individualized sentencing. These binaries underpin both the `legal-rational' tradition (by which I mean a view of discretion as inherently suspect, a preference for the use of philosophy of punishment justifications and an explanation of the decision process through factors or variables), and also the more recent rise of the `new penology'. Both approaches tend to rely on `top-down' assumptions of change, which pay limited attention to the agency of penal workers. The article seeks to develop a conception of sentencing craftwork as a social and interpretive process.1 In so doing, it applies and develops a number of Kritzer's observations (in this issue) about craftwork to sentencing. These craftwork observations are: problem solving (applied to the rules—discretion and reason—emotion dichotomies); skills and techniques (normative penal principles and the use of cognitive analytical assumptions); consistency (tariff versus individualized sentencing); clientele (applied to account giving and the reality of decision making versus expression). By conceiving of sentencing as craftwork, the binary epistemologies of the sentencing decision process, which have dominated (and limited) the scholarly and policy sentencing imaginations, are revealed as dynamic, contingent, and synergistic. However, this is not to say that such binaries are no more than empty rhetoric concealing the reality of the decision process. Rather, these binaries serve as crucial legitimating reference points in the vocabulary of sentencing account giving.

Deciding how much time a person should spend in prison for a serious crime is an inherently moral and political act. And it is certainly coldhearted and philosophically problematic to view sentencing as just an agency problem with criminal defendants as objects of a system in which prison terms are simply outputs. So I will not even try to justify resorting to a narrow institutional perspective as a normative matter. But, for better or worse, those political actors with the greatest influence on sentencing regimes have to think in aggregate terms. While there is considerable normative appeal to the idea of courtroom actors, and particularly judges, crafting an individualized sentence for each defendant, we need also to recognize that for elected officials at the top of the prosecutorial hierarchy, sentencing – particularly sentencing after a negotiated guilty plea – presents just another iteration of the classic problem of administrative law: how to limit the ability of agents to take advantage of informational asymmetries to slack off or import their own policy preferences.

In the past decade, the Supreme Court has transformed the constitutional landscape of juvenile crime regulation. In three strongly worded opinions, the Court held that imposing harsh criminal sentences on juvenile offenders violates the Eighth Amendment prohibition against cruel and unusual punishment. In combination, these cases create a special status for juveniles under Eighth Amendment doctrine as a category of offenders whose culpability is mitigated by their youth and immaturity, even for the most serious offenses. The Court also emphasized that juveniles are more likely to reform than adult offenders, and that most should be given a meaningful opportunity to demonstrate that they have done so. In short, because of young offenders' developmental immaturity, harsh sentences that may be suitable for adult criminals are seldom appropriate for juveniles. These opinions announce a powerful constitutional principle – that "children are different" for purposes of criminal punishment. In articulating this principle, the Supreme Court has also provided general guidance to courts sentencing juveniles and to lawmakers charged with implementing the rulings. At the same time, the Court did not directly address the specifics of implementation and it left many questions unanswered about the implications of the opinions for juvenile sentencing regulation. In the years since Roper, Graham, and Miller, courts and legislatures have struggled to interpret the opinions and to create procedures and policies that are compatible with constitutional principles and doctrine. This report addresses the key issues facing courts and legislatures under this new constitutional regime, and provides guidance based on the Supreme Court's Eighth Amendment analysis and on the principles the Court has articulated. Part I begins with the constitutional sentencing framework, grounded in the opinions and embodying the key elements of the Court's analysis. It then explains the underlying developmental knowledge that supports the constitutional framework and the "children are different" principle. Part II Part II examines how courts and legislatures have responded to the Eighth Amendment opinions, through reforms of state laws regulating juvenile life without parole (JLWOP). While some state lawmakers appear to ignore or subvert the Supreme Court's holdings, others have responded in ways that clearly embody the principles underlying Miller and Graham. In Montgomery v. Louisiana, the Court held that Miller applies retroactively because it established a substantive rule of constitutional law. Part III translates Miller's directive that specific factors be considered in making individualized sentencing decisions. The report's aim is to guide courts and clinicians in structuring sentencing hearings that incorporate sound developmental research and other evidence supporting or negating mitigation, without going beyond the limits of science. Part IV explores the broader implications of the Supreme Court's developmental framework for juvenile sentencing and parole, implications that have already sparked law reforms beyond the relatively narrow holdings of Graham and Miller. Finally, the paper ends on a cautionary note, pointing to evidence that constitutionally sound, developmentally-based policies may be vulnerable to political and other pressures. Aside from mandates in the holdings themselves, reforms can be dismantled or discounted if conditions change. Measures to sustain the current trend in law reform are discussed.

In this contribution, I trace the ways practicing judges articulate, as well as challenge, race. Drawing on an ethnography of everyday practices of adjudication and sentencing in a Dutch, lower Criminal Court, and working with Stuart Hall's conception of articulation, I show how judges draw on three articulations of race – that of culture, the social milieu, and the phenotype – to make sense of individual cases. Emphasizing how and where these articulations of race serve local, pragmatic goals – of individualized sentencing, or of identification of the suspect – I also pay attention to their local impracticalities, that is, where these registers are challenged or resisted. In so doing, I do not only understand race as multiple but also situate race as a pragmatic and local accomplishment with its own uses and instabilities.

Die Rechtsprechung des BGH zur Tötungshemmschwelle existiert seit den frühen 1980er Jahren. Danach liegt der Tötungsvorsatz bei gefährlichen Gewalthandlungen zwar nahe, es bedürfe wegen der hohen Hemmschwelle vor der Tötung eines Menschen jedoch einer besonderen Abwägung aller Umstände des Einzelfalls. In den letzten Jahren rückten einige Senate des BGH von dieser Rechtsprechung ab, ohne sie ganz aufzugeben. Die Autorin wertet die Rechtsprechung der vergangenen dreißig Jahre aus und setzt sich kritisch mit den rechtlichen, psychologischen und straftheoretischen Hintergründen dieser Rechtsprechung auseinander. Sie kommt zu dem Ergebnis, dass primäres Ziel der »Hemmschwellentheorie« die Erreichung bestimmter Ergebnisse ist. Da der Vorsatz zur Ermöglichung einzelfallangemessener Ergebnisse jedoch nicht das geeignete Merkmal ist, diskutiert sie anschließend andere Möglichkeiten zur Einzelfallabwägung innerhalb der Schuld und Strafzumessung. / »The Theory of Killing Inhibition Threshold and Individual Case Assessment« -- The author examines the jurisprudence of the German Federal Court of Justice on the killing inhibition threshold of the past thirty years and critically evaluates its background relating to law, psychology and reasons for punishment. Subsequently, she discusses other options for individual case consideration and the possibility of punishing individual cases within the element of guilt and individualized sentencing.