This chapter explores the single most important difference between Anglo-American and German/Continental trial procedures: bifurcation vs. unification. Should a court determine sentence at the same time as it adjudicates verdict? Or should the criminal process be divided, with sentencing taking place after conviction, in a separate ‘penalty phase’ of the criminal process? Common law (adversarial) jurisdictions take the bifurcated approach, while in civil law (inquisitorial) systems the sentencing decision is part and parcel of the decision to convict or acquit. The chapter investigates the merits of both approaches.

Comparing the two approaches to sentencing may yield important insights. Although neither system is likely to abandon its chosen methodology in favour of the alternative, there may be elements of each which can be adopted with a view to overcoming any structural deficiencies.

American incarceration takes two distinct forms. People locked up for a short time are typically placed in a local jail, not a State prison. The primary benefits of jails are logistical. Jails are close to the police stations that generate arrests and the courts that process them. For prisoners, jails are nearer to home, family, and friends. There is, however, little to do in jails, since jails are intended for short-term stays. People locked up for longer periods, generally more than a year, are sent to a prison. Prisons are usually larger and more centralized and thus likely to be farther from the scene of the arrest, the sentencing court, and the prisoner’s home and loved ones. Since prisons are intended for longer stays, they have, or at least should have, more programs, like jobs and education.