Sentencing Notes PDF

Defining Key Terms/Concepts ​ Sentencing is where the abstract concept of law meets the concrete reality of individual lives ​ Think of the law as a book, they are words on paper until they have to be out to use and used to address significant issues Scenarios...

Defining Key Terms/Concepts ​ Sentencing is where the abstract concept of law meets the concrete reality of individual lives ​ Think of the law as a book, they are words on paper until they have to be out to use and used to address significant issues Scenarios ​ In Canada when a person stolen something over $5,000, they can be sentenced to prison ​ If someone stole something you may ask them why they did it?, what is there risk to society? Or if they have a criminal background ​ We need to take into consideration remorse, mental health, the type of crime (is it the first time they committed crime or if there a pattern?), what is the person's story (background), consider what options are there to consider punishment ​ When addressing what to do with a crime you need to keep in mind the victim, and what harms was put onto them, along with society and the offender Formal Definition of Sentencing ​ Judicial Determination ○​ Sentencing is decided by a judge ○​ Emphasizes judicial discretion Complexities in Sentencing ​ Definition of legal sanction ○​ Range of possible sanctions ○​ Determining type and severity is complex ​ Determining appropriate sentence ○​ Balancing different factors ○​ Goals of sentencing Importance of sentencing ​ Sentencing as a reflection of societal values ○​ Individual impact of sentencing ○​ Community safety ○​ Social justice ○​ Resource allocation ad economic impact Individual Impact: More than a number ​ Direct impact on offenders  ​ Limits future opportunities ​ Impairs social reintegration ​ Changes identity ​ Long-term consequences of prison sentences ​ Diminished employment prospect Community Safety: ​ Justifications for sentencing ​ Protection of the public ​ Deterrence of crime ​ Incapacitation of 'dangerous' individuals ​ Issues with long-sentences ​ High incarceration rates ​ Lengthy sentences for minor crimes ​ No correlation with reduced crime rates ​ Deterioration of mental health ​ Effectiveness to address root causes of crime ​ Sentencing is a reflection of societies values ​ The way society punishes crime reveals a lot about their values Resource Allocation ​ Impact of sentencing on public resources ○​ Impacts on correlational facilities, probation services, and rehabilitation programs ○​ Lengthy prison terms increase costs ○​ Overcrowding and underfunding Sentencing as a socio-legal process ​ Role of legal rules in sentencing ○​ Define crimes, punishments, procedural guidelines ​ Aims for consistency and fairness ○​ Similar crimes receive similar punishments ​ Evolution of legal frameworks ○​ Reflects shifts in societal values and concerns ​ Influence of broader social factors ​ Legal rules are the skeleton/backbone to sentencing ​ Legal frameworks are not static, they evolve and change What Makes Sentencing a Social Process  ​ Social values and norms ○​ Evolve with societal attitudes ○​ Shift from punitive to rehabilitative models ​ Political influence ○​ Influence of political climate ○​ Influence of public demand ○​ Progressive movements push for reforms ​ Social inequality and bias ○​ Impacts race, class, gender, and mental health ​ Public opinion and media influence ○​ Media shapes public perceptions of crime ​ Video 1 ​ Sentencing cocaine users to prison is a fear-based response ​ It does not reduce crime ​ Mostly small time deslers that go to prison ​ 10 times more black drug users put in prison compaired to white users Video 2 ​ 5g of cocaine can get you a 5 year sentence in prison ​ Colorofchange.org came up with a petition for people to sign to make a change in the legal system involving sentencing when it came to crack/cocaine Takeaways ​ Street crack was used by people of color and they were sentenced to prison, meanwhile rich white people used cocaine and would not get in legal trouble Case Study ​ Case study: Crack cocaine epidemic ○​ 1980's epidemic lead to harsh sentencing laws ○​ Anti-drug abuse act of 1986 created 100: I sentencing disparity ​ Impact on black communities ○​ Fueled mass incarceration and racial disparities Why this exemplifies a socio-legal process ​ Social construction of crime ○​ Perception of crack cocaine as more dangerous ○​ Influence od social and political forces  ​ Influence of social biases ○​ Racialized potrayal "Punishment" What Comes to Mind? ​ Consequences when someone has broken laws or rules ​ Cause and effect Thoughts? ​ Corporate whistleblower ○​ Rewarded for bravery and commitment to ethical behavior? Protected from retaliation? Punishment for breaching confidentiality for damaging the company's reputation? ​ Crimes? ○​ Practice a different religion ○​ Criticize the rulers Concept of Punishment ​ The concept of punishment is inherently Influencing Factors ​ Social values ○​ Importance placed on respect for property Key Questions and Historical Examples ​ Who decides? ○​ Lawmakers: define crimes and punishments ○​ Judges: interpret and apply laws ○​ Public opinion: Influenced by media ○​ Prosecutors: tell the state who committed a crime and why Historical examples ​ Ancient Greece and Rome: ○​ Punishment as public spectacle (ex. Gladiatorial combat) ​ Medieval Europe ○​ Influence of religious belief (practices: Evolution of Punishment:  ​ More than punishment ​ Social control: power structures and order ​ Public humiliation: to shame ad degrade ​ Torture: manifestation of power and control ​ Rise of Prisons: Shift I thinking, towards a more "humane" alternative ○​ It's about discipline ​ Video: "A History of Punishment" (Exam) ​ Explores the evolution of punishment ​ Since the beginning of time there has been a punishment style for crimes (whether its beheading, prison, hanging, etc.) ​ Punishment is a social act ​ The punishments used in society show what societies values are ​ Today we see ancient punishments were cruel ​ Punishments are bound, but crimes still multiply ​ Punishment is the imposition of a type of harsh treatment ​ One of the known first codes of law was written by Babilon ​ Around the 8th century the law of moses was created, added a whole new dimension, the sentencing were no longer arbitrary, they were very clear: "and eye for an eye, a tooth for a tooth" ○​ Means the punishment you are given will be as worse as the crime you have committed but not more, ex. If a man murdered someone his whole family could be executed ​ Socrates was accused of corrupting the youth and he was sentenced to drink a lethal poison ​ In Rome punishments included, throwing people to be eaten by lions, and they would make it so that people could have no shelter, food or water, and no one was allowed to help them ​ Violence and death became a part of everyday life ​ There were very few police officers and many wrong doers got away with crimes ​ When people were caught they were publicly punished (ex. Hanging) to symbolize that people would face these consequences if they were to commit crimes ​ Punishment in those days did not deter everybody ​ Sometimes "witches" were not burned alive but they would be chocked to death then burned so that people would fear the thought of being burned alive because they did not know they were already killed beforehand ​ The executioner was the only people "allowed" to kill, a butcher often took this position ○​ Often the profession passed from father to son ○​ Nobody thought highly of these people because they put people to death ○​ They were often in hiding ○​ They also had to brand certain individuals (those marks stood for "galley slave" and meant they would be put to death soon)  ○​ The galley slaves were exposed to weather, rain, wind, storms, feed very little, and often fell sick. Survival rate was very low ​ Nobles had to be beheaded, while normal citizens were often hanged (these were all public) ​ 38,000 men were sent to the galleys in the 17th century ​ Bakaria advocated torture and punishment ○​ He wanted people to be stripped of freedom ​ Prisons first started in England ○​ No one paid much attention to the prisoners suffering, they lived in filth and had no privacy ○​ People would commit crimes in prison in hopes they would be killed instead of having to spend time in there ​ Modern prisons: the idea is that each inmate would have their own cells ○​ Avoid contamination ○​ The idea came about that crime was learned from other examples (criminals) ○​ Punishment became more humane ​ 1948 no one was allowed to be subjected to harsh treatments for committing crimes ○​ Prisoners became mere shadows of their former selves ​ In democratic societies rules and punishments are still mandatory ○​ If you kill your neighbor you will be subjected to a penalty ○​ In many cases punishment seems necessary ○​ It also deters others from wanting to commit crimes ​ How can we ensure the punishments are fair? ○​ More difficult because mentalities change as time moves on ​ Majority of crimes involve theft and murder ​ Most criminologists today would agree that the temptations of committing crimes has increased ​ Before the criminal code it was the victims family's responsibility to go after the accused Previous Dominant discourses on Punishment ​ Penological perspective ​ Philosophical perspective ​ These two perspectives re usually what we hear experts of crimes and politicians talk about Penological Perspective ​ Views punishment through an instrumental lens ​ Focuses on efficacy in crime control ​ Emphasizes empirical evaluation of penal measures ​ Prioritizes technocratic approach Philosophical Perspective ​ Philosophy of punishment ○​ Branch of moral philosophy ○​ Gained prominence during the enlightenment ​ Revisiting philosophical foundations Limitations (Penological Perspective) ​ Useful for those tasked with administrating the penal system. However, it fails to acknowledge the complex social and historical forces that shape the penal institutions and practices ​ Penologists often attribute these shortcomings to extraneous pressures Limitations (Philosophical Perspective) ​ Subjecting penal institutions Sociology of Punishment ​ Sociology of punishment ○​ Offers a framework for analyzing penal issues ○​ Moves away from instrumental focus of penology and abstract moralizing of philosophy ​ Focus on social context ○​ Conceptualizes Broader Implications of Punishment ​ Recognizes multiple purposes of punishment ○​ Punishment is not only about controlling crime ○​ Influenced by culture, history, and other factors Durkheim's Perspective ​ Durkheim's view on punishment ○​ Focuses on morals and values ○​ Not just about stopping crime ○​ Protects societal beliefs ​ Laws reflect core values ○​ Breaking laws attacks shared values ○​ Society's anger leads to desire for punishment ○​ Government administers punishment  ​ Purpose of punishment ○​ Expresses societal values ○​ Modern perceptive ○​ Limitations of Durkheim's ideas Marxist Perspective ​ Connection to power and money ○​ Punishment influenced by economy and societal power ○​ Used to control poor and working class ​ Link to job market (Rusche and Kirchheimer's) ○​ During periods of labor surplus, Harsher punishment prevail ○​ Labor scarcity leads to the exploitation of convict labor ​ Prisons and Punishment ○​ The principle of "less eligibility" ensures that penal conditions remain harsher than the lowest strata of free society Foucault's Perspective ​ Foucault's study of punishment methods ○​ Focused on practical aspects of punishment ○​ Analyzed prison design, surveillance and discipline ​ Role of experts in punishment ○​ Involvement of doctors and psychologists ○​ Control over body and minds ​ Shift from public punishment to prisons ○​ Transition from physical punishment to mental and behavioral control ○​ Prisons aim to reform rather than just punish ​ Prisons: Broader Social Control ​ Critiques of Foucault's Ideas: ○​ Foucault focused too much on power and not on feelings and values ​ Norbert Elias's Perspective ​ Important because he takes us farther away from politics and other things and focuses more on feelings and values ​ Norbert Elias's Unique Perspective ○​ Newer ideas not widely used in understanding punishment ○​ Focus on changes in feelings and ideas about what's proper and cilivized ​ Impact of civilized ideas on punishment ○​ Goals of Punishment ​ Philosophical roots of punishment  ○​ Deeply rooted in centuries of philosophical debate ○​ Focus on justice, morality, and social contrast ​ Aims of punishment: rooted in philosophical discourses ○​ Retribution ○​ Deterrence ○​ Rehabilitation ○​ Incapacitation ​ Ongoing dialogue ○​ Continuous interaction between moral philosophy and criminal justice Theories of Punishment ​ Two main approaches: 1.​ Preventing future crime (reductivism/consequentialist perspective 2.​ Punishing past crime (retributive punishment) 1.​ Preventing Future Crime ​ Proactive crime prevention ○​ Stopping crime before it happens ○​ Useful: Discourage people for breaking the law helping offenders change behavior and values remove individuals from society, preventing further harm ​ Reductivist Approach ○​ Crime reduction ○​ Focus in the future ​ Consequentialist approach ○​ Interest: constructive consequences of punishment -> punishment more than just punitive - Utilitarian thinking: what is useful for society 2.​ Punishing Past Crime ​ Blame and responsibility ○​ Holding the wrongdoer accountable for their actions ​ Justice and morality ○​ Punishment a moral response to harm ​ Payback and proportionality ○​ Punishment should fit the crime Deterrence ​ A future-oriented approach to punishment ​ Utilitarian philosophy: focuses on the greater good of society  ​ Two sides of the same coin: ○​ Individual (specific) Deterrence: punishing an individual to prevent them from re-offending "learning a lesson" ○​ General Deterrence: punishing an individual to discourage others from committing the same crime "sending a message" Limitations ​ Subjectivity of severity ○​ Punishments are not universally perceived as harsh ​ Balancing pleasure and pain ○​ Challenges in determining adequate punishment severity ​ The role of publicity ○​ Media portrayal of crime and punishment can influence perceptions of risk Effectiveness of Deterrence ​ Effectiveness of harsh punishments ○​ Lack of evidence supporting harsh punishments reducing re-offending ​ Crimes shifting ○​ Fear of punishment may shift crime to different locations ​ Influence of fear ○​ Fear of being labeled can prevent crimes without direct punishment ○​ Belief in consequences is crucial for deterrence ​ State of mind ○​ Influence of drugs, alcohol, or strong emotions can reduce effectiveness of deterrence ○​ Impulsive crimes are less likely to be deterred ​ Rehabilitation ​ Rehabilitaion focus ○​ Future oriented approach ○​ Aligns with utilitarian principles ○​ Aims to transform offenders into law-abiding citizens ​ Historical context ○​ Gained prominence during the late 18th century and early 19th centuries ○​ Industrial revolution and democratic shifts influenced its rise ​ Imprisonment evolution ○​ Shift from holding places to reformative institutions ○​ Development of humane and organized prisons Rehabilitation: Challenges and Criticisms  ​ Rehabilitation as a person goal in the 1950's-1960's ○​ Reformative purpose of imprisonment ○​ High re-offending rates post-release ​ Collapse of the rehabilitative ideal in the 1970's ○​ Research showing ineffectiveness of reformative efforts ○​ Prevailing pessimism summarized as 'nothing works' ​ Influence of Robert Martinson's 1974 Article ○​ Reviewed hundreds of studies on rehabilitation programs ○​ Conclusion oversimplified as "nothing works" ​ Instances of Success in Reformative Programs ○​ Specific groups of offenders showed some success ○​ Disillusionment oversimplified in reform emphasis Incapacitation ​ Definition and purpose ○​ Removing an offender's ability to commit further crimes: disabling function ​ Historical practices ○​ Amputation of thieves' hands ○​ Captial punishment as a permanent solution ​ Modern methods: Less severe ○​ Most efficacious method: life imprisonment ​ Utilitarianism: protecting the public from potential harm -> greater good for society Strengths and Weaknesses ​ Strengths of incapacitation ○​ Focus on public safety by removing offenders from society ○​ Potential deterrent effect discouraging crime ​ Weaknesses ○​ Limited effectiveness in reducing overall crime ○​ High cost for minimal gain in crime reduction ○​ Difficulty in accurately targeting high-risk offenders ○​ Ethical concerns about punishing for future crimes ○​ Potential for discrimination in predictive tools Contemporary Practices ​ Limitations and ethical concerns ○​ Problem with current imprisonment rates ○​ Concerns over expanding use or introducing new measures ​ Trends in England and the United Sates ○​ Creation of new sentences focused on incapacitation  ○​ Disproportionate punishments for offences ​ The three strikes law in the US ○​ Life imprisonment for repeat offenders on third conviction ○​ Examples of minor offenses leading to life sentences ​ England ○​ Mandatory prison sentences for repeat offenders since 1997 ​ Canada ○​ Indeterminate sentence: dangerous offenders ○​ In Canada if someone is seen to be a risk to society they can face imprisonment (risky offender) Video: 3 Strikes You're out: After 20 Years is the Law Working? ​ Seen as the answer to the repeat offender mess ​ California in the 1990's big cities had lots of gang crime ​ In 1992 and 18 year old daughter went out with friends and two men tried to steal her purse, the one man shot her and she was killed ○​ The man who killed her had long records ​ If you and two harsh penalties then the third one would mean life in prison ​ The 3 strikes you're out petition had 800,000 people's signatures supporting the idea ○​ The law passed and the law spread across 24 states ○​ Americans were angry because crime rates still increased ​ All 3 strikes had to be very violent ○​ In California any crime on the third strike would mean life in prison ​ This law did not do what the voters intended ​ Too many people committing petty crimes that already had two harsher crimes on their record were being given life sentences, and prisons were now being overcrowded ​ USA prison cost is the highest in the world at 80 billion dollars a year ​ In 2014 citizens voted to revise the law so that only harsh crimes on the third strike would give people a life sentence Beyond the Screen What did we Learn? ​ Real-world consequences ○​ Implementation and impact of the law ○​ Complex questions about proportionality and effectiveness ○​ Unintended consequences of prioritizing incapacitation ​ Complexity of punishment ○​ Balancing societal protection and individual rights ○​ Incapacitation as a central goal ​ Unintended consequences ○​ Disapproval sentencing ○​ Potential for rehabilitation  ​ Nuanced approach needed ○​ Policies can have complicated and unjust consequences ○​ Ethical dilemmas in prioritizing incapacitation Retribution ​ Focuses on past actions ​ Seeks justice and payback ​ Rooted in 'an eye for an eye' ​ Connected to repaying a debt ​ Expresses society's disapproval ​ Comfort to victims ​ Condemnation of crime ​ Reinforcing societal values ​ Code Principles: ○​ Backward-looking: focuses on the past offence and the harm already caused ○​ Justification for suffering: Punishment is deserved and justified to balance the scales of justice ○​ Proportionality: The punishment should fit the cime- no more, no less Strengths and Weaknesses ​ Strengths: ○​ Retribution offers a certainty that other approaches lack: offenders will be punished ○​ Highlights the contrast with approaches like deterrence, where effectiveness is uncertain ​ Weaknesses: ○​ Difficulty in determining the appropriate punishment ○​ Factors to consider: intent, harm caused, societal views ○​ Examples: accidental vs. Intentional killing, reckless driving with varying outcomes The Complexity of Harm ​ Beyond physical harm: ○​ Psychological harm: difficult to measure and compare ○​ Financial harm: relative to the victims circumstances ○​ Impact on others: punishment can affect innocent people connected to the offender ○​ Individual differences: offenders experience punishment differently  ​ Objectivity vs. Subjectivity: ○​ Finding the right balance ○​ Retribution cannot be applied in a purely objective way ○​ Need to balance the seriousness of the offence with intent, consequence, and societal views ○​ Acknowledges the difficulty of achieving what is "just" Denunciation ​ Concept of denunciation ○​ Expressing disapproval through punishment ○​ Justifies punishment by reflecting society's disapproval ​ Instrumental denunciation ○​ Reinforces shared moral values ○​ Deters crime through fear and education ​ Expressive denunciation ○​ Communicates that certain actions are unacceptable, regardless of different effects ○​ Example: Marcus Sarjeant case Denunciation Limitations ​ Research: harsher punishments don't necessarily change people's moral belief ​ People may dislike something more if it's illegal, but the severity of the punishment doesn’t seem to have a major impact ​ This challenges the idea that denunciation can effectively shape moral values or deter crime ​ The justice system can't dictate morality; people have their own internal compass Restorative Justice ​ Concept of restorative justice ○​ Focuses on making things right for the victim and community ○​ Involves offender facing consequences and understanding harm caused ​ Methods of restorative justice ○​ Victim/offender meditation: face-to-face meeting guided by a neutral party ○​ Conferencing: includes family and community representatives ○​ Citizen panels: community members discuss crime and create a plan for amends ​ Key aims for restorative justice ○​ Reparation: offenders repair harm caused ○​ Reintegrative shaming: disapproval of crime with a path to reintegration ​ Comparison: Rehabilitation VS. Restorative Justice Characteristic Rehabilitation Restorative Justice Primary Focus Offender Victim, community and offender Emphasis Changing offender behavior Repairing harm, restoring relationships Methods Programs, therapies Dialogue, meditation, repairation Role of Victim Limited or no direct involvement Central role Goals of Punishment ​ Philosophical roots of punishment ○​ Deeply rooted in centuries of philosophical debate ○​ Focus on justice, morality, and social contrast ​ Aims of punishment: rooted in philosophical discourses ○​ Retribution ○​ Deterrence ○​ Rehabilitation ○​ Incapacitation ​ Ongoing dialogue ○​ Continuous interaction between moral philosophy and criminal justice Theories of Punishment ​ Two main approaches: 1.​ Preventing future crime (reductivism/consequentialist perspective 2.​ Punishing past crime (retributive punishment) 1.​ Preventing Future Crime ​ Proactive crime prevention ○​ Stopping crime before it happens ○​ Useful: Discourage people for breaking the law helping offenders change behavior and values remove individuals from society, preventing further harm ​ Reductivist Approach ○​ Crime reduction ○​ Focus in the future ​ Consequentialist approach ○​ Interest: constructive consequences of punishment -> punishment more than just punitive - Utilitarian thinking: what is useful for society  2.​ Punishing Past Crime ​ Blame and responsibility ○​ Holding the wrongdoer accountable for their actions ​ Justice and morality ○​ Punishment a moral response to harm ​ Payback and proportionality ○​ Punishment should fit the crime Deterrence ​ A future-oriented approach to punishment ​ Utilitarian philosophy: focuses on the greater good of society ​ Two sides of the same coin: ○​ Individual (specific) Deterrence: punishing an individual to prevent them from re-offending "learning a lesson" ○​ General Deterrence: punishing an individual to discourage others from committing the same crime "sending a message" Limitations ​ Subjectivity of severity ○​ Punishments are not universally perceived as harsh ​ Balancing pleasure and pain ○​ Challenges in determining adequate punishment severity ​ The role of publicity ○​ Media portrayal of crime and punishment can influence perceptions of risk Effectiveness of Deterrence ​ Effectiveness of harsh punishments ○​ Lack of evidence supporting harsh punishments reducing re-offending ​ Crimes shifting ○​ Fear of punishment may shift crime to different locations ​ Influence of fear ○​ Fear of being labeled can prevent crimes without direct punishment ○​ Belief in consequences is crucial for deterrence ​ State of mind ○​ Influence of drugs, alcohol, or strong emotions can reduce effectiveness of deterrence ○​ Impulsive crimes are less likely to be deterred ​ Rehabilitation  ​ Rehabilitaion focus ○​ Future oriented approach ○​ Aligns with utilitarian principles ○​ Aims to transform offenders into law-abiding citizens ​ Historical context ○​ Gained prominence during the late 18th century and early 19th centuries ○​ Industrial revolution and democratic shifts influenced its rise ​ Imprisonment evolution ○​ Shift from holding places to reformative institutions ○​ Development of humane and organized prisons Rehabilitation: Challenges and Criticisms ​ Rehabilitation as a person goal in the 1950's-1960's ○​ Reformative purpose of imprisonment ○​ High re-offending rates post-release ​ Collapse of the rehabilitative ideal in the 1970's ○​ Research showing ineffectiveness of reformative efforts ○​ Prevailing pessimism summarized as 'nothing works' ​ Influence of Robert Martinson's 1974 Article ○​ Reviewed hundreds of studies on rehabilitation programs ○​ Conclusion oversimplified as "nothing works" ​ Instances of Success in Reformative Programs ○​ Specific groups of offenders showed some success ○​ Disillusionment oversimplified in reform emphasis Incapacitation ​ Definition and purpose ○​ Removing an offender's ability to commit further crimes: disabling function ​ Historical practices ○​ Amputation of thieves' hands ○​ Captial punishment as a permanent solution ​ Modern methods: Less severe ○​ Most efficacious method: life imprisonment ​ Utilitarianism: protecting the public from potential harm -> greater good for society Strengths and Weaknesses ​ Strengths of incapacitation ○​ Focus on public safety by removing offenders from society ○​ Potential deterrent effect discouraging crime ​ Weaknesses  ○​ Limited effectiveness in reducing overall crime ○​ High cost for minimal gain in crime reduction ○​ Difficulty in accurately targeting high-risk offenders ○​ Ethical concerns about punishing for future crimes ○​ Potential for discrimination in predictive tools Contemporary Practices ​ Limitations and ethical concerns ○​ Problem with current imprisonment rates ○​ Concerns over expanding use or introducing new measures ​ Trends in England and the United Sates ○​ Creation of new sentences focused on incapacitation ○​ Disproportionate punishments for offences ​ The three strikes law in the US ○​ Life imprisonment for repeat offenders on third conviction ○​ Examples of minor offenses leading to life sentences ​ England ○​ Mandatory prison sentences for repeat offenders since 1997 ​ Canada ○​ Indeterminate sentence: dangerous offenders ○​ In Canada if someone is seen to be a risk to society they can face imprisonment (risky offender) Video: 3 Strikes You're out: After 20 Years is the Law Working? ​ Seen as the answer to the repeat offender mess ​ California in the 1990's big cities had lots of gang crime ​ In 1992 and 18 year old daughter went out with friends and two men tried to steal her purse, the one man shot her and she was killed ○​ The man who killed her had long records ​ If you and two harsh penalties then the third one would mean life in prison ​ The 3 strikes you're out petition had 800,000 people's signatures supporting the idea ○​ The law passed and the law spread across 24 states ○​ Americans were angry because crime rates still increased ​ All 3 strikes had to be very violent ○​ In California any crime on the third strike would mean life in prison ​ This law did not do what the voters intended ​ Too many people committing petty crimes that already had two harsher crimes on their record were being given life sentences, and prisons were now being overcrowded ​ USA prison cost is the highest in the world at 80 billion dollars a year  ​ In 2014 citizens voted to revise the law so that only harsh crimes on the third strike would give people a life sentence Beyond the Screen What did we Learn? ​ Real-world consequences ○​ Implementation and impact of the law ○​ Complex questions about proportionality and effectiveness ○​ Unintended consequences of prioritizing incapacitation ​ Complexity of punishment ○​ Balancing societal protection and individual rights ○​ Incapacitation as a central goal ​ Unintended consequences ○​ Disapproval sentencing ○​ Potential for rehabilitation ​ Nuanced approach needed ○​ Policies can have complicated and unjust consequences ○​ Ethical dilemmas in prioritizing incapacitation Retribution ​ Focuses on past actions ​ Seeks justice and payback ​ Rooted in 'an eye for an eye' ​ Connected to repaying a debt ​ Expresses society's disapproval ​ Comfort to victims ​ Condemnation of crime ​ Reinforcing societal values ​ Code Principles: ○​ Backward-looking: focuses on the past offence and the harm already caused ○​ Justification for suffering: Punishment is deserved and justified to balance the scales of justice ○​ Proportionality: The punishment should fit the cime- no more, no less Strengths and Weaknesses ​ Strengths: ○​ Retribution offers a certainty that other approaches lack: offenders will be punished  ○​ Highlights the contrast with approaches like deterrence, where effectiveness is uncertain ​ Weaknesses: ○​ Difficulty in determining the appropriate punishment ○​ Factors to consider: intent, harm caused, societal views ○​ Examples: accidental vs. Intentional killing, reckless driving with varying outcomes The Complexity of Harm ​ Beyond physical harm: ○​ Psychological harm: difficult to measure and compare ○​ Financial harm: relative to the victims circumstances ○​ Impact on others: punishment can affect innocent people connected to the offender ○​ Individual differences: offenders experience punishment differently ​ Objectivity vs. Subjectivity: ○​ Finding the right balance ○​ Retribution cannot be applied in a purely objective way ○​ Need to balance the seriousness of the offence with intent, consequence, and societal views ○​ Acknowledges the difficulty of achieving what is "just" Denunciation ​ Concept of denunciation ○​ Expressing disapproval through punishment ○​ Justifies punishment by reflecting society's disapproval ​ Instrumental denunciation ○​ Reinforces shared moral values ○​ Deters crime through fear and education ​ Expressive denunciation ○​ Communicates that certain actions are unacceptable, regardless of different effects ○​ Example: Marcus Sarjeant case Denunciation Limitations ​ Research: harsher punishments don't necessarily change people's moral belief ​ People may dislike something more if it's illegal, but the severity of the punishment doesn’t seem to have a major impact ​ This challenges the idea that denunciation can effectively shape moral values or deter crime ​ The justice system can't dictate morality; people have their own internal compass Restorative Justice ​ Concept of restorative justice ○​ Focuses on making things right for the victim and community ○​ Involves offender facing consequences and understanding harm caused ​ Methods of restorative justice ○​ Victim/offender meditation: face-to-face meeting guided by a neutral party ○​ Conferencing: includes family and community representatives ○​ Citizen panels: community members discuss crime and create a plan for amends ​ Key aims for restorative justice ○​ Reparation: offenders repair harm caused ○​ Reintegrative shaming: disapproval of crime with a path to reintegration ​ Comparison: Rehabilitation VS. Restorative Justice Characteristic Rehabilitation Restorative Justice Primary Focus Offender Victim, community and offender Emphasis Changing offender behavior Repairing harm, restoring relationships Methods Programs, therapies Dialogue, meditation, repairation Role of Victim Limited or no direct involvement Central role Key Elements 1.​ Types of offences ​ Summary conviction offences ○​ Less severe, "minor" crimes ​ "petty crimes" or minor crimes ○​ Maximum penalties: up to 2 years less a day imprisonment, up to $5,000 fine ○​ Heard in provincial court ​ Ontario superior court of justice ○​ Alternative measures can be considered for less serious summary offences (ex: compensation, community service) ​ Sometimes an apology can be effective ​ ​ Indictable offences ○​ More serious offences (ex: theft over $5,000, murder, sexual assault, etc.)  ○​ Penalties: up to life imprisonment, some have minimum sentences ○​ Choice of method (judge alone, jury trial) ○​ Choosing your mode of trial: factors to consider: ○​ Complexity of the case: complex legal arguments? Judge-alone might be preferable ○​ Public perception: potential biases? Jury trial might be riskier ○​ Speed: provincial court trials tend to be faster (may choose superior judges because they have more options when sentencing) ○​ Not all charges have this much choice (more serious crimes) ​ ​ Hybrid offences ○​ Treated as either summary or indictable, at the Crown's discretion ○​ Ex: assault, impaired driving, possession of a controlled substance ○​ Factors influencing crown's decision (Hybrid offences): Seriousness Aggravating and mitigating factors (all the Resource of the circumstances that make the crime more of less consideratio offence severe) ns Criminal record of the Public interest Victims accused wishes Strength of evidence 2.​ Types of courts (Complex System) 3 Levels of Courts ​ Provincial and Territorial Courts (lower courts) ○​ Entry point for most cases, one judge presides ○​ Family issues and small claim matters ​ Superior Courts ○​ Hear more serious cases, may have a jury ○​ Federal or provincial laws ○​ Superior court of justice ○​ In charge of trial of indicatable offences ○​ Can be heard by single judge or judge with jury ​ Courts of Appeal ○​ Hear appeals, panels of three judges ○​ Highest level of courts in a province ○​ They do not review the facts of the case, just the procedural law ​ Supreme Court of Canada ○​ Highest court in Canada, limited cases heard, decisions are binding ○​ Very specific cases that go to supreme court  ○​ Single level trial court ​ ​ 2.​ Criminal procedure ​ Modes of trial in Canadian Criminal Law: ​ Summary conviction vs. Indictable offences ○​ The type of offence dictates the available modes of trial and potential penalties ○​ Higher protection for the offenders ○​ Not as serious offences ​ Modes of Trial ○​ The "path" a criminal case follows within the court system ​ Different rules and timelines ○​ Each mode of trial has its own set of rules, procedures, and timelines ​ Choosing a path ○​ The chosen mode of trial determines the specific procedures involved in the case ​ Analogy ○​ Different modes of trial are like different modes of transportation (car, train, plane) - each with its own route, schedule, and experience ​ Summary Offences Procedure 🔽 Charge (ex: ticket, summons, arrest) First Appearance: Plea Guilty plea: judge proceeds to sentencing 🔽 Not guilty plea: trial date set (judge alone) 🔽 Trial: evidence presented, verdict reached Sentencing: if found guilty (Judge will decide punishment for that person) 4.​ Sentencing hearing ​ Purpose: determine appropriate consequences (for the actions of the offender) ​ Provincial and territorial courts ○​ Timing of the sentencing hearing ○​ Sentencing can take place immediately after a guilty plea or finding of guilt OR can be adjourned to a later date  ○​ Timing depends on various factors, including the severity of the offence, complexity of the case, and the need for additional information (ex: pre-sentence reports) ​ Same Day Sentencing: When it Happens ​ Can happen the same day as the trial (not very common; if it does happen usually happens with hybrid offences, and when the person pleads guilty) ​ More common in summary conviction offences due to their less serious nature and simpler procedures ​ Can also occur in some less serious indictable offences if the facts are straightforward and there's agreement on a sentence ​ Promotes efficiency and quicker resolution ○​ Ex: causing a disturbance ○​ Why? Straightforward facts, often no prior record, limited sentencing options Indictable Offences and Same-Day Sentencing ​ Same-day sentencing: possible with some indictable offences ​ Example: impaired driving (first offence), no aggravating factors, guilty plea ​ Reasoning: expediates the process, delivers swift consequences ​ Possible Sentences: fine, driving prohibition, probation Summary Offences Sentenced Another Day ​ Possible when the case involves complex circumstances: ○​ Ex: thefts under $5,000 ○​ Reasoning: ​ Prior record for theft (pre-sentence report) ​ Breach of trust (ex: employee steals from employer) ​ Need for restitution (ex: payback for what was stolen) Sentencing on a Different Day: The Norm for Indictable Offences ​ Reasons for adjournment: ○​ Allows time for pre-sentence reports (PSRs), victim impact statements, lawyer preparation (could be months or years later) ​ Need time for judge to reflect what should be the punishment for more major crimes and it also gives lawyers time to build up a strong defense ○​ Necessary for complex cases with multiple charges or mitigating/aggravating factors Pre-Sentence Reports: A Closer Look ​ Purpose ○​ To assist the court in making an informed sentencing decisions ​ Contents ○​ Information about the offender's background, circumstances and risk factors ​ Not just for repeat offenders ○​ Can be valuable for first-time offenders or those with limited criminal history, especially in cases of serious offences or complex needs PSRs and Individualized Justice ​ Seriousness of the offence (more serious crime = higher sentence) ​ Offender's circumstance (mental health. Addictions, social challenges) ​ Need to determine the most appropriate sentencing option ​ Promote individualized justice and informed decisions Victim Impact Statements: Giving Victims a Voice ​ Allows victims to describe how the crime has affected them (physically, emotionally, financially) ​ Enshrined in the Canadian Victims Bill of Rights (2015) ○​ Not victims have a chance to talk to judge and state how the offence effected them (statements can be considered by the judge when determining sentence) ​ Important for ensuring victims' experience are considered in the sentencing process What Determines the Timing of Sentencing? ​ Severity of the offence ​ Complexity of the case ​ Court availability ​ Need for additional information (PSRs, assessments) Inside the Sentencing Hearing: Procedure and Key Players ​ Understanding the steps and decisions ​ Who is in the courtroom? ○​ The Judge: ensures fairness applies the law, makes the financial sentencing decision ○​ Crown counsel: represents the state, presents the case against the offender, advocates for a just sentence  ○​ Defense counsel: represents the accused, protects their rights, presents mitigating factors, argues for the most appropriate sentences Flexibility in the Process ​ Joint submissions ○​ Crown and defense may agree on a proposed sentence ​ Evidence presentation ○​ Both sides may present evidence (expert testimony, character references, etc.) Guest Speaker: Ines Ferreria Dias Tavares (McJustice Project) Proposal ​ Mundane criminal infractions ​ Lack of research of plea courts as social processes ○​ No qualitative research in Canada ​ Objective: how punishment is situationally produced, enacted and rationalized in these environments ​ Sentencing practices as social events ○​ Practices of people in a court room with an audience, but also with an external audience (the public) several people participate ​ Law applies itself as being rational ○​ Sentencing is not this rational process, or applying the principles of the law, but it is a practice Lower Courts and SCI's ​ Requirements of efficiency + high volume of policing practices ​ Lower courts as production line/ McJustice ○​ Filled with small cases ​ Questions about fairness and procedural justice ​ Thinking of society as a McDonalds fashion ○​ Means to work efferently ○​ And predictability ○​ Transforming rational society as a McDonalds ○​ You come in with your case, judge you as fast as they can and move on to the next case (quantity not quality) Literature ​ Concrete operations of lower criminal courts in Canada (with the exception of bail) and plea courts processing SCI's >>> insufficient research  ​ Quantitative research mostly from the USA examining legal and extra-legal factors effecting sentencing ​ Minor criminalized incidents: "the process is the punishment" (Feeley, 1979) ​ Trial deliberations < courtroom efficiency ​ More criminalization, less attention towards guilt, innocence and rights ​ Negation of the presumption of innocence: arrest is transformed in assumption of guilt ​ Disregard for the dignity of the defendants: silenced, ignored, disciplined. Penalization of "resistant defendants" ​ Guilty pleas: if you pled guilty then you can make a deal to possibly have a shorter sentence ○​ They will read the facts, your lawyer can defend what you have done and show remorse in hopes that the judge will choose to decrease your sentence (sometimes can only receive a fine) ○​ The process is the punishment ○​ When you pled guilty you have an issue of innocence of rights, if you are not guilty Methods ​ Indictive and iterative research ​ Court observations + interviews ​ The unexpected: the COVID-19 pandemic and the introduction of remote courts Virtual courts ​ There are good and bad things about them Results ​ Low volume of sentences (less than 4 a day)in comparison to the USA ​ Frequent idleness and tolerance for late appearances ​ Paradoxity: constant complaining about backlog ​ Virtual courts: unceremonious conditions. Expressive dimension of punishment ​ Glitches. Lack of auditory visual components. Resignation ​ Jeopardized participation and communication with the defendants ​ > risk for due process, the understanding of the dispositions, and the moral assessment of the defendant and their dignity ​ Hybrid hearings: the worst of two worlds Results interviews ​ Current phase: transcription an coding ​ Preliminary findings  ​ Disregard for the dignity of the defendants: silenced, ignored, disciplined. Penalization of the "resistant" defendants- not in Ottawa! ​ The process is the punishment: anxiety, costs and guilt as factors for deciding on whether to plea guilt ○​ Some people will plea just to end the sentencing process (Ex: they want to see their family) ​ Probation as punishment, probation as desired treatment The Why of Punishment Summary ​ Deterrence ​ Retribution ​ Denunciation ​ Rehabilitation ○​ Want to understand why judges use these approaches Bill C-41 and the Purpose of Sentencing ​ 1990's: introduced to reform sentencing practices ​ Key Change: Added a statement of purpose and principles of sentencing ​ Impact: Provides a framework for judges to consider during sentencing Voices for Change: Reports and Studies ​ Inconsistency: Sentencing varied widely depending on location and the judge ​ Lack of Guidance: Leading to unpredictable outcomes ​ Influential Reports: Highlighted the urgent need for sentencing reform in Canada ​ Learning from the US: In the 70's and 80's, many US states adopted sentencing guidelines (grids) to address similar issues ○​ This influenced Canadian reform efforts ​ Research Early Calls for Reform: The Ouimet Report (Toward Unity: Criminal Justice and Corrections) (!969) ​ This major study exposed serious problems within the Canadian justice system and urged for reforms ​ Key Concerns: ○​ Overemphasis on punishment, neglecting rehabilitation Recommendations for the Ouimet Report ​ Shifting focus ​ Expansion community based programs ​ Improved correctional facilities  ​ Individualized sentencing More Research Hogarth's Study (1971): ​ Shocking findings: ○​ The study revealed that a judge's identity was a stronger predictor of sentencing than the actual crime ​ The Plays and Divorski Study (1987): ○​ Sentencing simulation: over 200 judges given identical case summaries ○​ Startling results: sentences Other Perspectives ​ Judicial Perspective ○​ Survey revealed two-thirds of judges acknowledged sentencing variation ○​ Judicial inconsistency identified as a significant issue ​ Technology and transparency ○​ In the 1980's, technology was explored for sentencing consistency ○​ Innovative projects: databases for judges to analyze cases ​ Public concerns The Government Responds: A Landmark Report ​ Landmark Policy Document in 1984 ○​ Title: "sentencing" ○​ Proposals for sentencing reform ○​ Creation of a sentencing commission ○​ Establishment of the Canadian Sentencing Commission ​ Establishment of the Canadian Sentencing Commission ○​ Year: 1984 ○​ In-depth review of sentencing practices ○​ Investigation of guidelines The Daubney Report (1988) ​ Extensive public consultation ​ Ensured diverse voices were heard ​ Cross-party support (very rare in politics) ​ Early recognition pf restorative justice ​ Laid groundwork for its prominence in policy ​ Shared recommendations with sentencing commission report  ​ Focuses on the entirety of the criminal justice system and also took into account the community ​ Share the need for better alternative measures instead of punishment/prison ​ Both these two reports were not implemented by the government Bill C-41 Introduction and Impact ​ Introduced in 1994 and enacted in 1996 ​ Provided judges with more flexibility ​ Ensured victims were considered in sentencing ​ Introduced conditional sentences ​ Goals of sentencing: ○​ Attempted to clearly define the goals of sentencing ​ Missing sentencing guidelines ○​ Sentencing guidelines were included ​ Brought a statement of purpose ​ Important because it holds the person accountable ​ Provided stability in the criminal justice system (keep judges in line/accountable) Statement of Purpose and Principles of Sentencing ​ Introduction of statement of purpose and principles ○​ Found in sections 718-718.2 of the criminal code of Canada ○​ Outlines goals and principles behind punishing offenders ​ Necessity of statement of purpose and principles ○​ Judges need guidance on the purpose of sentencing Breaking Down of the Statement of Purpose 1.​ The fundamental Purpose ​ Overarching goal of the sentencing process ​ Main reason for punishing offenders 2.​ The Objectives 3.​ The Fundamental Principle 4.​ Subordinate Principles ​ What is a principle? = It is a value established in law that we should follow based on a foundational idea The Fundamental Purposes of Sentencing ​ Purpose of sentencing ○​ More nuanced than just punishing the offender  ​ Section 718 of the Criminal Code Utilitarian and Retribution ​ Sentencing has a duel nature: 1.​ Retributivism (giving punishment when you deserve it 2.​ Utilitarianism (maximizing happiness for majority of people Section 718 and the 'Menu' of Sentencing Objectives: Codification The Fundamental Principles of Sentencing ​ Fundamental principle: Proportionality ​ Consistency and Coherence ○​ Proportionality as the cornerstone of sentencing ○​ Ensures punishment fits the crime ​ Aggravating and Mitigating Factors ​ Aggravating factors ○​ Increase the blameworthiness of the offender ​ Examples: ○​ Use of a weapon ○​ Vulnerability Hate-Motivated Crimes ​ Hate motivation crimes ○​ Section 718.2(a)(I) address crimes motivated by bias, prejudice, or hate ○​ Characteristics include rage, religion, sexual orientation, etc. ○​ Results in more severe sentences More Statutory Aggravating Factors Principles of Consistency ​ Principle of consistency ○​ Emphasizes the importance Principles of Totality ​ Consecutive Sentences Principle of Restraint  ​ Overuse of incarceration as a sanction The Judge's Sentencing Dilemma ​ Purpose of sentence ​ Options for sanctions ​ Determining sentence magnitude ​ Sources consulted by judges ​ Contributions from other ​ They might also give out sentences in order to speed up the court process (efficiency) Sentencing Guidelines – A Comparisons ​ Sentencing guidelines overview ​ Structed framework for judges ​ Recommend range of punishments based on crime severity and offender's record ​ How sentencing guidelines work (USA) ○​ Does not really take into account individual factors Sentencing Guidelines: Problems ​ Criticism: too rigid ​ Example: The USA vs. Angelo ○​ Mandated 15-year minimum sentence regardless of context ​ Broader issues ○​ Unintended consequences of rigid sentencing guidelines Long-Term Impact ​ Sentencing guidelines Discretionary Systems Finding a Balance ​ We need to find a balanced approach ​ Judges have criterial so they need to have a margined discretion Discharges – A Second Chance ​ Introduced by the Ouimet Report ​ Two types: (least restrictive charges in Canada) ○​ Absolute discharge  ○​ Conditional discharge ○​ Come with particular rules (come with probationary period) ○​ Ex: community service etc. Discharges: Key Features (1985) ​ No conviction registered, no fine ​ Guilt IS registered in CPIC (Canadian police information center) ​ Eligibility: ○​ No mandatory minimum sentence ○​ Sentence under 14 years ○​ No corporation (discharges cannot be given for crimes committed for Cooperations only given to individuals) ○​ Getting a criminal discharge is better than a criminal record (better chance at going about your life) ​ Absolute and Conditional Discharge ​ Absolute discharges ○​ Final; cannot be revoked (if you mess up then your discharge will be revolved so you will not have a criminal charge on your record) ​ Conditional discharges (final; charge will not be revoked) ○​ Brech = revoked discharge ○​ Breach -> conviction or modification of conditions ​ The discharge test ○​ Two-part test (Section 730 CC): ​ Best interests of the accused ​ Not harmful to the public interest Section 730 of CC ​ Conditional and absolute discharge 730 (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2) Factors Influencing Discharges ​ Discharges and prior offences ​ Most commonly given to first time offenders  ​ Nature of the offence (not likely for violent crimes) ​ Circumstances of the case (ex: character of offender) ○​ Time matters ○​ Minor and unrelated offences = better chance ○​ Conviction: disproportionately harmful? Suspended Sentences (second type of sentence) ​ Suspended sentences: sentence deferred ○​ Court can decide if they want to defer sentencing ​ Probation with a conviction Suspended Sentence Conditional Discharge Probation ✅ ✅ Fine Allowed ❌ ❌ Conviction ✅ ❌ Suspended Sentences: Judge's Considerations ​ When might a judge suspend a sentence? ○​ Has to take into consideration lots of things (ex: nature of offence, character of offender, etc.) ○​ No minimum sentence required ○​ Eligibility varies by offence ​ The consequence of non-compliance ○​ Breach = face original sentence ○​ Consequence decided at breach ​ Hybrid offence: crimes that are on the fence of indictable and summary offences, the crown decides what sentence the offender will receive ​ Mandatory conditions: goal is to not offend (person might have to go to things like mandatory anger management classes) ○​ They cannot breach the conditions of the sentence Case example: ​ A man has possession of drugs ​ He was given a probation sentence of 18 months ​ The probation officer calls and asks why he is not at home (a rule of his probation) ○​ This is a first warning ​ If they break the rules again then they can face some jail time  ​ After jail time if you break the rules of your probation again then you will most likely be given the original sentence to jail from the judge (you did not follow the probation rules) Probation ​ Lasts up to 3 years ​ Section 731 (b) can be added to other sentences (fine or prison -> not both) ​ Probation after jail: ○​ Sentences under 2 years ​ Why probation? ○​ Rehabilitative sentencing tool ​ 731 (1) Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, (…) (b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding two years, direct that the offender comply with the conditions prescribed in a probation order ​ You cannot be given all three things given at once (fine, jail, and probation) ○​ You can only be given two at once ​ Why is probation useful? ○​ Is there to help the offender reintegrate back into society ○​ Probation is not there to punish Probation Rules ​ In charge: probation officer ​ Types of conditions: ○​ Mandatory -> section 732.1 (2) ○​ Peace and good behavior ○​ Appear in court ○​ Notify changes (have to let the court know; ex: if you get a new job) ○​ To protect the public and to hold the offender accountable Section 732.1 (2) of CC ​ Compulsory conditions of probation order (2) The court shall prescribe, as conditions of a probation order, that the offender do all of the following: (a) keep the peace and be of good behavior; (a.1) [Repealed, 2019, c. 25, s. 297] (b) appear before the court when required to do so by the court; and (c) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. (2.1) [Repealed, 2019, c. 25, s. 297] (2.2) [Repealed, 2019, c. 25, s. 297] Probation Rules ​ Optional -> sections 732.1 (3) (a-h) ○​ Restricting liberty ○​ Drugs/alcohol (the offender cannot use any of these substances, and they need to go to treatment programs) ○​ Weapons (cannot own weapons) ○​ Community service ○​ Driving (have to use breathalyzer devices within the vehicle before driving) ○​ Other ​ Breaking the rules (conditions) = crime ○​ If you break any of these conditions or probations it is considered a crime ○​ It is a crime because probation is already an opportunity to redeem yourself, so you are showing the judge you do not care what they said) ○​ Seen as a serious danger to the public ​ Prison up to 4 years (worse case) Fines ​ Fine = criminal record ​ Eligibility ○​ No minimum prison sentence ○​ Ability to pay ○​ Some provinces: fine option programs ​ These programs allow you to work to earn money to pay for the crime you committed ​ They see if you are willing to work first ​ Mandatory minimum fines ○​ Example: impaired driving (first time = minimum fine of $1,000) ○​ Street racing (minimum fine for first time offence = $2,000) ○​ Deterrence, denunciation, public safety Fine (Other Aspects) ​ Fines with other punishments ○​ Can be combined with jail time (common example: fraud) ○​ Cannot be combined with discharge or suspend sentence ​ Amounts ○​ Indictable offence: no limit (must be reasonable) ○​ Summary offence: max $5,000 (person), $100,000 (organization) ​ Consequences of Non-Payment ○​ License suspension (burden your life, therefore pushing you to pay) ○​ Potential jail time Conditional Sentence ​ Sentence served in the community (< 2 years) (court decides) ​ "House arrest" ○​ Introduced with bill C-41 ​ Purpose ○​ Punitive AND rehabilitative ​ Keeps offender in their house but they can still live their lives in the community ​ Judge's considerations ○​ Community safety ○​ Sentencing principles ○​ Ineligibility: serious offences (ex: max 14 years, bodily harm, sexual assault) Section 742.1 of CC ​ Imposing of conditional sentence 742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behavior in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if (a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2; (b) the offence is not an offence punishable by a minimum term of imprisonment; ​ Imposing of conditional sentence (c) the offence is not an offence under any of the following provisions: (i) section 239, for which a sentence is imposed under paragraph 239(1)(b) (attempt to commit murder), (ii) section 269.1 (torture), or (iii) section 318 (advocating genocide); and (d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more. (e) [Repealed, 2022, c. 15, s. 14] (f) [Repealed, 2022, c. 15, s. 14] Conditional Sentence Conditions ​ Mandatory (ex: keep the peace, report to supervisor): Section 742.3 (1) ○​ Cannot commit more crimes, have to let judge know of any changes, etc. ○​ Judges usually do not tell people with substance abuse problems that they cannot have any substances while on probation, because it's not as fair since they will most likely use them if they have an addiction, therefore they would be punished for breaking the conditions of their probation  ​ Optional (ex: curfew, treatment): Section 742.3 (2) ​ Breach of conditions ○​ Can lead to jail time ○​ "balance of probations" (not "beyond a reasonable doubt") ○​ Violating the privilege that the judge gave you ○​ Offender has the opportunity to defend themselves if they breach a condition, judge will decide if their reasoning is valid or not Imprisonment ​ Most serious sentence in the Canadian legal system ​ Maximum and minimum sentence ○​ Have to also think about the pre-sentence custody (held in jail until you go to trial (this time will count towards your jail sentence) ​ What about pre-sentence custody? Counts towards sentence ​ Offender going to jail – what's next? ○​ Intermittent sentence? ○​ Consecutive or concurrent sentences? ○​ Length (how long) and location of sentence? How is the Sentence Going to be Served? ​ Intermittent sentence ○​ Serve sentence in chunks (ex: weekends) ​ Could be for a person that would lose a lot if they were to serve time constantly in prison (ex: a student) ​ The moment you are not in jail you are on probation ○​ For sentences ≤ 90 days ○​ Probation when not in jail ​ Multiple sentences ○​ Concurrent: served at the same time (more common) ○​ Consecutive: served one after the other Place of Sentence ​ Provincial jails (reformatories): ○​ Shorter sentences (< 2 years) ○​ Focus on rehabilitation (help offender re-enter the community) ○​ Ex: Ottawa-Carleton Detention Centre ​ Federal penitentiaries ​ Longer sentences (2 + years) ​ Run by the federal government ​ Higher security (more serious offenders sent here) ​ Ex: Collins Bay Institution Length of the Sentence 1.​ Maximum sentences 2.​ Mandatory minimum sentences Maximum sentences: Setting Limits for Justice ​ Longest possible sentence for a crime... ​ You will not get discharged for maximum crime sentences ○​ Examples: ​ Murder: maximum life imprisonment ​ Uttering threats: maximum 5 years ​ Why? ○​ Proportionality ○​ Prevents excessive punishments ○​ Consistency across Canada ○​ Judges have flexibility, they do not have to give you a maximum sentence, but it is there if needed Mandatory Minimum Sentence ​ Shortest possible sentence ​ Judge MUST give it ​ History: ○​ Always existed (ex: murder); even within the first criminal code ○​ Increased in 2000's ​ Examples: ○​ Impaired driving = $1,000 fine ○​ Firearm: 1 years prison ○​ Drugs: Varies (depends on the type of drug) Mandatory Minimums – The Debate Criticisms: Current Situation: ​ ​ ​ ​ Cruel punishment Challenges in ​ Some can court be too ​ Shift away from harm them ​ for first time offenders ​ Focus on rehab ​ Ineffective ​ Addres ​ Discriminatory sing the  ​ Limits judges ​ root causes of crime ​ Challenging Mandatory Minimums – Key Cases R v Smith (1987): R v Nur (2015): R v Lloyd (2016): ​ ​ ​ ​ ​ ​ 7-year minimum: drug importing (cocaine) 3-year 1-year ​ Deemed "cruel and unusual" ( it was minimum: minimum: disproportionate for the amount of cocaine he illegal gun repeat drug had on him (small amount) possession trafficking ​ Punishments must fit the crime ​ Struck down – ​ Struck down ​ He was not a first-time offender, but the court too broad, – too broad, did not act to benefit Mr. Smith could be unfair to unfair some Why These Cases Matter? ​ Key takeaways: ○​ Proportionality IS essential ○​ Mandatory minimum ○​ Charter protects against excessive punishment ​ Ongoing Debate: ○​ Public safety vs. Individual fairness ○​ Courts protect our gi