History of Punishment

-Prior to the birth of penitentiaries (1700s), transportation was a popular form of punishment.

-Penitentiaries were designed for long term imprisonment. Some people thought this was more humane than transportation: it was a reform pushed for moral, economic and political reasons.

-Two main models of penitentiaries arose:

  • The Pennsylvania Model
  • Keeping prisoners separate at all times. Theoretically, this was to give them time to reflect on their indiscretions and keep them away from bad influences.
  • Auburn Model
  • Prisoners were kept in separate cells but came together for work, study and prayer. They were still prohibited from communicating with each other (except in exceptional circumstances). This model made more financial sense (because they were able to work and the prisoners took up less room).

TheChanging Focus of Punishment

-At the end of the 18th century, most sentences were directed at the body of the offender either in the form of execution or mutilation.

-Exclusion was also a dominant feature, achieved through transportation, banishment, and civil disability.

-The birth of the penitentiary provided a change in course, to stipulated periods of deprived liberty during which, optimistically, some reformative process would take place.

  • Initially, the engines of reformation were thought to be penitence, discipline, and hard labour.
  • Later, the rehabilitative ideal replaced these regimes with psychological, vocational, and education programs.

-In the 20thcentury, various factors produced a renewed interest in fines and the new sanction, probation.

-Now, at the beginning of the 21st century, we are in the midst of a debate about the overuse of imprisonment and the continuing search for non-custodial alternatives. One can anticipate that various disparate factors like rapidly expanding costs of imprisonment, the enthusiasm for restorative justice, and dissatisfaction about the state of criminal justice in aboriginal communities will combine to encourage new community-based alternatives with a large role for members of the community.

Reform of Canada’s Sentencing Laws

General Methods of Restructuring Sentencing Laws

  1. Legislative Guidelines: For example, statutorily prescribed sentencing ranges. These exist in some American states.
  2. Principles/Factors: Careful statements of legislatively described principles and relative sentencing factors.
  3. Appellate Courts: Frequent and careful guidance from the appellate courts (Alberta’s starting point regime).

Developments leading to reform of sentencing in Bill C-41

-Prior to this bill The CC contained no legislative statement of penal purposes. Courts said sentence must be a wise blending of conflicting goals:

1.Retribution/denunciation.

2.Deterrence.

3.Incapacitation.

4.Rehabilitation.

-The only guide in the Code was a specified maximum punishment.

1.Max punishments are based on “worst case” scenarios. No guidance about jail or no jail.

-Prosecutorial discretion can greatly affect sentence. There are no legislative guidelines or supervision on exercise of prosecutor’s discretion on:

1.Number of charges

2.Indictable/summary convictions

3.Agreed facts.

  • There was a strong sense of “not questioning the queen.”

-Overall: this structure leads to:

  1. Arbitrary sentencing.
  2. Unequal and disparate sentencing.
  3. Confusion, uncertainty and loss of respect for the system.

Chronology

-Sentencing reform was an acknowledged part of the government’s Criminal Law Review Initiative.

-Ouitmet Report (1969): Commission set up to study Canadian system of corrections that made some sentencing suggestions.

-Law Reform Commission of Canada (1972): Did the first comprehensive study of Canadian sentencing laws and structure. These ideas were not enacted into legislation but have been influential:

  • Recommended just deserts as operational sentencing principle.
  • Individualized sentencing was wrong and created a disparate system.
  • Imprisonment was over-used especially for non-payment of fines.
  • Community based alternatives to imprisonment should be developed.
  • Restrain should be used at all stages of criminal law, including least restrictive sanction.
  • Reconciliation should be given greater prominence.
  • Compensation and restitution orders should exist.
  • Rehabilitation and deterrence were both ineffective and illegitimate goals.

-Justice Minister MacGuigan introduced the Criminal Law Reform Act (Bill C-19) in 1984. Died when Parliament dissolved.

-Sentencing Commission was established in 1984 to examine the level of maximum penalties, develop model sentencing guidelines and to advise on best practices.

  • Composed of six judges, one lawyer, one native court worker and one criminologist.
  • Result was an attempt to steer a middle path between unfettered discretion and total inflexibility.
  • Detailed deficiencies:
  • No uniform approach to theories, purpose of principles of sentencing;
  • Maximum penalties provide no realistic guidelines;
  • Confusing guidance from Court of Appeal;
  • 1,000 sentencing judges with no communication;
  • “Individualized sentencing” too popular and common;
  • Little accountability for police and Crown’s charging practices and plea bargains;
  • Inter-provincial variations in alternative sentencing options;
  • Lack of clarity and predictability;
  • Over-reliance on imprisonment.
  • Ultimately decided that the flaws in the sentencing system couldn’t be overcome by tinkering with the existing system. The commission recommended the creation of a comprehensive and integrated sentencing structure.
  • Recommendations for new system:
  • Be enacted by Parliament and have a statement of purpose and principles;
  • Abolish mandatory minimums except for murder and high treason;
  • Change maximum structure to 12/9/6/3/1yr/6mo;
  • Abolish parole except for mandatory life sentences;
  • Abolish imprisonment for debt default;
  • Establish guidelines for custodial vs. community sanctions;
  • Establish ranges for offences;
  • Create a permanent sentencing commission;
  • Provide enough funding for the widespread use of community sanctions

-Justice Minister Rock introduced Bill C-41 in 1995; it was ultimately passed and proclaimed in force on September 3 1996. Bill C-41 involved significant sentencing reform, although it did not incorporate the Sentencing Commission’s recommendations for presumptive guidelines and the establishment of a permanent Sentencing Commission. However, it did:

  • Prominence to alternatives to imprisonment;
  • Created conditional sentence of imprisonment;
  • Sets of statement of purposes/principles (s. 718).

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Objectives and Philosophical Dimensions of Punishment

There is an important distinction between punishment and sentencing

Punishment is the intentional infliction of pain, deprivation or suffering. How can this be justified? Three main schools of thought:

I – Retributivist

-The justification for punishment flows directly from the offence; the violation justifies the penal purpose.

-Three hallmarks:

  • The offender deserves to be punished;
  • The state has an obligation to punish that person;
  • The punishment must be proportional.

-Kant said that human beings are rational and autonomous. These two capacities (to know right from wrong and to choose freely between them) mean that humans deserve to be punished when they choose to do wrong.

  • On this theory, the punishment isn’t to achieve a social goal; it’s an end in itself.

-Hegel said that the purpose of imposing punishment was to annul the crime and restore any violated rights. This theory has more room for the goals of restoration and reformation.

-James FitzJames Stephens said that society was entitled to hate criminals and punishment was premised on the notion of the offender deserving it.

-Retribution, however, is not vengeance. People were confusing it with such and it was getting a bad reputation. The courts started to suggest that the word shouldn’t be used because of the conflation (Hinch).

-Distinctions between retribution and vengeance (Robert Nozick):

  • R addresses wrongs; V responds to any event that need not be a wrong;
  • R is inherently limited by the seriousness of the offence; V knows no internal limits;
  • Agent of R has no personal ties; V is personal;
  • R requires no emotion; V carries pleasure of self-satisfaction;
  • R rests on a clear general principle that offences deserve punishment. V has no similar principle and is arbitrary.

R. v. M.(C.A.)

-Lamer specifically endorsed retribution as a fundamental and legitimate objective of sentencing by differentiating it from vengeance.

  • “Vengeance has no role to play in a civilized system of sentencing. Vengeance, as I understand it, represented an un-calibrated act of harm upon another, frequently motivated by emotion and anger, as reprisal for harm inflicted on oneself by that person. Retribution, in a criminal context, by contrast, represents an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender.”

-Also says that retribution requires restraint where vengeance does not.

-Said retribution represents the principle that punishment is meant to sanction the moral culpability of the offender. It is woven into the Canadian sentencing principles through the requirement that punishment be “just and appropriate.”

  • “Retribution represents an important unifying principle of our penal law by offering an essential conceptual link between the attribution of criminal liability and the imposition of criminal sanctions.”

II – Consequentialist/Utilitarian

-Premised on the need to produce some effect on the offender or in the community.

-History: Often traced back to the Englightenment. But it can be found in the writings of Plato.

  • “Everyone who is punished, and rightly punished, ought either to be benefited and become better, or serve as an example to others that they may behold these sufferings and through fear become better” (Plato, Gorgias).

-Bentham provided 12 principles on punishment that roughly coincide with contemporary ideas about discretion, proportionality, and fairness (Manson, page 42).

-Three tradition utilitarian justifications: incapacitation, rehabilitation, and deterrence.

Incapacitation

-Point: People who are in jail are not in society committing crimes.

-However, extent of reduction in crime is speculative. There is no way of knowing how much crime a person would be committing were they not in jail.

-Has stronger justificatory basis for some crimes than others. For example, makes more sense for someone convicted of crimes against a specific person than it does for drug crimes where the incarceration of individuals will not prevent the crime from happening.

Rehabilitation

-Point: Some convicts are amenable to treatment that will allow them to become productive members of society.

-This theory was sincerely cast into doubt by Robert Martinson in his paper called “What Works?” (1974).

  • He showed that none of the studies he’d researched showed a program that could claim it successfully rehabilitated offenders. He did, however, show that some programs benefited some people.

-There is no empirical evidence that rehabilitative programs reduce recidivism.

Deterrence

-Point: Punishing an individual makes them less likely to re-offend.

-This is a very 19th century liberal idea which presumes that everyone is a rational actor who will act to best increase their personal benefit (avoiding pain and punishment).

-Canadian Sentencing Commission said that “legal sanctions have an overall deterrent effect which is difficult to evaluate precisely.”

  • However, they also said that it is likely that, as studies have shown, the deterrent effect largely comes from certainty, not quantum, of punishment. This would make getting caught the deterrent, not the punishment.
  • This idea was confirmed in 1999 by the University of Cambridge Institute of Criminology which showed that there is no statistical correlation between severity of punishment and crime because:
  • Information about penalties is not well known.
  • More severe penalties are always contingent and people rarely account for contingent future costs.
  • There is a “threshold effect” where penalties rise for more serious crimes which are crimes usually committed by people who are unaffected by deterrence.

-Obvious problem with this whole line of thinking is that not a lot of criminals are rational actors.

-1999 meta-analysis by Canadian criminologists showed that prison sentences actually slightly increase the risk of re-offending.

-People who receive non-custodial sentences are less recidivistic (from a 1997 study by the Canadian Centre for Justice Statistics, quoted in R. v. Wismayer 1997 ONCA).

-Despite the obvious flaws in the deterrent justificatory theories, the courts love it.

R. v. Song

-TJ ridiculed the notion that there could be a deterrent effect in imposing a custodial sentence on a first time offender convicted of running a grow op; going so far as to tell the Crown he thought it was “insane” to suggest general deterrence would work since it never had.

-The ONCA did not care for it one bit; they chastised the judge for importing personal political opinions into his judgement. They underlined the fact that deterrence is an enshrined objective of sentencing and stated that it was an “error of law” for the TJ not to consider it.

III – Combination/Canada’s Sentencing Guidelines

-S. 718 of the Criminal Code lists 6 objectives of sentencing. These are largely utilitarian reasons. But, it is important to note that the fundamental principle of sentencing in s. 718.1 is proportionality (which is generally a retributivist notion).

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
Denunciation (a) to denounce unlawful conduct;
Deterrence (b) to deter the offender and other persons from committing offences;
Incapacitation (c) to separate offenders from society, where necessary;
Rehabilitation (d) to assist in rehabilitating offenders;
Reparations (e) to provide reparations for harm done to victims or the community;
Responsibility (f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims in the community

-We’ve left the choice of the objectives and the combinations of objectives to the judges.

  • In reality, (e) and (f) play a very small role.
  • Less than 2% of funding is spent on crime prevention; our society responds to “after the fact behaviour.”

-This section was added in 1996. It gave some structure to sentencing, but not much: objectives aren’t prioritized and judges not given guidance on how much to consider/what/when.

-Two amendments were added after ’96 to make denunciation and deterrence the primary consideration when sentencing people convicted of assaults on people involved in the justice system (718.02) and child abuse (718.01).

Judicial Discretion and the Methodology of Sentencing

History

-The predominant sentencing philosophy in the 1800s is that judges needed the widest amount of discretion to make decisions.

-Sentencing wasn’t conceived of as a fixed approach. Throughout this period, the CL philosophy was “the legislature may set a maximum” but beyond that, judges must have discretion.

-Originally, felonies were all capital offences. Over time, the floor of available punishments lowered so that it wasn’t death or nothing. This meant more options.

-The original Criminal Code (Sir James Fitzjames Stephens), tried to prescribe proportionate punishments by abolishing minimum sentences and entrenching judicial discretion.

Current Framework

-Discretion was entrenched in the Criminal Code in 1996 in s. 713.3(1):

1.Where an enactment prescribes different degrees or kinds of punishment in respect of and offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence.

-Increasingly more minimums are coming in, even though most people disagree (inflexible).

-Almost every offence has a maximum; they are rarely used and are rather unreflective of how we want our justice system to look (maximum sentences are on Manson page 58).

-In 1996, judges were given 718 to help guide sentencing, but these guidelines are still general.

-The result has been that sentences can vary wildly, even if the crime and circumstances are similar.

-There are three general approaches to dealing with the vast discretion afforded to TJ’s: the traditional approach; starting point sentences; and ranges.

I – The Traditional Approach

-Essentially, the judges dealt with the large amount of discretion by developing and applying principles but without having hard and fast rules (which ended up becoming s. 718 anyways).

-“Punishment is a wise blending of the deterrent and reformative, with retribution not entirely disregarded, and with a constant appreciation that the matter concerns not merely the Court and the offender, but also the public and society as a going concern. Punishment is, therefore, an art – a very difficult art – essentially practical, and directly related to the existing needs of society” (R. v. Willaert).

-Sopinka confirmed the individualized approach to sentencing in R. v. MacDonnell

  • “Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.”

-This approach was confirmed in R. v. M.(L.): “Far from being an exact science or an inflexible predetermined procedure, sentencing is primarily a matter for the TJ’s competence and expertise. The TJ enjoys considerable discretion because of the individualized nature of the process… To arrive at an appropriate sentence in light of the complexity of the factors related to the nature of the offence and the personal characteristics of the offender, the judge must weigh the normative principles set out by Parliament in the Criminal Code” (2008, SCC).

II – Starting Point Sentences

-The criminal code gives appellate courts a broad authority to set sentencing standards within the appeal process. This requires consideration of the “fitness of the sentence.” One way in which appellate courts have attempted to structure trial-level discretion is the “starting point” approach.

-McLachlin in her dissent (McDonnell) described starting point sentences as, “start with determining appropriate range for sentence without regard to the offender (i.e. assume the crime was committed by a person of ‘good character’ who ‘has no criminal record’). Second step is to consider practical sentencing objectives and factors particular to the instant case. The starting point approach is meant to incorporate dual perspectives of the seriousness of the offence with the need to consider the individual circumstances of the offender.

-Some objections to starting point sentences: