Week 8 - Sentencing

indigenous courts

established to deal with Indigenous overrepresentation in the justice system

• 3% of the population but 18% of federal inmates

potential contributing factors

• commit more crimes or more serious crimes

• lack of adequate legal counsel

• economic and social disadvantages

special consideration is to be given to background factors (ex: substance abuse, poverty, etc)

may result in restorative justice approach - community safety, accountability and responsibility, skills development

ALTOGETHER - may have limited impact on the overrepresentation problem

• may not be addressing the key variables that lead people to commit crimes in first place

sentencing - what is it

the judicial determination of a legal sanction upon a person convicted of an offence

sentencing: goals

• specific deterrence - for a specific crime

• general deterrence - for crime overall

• denounce unlawful conduct - signalling societal values

• separate offenders from society

• assist in rehabilitating offenders

• provide reparations for harm done

• promote responsibility in offenders

implications

• judges often consider more than one

• goals may be incompatible with one another

  • long sentences achieve separation but not rehabilitation

• judges across canada have wide discretion in how they sentence offenders

  sentencing disparity - two kinds (legal and illegal)

principles of sentencing: fundamental principle

sentence should be proportional to the GRAVITY of offence and DEGREE of responsibility of the offender

principles of sentencing: other factors for judges to take into account

aggravating factors

• facts of the crime, impact of the crime, association with criminal organizations, long criminal record

mitigating factors

• lack of criminal record, age (youth), behaviour since the crime occurred, personal circumstances

similar sentences for similar offences committing similar crimes

combined sentences should not be unduly harsh

use less-restrictive sanctions where appropriate

use alternatives to incarceration if reasonable

sentencing options (in canada)

absolute discharge

• found guilty but not convicted and no criminal records (rare)

• accidents

conditional discharge

• probation, allowed to be in society and have to follow certain rules for a certain period of time

restitution

• payment made to the victim

fines and community service

• fines - pay court in specific amount of time

• failing to comply with this can led to imprisonment

conditional sentence

• house arrest - basically imprisoned but within the community

• other examples too

imprisonment

• < 2 years - provincial/territorial prison

• > 2 years - federal prison

factors affecting sentencing

factors that should be taken into account

• seriousness of the offence

• offender’s degree of responsibility

• aggravating and mitigating factors

• harshness of sentence

extra-legal factors also have influence

• individual differences between judges

• gender and race of defendant

sentencing disparity

variations between different judges for similar offenders committing similar offences

• expect some level of disparity because it is supposed to be an individual case-by-case decision

unwarranted sentencing disparity - reliance on extra-legal factors

• systematic factors (ex: judge personality - stagnant)

• unsystematic factors (ex: fluctuations in judge’s mood - things that are random and can’t be controlled)

sentencing disparity: fair sentencing act of 2010 (US)

addressed widespread sentencing disparity in crack vs powder cocaine cases

• sentencing for crack possession was more severe than power possession

this act signed into law by Obama in 2010 to combat this disparity that was based in false assumptions about crack that were not empirically based

studying sentences disparity

typically studied through:

• simulation studies - give people facts about a case and ask them what they suggest as sentence

• official sentencing statistics

simulation studies - provide judges with mock cases

• wide variation between sentence length

• dependent on legal objectives the judge is trying to achieve

reducing sentencing disparity

disparity occurs because of wide discretion judges have in sentencing

one approach: implement sentencing guidelines

• restrict options - firm sentence lengths

canada reluctant to adopt formal guidelines - lots of reliance on discretion

reforms are slow, likely for political reasons

are sentencing goals being achieved?

dependent on the goal

ongoing debate about deterrence and rehabilitation

• social and cultural factors that prevent evidence-based reforms from being implemented

no support of the effectiveness of get-tough strategies

• recidivism may actually increase

how sentences are decided (Fessinger and Kovera 2023)

prosecutors also have wide discretion in determining one’s sentence

• can set conditions of a plea deal, which usually come with promise of reduced sentence

• 97% cases end in plea deal, not trial

• usually deal is so good defence attorneys encourage their clients to take the deal

if guilty and accept plea - reduced sentence

if innocent and accept plea - guaranteed reduced sentence compared to trial but forgoing possibility of no sentence

• to be rational means to implicate oneself