388 Final

conditional discharge

conditional discharge

probation up to 3 years with a criminal record that lasts 3 years

absolute discharge

no probation and a record for 1 year

elements of discharge (absolute and conditional)

no criminal conviction

if you have a prior discharge it will show up

not an option for those with a possible sentence of 14 years

needs to be in the best interest of the accused

not contrary to public interestfine

community corrections: fines

can be in addition to or independent from another sanction

only can be imposed if they know the person can pay (unless minimum fines)

money goes to the government

community corrections: restitution

intended to compensate the victim

returning stolen property

victim surcharge

payment to the victim

30% of any fine imposed

if no fine: $100 for summary, $200 for indictment

probation

can serve sentence in the community

can be imposed on its own or in addition to another sanction

max three years

compulsory probation conditions

keep peace and good behaviour

appear before court when required

notify probation officer in advance for any major life changes

what does research on probation tell us

reduces recidivism

allows offender to maintain work and relationships

most conducive to rehabilitation

issues with probation

net widening

over conditioning can lead to incarceration

conditional sentence

jail sentence that they are allowed to serve in the community

need to be sentenced to prison first

report to a probation officer

requirements to be able to participate in conditional sentence

sentence less than 2 years

no mandatory minimum

not a threat to public safety

mandatory conditions for a conditional sentence

keep peace of good behaviour

appear before court when told

report to supervisor when told

remain in the jurisdiction of the court

notify court of any major life changes

purpose of conditional sentence

rehabilitation and punishment

diversion programs

keep offenders from being processed

offender has to acknowledge responsibility for their behaviour

treatment program, community service, and other conditions

are diversion programs good

possible net widening

concerns surrounding coercion and punitive nature

success relies on employment and supportive environment

provincial incarceration

less than 2 years

no distinct levels of security

96% of sentenced population

federal incarceration

more than 2 years

4% of sentenced population

minimum security

can leave during the day

unrestricted movement during the day

no perimeter fencing

medium security

some restriction on movement

low to moderate risk for escape

high security fencing

maximum security

high security fencing

highly controlled and restricted movement

prisoner profile

mass incarceration of indigenous and black individuals

female prisoner population rising

substance use, unstable lives, poverty, etc.

mandala rules

protect the rights of prisoners

prohibit torture and cruel and unusual punishment

protect prisoners from forms of ill treatment

disciplinary segregation

prisoner misconduct, rule infractions

administrative segregation

prisoner management and order

segregation operations

confinement for 22-24 hours a day

no meaningful conduct

no access to programming or privileges

sensory deprivation

Segregation and Human rights

against mandala rules and Canadian rights and freedoms

substantial harm to prisoners (psychological disturbances)

Bill C-83: regulations to help improve segregation conditions (not realistically implumented)

Prisoner Healthcare

don’t have good access to any type of health care

have to choose between privileges and necessities or healthcare

medication is not properly and reliably given

substance use (unsafe)

sexual health issues (STIs and no prenatal care)

Inmate code

expected system of behaviours and rules

ex: don’t trust guards, don’t start fights, etc

prisonization

enculturation into the prison culture

• further criminalizes individuals

institutionalization

being so engrained in the prison culture that they don’t know how to function in general society

• often due to being in prison for a long time at a young age

correctional officers: moral authority

relationship with prisoners

correctional officers: legal authority

upholding laws

correctional officer subculture

inappropriate/criminal behaviour

protect staff

code of silence

CO abuse of power

minorities disproportionately impacted

human rights violations

too much discretion

complaints procedures in prisons

long wait time

fear of punishment

unclear procedure

told to file internally

not good access to forms

prison work

not paid well

not many programs available

not generating profits so cut despite them being successful

risk assessment

designed to indentify those who are most likely to reoffend upon release is no treatment were to occur

static risk factors

things about the offender that can’t be changed

• criminal history, performance on past release, seriousness of past offence, etc

dynamic risk factors

things about the offender that can be changed through intervention

• education, training, addiction, attitudes and motivations, etc.

temporary absence

let out due to special circumstances for max 60 days

can get it at the start of sentence (escorted) and at 1/6 mark (unescorted)

fixed sentence vs indeterminate sentence

actual end to their sentence vs no real end date

day parole

6 months before 1/3

full parole

1/3

statuatory release

2/3

criteria for parole

1. confident the offender won’t reoffend before warrant expiry

2. have to feel that this will facilitate community through prisoner reintegration

proponents of parole (theoretical and practical)

fundamental for public protection

gradual supervised release will provide support and control that facilitates successful reintegration

more successful than statutory release

parole is shown to be successful at rehabilitation

opponents of parole

making prison sentences variable and unpredictable

not following principle of proportionality

most common re-incarceration is breaching conditions

parole board doesn’t make the best decisions

not focused on general rehabilitation but reoffending till warrant expiry

what is contributing to the withering use of parole

political motives

tough on crime attitudes from the government

prisons are deemed necessary

risk aversive culture

media

prioritize warrant expiry period

what does research tell us about parole

most common is breach of condition

90% success day parole

87% full parole

most violent offenders don’t violently reoffend

of those who committed a homicide that are released, 0.31% commit another homicide

issues with the parole board

lack of diversity of members

risk aversive

make decisions based on public interest

don’t know outcomes of their decisions

not required to have any legal background

pains of imprisonment (5)

deprivation of liberty

deprivation of goods and services

deprivation of security

deprivation of heterosexual relationships

deprivation of autonomy

collateral consequences of imprisonment (6)

social isolation

social consequences

stigma

health consequences

mental health issues

economic damage

re-entry barriers (5) *most important

identity

transportation

benefits/social assistance

housing*

employment*

revolving door of incarceration

cycle that incarceration leads to barriers and barriers lead to incarceration (2 main barriers being housing and employment)

post incarceration policies

suspicion results from stigma which leads to continual punishment of those who have completed their sentence

principle of less eligibility

‘criminals’ are deemed to be less worthy of resources

community housing policies

lack of community housing in Ontario

government created community housing renewal strategy which excluded criminals from being able to access community housing

frames them as non deserving (principle of less eligibility)

impacts their family

contributes to revolving door of incarceration

what is the penal voluntary sector

non profit NGOs

penal reform advocates

government offloading programming to those organizations

mostly state funded

Bail Verification Supervision Program

bail supervisor works with crown to determine who to supervise

develop rehabilitation plan

need to be guilty

meet weekly

attend all treatment deemed necessary

avg of 10 conditions

BVSP program outcomes

most people fail out of the program (64%)

• failure to appear, re-offend, or violate conditions

of those that stay a decent amount get charges dropped

Miller Research on PVS and Reentry

interventions focused on psychological, cognitive and social skills

see an overlap between punishment and social well-fare

carceral devolution

• shift in location or rehabilitation services to the community

• shift to trying to change the person not barriers

PVS as Punishment’s Twin

reentry program

• overlooks structural barriers

• grounded in idea that criminals are inherently different

shadow carceral state: less visible penal development that expands carceral power

BVSP: duality of conception

net widening

• more clients they supervise the more money they get

• more supervision and CJS power

agency + resistance

Factual Innocence vs Legal Innocence

factual: they never actually committed the offence

legal: procedural error that violates the rights of the convicted person

false eyewitness identification

leading cause of wrongful conviction

people + jurors think that eye witnesses are reliable

many factors that decrease your reliability to remember (stress, trauma, lighting, distance, cross race effect)

police misconduct

noble cause corruption

• moral commitment to catch the bad guy

• do bad things b/c they think the outcome will be good

tunnel vision

• confirmation bias

• look for things that confirm their hypothesis

• leading questions

prosecutor misconduct

tunnel vision

pressure to obtain and prosecute convictions

over charging

misconduct (charge based on who they think someone is not what they did and what evidence tells us)

defense misconduct

ineffective assistance of counsel

make most decisions on behalf of accused

judiciary misconduct

tunnel vision

rule of inadmissible evidence

jury misconduct

are they really reliable and competent

fase confessions

reid technique

• police are aggressive and presume guilt

• trying to get a confession

Mr.Big Sting

• subject slowly enticed to join a fake criminal organization

• has to confess to all prior crimes to join

Suggestibility

• lead person to think their best case scenario is if they confess

plea bargaining

incentive for lesser charge

people plea for offences they don’t commit

jail house informants

benefit in exchange or information

judge and defence don’t know that the incentive is given to the person in jail

false and misleading confessions

distort fact finding process

lack of impartiality

forensic science errors

junk science

people will believe it even if they shouldn’t

racism and SES and wrongful convictions

indigenous and poor individuals higher rate of wrongful conviction than non-indigenous and non-poor people

costs of wrongful convictions

costly, no justice, guilty person goes free, innocent incarcerated, how do you really compensate someone, decreased public confidence

Case Study: Donald Marshall Jr

racial bias in the justice system

police failed to search area and question witnesses

• tunnel vision

crown failed to follow up on contradictory statements

defence failed to interview crown witnesses

pressure interview techniques

Case Study: Dr Charles Smith

autopsies of 40 children

didn’t realize he wasn’t supposed to just say what the prosecution wanted him to say

said ones that were accidents were on purpose

over stated knowledge

unfit to stand trial: requirements

can’t understand court proceedings

can’t understand charges or legal matters

can’t communicate their opinion related to the case

unfit to stand trial: fitness assessment

judge requests psychiatrist, present their findings, judge puts trial on hold

have to be better in 60 days

least invasive treatment

not criminally responsible

criminal defence, no mens rea

can’t be reversed

absolute or conditional discharge

or release to custody discharge (psychiatric facility)

recidivism extremely low

drug treatment court

problem solving court

judicially supervised treatment

bail with conditions:

• court appearances

• counselling/treatment

• random drug testing

  • other specific conditions

drug treatment court: does it work

decrease in drug use

decrease in recidivism

general positive effect

drug treatment court: critiques

coercive

must plead guilty

resource intensive

shift location of punishment

lots of conditions

only available to non-violent offenders

Royal Commission on Aboriginal People (1996)

investigate relationship b/c indigenous people, the government and the general public

suggestion: 440 total

• indigenous government

• indigenous universities

• indigenous child welfare system

nothing happened

Truth and Reconciliation Commission

collected church and government documents

allowed survivors to tell their stories

issues

• commissioners quit

• government and churches not cooperating

residential schools labeled as cultural genocide

recommendations

• investigate missing and murdered indigenous women and children

• improve indigenous healthcare

• improve indigenous access to post secondary

• commitment to decreasing indigenous overrepresentation in CJS

no change

Criminal Code S 718.2(E)

consider alternatives to incarceration for indigenous people

pay attention to circumstances of indigenous offenders

judge must consider background of indigenous offenders

R v Gladue

1. background factors

• colonialism and its effects

2. sentencing procedures consider indigenous status

• tailor sentence to indigenous practices

Gladue Courts

specialize in indigenous cases (have to plead guilty)

indigenous bail supervisor

eagle feathers for swearing-in

smudging ceremonies

outcomes

• success with rehabilitation programs

healing lodges

alternative correction

elder provide services and ceremonies

spiritual

community interaction

preparation for release

over classification into max is a barrier to access

Policing and the Pandemic

radicalized and poor individuals disproportionately impacted

race effect

the courts and the pandemic

didn’t want to shift to virtual

backlog of cases (trials impacted the most)

presumtive ceiling (case has to be dropped if unreasonable time)

Virtual Courts: Access to Justice

digital divide

limited access to counsel

privacy concerns

accused as dependents

open court principle

Bill S4 (virtual courts: who can access)

preliminary hearings

sentencing hearing

plea court

incarceration and covid

high rates of covid

increased use of segregation

no way to social distance

health issues exacerbated

prison reform

improvements to uphold human rights

better support for marginalized communities

treatment focus

changes to the current system

prison abolition

whole new system

restorative justice

not possible to make prisons more humane

3 steps to prison abolition

moratorium (no new prisons)

de-carceration (get people out of prisons)

ex-carceration (decriminalization of things, address societal causes of crime)