probation up to 3 years with a criminal record that lasts 3 years
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absolute discharge
no probation and a record for 1 year
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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
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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
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community corrections: restitution
intended to compensate the victim
returning stolen property
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victim surcharge
payment to the victim
30% of any fine imposed
if no fine: $100 for summary, $200 for indictment
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probation
can serve sentence in the community
can be imposed on its own or in addition to another sanction
max three years
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compulsory probation conditions
keep peace and good behaviour
appear before court when required
notify probation officer in advance for any major life changes
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what does research on probation tell us
reduces recidivism
allows offender to maintain work and relationships
most conducive to rehabilitation
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issues with probation
net widening
over conditioning can lead to incarceration
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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
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requirements to be able to participate in conditional sentence
sentence less than 2 years
no mandatory minimum
not a threat to public safety
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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
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purpose of conditional sentence
rehabilitation and punishment
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diversion programs
keep offenders from being processed
offender has to acknowledge responsibility for their behaviour
treatment program, community service, and other conditions
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are diversion programs good
possible net widening
concerns surrounding coercion and punitive nature
success relies on employment and supportive environment
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provincial incarceration
less than 2 years
no distinct levels of security
96% of sentenced population
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federal incarceration
more than 2 years
4% of sentenced population
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minimum security
can leave during the day
unrestricted movement during the day
no perimeter fencing
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medium security
some restriction on movement
low to moderate risk for escape
high security fencing
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maximum security
high security fencing
highly controlled and restricted movement
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prisoner profile
mass incarceration of indigenous and black individuals
female prisoner population rising
substance use, unstable lives, poverty, etc.
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mandala rules
protect the rights of prisoners
prohibit torture and cruel and unusual punishment
protect prisoners from forms of ill treatment
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disciplinary segregation
prisoner misconduct, rule infractions
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administrative segregation
prisoner management and order
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segregation operations
confinement for 22-24 hours a day
no meaningful conduct
no access to programming or privileges
sensory deprivation
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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)
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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)
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Inmate code
expected system of behaviours and rules
ex: don’t trust guards, don’t start fights, etc
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prisonization
enculturation into the prison culture
* further criminalizes individuals
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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
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correctional officers: moral authority
relationship with prisoners
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correctional officers: legal authority
upholding laws
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correctional officer subculture
inappropriate/criminal behaviour
protect staff
code of silence
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CO abuse of power
minorities disproportionately impacted
human rights violations
too much discretion
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complaints procedures in prisons
long wait time
fear of punishment
unclear procedure
told to file internally
not good access to forms
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prison work
not paid well
not many programs available
not generating profits so cut despite them being successful
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risk assessment
designed to indentify those who are most likely to reoffend upon release is no treatment were to occur
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static risk factors
things about the offender that can’t be changed
* criminal history, performance on past release, seriousness of past offence, etc
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dynamic risk factors
things about the offender that can be changed through intervention
* education, training, addiction, attitudes and motivations, etc.
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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)
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fixed sentence vs indeterminate sentence
actual end to their sentence vs no real end date
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day parole
6 months before 1/3
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full parole
1/3
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statuatory release
2/3
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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
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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
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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
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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
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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
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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
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pains of imprisonment (5)
deprivation of liberty
deprivation of goods and services
deprivation of security
deprivation of heterosexual relationships
deprivation of autonomy
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collateral consequences of imprisonment (6)
social isolation
social consequences
stigma
health consequences
mental health issues
economic damage
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re-entry barriers (5) \*most important
identity
transportation
benefits/social assistance
housing\*
employment\*
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revolving door of incarceration
cycle that incarceration leads to barriers and barriers lead to incarceration (2 main barriers being housing and employment)
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post incarceration policies
suspicion results from stigma which leads to continual punishment of those who have completed their sentence
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principle of less eligibility
‘criminals’ are deemed to be less worthy of resources
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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
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what is the penal voluntary sector
non profit NGOs
penal reform advocates
government offloading programming to those organizations
mostly state funded
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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
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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
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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
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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
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BVSP: duality of conception
net widening
* more clients they supervise the more money they get * more supervision and CJS power
agency + resistance
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Factual Innocence vs Legal Innocence
factual: they never actually committed the offence
legal: procedural error that violates the rights of the convicted person
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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)
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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
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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)
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defense misconduct
ineffective assistance of counsel
make most decisions on behalf of accused
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judiciary misconduct
tunnel vision
rule of inadmissible evidence
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jury misconduct
are they really reliable and competent
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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
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plea bargaining
incentive for lesser charge
people plea for offences they don’t commit
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jail house informants
benefit in exchange or information
judge and defence don’t know that the incentive is given to the person in jail
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false and misleading confessions
distort fact finding process
lack of impartiality
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forensic science errors
junk science
people will believe it even if they shouldn’t
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racism and SES and wrongful convictions
indigenous and poor individuals higher rate of wrongful conviction than non-indigenous and non-poor people
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costs of wrongful convictions
costly, no justice, guilty person goes free, innocent incarcerated, how do you really compensate someone, decreased public confidence
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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
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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
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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
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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
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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
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drug treatment court
problem solving court
judicially supervised treatment
bail with conditions:
* court appearances * counselling/treatment * random drug testing * other specific conditions
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drug treatment court: does it work
decrease in drug use
decrease in recidivism
general positive effect
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drug treatment court: critiques
coercive
must plead guilty
resource intensive
shift location of punishment
lots of conditions
only available to non-violent offenders
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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
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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
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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
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R v Gladue
1) background factors
* colonialism and its effects
2) sentencing procedures consider indigenous status
* tailor sentence to indigenous practices
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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
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healing lodges
alternative correction
elder provide services and ceremonies
spiritual
community interaction
preparation for release
over classification into max is a barrier to access
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Policing and the Pandemic
radicalized and poor individuals disproportionately impacted
race effect
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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)
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Virtual Courts: Access to Justice
digital divide
limited access to counsel
privacy concerns
accused as dependents
open court principle
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Bill S4 (virtual courts: who can access)
preliminary hearings
sentencing hearing
plea court
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incarceration and covid
high rates of covid
increased use of segregation
no way to social distance
health issues exacerbated
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prison reform
improvements to uphold human rights
better support for marginalized communities
treatment focus
changes to the current system
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prison abolition
whole new system
restorative justice
not possible to make prisons more humane
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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)