PSYC 2400: Sentencing

Contents

1. 1. The Structure of the Canadian Court System
2. 2. Sentencing
   1. 2.1 A Definition
   2. 2.2 6 Goals of Sentencing (DDARRS)
   3. 2.3 5 Principles of Sentencing (GLASC)
   4. 2.4 7 Sentencing Options
   5. 2.5 Factors that Affect Sentencing Decisions
      1. Sentencing Disparity
      2. Reducing Sentencing Disparity
   6. 2.6 Are the Goals of Sentencing Achieved?
3. 3. Parole
   1. 3.1 Parole Decision-Making
   2. 3.2 4 Types of Parole
   3. 3.3 Effectiveness of Parole
   4. 3.4 Truths about Parole
4. 4. Attitudes Towards Sentencing

Exam Note: Don’t confuse goals and principles – this will be a question on the exam.

Please Note: This lecture contains a relevant summary of the book mixed in with what was discussed in the lecture.

1. The Structure of the Canadian Court System

The Canadian court system is a hierarchy of courts:

• Supreme Court: 8 judges plus chief judge who are appointed by the federal government; final court of appeal.
• Appellate Courts: includes federal and provincial appeal courts that review superior court decisions (no trial or witnesses).
• Superior Provincial/Territorial and Federal Courts: act as courts of appeal for inferior courts; provincial courts deal with more serious criminal and civil cases that often involve juries; federal courts review administrative decisions made by federal tribunals.
• Inferior Provincial/Territorial Courts: deal with criminal offences and civil issues; these courts sometimes specialize (youth, drugs, domestic violence, etc).
• Administrative Tribunals: not officially part of the court system – they are responsible for resolving disputes (provincial or federal) that involve disability benefits, refugee claims, EI, etc. (This includes the National Parole Board)

2. Sentencing

2.1 A Definition

Sentencing: an imposition of a legal sanction on persons convicted of an offence (essentially, the consequences you face as a result of a crime committed)

2.2 6 Goals of Sentencing (DDARRS)

Here are 6 common goals of sentencing:

1. Deter:
   • Specific Deterrence: reducing the probability that an offender will reoffend in the future.
   • General Deterrence: reducing the probability that members of society will reoffend in the future.
2. Denounce: to say that we don’t approve of a specific behaviour.
3. Assist: to assist the offender with rehabilitation.
4. Reparations: to pay back the money or society.
5. Responsibility: to help promote responsibility in the accused.
6. Separate: remove this person from society to protect them and society.

Issues: sentences can conflict with many goals and judges may give different sentences for different reasons.

Canada is moving towards a more restorative justice system to get more offenders back in the community – research suggests this is better than sending them to prison.

2.2 5 Principles of Sentencing (GLASC)

These 5 principles are meant to guide the sentencing decisions:

1. Gravity: a sentence must be proportionate to the gravity of the offence.
2. Liberty: a sentence should not deprive the offender of liberty if less restrictive sanctions are appropriate.
3. Adjusted: mitigating and aggravating factors should be taken into account.
4. Similarity: sentences should be similar for similar offenders, offences and under similar circumstances.
5. Consecutive: combined consecutive sentences should not be too harsh.

2.3 7 Sentencing Options

In order of least restrictive to most restrictive, here are some sentencing options (these are punishment strategies):

• Discharge: despite being guilty, the accused is not convicted of the offence.
  • Absolute: where the court releases the accused with no conditions and no record.
  • Conditional: must follow certain rules in the community for a specific period of time for the discharge to be absolute.
• Probation: offenders released into the community with restrictions.
• Reparation: where accused pays the victim back.
• Fines (to the court): where the accused pays the court back (most common in Canada); if you fail to pay, you go to jail (this accounts for the disproportionately high number of aboriginal people that are in jail for not paying for fines).
• Community Service
• Conditional Sentences: a prison sentence served in the community (ex. on the weekends).
• Imprisonment: last resort.
  

Research: research suggests that punishment strategies generally result in higher rates of recidivism; if the purpose of our justice system is to reduce crime, then we are not succeeding. The longer the sentence, the higher likelihood the offender will repeat the crime (with exceptions of course).

Dangerous Offender: an offender who is proven to be a significant danger to others; must meet the following criteria…

• Pattern of unrestrained behaviour that’s likely to cause danger;
• Pattern of aggressive behaviour that’s likely to cause danger;
• Brutal nature of behaviour that ordinary standards of restraint cannot control;
• Failure to control sexual impulses that are likely to harm others.

Long-Term Offender: an offender who is proven to be at a high-risk for reoffending; must meet following criteria…

• Imposing a sentence of two years or more would be appropriate;
• Substantial risk that offender will reoffend.
• Reasonable possibility of eventual control of risk in the community.

2.4 Factors that Affect Sentencing Decisions

Sentencing Disparity

This is currently the most important part of the Justice System, in terms of the court side of things.

Sentencing Disparity: variations in sentencing severity for similar crimes committed under similar circumstances.

There are two major types of disparity:

1. Warranted Sentence Disparity: disparities that result based on warranted differences between crimes.
2. Unwarranted Sentence Disparity: disparities based on factors outside of our control; there are 2 types
   • Systematic Disparity: predictable, stable, sustained differences between say, judges, such as a pre-existing bias, philosophy on crime, experience of judges, etc.
   • Unsystematic Disparity: unpredictable (random) factors that affect sentences, such as a judge having a bad day, personal issues, and priming circumstances.

In order to study these, we can use two types of studies:

1. Simulations: (lab studies) ex. easy to control variables but not high in external validity.
   • Example: Judges were given different crime circumstances and asked to decide what sentence to give: Fight after a car accident, grabbed a bag from an old lady, murdered and rape an 11-year old girl.
   • Results: minor and major crimes have very little variation but the mid-range crimes have a huge range of variation. The sentences varied over time and between judges and were mostly due to unsystematic disparities.
2. Sentencing Statistics: (field studies) ex. a researcher examined the sentencing differences between Ontario and BC; has high external validity but lower internal validity – hard to pinpoint why the variation exists.      

Reducing Sentencing Disparity

Sentencing Guidelines: guidelines intended to reduce the degree of discretion that judges have when handing down sentences. There are 3 types of guidelines:

1. Advisory Guidelines: suggestive and have no force in the law.
2. Presumptive Guidelines: force a judge to make specific sentencing decisions unless there are important reasons for departing from the recommendation.
3. Mandatory Sentencing Laws: laws that require the judge to make specific sentencing decisions regardless of case-specific circumstances.

MMS (Mandatory Minimum Sentences): no Canadian empirical research to confirm if this is effective in reducing disparity; US research suggests that judicial discretion is reduced but sentencing disparity is not (the discretion is shifted to other parts of the court – prosecutors and police officers).

Death Penalty

In Canada, the death penalty was abolished in 1976. In the 90s, we almost reinstated it, which is why it’s still a good topic for discussion.

In the USA, 38 States permit the death penalty but most death penalty sentences are issued by the state of California and Texas.

5 Reasons against the Death Penalty:

1. Attorneys: especially in the USA, often these attorneys will be shitty and get paid nothing.
2. Wrongful Convictions: we know that the death penalty can be handed down to the innocent (Innocence Project).
3. Bias: it’s biased against black people and French Canadians (when it was in Canada).
4. Cost: it’s less expensive than life sentences (contrary to popular belief) because of the number of appeal processes that need to be conducted.
5. Deterrent:
• Assumption: offenders think about consequences of crimes before they commit them – they don’t (many crimes are committed in the heat of passion or under the influence of drugs or alcohol).
• Assumption: if it were a deterrent, we’d expect to see a rise in murder rates – we don’t.
• Assumption: murderers will reoffend once released – they don’t.

2.5 Are the Goals of Sentencing Achieved?

The Answer: Sometimes yes, sometimes no.

Research: the purpose was to determine the recidivism rates of community-based sanctions compared to regular probation using meta-analysis.

Results:

• Little evidence to suggest that community-based sanctions decrease rates of recidivism (most slightly increased recidivism rates);
• Prison, as compared to community-based sanctions, and longer prison sentences slightly increased recidivism rates.

3. Parole

Parole: the act of releasing offenders into the community before their sentence term is complete; this includes

• The conditional release of offenders into a community so they can serve the remainder of their sentence outside an institution.
• An attempt to rehabilitate offenders so they can become productive contributors to society.
• High degree of community supervision to ensure the parolee is abiding by certain rules.
• A clause that if the conditions of parole aren’t met, they can be sent back to prison.

3.1 Parole Decision-Making

National Parole Board conducts the meeting to determine if an offender will receive parole.
First, we begin with risk assessment, where we assess the following issues:

• Current offence
• Criminal history
• Social problems experience by the offender
• Mental Status
• Information from victims, etc

Then they assess specific risk factors:

• Institutional behaviour
• Evidence of change and insight into the offender’s own behaviour
• Benefits derived from treatment that may reduce the risk posed by the offender
• Feasibility of the offender’s release plans.

3.2 4 Types of Parole

1. Temporary Absence: allows the offender to enter the community on a temporary basis (escorted or not) in order to attend correctional programs.
2. Day Parole: allows the offender to enter the community for up to a day (ex. to hold down a job) and then return to the institution/half-way house at night.
3. Full Parole: allows the offender to serve the remainder of their sentence under supervision by the community (they normally need to have been first successfully granted temporary absences and day parole). Offenders must complete 7 years or 1/3 of their sentence before being eligible for full parole.
4. Statutory Release: allows the offender to be released after serving 2/3 of their sentence (except lifers).

3.3 Effectiveness of Parole

• Offenders on day and full parole are more successful than those released under the statutory release.
• Offenders who are granted parole based on an assessment of their risk of re-offending are more likely to complete their supervision period in the community compared to offenders released by statute-based system.

3.4 Truths about Parole

1. Parole changes the way a sentence is served; it doesn’t reduce the sentence.
2. Parole isn’t automatically granted when they become eligible.
3. Though remorse for the offence is considered, it’s not the only consideration.
4. Most offenders released on parole don’t commit new crimes or breach the conditions of their parole.
5. Victims do play a role in the parole process.

4. Attitudes Towards Sentencing

You can get society’s attitudes towards sentencing in 3 different ways:

• Public Opinion Polls: this is the most common way to assess public opinion; it’s an easy way to get a representative view but it’s not very detailed.
  Results from the Polls:
  • Canadians feel that offenders are sentenced too leniently – they actually under-estimate the actual number of sentences given out.
  • Canadians do not have a lot of confidence in our CJS – the level of confidence varies by agency (reserved to aspects of sentencing – but we have more confidence in RCMP and police).
  • Canadians support a range of alternative sentencing practices, such as conditional or community sentences.
• Focus Groups: where a small group of people to discuss their views on sentencing; it’s a very good way to get good information from the group.
  Issue: highly likely that the attitudes are not representative of the entire population.
• Experimental Research.

Factors that affect opinions:

• Media portrays CJS poorly which is reflected in public opinion;
• As level of fear increases in an individual, so does their perception of leniency in sentencing, dissatisfaction with police and courts.