Friday, 17 February 2012

Comparing sentencing practices of the United States and Canada

The advantage that Canadians have over Americans is that in Canada, there is only one criminal code for all Canadians whereas in the United States, every State and Washington D.C. has their own criminal codes which unfortunately for the Americans are not identical.

The United States and Canada each have a law that is fraught with the possibility that an injustice will be brought upon those whom these laws apply. In the United States it is the ‘third strike’ law and in Canada it is the ‘mandatory minimum sentence’ law.

United States

A number of States in the U.S. have enacted laws requiring judges to impose tough sentences for a third felony conviction. The result? An increase in the murder rate.

According to two University of Alabama criminologists, the murder rate went up in areas that had enacted ‘three strikes’ laws. A robber with two strikes who's committing a robbery, for example, will get roughly the same punishment whether or not the victim is killed—life in prison. The criminologists believe that felons facing a third conviction have a stronger incentive under ‘three strikes’ laws to kill anyone who will end up as a potential witness against them.

To prove that this premise is correct, consider what happened many years ago in the U.S. with respect to the crime of kidnapping. The penalty for kidnapping in many of the States was death. That being so, the kidnapper risked nothing if he killed his victim since the penalty for both crimes was death. The States in their wisdom realized that executing kidnappers who didn’t kill their victims increased the risk of kidnapper’s victims being killed subsequently, they abolished the death penalty as a sentence for kidnapping and replaced it with life in prison. The change resulted in less victims of kidnappings being murdered.

There was a state in southern United States that had a law that would award the death penalty to anyone who burglarized a home after dark. The state realized later that with that kind of law on its books, the burglar risked nothing if he killed the homeowner during the burglary. The law doesn’t exist anymore for this reason.

The ‘three strikes laws’ are statutes enacted by state governments in the United States which require some state courts to impose a life sentence (usually with the possibility of parole) to persons who have been convicted in the past of two or more serious criminal offenses. These statutes became very popular in the 1990s.

The ‘three strikes’ law significantly increases the prison sentences of persons convicted of a felony (serious crime) who have been previously convicted of two or more violent crimes or serious felonies, and limits the ability of these offenders to receive a punishment other than a life sentence. Violent and serious felonies are specifically listed in state laws. Violent offenses include murder, robbery of a residence in which a deadly or dangerous weapon is used, rape and other sex offenses; serious offenses include the same offenses defined as violent offenses, but also include other crimes such as burglary of a residence and assault with intent to commit a robbery or murder. This law also penalizes habitual offenders even if their crimes are minor such as shoplifting.

The practice of imposing longer prison sentences on repeat offenders (versus first-time offenders who commit the same crime) is nothing new. For example, New York State has a Persistent Felony Offender law that dates back to the late 19th century. But such sentences are not compulsory in each case, and judges had much more discretion as to what term of incarceration should be imposed.

The first true ‘three strikes’ law was passed in 1993, when Washington state voters approved Initiative 593. California passed its own in 1994, when that state's voters passed Proposition 184 by an overwhelming majority, with 72% in favor and 28% against. The initiative proposed to the voters had the title of Three Strikes and You're Out, referring to de facto life imprisonment after being convicted of three felonies.

The concept swiftly spread to other states, but none of them chose to adopt a law as sweeping as that of California. By 2004, twenty-six states and the federal government had laws that satisfy the general criteria for designation as ‘three strikes’ statutes—namely, that a third felony conviction brings a sentence of life in prison, with no parole possible until a long period of time, most commonly—twenty-five years has been served.

The following states have enacted ‘three strike’ laws:

In 1974: Texas

In 1993: Washington

In 1994: California, Colorado, Connecticut, Indiana, Kansas, Nevada, North Dakota, and Louisiana,

In 1995: Arkansas, Georgia, Maryland, Montana, New Jersey, New Mexico, North Carolina, Pennsylvania, South Carolina, Utah, Vermont, and Wisconsin

In 1996: Florida, Tennessee and Virginia

In 2006: Arizona

They are formally known as habitual offender laws. They are designed to counter criminal recidivism by imprisonment. A person accused under such laws is referred to in a few states (notably Connecticut and Kansas) as a ‘persistent offender,’ while Missouri uses the unique term ‘prior and persistent offender.’ These terms are used even though all of the offenses could occur in one incident. For example, a burglar who during a burglary (one offence) is present when one of his partners in the burglary flashes a gun in the faces of his victims (a second offence) and one of partners assaults one of the victims (the third offence) can be classed as a persistent offender even though up to the time of that event, he led an honest life and was only present in the burglarized home when one of his partners committed the other two crimes. He could be sentenced to life in prison without the possibility of parole until he has served at least 25 years in prison.

There are people who are in favour of the ‘three strikes’ law by pointing out that violent crimes; especially homicide, has fallen in the Los Angeles area, as well. They point out that Los Angeles's 2010 homicide count was 297, less than a third of the 1992 high of 1,000 slayings. However, violent crime has also fallen in other areas of California where the ‘three strikes’ law is not enforced.

Some unusual scenarios have arisen, particularly in California. That state punishes shoplifting and similar crimes if the amount stolen is under $950 in property as ‘felony petty theft’ if the person who committed the crime has three prior convictions for any form of theft, including robbery or burglary and have served time in jail or prison for that offense. As a result, some defendants have been given sentences of 25 years to life in prison for such crimes as shoplifting golf clubs (Gary Ewing, previous strikes for burglary and robbery with a knife), or, along with a violent assault, a slice of pepperoni pizza from a group of children (Jerry Dewayne Williams, previous convictions for robbery and attempted robbery, sentence later reduced to six years). In Rummel v. Estelle (1980), the Supreme Court upheld life with possible parole for a third-strike fraud felony in Texas, which arose from Rummel’s refusal to repay $120.75 that was paid by his customer for air conditioning repair that was subsequently considered unsatisfactory. However, the state parole board felt that Rummel’s sentence was far too harsh and it ordered the release of Rummel from prison a few months later after originally pleading guilty. Sending a man to prison for 25 years over a civil debt is really stretching the criminal law beyond its reasonable bounds.

Defendants already convicted of two or more ‘strike’ charges arising from one single case potentially years in the past, (even if the defendant was a juvenile over 16 at the time) can be and have been charged and convicted with a ‘third strike’ for any felony or any offense that could be charged as a felony (including ‘felony petty theft’ or possession of a controlled substance prior to Proposition 36 and given 25 years to life.

In the California Supreme Court decision People vs. Garcia, 1999, the Court withdrew residential burglary from the juvenile strike list. For a juvenile residential burglary to count it must also be adjudicated in combination with another felony such as armed robbery, which is a ‘strike’ offence. Out of the over 43,000 second and third strikers in California prisons today, none has received a prior strike for residential burglary while he was a juvenile.

It is possible for a defendant to be charged and convicted with multiple "third strikes" (technically third and fourth strikes) in a single case. It is also possible for multiple ‘third strikes’ to arise from a single criminal act (or omission). As a result, a defendant may then be given two separate sentences that run consecutively, which can bring to the offender a sentence of 50 (or 75, or 100) years to life. Fifty years to life was the actual sentence given to Leandro Andrade.

On November 4, 1995, Leandro Andrade stole five videotapes from a K-Mart store in Ontario, California. Two weeks later, he stole four videotapes from a different K-Mart store in Montclair, California. Andrade had been in and out of state and federal prisons since 1982, and at the time of these two crimes in 1995, had been convicted of petty theft, residential burglary, transportation of marijuana, and escaping from prison. As a result of these prior convictions, the prosecution charged Andrade with two counts of petty theft with a prior conviction, which under California law can either be a felony or a misdemeanor. Under California's ‘three strikes law’, any felony committed can be classed as the third ‘strike’ and thereby expose the defendant to a mandatory sentence of 25 years to life in prison and that is what he got. Now there is no doubt that he was a persistent offender but it seems to me that 25 years to life is unduly harsh and fifty years to life is outrageous as a penalty for having committed two shoplifting offences.

Kevin Weber was sentenced to 25 years to life for the crime of burglary (he had previous strikes of burglary and assault with a deadly weapon). Prosecutors said the six-time parole violator broke into the restaurant to rob the safe after a busy Mother's Day holiday, but triggered the alarm system before he could do it. When Weber was arrested, his pockets were full of cookies he had taken from the restaurant. What would his sentence have been if he hadn’t stolen anything while he was in the restaurant?

Santos Reyes in California committed a burglary as a juvenile (strike one); the second strike was a robbery which didn't involve injury to anybody and after ten years had passed without incident, Reyes was convicted of perjury for submitting a false application whilst swearing under oath that what he wrote in the application was true and, as a result of the ‘three strikes’ law, he was sentenced to 25 years to life. That is really stretching that law far beyond reason.

On March 5, 2003, the U.S. Supreme Court held in the Ewing appeal by a 5–4 majority that such ‘third strike’ sentences do not violate the Eighth Amendment of the U.S. Constitution, which prohibits ‘cruel and unusual punishment’.

Writing for the majority in Ewing, Justice Sandra Day O'Connor analyzed the serious problem of recidivism among criminals in California, and concluded:

“We do not sit as a super-legislature to second-guess these policy choices. It is enough that the State of California has a reasonable basis for believing that dramatically enhanced sentences for habitual felons advances the goals of its criminal justice system in any substantial way. To be sure, Ewing's sentence is a long one. But it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated.” unquote

I agree that criminals who commit serious crimes, especially crimes were violence is used or where many people suffered because of the criminal’s actions when he committed the crime, such criminals should spend a long time in prison and the ‘three strikes’ laws are applicable in such cases especially if the criminal has a history of such offences.

But in my respectful opinion, I don’t think a man should be sentenced to 25 years to life simply because he swore a false affidavit, irrespective of what his earlier offences were, nor should he be subjected to that kind of sentence if the prior offences all took place at the same time that the third offence was taking place.

Indefinite imprisonment or indeterminate imprisonment is the imposition of a sentence by imprisonment with no definite period of time set during sentencing. Its length, rather, is determined during imprisonment based on the inmate's conduct. The goal could be to return the inmate to society or to keep the inmate behind bars for the remainder of his/her natural life.

In theory, an indefinite prison sentence could be very short, or it could be a life sentence if no decision is made after sentencing to lift the term. In many cases, a minimum term is imposed, or the maximum that can be served is the maximum allowable by law in the jurisdiction for the particular offense.

In Canada, it used to be possible that an offender would be sentenced to a definite term of imprisonment and then have to serve an indefinite term of imprisonment after the definite term was finished. However, the parole board would make the decision as to whether or not any of the indefinite sentence be served or whether or not the full indefinite sentence or part of it had to be served. However, that law was eventually removed from the Canadian Criminal Code.

Nowadays, an offender in Canada can be released at any time after he has served between one sixth of his sentence to two thirds of his sentence. There is an exception where the offender can be made to serve the full sentence. For example, that could apply if his conduct in prison was so egregious that the parole board would order that he serve his entire sentence in custody.

A mandatory minimum sentence is a court decision setting where judicial discretion is limited by law. Typically, people convicted of certain crimes must be punished with at least a minimum number of years in prison. Mandatory sentencing laws vary from country to country; it is mainly an area of interest only in Common Law jurisdictions, since Civil Law jurisdictions usually prescribe minimum and maximum sentences for every type of crime in explicit laws. In Canada, there are certain crimes in which mandatory minimum will be prescribed. They include, sex offences against children and offences relating to firearms.

There are about 40 offences under the Canadian Criminal Code for which a mandatory minimum sentence of imprisonment (MMS) must be imposed. Apart from life imprisonment for murder and some miscellaneous MMS, they fall under three categories and may be summarized as follows (with year of original enactment in parentheses):


Four years when a firearm is used in the commission of manslaughter, attempted murder, bodily harm with intent, sexual assault, aggravated sexual assault, kidnapping, hostage-taking, robbery, extortion and criminal negligence causing death (1995)

One year (first conviction) and three years (second or subsequent conviction) for using a firearm in the commission of an indictable offence, in an attempt, or during flight afterwards (1977)

One year for importing or exporting a firearm knowing it is unauthorized, and weapons trafficking (1995)

One year (if the Crown proceeds by indictment—felony) for possessing a prohibited or restricted firearm with ammunition, possessing a weapon obtained through an offence, or making an automatic firearm (1995)

One year (second conviction) and two years less a day (third or subsequent conviction) for possessing a firearm, weapon, device or ammunition knowing it is unauthorized (1995)

Sexual Offences Involving Children

Two years for living off the avails of prostitution of someone under 18 (2005); five years if violence, intimidation or coercion is used (1997)

Six months for soliciting the sexual services of someone under 18 (2005)

Six months if a parent, guardian or householder procures or permits prohibited
sexual activity of a child under 14; 45 days if the child is 14 to 18 (2005)

45 days if a person in a position of trust or authority sexually exploits a child under 14; 14 days if the child is 14 to 18 (2005)

One year (conviction by indictment) or 90 days (summary conviction—misdemeanor) for producing, distributing, importing or exporting child pornography (2005)

45 days (conviction by indictment) or 14 days (summary conviction) for possessing or accessing child pornography, and sexually touching a person under 14 (2005)

Impaired Driving

14 days (second conviction) and 90 days (third or subsequent conviction) for impaired driving (1921), a blood alcohol level over .08 (1976) and refusing to provide a breath sample (1976)

In my opinion, such mandatory minimum sentences are appropriate and just. However, there can be instances were such a sentence isn’t appropriate or just.

Many years ago, a young couple flew from Columbia to Canada and when their luggage was searched at the airport in Canada, illicit drugs were found in the young woman’s luggage. She claimed that she had no idea how it got there. The court didn’t believe her and sentenced her to the mandatory minimum sentence of seven years in prison.

When her boyfriend realized that she was being punished for a crime that he alone had committed, he went to the police and confessed truthfully that it was he who had placed the drugs in the young woman’s luggage and not her. His confession resulted in his girlfriend being released from prison. He was then facing the charge of importing illicit drugs into Canada. The trial judge when sentencing him told him that he felt really bad having to send him to prison for seven years considering the sacrifice he made in owning up to the crimes so that an innocent person could be set free but the judge said that he had no other choice but to sentence the young man to the mandatory minimum sentence of seven years in prison.

This decision was of some concern to the members of parliament in Ottawa and as a result, the mandatory sentence of seven years in prison for importing illicit drugs into Canada was scrapped. The young man subsequently didn’t have to serve the full seven years.

More than 500 health professionals from across Canada have recently written to Prime Minister Stephen Harper and opposition leaders to protest a government bill that would impose mandatory minimum sentences for drug crimes including growing small amounts of marijuana. They wrote in part;

“They say there is no evidence that mandatory minimum sentences will reduce drug use or deter crime, that the sentences would have a disproportionately negative impact on young people and members of Canada’s aboriginal communities.” unquote

A spokeswoman for Justice Minister Rob Nicholson said the bill is aimed at curbing the production and trafficking of illicit drugs which is the most significant source of money for gangs and organized crime. She further said; “The legislation does not target individuals that have become addicted and contains an exception that will allow the courts not to impose the mandatory sentence if an offender successfully completes a drug treatment program. Furthermore, simple possession offences will not be subject to these mandatory penalties." unquote

There is a recent case involving mandatory minimum sentences that was heard in Canada that bear retelling. It involves a handgun.

Leroy Smickle was merely paying the fool when the Toronto police burst into the apartment he was staying in. They caught him using a laptop computer to take pictures of him posing with a loaded, cocked illegal handgun in his hand. The case ended up before Madam Justice Anne Molloy for trial and for sentencing.

The judge was upset that she would be faced with the dilemma of having to sentence the young man to prison for the mandatory minimum sentence of three years when in fact it wasn’t even his gun.

She admitted that she is painfully aware of the almost daily deadly scourge of shootings in Toronto but she was also mindful that Smickle had no previous criminal record and that he wasn’t using the gun to commit a crime and he only had the gun in his hand in his own home and not in a public place, and he hadn’t pointed it at anyone and as such, he didn’t pose as a danger to the public.

Rather than send Smickle to the mandatory three-year minimum of imprisonment, she struck down that specific law and sentenced Smickle to a year of house arrest. What that sentence means is that he can work during the days and shop for groceries and go to church on Sundays but the rest of the time,; he must stay in his apartment for a year. That certainly is more just than spending three years in the penitentiary.

The judge has no problem about sending criminals to prison for long periods of time if the crimes they committed deserve such punishments but a unduly heavy sentence could run afoul of Canada’s Charter of Rights which guarantees everyone in Canada the right not to be subjected to cruel and unreasonable punishment.

With respect to the American ‘third strike’ law and the Canadian ‘mandatory minimum’ laws being part of their justice systems that forces judges to make a distinction between a hardened criminal and someone whose actions is foolish but not harmful to the general public, can hardly be classed as a legitimate form of justice. Those kinds of justice would make tears flow from the blindfolded eyes of the statutes that were created to depict justice. In fact I am tempted to suggest that such statutes would also double up with pain.

Canada does have laws that will protect the public from very violent offenders.

The long term offender (LTO) designation in Canada was created in 1997 and was used to primarily targeted sexual offenders. The legislation was developed in response to concerns that many sexual and violent offenders required specific attention, even though they did not meet the criteria for a dangerous offender designation. The LTO designation is given to individuals convicted of a ‘serious personal injury offence’ who, on the evidence, are likely to re-offend. Offenders who can be managed through a regular sentence, along with a specific period of federal supervision in the community, can be designated a long term offender that can result in a term of supervision after release of up to 10 years after an offender's release.

In Canada and England and Wales, certain convicted persons may be designated as dangerous offenders and subject to a longer, or indefinite, term of preventive detention in order to protect the public. Such a sentence is given after the original sentence has been awarded to the offender.

For example, a young man in the province of Ontario who kidnapped, sexually assaulted and murdered two young girls was sentenced to 25 years to life in prison. Because he was also convicted of raping many other women, he had the additional sentence of being designated as a dangerous offender which would be consecutive to the 25-year term of imprisonment. Normally such an offender couldn’t apply for parole until he has served a minimum of seven years after his original sentence is served but if released after having served the minimum of seven years in prison, the offender would remain under supervision indefinitely. However in the case I have just described, the convicted criminal must first serve the 25-year minimum he was given for the murder of the two girls. In that particular case, it is highly unlikely that he will ever be released from prison unless he is an extremely old man in his nineties. Now that kind of justice would make the statute representing justice stand up straight with no tears whatsoever running down her cheeks.

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