Should all criminals be punished severely? 

Many years ago, a girl I knew quite well phoned me and told me that she needed a place to spend the night. I told her that she could sleep in my apartment.  The next morning I got a call from the girl that had been living with me. She had returned from an overnight visit to a friend. She said, “Danny. Have you taken the TV out for repairs?” I hadn’t. I realized that the young woman who had spent the night with me had stolen my color TV after I left for work. I spoke to my neighbours on my floor of the apartment building I lived in. One of them told me that she saw a woman and a man walking out of my apartment with a TV. I found out where she had had moved to so I call the police. They arrested her. She was sentenced to eighteen months in prison.

At first, I was glad that she got such a heavy sentence. Now that I am an experienced criminologist, I believe that her sentence was too severe fore only stealing a TV that was worth a thousand dollars. She died in less than a year after she was released from prison. Before she died, she apologized to me for stealing my TV. I accepted her apology and I told her that I was sorry that she had served so many months in prison.

The purpose of sentencing is not simply a method of imposing penalties or costs upon an offender to prevent harmful conduct, but rather the system is to impose sentences which positively instills the basic set of values shared by decent and honest citizens.

Determining the sentence is one of the most complex decisions facing a judge, who must consider several sentencing purposes such as deterrence, incapacitation and rehabilitation. That is why there are sentencing guidelines available to them. Unlike the judiciary in the United States, who must follow rigid sentencing guidelines and are constrained by mandatory minimum sentences, judges in Canada have a considerable degree of discretion. This is because there are no formal sentencing guidelines for Canadian judges, and the maximum penalties specified in the Criminal Code are very high, thereby allowing considerable room for variation in sentences.

In order to arrive at a just sanction, the judge needs to weigh the effects of many aggravating and mitigating factors, such as the degree of harm inflicted, the number and nature of any previous convictions and the circumstances surrounding the commission of the offence.

The purpose and principles of sentencing provide a guidance to judges in applying the available sentences for particular offenders. The sentencing regime in the criminal codes and case law sets out the goals at play in all sentences. These goals can come in conflict with each other and so must be balanced against each other in every case.

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

The principle of denunciation mandates that a sentence should communicate society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal laws. The principles of denunciation and deterrence can sometimes be satisfied without incarceration. One of these circumstances is where the publicity of the case provides for public humiliation that the offender must endure.

The objective of general deterrence as a factor will normally result in the offender being punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity.

Where an offender with a mental illness, poses a risk to the public, the court may need to resort to separating the offender from society, rather than focus on treatment. If the offender is declared as being insane, he or she should be sent to a hospital for the criminally insane. However, if the offender is only mentally disturbed, he or she will be sent to an ordinary prison which may or may not treat the offender for his or her mental problems. 

Rehabilitation can be seen to achieve the objective of protecting the public as it assists in preventing further offences by the offender. In certain cases, where there is a realistic possibility of rehabilitation, the courts may opt not to impose a jail sentence where it would otherwise be appropriate.

Where the sentence is not proportionate, it is not just.  That is why I feel that the American policy of utilizing the Three Strike Rule brings about disproportionate sentences to many of the offenders. The sentence must be no greater than the offender’s moral culpability.  Sending an offender who stole food to support him or herself to life in prison because it is his or her third strike is outrageous. When the sentence is not adequate to address the seriousness of the offence then it is not proportionate. Each sentence should be custom tailored to match the particular offender and the offender’s crime. The severity of sanction for a crime should reflect the seriousness of the criminal conduct.

A court that imposes a sentence should take into consideration the following principles:

(i) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(ii) evidence that the offence by he offender was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,

(iii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner,

(iv) evidence that the offender, in committing the offence, physically or sexually abused a person under the age of eighteen years,

(v) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(vi)  evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

(vii)  evidence that the offence was a terrorism offence.

 Such offences should be deemed to be committed with aggravating circumstances which will increase the penalties where violence of any kind is included in the offence.

A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

Available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of the crimes committed.

For first time offenders who have committed minor offences,  the principle of restraint requires that the sentencing judge to consider all possible sanctions apart from incarceration and where necessary that incarceration be as short as possible and tailored to the circumstances of the accused.  General deterrence should not be the sole consideration. Appropriate consideration must be given to the rehabilitation of the first-time offender.

Restraint not only means that incarceration in prison should be a sanction of last resort, but also means that the court should seek the least intrusive sentence which will achieve the overall purpose of being an appropriate and just sanction.

Where other dispositions have been tried and failed, and jail has not previously been imposed, the imposition of a short, sharp sentence can be appropriate, particularly where the offence is related to property and not violence.

The "step-up" principle is where an offender is convicted of a similar or identical offence to one he's been convicted and sentenced in the past for.  It can be concluded that the prior sentence was not sufficiently deterrent and so the sentence for the new offence should be increased to focus on specific deterrence.

The "gap principle" directs courts to take into consideration the gaps of time between offences. It gives credit to someone who has made an effort to avoid criminal charges.

A range of sentence is not all sentences between the minimum and maximum for the offence charged. Rather, it is narrowed by the specific offence and offender. The variations of punishment when weighing aggravating and mitigating factors creates the continuum of the range.

American policies with respect to sentencing

American States have different schemes for dividing up crimes by severity and these categories might have similar names across states, but different practical effects. For example, a "2nd degree felony in Florida is a category of crime punishable by up to 15 years in prison with no minimum while a 2nd degree felony" in Texas is a category of crime punishable by up to 20 years in prison, with a mandatory minimum of 2 years incarceration.

Many states have adopted sentencing guidelines which incorporate various factors into a single formula that may or may not constrain the judge's sentencing discretion. The general purpose of these schemes is to produce uniform and fair sentencing within a jurisdiction. However, since views about the correct approach to criminal justice vary from state to state, these statutory schemes vary enormously.

Many states have mandatory sentencing statutes which remove the judge's discretion under certain circumstances. Mandatory sentencing schemes typically require minimum periods of incarceration for certain serious crimes and for individuals who have serious criminal records. The state typically has discretion to pursue or waive mandatory sentencing. The content of these mandatory sentencing statutes and the procedures required to bring them into play are different in each state.

Some states have parole or early release from incarceration, while others do not. Many states have forms of punishment that are less severe than incarceration (such as probation, time in a halfway house, community service, or house arrest), but the exact form of these punishments, as well as which people can be sentenced under such alternatives, varies from state to state.

Some prisoners are given life sentences. In some states, a life sentence means life, without the possibility of parole. In other states, people with life sentences are eligible for parole. In some cases, the death penalty may be applicable; however, since the U.S. Supreme Court decision in Ring v. Arizona, a recommendation of the trial jury is required to impose a sentence of death.

However, as one can be sentenced to Life without parole, another way to be sentenced for life in prison is a minimum amount of years spent in jail depending on the life expectancy of the prisoner. Thus the prisoner will then spend the rest of his or her life in prison.

The U.S. Sentencing Guidelines prescribe a reduction of sentence time for most defendants who accept responsibility and plead guilty; further discounts are available to some defendants through fact bargaining, substantial assistance, and so on.

Federal court statistics from 2003 show that the average sentence given for offenses resolved by guilty plea was 54.7 months, while the average sentence for offenses resolved by trial was 153.7 months. It would appear that pleading guilty doesn’t give you much of a break. You just get released a month earlier out of a slightly more than a four-year-prison sentence.

Since the 1840s, many jurisdictions, including the federal courts, have adopted a practice of having a probation officer prepare a presentence investigation report to inform the court as to the defendant's characteristics, including his criminal record, if any. In the 1970s, the length of incarceration had increased in response to the rising of crime rates in the United States. By the 1980s, state legislatures began to reduce judicial discretion in sentencing terms and conditions. This was especially true in cases of life imprisonment, which between 1992 and 2003 increased by 83% due to the implementation of three strikes laws which in my opinion, is a stupid law. Short term sentencing, mandatory minimums, and guideline-based sentencing began to remove the human element from sentencing. They also required the judge to consider the severity of a crime in determining the length of an offender's sentence.

The United States does not have a specific guideline to sentencing murderers, including serial killers. When a killer is apprehended, he will be charged with murder, and if convicted can get life in prison or receive the death penalty, depending on in which state the murders took place. Generally speaking, each victim of a murder will merit a separate charge of murder against the offender, and as such, the killer could get a life sentence, a death sentence, or some other determinate or indeterminate sentence based upon the number of murders, the evidence presented, and any aggravating or mitigating circumstances present. Such a compounded sentence may be tailored to run consecutively, with one sentence beginning after completion of another, or concurrently, where all or most of several sentences is served together as one lengthy sentence.

The United States Constitution contains several provisions related to criminal sentencing. The Excessive Fines Clause and the Cruel and Unusual Punishments Clause of the Eighth Amendment to the United States Constitution prohibit certain disproportionate sentences. Further, the Cruel and Unusual Punishments Clause prohibits the imposition of the death penalty for certain crimes, for certain classes of defendants, and in the absence of certain procedures. The Sixth Amendment to the United States Constitution prohibits increasing the maximum authorized sentence for an offense based on a fact not found by a jury. Mandatory minimums based on judicial fact-finding are not prohibited. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution prohibits multiple punishments for the same offense. The test of Blockburger v. United States (1932) is whether each crime contains an element that the other does not.

Canadian policies with respect to sentencing

In Canada, six relatively less serious offences accounted for half of the charges (impaired driving; failing to appear in court; simple assault; failing to comply with a judicial order; theft under $1,000 and other federal statue offences). Impaired driving was the single most frequently occurring offence, accounting for 13% of all charges laid in Canada. Subsequently for the most part, such offenders aren’t incarcerated unless the offences are repeat offences or violence is part of the offences.                                                                                                      

Half of all sentencing decisions involved property crimes or motor vehicle offences. Crimes against the person accounted for only a minority (14%) of the charges.

Offenders convicted of multiple charges received more severe sanctions. The incarceration rate for multiple charges cases was 53% compared to 26% for single charge cases. In one charge cases, crimes against the person, crimes involving property and drug offences all had similar incarceration rates (28%, 27% and 26% respectively) which were consistent with the overall incarceration rate of 26%.

A fine was the most frequently imposed sanction in single charge cases (45% of cases). A term of probation was imposed as a sanction in 25% of cases and a period of imprisonment in 26% of cases. Other kinds of sanctions were imposed in 4% of the cases. Thus, for single charge cases, non-custodial sanctions were the most frequently imposed penalty. The more serious offences resulted in the imposition of more severe penalties. For example, the most serious form of assault (aggravated assault) resulted in incarceration for 79% of cases; the least serious form of assault (simple) had an incarceration rate of only 20%.

The average prison sentence for cases with one charge was just under three months. The length of the prison sentences also varied with the severity of the offence. Thus, the average sentence for manslaughter was 62 months (a little over five years); for aggravated sexual assault was 38 months (a little over three years) and for robbery was 22 months (just under two years).

For cases with one charge, the average term of probation imposed was 14 months and the average fine was $430. The median value of restitution orders was $325. Offenders frequently received multiple sanctions. On average, 1.6 dispositions were imposed per one charge case. Judges imposed additional sanctions in almost half the cases with sentences of imprisonment. Thus, four out of five offenders, who were convicted of crimes of violence and were sentenced to custody, received an additional penalty of a period of probation. This would also apply in cases of sexual offences.

Canada recently decided that a sentence of 25 years in prison for multiple murderers who could apply for parole after serving 25 years in prison was inappropriate so the law changed so that such a murderer must serve 25 years consecutively in prison for each murder. Recently a man who murdered three police officers was sentenced to 75 years in prison. He will be over a hundred years old before he can apply for parole.  It is highly unlikely he will be alive by then. He in effect received  a real sentence of natural life in prison.

Some sentencing reforms have rbeen introduced in Canada. After many years of study and consultation, the federal government proclaimed reform legislation affecting sentencing in September 1996. Bill C-41 contained a number of provisions designed to improve the nature of the sentencing process in Canada.

One of these reforms is a statement of the purposes and principles of sentencing which aims to provide guidance to judges and promote more uniform sentencing patterns. As well, the sentencing reform Bill mandated harsher penalties for crimes motivated by hate or which involve a breach of trust. Finally, Bill C-41 also created a new disposition called a conditional sentence, and introduced a number of additional changes to the sentencing process. A conditional sentence also means that the offender won’t be incarcerated or have a criminal record with respect to the offence he committed. He will however have to be on probation and do community volunteer work and be in his home between six in the evening and six in the morning (house arrest) unless he is working at a job during those hours. An absolute sentence means no record or any penalty.

And Finally

Sentencing is considered by many people to be the most important stage in the criminal justice process. It consists of the judicial determination of a legal sanction upon a person convicted of an offence. Hopefully, sentencing offenders to just sentences will bring an eventual end to repeat offences by the same offenders.  

As the Trudeau government launches its public survey on criminal-sentencing laws, it is worth considering what role such an exercise might usefully play in a prospective and overdue overhaul of Ottawa’s approach to crime.

Its ongoing consultations could, we say hopefully, help the government determine the best way to communicate to the public why it has chosen to act on the evidence and roll back a decade of punitive, costly and ineffective justice policies. It could inform the government about public fears and help it navigate and assuage them as it does the right thing.

What public-opinion testing mustn’t do, however, is contribute to further delay of this crucial project – or worse still, be used as a justification for doing the minimum. Despite the inevitable political temptation to duck this fraught issue, the government cannot afford to keep waiting or certainly not to act at all.

The Harper government’s crackdown on crime, even as crime continued its steady, decades-long decline, drove up the cost of the criminal justice system by billions of dollars and increased the federal prison population by 25 per cent.

The Conservatives introduced an average of one tough-on-crime measure every month and a half in office. They brought in mandatory minimum sentences for dozens of offences, stripping away judicial discretion and shunning alternatives to prosecution. They ended house arrest and accelerated-parole for non-violent offenders and made criminal pardons harder to obtain.

These policies continue to bring more people than ever in conflict with the law and make it more difficult for those caught up in the system to get out. They have clogged our prisons, drained the public coffers, unnecessarily criminalized minor offenders and contributed to a national crisis of court delays that profoundly undermines both justice and public safety.

No amount of public consultation will do anything to change the overwhelming evidence that more humane approaches to justice are not only fairer, but also more effective and less expensive.

To its credit, the Trudeau government, which came to power on the promise of an evidence-based approach to policy making, has not fed fear of imagined crime as its predecessor did. Yet nearly two years into its mandate, it has done very little to undo Harper’s evidence-blind policies. It has instead left this to the courts, which have again and again overturned mandatory minimum sentence laws and other features of Harper’s tough-on-crime agenda.

Minimum sentences in Canada can be broken down into four principal categories. The first type is a mandatory life sentence imposed upon conviction for three offences: treason, first degree murder and second degree murder. The second type, the largest category with 16 offences, consists primarily of firearms offences. For some offences within this category, the use of a firearm is embedded within the individual offence section as opposed to being a separate, sentence enhancement. The third category of mandatory minimum sentences pertains to repeat offenders. These sentences apply only to an offender with at least one previous conviction for the same offence. There are seven offences in total in this category and are directed at driving while impaired, betting, and possession of unauthorized weapons.

The last category of minimum sentences is for hybrid offences. In the case of a hybrid offence, Crown prosecutors have the option of electing to proceed by way of a summary or indictable offence. For summary offences, the punishments are less severe and none carry a mandatory minimum sentence. However, for the three firearms offences within this category, if the Crown elects to proceed by way of indictment, a conviction will result in the imposition of a minimum sentence.

While there has been no research into the impact of the 1995 firearms legislation, Meredith, Steinke, & Palmer examined the mandatory minimum one-year sentence for offenders convicted of using a firearm during the commission of an offence found in section 85 of the Criminal Code of Canada. The researchers found that charges under this section were often used in plea negotiations and about two-thirds of the charges laid were stayed, withdrawn or dismissed. In addition, the study showed that when Crown attorneys proceeded with charges under s. 85, there was a lower probability of conviction.

The judiciary in Canada and elsewhere are opposed to mandatory sentences of imprisonment. The Canadian Sentencing Commission in 1987 (in which I invited to submit my views on sentences) found in their survey of judges that slightly over half of them felt that minimum sentences impinged on their ability to impose a just sentence and that inappropriate agreement between defence and Crown counsel may result.

Many years ago, a young man and his girlfriend returned to Canada from a trip out of Canada. The border authorities found illicit drugs in her suitcase. She told them that she didn’t put the drugs in her suitcase and didn’t even know that they were in her suitcase. Nevertheless, she was convicted and sentenced to prison for seven years.  Her boyfriend had placed the drugs in her suitcase without his girlfriend’s knowledge. He felt bad about that and confessed to the police that it was him who placed the drugs in her suitcase without her knowledge. He was charged and convicted and sentenced to seven years in prison. The judge said it was unfortunate that he had to send the man to prison for seven years but that was the law and he didn’t have the discretion to sentence him to a lessor term of imprisonment.

The future of mandatory minimum sentences in Canada remains unclear. There is some indication that minimum sentences are not an effective sentencing tool: that is, they constrain judicial discretion without offering any increased crime prevention benefits. Nevertheless, mandatory sentences remain popular with some Canadian politicians. Every year in Parliament, bills continue to be introduced that, if passed, would increase the number of mandatory minimum sentences of imprisonment.