Are consecutive sentences unconstitutional?

                                                     

Dellon Millard, age 32 has been convicted of two counts of first degree murder. The judge has the option of sentencing him to prison for 50 years. If he is also convicted of murdering his father, he could end up serving 75 years all told and be eligible for release when he is 107 years of age. In essence, that is a natural life imprisonment sentence. In my opinion, such a sentence for this particular multiple killer is an appropriate sentence.

If a judge, when imposing sentences of imprisonment for many offences, is of the view that a person should in the interest of society, be incarcerated for a given period of time, he will within the limits permitted by the law arrange the sentences to achieve what he or she considers that just and a fair result. 

This he or she will do through consecutive sentencing if permitted by the law. (which it is)  If consecutive sentencing is not available, for whatever he or she might justifiably consider shortcomings of the law for technical reasons, he or she will achieve the imposition of that no less just and desirable period of incarceration through other means, all equally legal.  

In the United States, this problem isn`t that serious. A judge can sentence a prisoner to a hundred years in prison. One judge sentenced a man who murdered three victims to 1500 years in prison which was 500 years for each victim that the felon had murdered.

Considering the high level at which sentences are set out in the Canadian Criminal Code, all he or she then need do is to impose for the latter conviction—a sentence. the length of which will correspond to the time he or she thinks the accused should serve for his multiple offences.     

 Section 718.2(c) of the Code includes the “totality principle” as one of the sentencing principles to be considered by a court when imposing a sentence.  The section provides: 718.2—A court that imposes a sentence shall also take into consideration the following principles:

 (c)   where consecutive sentences are imposed, the combined  sentence should not be unduly long or harsh. In Canada, each of sentences have a maximum of25 years.

It is basic to any theory of punishment that the sentence imposed should bear some relationship to the offence. It must be a fit sentence proportionate to the seriousness of the offence.  Only if this is so, can the public be satisfied that the offender deserved the punishment he received and feel a confidence in the fairness and rationality of the system.

In both setting duration and the type of sentence, the sentencing judge exercises his or her discretion based on his or her first-hand knowledge of the case and for this reason,  it is not for an appellate court to intervene absent an error in principle, unless the sentencing judge ignored factors or imposed a sentence which, considered in its entirety, is demonstrably unfit.

The trial judge in the Babcock case was fully aware that Millard and Smich both murdered two persons at two different times. That made both of them serial killers. Surely the judge will consider the risk to society if these two serial killers are free after serving only twenty years in prison for the Babcock murder. They  haven’t even finished serving the twenty-five year sentence for the Bosma murder as of yet. This is a situation that definitely calls for consecutive sentences.

They would not be serving 50 years because they murdered Babcock alone. The sentence of 25 years begins would begin after the sentence of 25 years for the Bosma murder is completed. It is then that the 25 years for the Babcock murder will begin.       

If the law hadn’t changed permitting consecutive sentences being applied for multiple murders by one person, then these two men would only be serving thirty-five years for both murders since they have already served ten years so far for the Bosma murder. That means then that for each of the two murders, they would be serving just seventeen and a half years for each murder. And if Millard is convicted of murdering his father, then he would only be serving eight and a third years for each murder. That is obviously gross.

Admittedly, A twenty-five-year-sentence doesn’t necessarily mean that the murderer will be released from prison. Clifford Olsen murdered at least eleven children and was given a sentence of only twenty-five years.

At his sentencing on January 14^th, 1982, the trial judge remarked, "My considered opinion is that you should never be granted parole for the remainder of your days. It would be foolhardy to let you be at large.

He died on September 30, 2011, at the age of 71. He served twenty-nine years for the murders of the eleven children. That comes to a little over two and a half years for each child he murdered.  That hardly seems just. However, it was his early death that made that possible. If he had lived for ninety years, the amount of time he would serve for the murder of each child would have been much more. It is a wonder that he live to seventy-one considering that he was knifed seven times by other inmates while he was serving his sentence for those eleven murders.

The time frame of the two murders committed by Millard and Smich over a period of of ten years does not mean that the concept of consecutive sentences shouldn’t apply.   The principles to guide the sentencing judge in determining whether to order sentences to be served concurrently or consecutively are not readily discernible from the jurisprudence. (history of other court decisions)

If a judge, when imposing sentences of imprisonment for many offences, is of the view that a person should in the interest of society be incarcerated for a given period of time, he will within the limits permitted by the law arrange the sentences to achieve what he considers that just and fair result.  This he will do through consecutive sentencing if it is permitted by the  law which in Canada, it is.

If consecutive sentencing is not available, for what he justifiably might consider shortcomings of the law for technical reasons, he will achieve the imposition of that no less just and desirable period of incarceration through other means, all equally legal. 

Considering the high level at which sentences are set out in the Criminal Code all he then need do is to impose for the latter conviction a sentence, the length of which will correspond to the time he thinks the accused should serve for his offences.  Not being able to fulfil what he rightly considers to be his duty through the imposition of consecutive sentences for reasons he considers purely technical (and justifiably so in my view) he will do so in that way. 

At the same time, however, the judge will be imposing for the latter offence, in order to achieve the desirable and just aggregate result, a sentence the severity of which is, even in his own view, much more than that required for that offence when considering that offence in isolation.  This is undesirable as each offence should at the outset be punished individually and in proportion to its seriousness. 

If each offence is deserving of its own period of imprisonment, the proper method for achieving this when sentencing the accused is not by sentencing one of the offences out of proportion to its gravity but through the imposition of consecutive sentences.

The designation "dangerous offender" is reserved for Canada’s most violent criminals and sexual predators. Crown attorneys (prosecutors) can seek the designation during sentencing and must show that there is a high risk that the criminal will commit violent or sexual offences in the future.  Such prisoners can be kept in prison indefinitely. In the Millard and Smich case, the judge may agree that these two men are dangerous offenders and should be kept in prison indefinitely. However, it is up to the parole board to decide when they should be released from prison. 

I should point out however that Millard hasn’t been convicted yet of killing his father so that means that the judge that tried the case cannot use that particular case as an example of Millard being a dangerous offender since the law states that before a decision by a judge in criminal court states that an accused is guilty, he is presumed to be innocent.

To answer the question at the top of this article, it is my opinion that consecutive sentences are not unconstitutional.