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Part B- Lecture 2.pdf

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SOC 227
Addie Nelson

Part B: Lecture 2 Classical School: one of the first to develop an organized perspective of crime’s nature  No need to examine community and society and crime but instead just think deeply. -outgrowth of the Age of Enlightenment *emphasis on rationality: “the light of pure reason” Cesare Beccaria: “founding father of criminology” 1761: “The Academy of Fists”- assigned a topic and go out and research and write a paper about how best to address it. He was assigned topic of crime and punishment 1764: “On Crime and Punishment” (with assistance of Allesandro and Pietro Verri)  condemned by Catholic church in 1766  praised by Catherine the Great, William Blackstone, Thomas Jefferson, John Adams Basic Principles: 1. Human nature: All human beings “rational hedonists”- seek to maximize our pleasure and minimize our pain; act wilfully and freely  commit crime because believe can attain greater advantages by doing so, rather than not. 2. Crime related to inequities in criminal justice system  at time - judges unbridled autonomy; no consistency/uniformity in sentencing  not knowing exact punishment gave people hop ein committing crime 3. The contractual society and the need for punishment- need punishment to quell pleasure seeking  Thomas Hobbes: “social contract theory”  Beccaria: “despotic spirit”  necessary to devise a system of punishment aimed at “defending the public liberty from the usurpation of individuals” 4. Function of legislatures and judges legislatures: to determine punishments judges: to impose set punishment  rather than have judge impose sentence he felt he wanted to impose, they should form penalties fro every criminal act. 5. Seriousness of crime: harm done to society  focus on acts not actors- does not matter if person was rich or poor etc.  no exemptions- everyone should be treated the same whether 6 or 60 years old 6. Proportionate punishment and the utilitarian calculus  punishment proportionate and only as severe as necessary to deter and not extremely brutal  eg. If theft brought 6 units of pleasure than punishment should be 7 units  he was against overly brutal or excessive punishments “The countries and times most notorious for severity of penalties have always been those in which the bloodiest and most inhumane of deeds were committed, for the same spirit of ferocity that guided the hand of the legislators also ruled that of the parricide and assassin.”- if leaders act in inhumane ways then people will follow their ways. What criminal may think about harsh punishment: “Who made these laws? Rich and powerful men who have never deigned to visit the squalid huts of the poor, who have never had to share a crust of mouldy bread amid the innocent cries of hungry children and the tears of a wife...Let us break these bonds, fatal to the majority and useful to a few indolent tyrants, let us attack the injustice at its source. I shall, at least for a little time, live free and happy with the fruits of my courage and my industry...and for a single day of suffering I shall have many years of liberty and pleasure.” -Person wanting to commit crime and compares the punishment with the crime and sees huge divide, then there will be contempt. It will not breed social reform but they will just think bastard 7. Promptness of punishment:  spare accused “the useless and cruel torments of uncertainty”  the association of punishment to offense would be stronger, therefore more effective 8. Certainty of punishment e.g., Waldo and Chiricos: undergrad beliefs about certainty of punishment re: petty theft, marijuana use  Those undergrads who believe the chances of being arrested for petty crimes is high are the ones who report the greatest readiness to offend—Check this study… 9. Preventing crime: ultimate end of all good legislation  Do not need system of harsh penalties  Need to be able to prevent crime and low crime rate would be success Proposed: i. Laws should be clear and simple ii. Laws should have the consent of the society iii. Laws should be published so people will know what they are- recognizing people as rational beings and need knowledge to exercise their agency iv. Torture and secret accusations should be abolished v. capital punishment should be abolished and replaced with imprisonment vi. Jails be made more humane institutions- so not to breed defiance and contempt for law but to be seen as merciful and just. vii. Law should not distinguish between wealthy/poor, noble/commoners viii. Person should be tried by a jury of his/her peers ix. Where class differences exist between offender/victim, one-half jury: from the class of the offender; one-half from the class of the victim x. no person treated as an exemption Beccaria’s ideas: provided basis for French Penal Code of 1791 Adopted suggestion that: -crime be arranged in a scale -for every crime, the law should affix a penalty -legislators should make law; judges apply it -court - only to judge guilt/innocence -extenuating circumstances not considered -particular heinousness of a crime not to result in additional penalty How well would our present system fulfil Beccaria’s proposals?  We have created a system in opposition to everything he advocated for. 1. “Crime funnel”/ “crime net” e.g., “criminal harassment” 1993: repeatedly following communicating (via cards, letters, telephone, faxes, emails, etc.), watching a person’s home/workplace, and/or uttering direct/indirect threats or promises of violence or forcible intimacy  Most dangerous time for victim of domestic violence was after separation- would be stalked and harassed.  In order for police to have mechanism to respond to this, this law was ushered into being -maximum penalty: 5 years/10 years First 5 years of operation: After introduction of this law we saw the following Canadian Centre for Justice Statistics N=1,110 charges laid 39% - dropped 10% - acquittals 36% - guilty verdict  Shows that guilt needs to be shown beyond a reasonable doubt Of those convicted: 6/10 - probation 3/10 - jail term less than 6 months  9/10 of those convicted in first 5 years was lower than the penalty specified in the law. Table 1: Accused-victim relationship in criminal harassment incidents Male victim Male Victim Female victim Female victim number % number % Accused current spouse 3 0.3 115 3.7 ex-spouse 98 10.9 1,134 36.3 current or ex- 49 5.5 482 15.4 dating relationship other family 59 6.6 111 3.6 casual 396 44.1 782 25.1 acquaintance business 107 11.9 146 4.7 relationship other known 44 4.9 24 0.8 relationship stranger 104 11.6 225 7.2 unknown 37 4.1 101 3.2 Total 897 100.0 3,120 100.00  gender differences in stalking  if male victim more lilly to be stalked by casual acquaintance which is male  if female most likely to be stalked by former spouse 1998/99 - 4,000+ cases involving criminal harassment heard in adult provincial/territorial courts ~50% - led to a conviction (higher than for common assault [29%] but lower than for all other violent offences [55%] Median length of prison sentences in criminal harassment cases up from 1994/1995 [30 days] to 90 days e.g., Family Violence: demonstration study of sentencing outcomes (analysis of police and court records from 1997/98 to 2001/2002) Family members convicted of most forms of violent crimes against spouses/children/seniors - less likely to get a prison term Comparison of sentences in violent cases involving a family members v. cases that did not involve a family member -focus: 18 urban areas in 4 provinces: Newfoundland and Labrador; Ontario; Saskatchewan; Alberta Judges handed down prison terms: 19% of convicted cases of spousal violence 29% - offenders convicted of other violent offences *Spouses less likely to receive prison terms for almost all types of violent crimes Exception - criminal harassment (1/3 spouses v. 1/4 other) Table 2: Sentencing in single-conviction cases of spousal violence and non-spousal violence Prison term Conditional Probation Other sentence % of total cases % of total cases % of total cases % of total cases Spousal violence Sexual assault 28 24 48 0 Major assault 32 5 61 3 Common assault 17 1 74 8 Uttering threats 18 2 76 4 Criminal 32 8 56 3 harassment Other violent 46 10 41 2 offences Total 19 2 72 7 Non-Spousal violence Sexual assault 36 15 43 6 Major assault 36 5 47 12 Common assault 21 1 58 19 Uttering threats 25 1 64 9 Criminal 26 5 67 1 harassment Other violent 72 7 18 2 offences Total 29 4 63 14 Note: percentages may not equal 100% due to rounding  more and more it seems we are fcusing on the actors for example in cases of family violence Child abuse (physical/sexual) Family members convicted of physical violence against children - less harsh sentences compared with cases that did not involve family members eg. Those who assault spouses are less likely to go to prison then those who assault nonspouses • Criminal harassment is only crime where spouses are more likely to be convicted than nonspouses. 15% of convicted family members received a prison term (v. 28% of convicted offenders who were friends/acquaintances and 23% who were strangers) * Opposite true in convicted cases of sexual assault (i.e., family members convicted of sexually assaulting children harsher sentences than others convicted of sexually assaulting a child to whom they were unrelated) Almost half (47%) of family members convicted of sexual offences against children/youths received a prison sentence (v. 39% of non-family members) *Parents convicted of sexually assaulting their children more likely than other family members (e.g., siblings, grandparents) to receive a prison sentence Differences: “may” be attributed to aggravating/mitigating factors (e.g., past criminal history; impact of sentence on family; wishes of victim) taken into account at sentencing (not measured in this study) *Judges more likely to impose a prison sentence when: -victim a girl -convicted offender a man -child under 3 years of age Spousal Violence *Convictions in violent cases involving spouses resulted in prison in 19% of cases (v. 29% of cases involving non-spouses) *Far most common sanction in cases of spousal violence: probation (72%) *Probation less common among violent offenders who were not spouses (53%) *As with non-spousal violence, men convicted of spousal violence received harsher sentences than did women -true across a range of violent crimes, including convictions for: common assault, major assault, uttering threats, criminal harassment *Individuals most likely to receive convictions of spousal violence: men estranged from their partner under the age of 25 * Spouses who inflicted major physical injury/death much more likely than other spouses to receive a prison sentence Table 3: Maximum Penalties and Median Sentences (Selected Offences) Offence Maximum Penalty Median Sentence Length Sexual assault with a weapon Life 2 years & aggravated sexual assault (ss. 272-273)* Manslaughter (s. 234) Life 5 years Robbery (s. 343) Life 1.5 years Break and enter (ss. 348, 349) Life 3 months Aggravated assault (s. 268) 14 years 10 months Procuring (s. 212) 14 years 1 year Use of a firearm to commit an 14 years 1 year offence (s. 85) Forgery (s. 366) 14 years 2 months Sexual assault (s. 271) 10 years 4 months Possession of burglary tools 10 years 2 months (s. 351(1)) Forcible confinement (s. 279) 10 years 6 months Assault with a weapon (s. 10 years 3 months 279) Assault peace officer (s. 270) 5 years 1 month Obstruct police (s. 129) 5 years 1 month Assault (s. 265) 5 years 1 month Drive while disqualified 2 years 1 month (s. 259(4)) Unlawfully at large 2 years 1 month (s. 145(1b) Mischief (s. 430) 2 years 1 month Gaming and betting 2 years 14 days (s. 201-209) Theft under (s. 334(b)) 2 years 1 month *offences were combined due to small numbers of cases • Schism between law in book and law in actions and can only imagine how hedonist may respond when they see difference in what we are told we will receive and reality. Integrated Criminal Court Survey (ICCS) and the Adult Criminal Court Survey (ACCS) Chart 1: Ten most common offences for cases completed in adult criminal court, Canada, 2010/2011 1. Includes, for example, theft over and under $5,000 as well as taking a motor vehicle without consent. 2. Includes, for example, assault with a weapon (level 2) and aggravated assault (level 3). Note: A case is one or more charges against an accused person or company that were processed by the courts at the same time and received a final disposition. Cases that involve more than one charge are represented by the most serious offence. In total, data represent approximately 95% of the national adult criminal court caseload. Excludes information from superior courts in Prince Edward Island, Quebec, Ontario, Manitoba and Saskatchewan as well as municipal courts in Quebec due to the unavailability of data. Source: Statistics Canada, Canadian Centre for Justice Statistics, Integrated Criminal Court Survey.  A million criminal code offences and about 400,000 cases- criminal code offences, allegations of violation of federal statues such as drug related.  First thing to notice, is similar to crime trends in general, most of these cases involved non0violent crimes (70%). Most common was Impaired driving, theft etc.  Those that ended in court ended n 3 outcomes: o Most common outcome is pleading guilty or finding of guilt o Proceedings stopped or interrupted for variety of reasons due to lack of evidence, or refferal to alternative measure program, but result is the charges are stayed, discharged, postponed for a year at the preliminary inquiry. o Acquittal occurs in small portion- accused found not guilty of charges presented to the court.  Consistent to most years, in 2010/2011- a guilty verdict was reached in 2/3 of cases- stayed stable since urn of new millennium  2/3 stayed or withdrawn at preliminary inquiry  in remaining 1-2% is acquittal Chart 2 Guilty cases in adult criminal court, by province and territory, 2010/2011 Note: A case is one or more charges against an accused person or company that were processed by the courts at the same time and received a final disposition. In total, data represent approximately 95% of the national adult criminal court caseload. Excludes information from superior courts in Prince Edward Island, Quebec, Ontario, Manitoba and Saskatchewan as well as municipal courts in Quebec due to the unavailability of data. There are many factors that may influence variations between jurisdictions, therefore, comparisons should be made with caution. Source: Statistics Canada, Canadian Centre for Justice Statistics, Integrated Criminal Court Survey.  In contrast to what Baccaria proposed, there s variation in this chart of case decisions depending on province.  One thing that should stand out is the proportion of guilty findings was highest in PEI in which 4/5 cases were found guilty and Ontario had lowest findings of guilty charge.  Cases involving violent charges tend to be found guilty in less often then other cases. ½ cases with violent offence resulted in guilty finding. 7/10 cases that involved property offence resulted in guilty finding. 6/10 cases that involved of administration of justice offences resulted in guilty finding. In addition to this general division between offence categories there was also variation in types of decisions reached within these categories  Among violent offences: o Other sexual offences- child luring- was most likely to be found with charge of guilt- 7/10 times guilty verdict reached. o Cases of attempted murder were least likely to be found charge of guilt. Only in 17% of cases found guilty.  Administration of justice offences: o Unlawfully at large- 5/10 cases guilty o Fail to appear in court- ½ cases guilty verdict o In general the more active your breech the less likely you will be convicted  Property offences: o Break and enter- most likely to be charged with guilt o Possession of stolen property- least likely to be found guilty Chart 3 Guilty cases in adult criminal court, by type of sentence, Canada, 2010/2011 1. Includes, for example, absolute and conditional discharge, suspended sentence, community service order and prohibition order. Note: Cases may involve more than one type of sentence, therefore, percentages do not total 100%. A case is one or more charges against an accused person or company that were processed by the courts at the same time and received a final disposition. In total, data represent approximately 95% of the national adult criminal court caseload. Excludes information from superior courts in Prince Edward Island, Quebec, Ontario, Manitoba and Saskatchewan as well as municipal courts in Quebec due to the unavailability of data. Source: Statistics Canada, Canadian Centre for Justice Statistics, Integrated Criminal Court Survey.  Crime prevention, protection of society, likelihood of rehabilitation of offender, weighing into calculations certain aggravating factors associated with type of offence or perceived gravity of type of offence (harm or number or nature of offenders prior convictions, if aboriginal person)—things judges have to consider  If offence occurred in intimate relationship it is considered to be aggravating factor  Even though criminal code sets out max/ min penalties the most common penalty held in adult criminal courts is probation. (probation most common sentence for criminal harassment)  Offenders sanctioned to probation remain in community and sbject to variety of conditions such as, admonition to keep the peace, appear in court if required, partake in community service, psychological counseling, addictions counseling  Probations sentencing for a decade have been most common sanction given by adult courts. However variety exists— o The median amount of probation in year in chart was 1 year and most commonly used in province of Saskatchewan. Other province could be shorter amount of time.  Use of fine- also common o Now system allows judges to fine offenders who can pay up to %5000 for relatively non-serious offences like trespassing and disturbing the peace. And impose any amount for more serious offences. o As a result of new guidelines, judges have been imposing many fines than a decade ago. A decade ago the most common find was $500. Now fines are 1/3 of sentences.  Custody- far less common o Involve incarceration o Refer to next chart Chart 4 Guilty cases in adult criminal court, by length of custody sentence, Canada, 2010/2011 Note: Custodial sentence lengths exclude time spent in custody prior to sentencing and/or the amount of credit awarded for time spent in pre- sentence custody. Excludes cases in which the length of the custody sentence was unknown. A case is one or more charges against an accused person or company that were processed by the courts at the same time and received a final disposition. In total, data represent approximately 95% of the national adult criminal court
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