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March 14, 2013 ; Sentencing.docx

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University of Toronto Mississauga
Philip Goodman

March 14, 2013 Issues in Sentencing and Punishment Sentencing and Justifications of Punishment in Canada - Section 718 sets out purposes of sentencing:  Denouncing conduct o When ppl commit crimes they violate social laws and violate norms – harm to the community o Symbolic harm done to the social fabric  Deterrence o Huge area of active research o Making reparations - goal o No “one size fits all” o Important goal, we do not have people follow the law if we don‟t punish the people that do go against the law  Incapacitation o Purpose of sentencing o Crime are dangerous – risky people so they need to be put into the jails, so they cannot crime in the future  Rehabilitation o Improve the person o Or fix the situation o What is it that is causing the crime? So we know then develop intervention  Making reparations o Harm is done so needs to be repaired o Criminal justice system is formalistic, so it is questionable that if repairs are harm  Responsibility, accountability o To the crime Cont.  Proportionality  Similarity and consistency o Hard to imagin in practice o Ppl that have done similar things should be punished in similar way  Consecutive sentences ought not be unduly harsh o Person with home, 2 crimes (theft and abuse of the homeowner)  Least restrictive sanction o 718.2(e) especially for Aboriginal offenders o punishment from least to most restrictive .. o Judges choose restrictive sanction o For aboriginal offenders Some Critiques - Kitchen sink approach  throwing everything in, it matters to the criminal justice, by throwing everything in to the criminal justice system and if it looks good they keep it by putting all the Deterrence and denouncing conduct. - Ignores that these are competing principles, objectives - Tension between treating like cases similarly, and the Canadian values of judicial discretion, individualized justice  Role in the creation of disparities. (Re)production of inequality - What happens when we pretend we can have it all?  We pretend that we have everything even thought we don‟t  Multiple competitng principles, so we have a system that does it Aggravating Factors - Sentencing should be enhances in cases of:  Crimes motivated by hate  Spousal abuse and child abuse  Abusing a position of trust or authority  Crime committed in connection with a criminal organization - Why these? Why not others? How do these come to be privileged?  It puts people in a vulnerable state  We punish people we don‟t like more harshly (1-3)  The 4 is not as connected – it is an aggravating factor why? o It might prove intended rather than an accident  The intended was already build into the system  Ex: street organizations – gangs  Already punishing people that commit abuse that do crimes, o Embedded into the organizations – bribery and fraud, in government o Issues in the way which is the invisibility of the activity – optics – something that the public is worried about, these are the groups we are afraid of because they are nasty and hated (organizations) they steal money o Deterrent value o Idea that we have to think historically in why these things have happened, historical roots, ex: homophobic hate rime against gays o General point:  Penalized things: we look outside, historical and optics  These remind us that what is really going on, we use punishment as single for the most problematic crimes  Underlying currents – symbolic importune in signaling outcomes in specific crimes so not all are highlighted  Understand why - Where are the mitigating factors? Goals of Sentencing (pg. 371) - Utilitarian goals – why we punish the way we do?  Creating better outcomes, future-oriented – so people could achieve as much happiness as possible and crime is the STOP, so we can apply that when we punish criminals we need to think in the ways to make less crime and we also need to do less harm and crime when we do punish – ex: harsh in giving a sentence on specific criminals.  Bentham‟s Principle of Utility  Deterrence? – wanting less crime, have less people do them, so take as many criminals as we can and punish them  Rehabilitation? – we want less crime in the future, so help those that are committing them  Incapacitation? – if they are locked up they are not offending the people that are not locked up, we only look at the crimes outside the prison rather than inside the prisons, even tho they do crimes in the prisons and they are being victims as well but we do not look at it like that - Retributivism – crime itself calls for punishment  Crime as intrinsically punishment worthy, past-oriented  Durkheim (denunciation) – fairness, ancient concept, eye for an eye concept, (if u do the harm u deserve to get that harm)  Retribution as pure punishment (is this conservative?) -  But can we also put rehabilitation here? – requirement that someone does the crime, needs to fix the situation, people need to be accountable of their acts, requirement for rehabilitation and treatment, it becomes an obligation to the offender and for their own health. Incapacitation? - leading to less crime in the future, equaly the case we lock people up because they deserve the pain. Prisons are not pleasant places so the public wants them because they want offenders to be in pain and suffer to the crime they have done in the prison where is horrible. - Restorative Justice – alternative, and questionable, and where to put it, in practice it is includes all the same things that other types of punishments do, sentencing circles, giving fines, putting people
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