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May 29th - Lecture #7.doc

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University of Toronto Mississauga
Nicole Myers

May 29 th SOC219 Lecture #7 Imprisonment · Talking and weighing evidence · Last sentence of each section should be what your decision is Imprisonment Incapacitation- another word for looking up · Unable to go out and offend Challenges · Age crime curve: crime peeks late teens early 20s o Drops later in life o By the time we are imposing long term custody they are already at an age where they wont re-offend o How much protection are we getting when most people stop offending at an older age · A lot of crime is committed by a small group of people o Crime is not concerntrated in small portion of people o Some are going to commit more crimes then others · High rate offenders can’t accurately be identified in advance · Possible crime-increasing effect of imprisonment · Hard to predict how much crime was prevented o Because we cannot predict what a person would have done · Implicit logic of incapacitation-inescapable Research on Incapacitation · Variations across (Florida) changed over counties · 7 ‘index crimes’ o specific time of crimes used to measure things over counties o to make comparisons ex. murder · “usual controls” · no overall controls · may be- high rate offenders are already incarcerated Factors that interfere with incapacitation logic · Young people commit crime in groups: only incarcerating one will not result in any reduction in crime · Studies that try to asses the risk of re-offence: 64% of those predicted to be high rate offenders did not turn out to be high risk offenders · New Zealand: measure crime control effects: looked at offences committed by people released from prison 30 of 613 released committed a serious offence 3 of which were originally in prison for committing a serious offence · Problem of false positive and negatives o Risk prediction tools are not very accurate o Almost every single person in custody will come out at some point: we may want to evaluate the harm done to them in prison Assumption: Sentencing for rehabilitation purposes · Have ‘proven’ programs available · Can link offenders with appropriate programs · Programs can be delivered within the sentence · Relationship to imprisonment o Is prison the right place to rehabilitate o Ex a violent offenders going to anger management class- are the tools learned appropriately used in prison · Relationship to proportionality · Sentence for rehabilitation, or responsibility to provide rehabilitative services Consequences of focusing on deterrence, incapacitation, and rehabilitation as guides to sentencing · Judges are key in protecting society · Criminal law- legislative tool for protective o Its only a crime once it is written down · If the CJS does something differently crime would go down and if that doesn’t happen then they have failed us o Legislative safety o Takes away from other methods that can impact the crime rate · Relationship to other sentencing principles (proportionality) Conclusion: · No uniform approach in the criminal code · Variations across judges · Principle: restraint, skepticism of value of imprisonment · Purposes or goal of sentencing o Multiple, contradictory, hard to accomplish o Conflicting principles (deterrence to victim) · is restraint the ideal punishment or are we seeing an erosion Challenges facing Canada in Addressing Sentencing Problems What do we mean by disparity? · Sentencing leading to disparity depends on the ‘theory’ · What do judges know about what other judges are doing o Sentencing information systems (and their failures) · Getting rid of disparity is not the goal: there will always be disparity o Getting rid of unwarranted disparity Study on guilty sentences leading to custody · On average over Canada 34% of guilty cases lead to custody Pre-sentence determinants of sentence- can sentencing be looked at in isolation · Need to look at process · Decision on the charge · Victim recommendation to crown/court on how to proceed · Plea bargaining: does that shift your sentences compared to someone who stuck to their innocence and followed their right to a fair trial · “joint submissions” · victims role · how do we evaluate “the sentence” without a standard Current sentencing structure · Legislation o Maximums o Mandatory minimums o Multiple, conflicting principles o Some specific (aggravating) circumstances · Court of appeal judgments · Implementation of prison sentences: varies across cases Judges on Sentencing: · Different theory of offending o Leads to different ideas of how to sanction offences o Which information is important and irrelevant o Different outcomes- inevitable § Can provide justification for why their sentence is appropriate Minnesota, Offence History · Created a severity index one for sexual and for non sexual offences · Offence and record: impact their decision in Minnesota o is this overly restrictive or is it good? o Narrow range for judges: some flexibility but is tight o If they want to deviate they are required to provide reasons Notes on Minnesota ‘Grid’ · Not simple · Offence grid: more complex then apparent o Had to create a separate grid just for sexual offences · Expectation: everyone released at the 2/3 mark · Presumptions · Special enhancements · Mandatory minimums superimposed and trump guidelines · Departures (presumptive range)- with reasons · Appeals allowed for departures (only) Attractiveness of Sentencing Commissions & Guidelines · Thinking of offending in general · Non-judges in creating sentencing policy · A group of experts that understand sentencing and the research available o People will also not be attached to the politics of the legislator · What type of factors should be considered · Strength of guidelines: suggestive or binding · Different guidelines for each offence in the criminal code o Not as rigid as the grid · Issue: judges don’t like them: takes away their discretion to the lawmakers, and tells them how to do their job o Simplicity and transparity to sentencing o How judges came up with a sentence o Roles will be explicit each judge has the same rules Canada’s Flirtation with Guidelines 84- 87 · Sentencing Commission · Problems identified: · Absence of parliamentar
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