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May 27th - Lecture #6.doc

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University of Toronto Mississauga
Nicole Myers

May 27 th SOC219 Lecture #6 Sentencing Proportionality - a sentence must be proportionate o the seriousness of the offence and the degree of responsibility for the offender  moral culpability - a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender o what goes into proportionality?  are judges told a variety of factors  how about the level of someone’s intention – how do we weigh that? - do you think we can come to a consensus of proportionately o discretion - resolving ‘purposes’ with proportionate o have to have one of the purposes, or some, or all, but also be proportionate at the same time Aggravating and Mitigating Factors - examples of aggravating factors – in the criminal code o victim of the offence is someone’s common low or spousal partner o under the age of 18 o motivated by bias, prejudice, or hate o abused a position of trust or authority (ex. doctor-patient, teacher-student, etc.) o criminal organization (ex. gangs) o terrorism - what about the following: o number of offences, level of violence, impact on the victim, number of victims in an offence - examples of mitigating factors: o duress – coercion – they made me do it o mental health o first time offender o self defence - nothing stipulates how much something aggravates/mitigates - does one factor balance out another Parity - a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances - whether or not we are good at achieving parity is subject to question - when we try to evaluate parity – do we know the offence? – do we know all the factors that went into deciding the sentence? Restraint - codying the principle around exercising restraint - we should give out the least restrictive sanction - all alternatives to incarceration or imprisonment must be considered, and must be considered for all offenders, with particular attention to the circumstances of aboriginal offenders - we don’t want to use the system too often and when we do we want to make sure that we use it in the least restrictive way possible Victim Impact Statement - the court is to consider any statement that is given to court or read in the trial by the victim of the offence o allows the victim to stand up and talk about the offence and their impact on their life o they cant suggest a possible sentence - relatively rarely given o very few victims want to complete a VIS o amongst that small number of people – 10-15% of cases – more serious offences  ex. murdered, considerable serious physical farm, victims feel fear - those making them expect it to have an impact on the sentence - doesn’t seem to affect ‘satisfaction with the criminal justice system’ o didn’t somehow enhance or diminish their perceptions towards the CJS - what is the purpose of the victim impact statement (beyond ‘proportionality’)? o what is it supposed to do o the form is restrictive Looking Carefully at Four of the Puporses of Sentencing - general deterrence o we have a culture with a belief in the value of deterrence - individual/special deterrence - incapacitation - rehabilitation - all based on empirical assumptions Underlying Theory of Deterrence - punishment can be regarded as the price of crime – the cost - economic model of costs and benefits o if costs outweigh the benefit, you wont do something – if benefit outweighs cost, you will do something  so all we need to do is keep upping the costs and people will be less likely to do something - social phenomenon does not work the same way as economics Simple Crime Theory (General Deterrence) - increase the costs – punishment o belief in being rational human beings – we will not do the things that will not make us feel good o by adding costs, shifting how good the benefits look o make commiting crime so unattractive - crime will decrease - what do we mean by punishment o probability of apprehension multiplied by the expected punishment o more likely to be deterred if there is more chance you will get caught and if you anticipate a higher sentence - apprehension: hard to affect o clearance rates  we know most crimes don’t even come to the
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