Lecture 3- May 14, 2013
Judicial Discretion and Mandatory Minimum Sentences
Hindering their ability to cause further harm to public
Can’t commit offence against members of public in custody (could commit crime against others in jail)
Notion that crime can be prevented by locking offenders away
o Most people locked away for short period of time
o Everyone who goes in custody comes out (other than small number of serious offenders)
o Only works in the short term, not the long term
Seem to forget offenders will get out of jail eventually and return to the community
o Does incarceration than lead to the safety of others later on?
Need for re-integrative programming
o institutionalization- adapt to institution and get used to it
o Difficult to blend into community once released
o Want them to be successful in community- need programs to help them reintegrate
o More people in custody= more responsibility for public for reintegration programs
What do offenders do and learn while in jail?
1974 Martinson’s “Nothing Works” (rehabilitative program)
o Contrary to welfare state idea where rehabilitation was ideal in the 1960s
o Moving away from idea of welfare state; rise of law and order agenda
1979 Martinson rejects the ‘nothing works doctrine’
o Claims that his ideas were taken out of context
o Looked at evidence he used to come to conclusion that ‘nothing works’, he claims a lot of what
we do don’t work, while some things do (more tempered perspectives- not to throw out whole
idea of rehabilitation)
o Some programs can be helpful in reducing recidivism while others increase recidivism
Question of: what works best for which types of offenders, and under what conditions or in what
o Matching offender’s needs with program to help them works much better
o Challenge of poor implementation- i.e. correctional guards implementing drug treatment
program vs. someone who is trained in training drug abuse
o Settings- is the prison environment the best place to have rehabilitative programs? Is that the
best setting to start using the new things you learn?
Public support for rehabilitation (one of the most important objectives of punishment according to
o Thinking long-term, rather than short-term
Dealing with the underlying causes of behaviour- i.e. drug abuse programs
Shrinkage in use of rehabilitative programs
Sentence Severity and Crime: Accepting the Null Hypothesis (Doob and Webster, 2003)
Meta-analysis of 25 years of research
Importance of perception
o What you perceive to be likelihood of being caught (not actual likelihood of being caught) i.e.
video surveillance can increase perceived likelihood of being caught Deterrent impact of the system as a whole
Must be aware to be deterred
o Knowing what the sentences are actually are (highly unlikely for the general public)
Must actually consider the consequences
o Believing offenders go through rationalization process (weighing costs and benefits) although
research finds this does not occur; offending generally spontaneous, crimes of passion, or
o Can just change the location of the crime when they see signs- i.e. not dealing drugs where you
know there is a security camera and just taking it elsewhere
Must think will get caught-effects how not whether
If penalty structures are irrelevant to offenders, it does not matter how severe they may be
Cannot legislate crime away-making false promises
o Writing down a new sentence has no impact on how people behave
o Idea that if we make it severe enough, it can deter crime is a false perception
Criminal code provides little by way of guidance for judges at sentencing
o Hard to tell what you are to achieve or what objective should be given importance
o Individualized sentencing structure- little guidance provided; value placed of judicial discretion
Given number of factors that must be considered in crafting a sentence, sentences are neither
consistent nor predictable
o Evident in jurisdictional variation in sentencing terms
Should sentences be responding to what was done in the past or preventing what you may do in the
What element should get priority? Circumstances of offender and context or the offence itself?
Is the principle of restraint is consistently being employed?
From a moral stance, what takes prominence? Ensuring safety of community or that individual is not
punished in excess to what is necessary? How can proportionality and safety to community be assured
through the same sentence?
If harsher sentences don’t provide deterrence or decrease crime levels in society as described by Doob,
should aggravating and mitigating factors (make a crime worse or better) still be considered during
sentencing or should offenders be given a “one size fits all”?
Judge David Cole
Mistake to believe ‘holy grail’ when it comes to sentencing; there is no one right sentence
o i.e. US tendency to use guidelines- reduce number of variables to me considered at sentencing
o still considered to be individualized in Canada- judges exercise discretion and tailor sentences to
you and your offence
o does it matter who the judge is? Male or female? Old or young? Worked at defence counsel or
crown attorney before?
o Looking at criminal code for some guidance (i.e. the minimum or maximum sentences for
o Summary vs. indictable offences (increases maximum eligible for)
Community based sanctions- probation officers on average supervising 125 offenders at one time
o How much counseling then does someone actually get from a probation officer? o How do you determine how many community service hours to impose?
Deterrence- general deterrence does not really work
o Foolish to believe people know what type of sentence to anticipate
o Deterrent value- process of being charged, bail, trials, pleas, etc.- has a deterrent value
(especially someone who goes through it the first time)
Stigma- attached to going through the CJS; is it enough stigmatization for someone to go
through CJS or do they need to be punished (given a criminal record)?
R.v. Lewis and Frequent Freddie
Offender separated from romantic partner but continued to live together
3 children; oral agreement that this is why they lived together to care for children
Mr. Lewis asked if he could take kids away for weekend and bring them back after weekend
o Called later and said he won’t bring them back till end of summer
o Court order to bring them back and he declined