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Lecture 4

Lecture 4- May 16.docx

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Nicole Myers

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Lecture 4- May 16, 2013 Principles and Rules of Sentencing Cost of Harper’s Tough on Crime Agenda  25 march 2011- non-confidence vote, government falls  For the first time in Canadian history, prime minister in contempt of parliament o Failed to provide required financial documents to legislature  Refused to provide financial projections for crime legislation  Ignatieff- when the government spends money, the people have a right to know what it is to be spent on  Appears omnibus crime bill cost about billion dollars in Ontario alone o Adds 1500 prisoners in correctional system- more prisons, more staff o Cost of building new prison about 900 million dollars o Costs about 60 million dollars/year it is open (for a single institution)  Where will this money come from? Editorial Quotes- Doob and Greenspan  The government is wrapping its crime legislation in the cloak of public safety. As in other areas of criminal justice policy, the Harper government appears to be a bunch of amateurs with blunt instruments o Not impressed with shifts in policy  It appears that for people such as Mr. Newark, Statistics Canada is never wrong as long as it reports that crime rates are increasing. If it says crime is decreasing, then it‟s never right. The fact of the matter is that crime rates have nothing to do with tougher laws or harsher sentencing. The fact is that crime rates go up and down. In recent years, they‟ve gone down. o Crime rate now at where it was in 1973  These proposals are not sensible responses either to the fear or the reality of crime. This act is one of the clearest examples of using “crime policy” solely for political purposes.  It‟s ironic that, while the Harper government wants to seriously increase the use of imprisonment on the false justification that it‟s the most effective way to increase public safety, other countries are trying to seriously decrease its use. The United States, for instance, is considering moves toward sanctions such as house arrest. Canada and the U.S. are like ships passing in the night, but Canadians are the unfortunate passengers on the ship of fools. **Challenges in terms of the logic Roberts, J  Public opinion that sentences are too lenient  Undermine principles of proportionality and restraint  Their opinion tends to shift when they are given more information  Public supports idea of MMS- uncomfortable with „mandatory‟ nature o Given context, they change their mind (i.e. considering the context of the offence) o Want it to be mandatory, but not mandatory all the time; this is why we use discretion of judges o Prefer presumptive guidelines- room for judges to articulate reason and they can move outside the guidelines if it is reasonable given the circumstances  MMS have no effect on public  Over state level of public support for MMS  Appeal in principle, uncomfortable with in practice  Support proportional sentences that consider individual factors, culpability Canadian Sentencing Commission  Advocate abolition of MMS  Establish presumptive sentencing guidelines o Removes incentive to plead, increases trial rates o Prosecutorial manipulation of charging and plea bargaining o Excessively harsh sentences o Prevent judicial consideration of special circumstances  Existed in 1980s examining our sentencing system and structure o Also put in recommendations for sentencing policy in the future  MMS- advocated abolishing them completely and moving to idea of presumptive sentencing guidelines o Structure discretion of judges  Argued that MMS removed incentive to plead o Lead to prosecutorial manipulation of charging and plea bargaining o End up with excessively harsh sentences- no discretion below bottom basis when there is a MMS  Allow judges to deviate from presumption, giving their reasons Sentencing Guidelines  More of a principled approach  Goal is to reduce disparity and promote rational sentencing policy, developed and monitored by sentencing commission o To address jurisdictional variations in sentencing o Commission to oversee the whole process  Emphasize uniformity and „just deserts‟, more rational policy  Structure discretion without eliminating it o So that not everything can be considered, not everything I possible  Predictability without rigidity o Have idea what type of a sentence you would be looking at o Allows for some flexibility and individualization of sentences Things to Consider  Are guidelines a way to reassert legislative control over sentencing process?  Shifting power from judge to prosecutors (who argue in favour of state; harsher punishments)?  Do MMS result in more certainty and parity?  Where will this money come from? What will have to be sacrificed? Education? Health? Social programs/  Role of politics in creation of crime, manufacturing prison population, and role of criminal justice processes in challenging economic crimes Things to Consider  What are the implications of transferring discretionary power from judges to prosecutors?  Guidelines as a way to re-assert legislative control over sentencing. What are the implications of this?  Do MMS result in more certainty and parity?  Where will the money come from? What will be sacrificed in order to pay the prison tab? Education? Health? Social Programs?  Politics is making crime and creating prison populations. What is the role of prisons and increased CJS intervention in challenging economic times? Sentencing Principles  Proportionality o Sentence must effect gravity of offence and moral blameworthiness of offender  Parity- similar offenders getting similar sentences for similar crimes  Restraint- least restrictive way that accomplishes objective and holds them responsible  Objectives- rehabilitation, incapacitation, deterrence, denunciation, … Plea Bargaining  How do you plead?  Public opinion- grown rapidly as our courts face logjam of cases Canadian Sentencing Commission 1988  Potentially undermines relationship between seriousness of criminal behavoiur and its reflection in criminal offence or disposition  Problem from beginning is potential of distorting relationship between criminal behaviour and its reflection in a criminal offence or disposition  Get reduced sentence if you plead guilty- what does this do to proportionality? o Considerable potential to undermined proportionality, equity, and certainty o Does pleading change seriousness of offence or guilt of a person?  Backroom deals- plea bargaining as informal justice system o Usually for less serious offences  Offender isolation, reliance on counsel o Offender not involved in plea negotiation, the defence counsel does it for them o Suggests dependence on counsel and belief that they are advocating in your best interests Context  Accused were found guilty is 2/3 (64%) of cases disposed in adult criminal court in 2010-2011 o How many people plead guilty that weren‟t guilty? No record of how often this actually happens  Likely to get a lesser sentence if plead guilty  Concerns about costs of trial  Simply getting it over with  Three out of every 10 cases (32%) were resolved by being stayed, withdrawn or dismissed o Legal important differences- basically prosecution has just stopped  Three percent of the cases resulted in acquittal of accused and 1% had other decisions o Formally not guilty after trial o Fitness for trial or not criminally responsible (1%)  This tells us that most people are guilty o Should there be concern about the 30% who are let go? Problems with investigation, matter was minor so offender is diverted out of system, not enough evidence Percentage of Guilty Decisions  Criminal code traffic offence (83%)  Administration of justice (71%)  Crimes against property (60%)  Crimes against person (52%) o Acts of violence o Considerable differences within this category o 22% for attempted murder to 72% for sexual offences  Attempted murder- intention to kill but you didn‟t… difficult to prove; differentiating between attempted murder and aggravated assault o 54% of violent cases convicted  Quite low rate overall of findings of guilt- 54%  How might we t
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