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Lecture 4

CRIM 3656 Lecture 4: January 31

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York University
CRIM 3656
Anna Pratt

-shift that came with the emergence of modern prisons -modes of punishment are subject to changes: not merely a technical means of controlling crime, but influenced and shaped by a wide array of sociohistorical, cultural, political, and economic factors, all of which affect how we understand human nature and the causes of crime, especially ways of dealing with crime -range of criticisms levelled at the rehabilitative ideal from both sides of the political spectrum -these critiques, especially the criticism that the violent and coercive setting of the prison are ill- suited to attain rehabilitative goal, was quite influential in Canada, which resulted in the expansion of probation -reintegration approach: within these coercive, violent confines of the prison, it was not possible to effectively rehabilitate offenders Shift to Community-Based Format: -1969 Ouimet Committee on Corrections -1970s and Reintegration approach -program opportunities model (versus medical model): choice and responsibility of offender -3 reasons for this shift: 1) Much more humane approach 2) Less costly 3) More effective (reintegration): especially as it pertained to the reintegration of offenders into the community, protecting society, and reducing crime in the future -coincided with the program opportunities model: there was a shift away from forcing inmates to various kinds of therapies and programming in the name of rehabilitation -this kind of approach was based on the assumption that individuals were rational decision- makers: voluntary basis -this idea of choice and the language of choice was more illusory than real: it was a liberal veil for what,they argue, remained the coercive and punitive features of rehabilitation taking place: Christie-concealing language 1990s to Mid 2000s: -since the 1990s to the mid-2000s, there is a mixture of: 1) Program opportunities model 2) Rehabilitative programming 3) Emphasis on public safety and the control and management of offenders 4) Risk management in terms of the approach to corrections 5) Liberal Veil -Mid 2000s to present: -orientation in corrections that shifts from a social orientation to understanding criminality back to one that focuses on the individual -Webster and Doob: simple punishment Legal Rationales of Punishment: -sentencing process: -2 phases: 1) Choosing the sanction: custodial or community sanction a) the in/out decision b) the type of punishment: what specific sanctions, custodial disposition or carceral disposition will be applied? c) the quantum of sanction 2) Justifying punishment: explanation of the punishment and how the punishment will engage with different rationales informing the punishment Purposes of Sentencing: -S. 718: -introduced in 1996 -to provide judges with a matrix of principles: some guideline to structure decisions -a means of directing the sentencer’s mind to factors -outlines the rationales for punishment: 1) Denunciation of unlawful conduct 2) General and specific deterrence 3) Incapacitation: separation of the offender from society, where necessary 4) Rehabilitation 5) Reparation: provide reparation to harm done to victim or to the community 6) Responsibility: promote a sense of responsibility in offender and acknowledgement of the harm done to the victim or community Fundamental principle is an articulation of Just Deserts: -S. 718.1: a sentence must be proportionate to the gravity of the offence and the degree of the offender: Berger: this is the moral burden of sentencing that judges must engage with -S. 718.2: other sentencing principles: 1) Least restrictive: an offender should be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances 2) Prison as last resort: all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders -judges must employ sentences that are lesser than imprisonment -Lacey: subjects the traditional justifications for punishment and sentencing to scrutiny using the tools of legal philosophy: examines them to identify the assumptions that they rest upon and their limitations 1) Forward-looking justifications: aim to prevent or reduce crime in the future-justified by reference to future effects: -match the punishment to determine a proportional punishment -not much emphasis on the act committed in the past, but rather, on making changes to reduce crime in the future: a) focus on the future: prevent or reduce crime in the future b) rehabilitation c) some forms of denunciation-educative d) incapacitation e) specific and general deterrence 2) Backward-looking justifications: assess the crimes committed in the past a) focus on the past b) e.g. retributive/just deserts c) denunciation: some forms can be backward-looking, as they express the degree of society’s revulsion of the act in question and relays a message regarding how strongly society disapproves of the act in question -educational appeal: send a message to deter others from committing crimes Travis Baumgartner -pleads guilty in deadly Edmonton shootings -he won’t be eligible for parole for a little less than 40 years -first sentence handed under a new law: Protecting Canadians by Ending Sentence Discounts for Multiple Murderers Act (2011) -Chief Justice John Rooke ^-judges were able to impose consecutive parole ineligibility periods of 25 years for multiple first- or second-degree murder convictions, rather than serving their parole eligibility periods concurrently: eligible to apply for parole in 10 years -this legal reform allowed judges to impose consecutive parole eligibility periods: e.g. 4 victims: 100 years before being eligible for parole -the Justice Department, in justifying this reform, acknowledged the value of each life taken ^-large focus on the offence: retribution and denunciation Interrogating the Traditional Justifications (Lacey): 1) Why ought the state to punish individuals and groups? Is it to reduce or prevent future crimes or because offenders deserve it? 2) How and to what degree should punishment be inflicted by the state? Should it be proportionate to the severity of the offence and should it be reflective of the society’s revulsion of the offence? 3) Who ought the state to punish and for what kinds of action? Punishing people who are deemed to be at risk of offending or it could be that, in theory, it doesn’t matter if the person is guilty or not, but rather, the punishment is severe enough to deter others: there is no necessary need to punish someone who is guilty Backward-Looking Rationales: Retribution: Why punish? 1) Principle of desert: the key principle of retribution is desert: they are blameworthy because they violated the law -in its early stages, there was no focus on proportionality 2) Lex talionis: inserted a degree of proportionality -even though this is thought to be a justification for a more severe punishment, what it actually did was impose a limit for punishment -retribution does include, in its theoretical formulations, limits on punishment -retributivist approaches emphasize denunciation of unlawful behaviour: the more reprehensible the behaviour, the more severe the sentences should be -both the law and judgment are clearly grounded in retribution -retributivist and denunciatory nature of this case 3) Proportionality 4) Denunciation -Lacey identifies several problems with retribution: 1) It answers the question of why we should punish, which is because it is deserved, but it is a form of circular reasoning: it endlessly refers back to itself and does not bring any external arguments 2) Moral culpability: there are factors that come into play that affect the idea of desert and blameworthiness that go beyond -what about moral culpability? Someone may be responsible for a crime, but may not be fully or morally blameworthy for the act: e.g. duress, mental illness, etc. -social factors: structural and systemic factors, such as poverty -colonialism -systemic racism: R. v. Gladue and R. v. Hamilton -Pelletier: Gladue courts: requirement that judges must recognize the historical legacy of colonialism and systemic racism of First Nations communities: considering questions that would diminish the moral culpability of an offence R. v. Hamilton: -anti-Black racism -the trial judge reduced the sentences of 2 women who had plead guilty of smuggling heroin or cocaine from Jamaica to Canada -the judge used pages of evidence that spoke to the presence of systemic discrimination against Black people in Canada as a reason to reduce the sentences for both women, which was widely criticized -it was argued that these factors did not diminish moral culpability, as moral culpability, according to the Ontario Court of Appeal, is not diminished by systemic racism -not all offenders are perceived to be equally morally culpable and thus deserving of punishment -in keeping with this scrutinizing from legal philosophy (Lacey), this assumes that in the first instance, that all laws are just (there are ample examples of unjust laws), it assumes that laws reflect social consensus, and it also assumes that all laws are equally enforced -enforcement of laws appear to be neutral, but that is not the case -this strong version of retribution is hard to be distinguished from vengeance, that desert is solely related to the commission of an offense, but that does not mean that they are equally morally blameworthy or culpable How Much Punishment? -from the perspective of retribution, the idea is that the offender should forfeit what the offender has lost: lex talionis -just deserts-equivalence: this approach emerged in large part and gained popularity as the rehabilitative ideal was being critiqued -in response to this discretion of rehabilitative approaches and the presence and influence of discrimination at play, as well as concerns about coercion, there was this move to make punishments focus on the crime committed in the past, rather than on future objectives -however, it was also intended to make the process more just and enhance the degree of justice in retributive sentencing: to keep the punishment commensurate with the severity of the offense -there was this assumption that sentences needed to be determinate: the desire to have clear, transparent, consistent, and determinate sentences -but there are problems: 1) How to measure? -the rationale of retribution does not give much guidance on how to measure proportionality -it provides little guidance for the vast majority of crimes -how do we determine what constitutes proportionality? 2) Who decides? -in its modern guise, retribution corresponds to the just deserts model -just deserts doesn’t mirror what is forfeited with punishment, but rather, aims for equivalence, try and make the punishment proportional 3) Sentencing scales Minnesota Sentencing Guidelines: -sentencing tables -this guideline includes graduated scales of penalties that are listed according to the offense’s seriousness and criminal history: intended to reduce judicial discretion and disparity in sentencing, and thus, to enhance justice (just deserts) -however, there are problems associated with sen
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