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Final

CRM 100 Textbook notes for final exam.docx

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Department
Criminology
Course Code
CRM 100
Professor
Anne- Marie Singh

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CRM 100 Textbook notes for final exam Chapter 7 – Pretrial criminal procedure - Law vs. Privacy - R v Feeney – man arrested due to suspicion of murder but the way he was found and arrested was without a warrant o Violates due process model o Police officer did not have reasonable grounds to arrest therefore could not o Also did not properly inform suspect of right to counsel and asked him some questions which incriminated  This evidence thus can be excluded from court o Effectively made it so that police are now required to gain prior authorization to enter a private dwelling of an individual to search for and collect evidence - Police are allowed to enter a residence (Bill C-16) without a search warrant if: o Threat of a loss or destruction of evidence o Police’s warnings would cause personal harm (warning them of their presence) o Urgent call for assistance is made - Investigative detention o Police can detain, interrogate, and search an individual even when there is minimal evidence to a crime being committed o Someone can be questioned even when no grounds for arrest  This is based on legality – how important is the matter o Investigative detention – a reactive power dependent upon a reasonable belief that the detained person is implicated in a prior criminal act  Detainment is permitted if there is safety concerns  Ex. Searching for weapons to protect themselves  Police risk having evidence thrown out if they decide they are at risk when they aren’t o Intrusive searches (like strip searches) can be illegal if discovered while making an arrest or detainment for a different crime  They do not have reasonable grounds to suspect anything illegal when they search – if something is found it could be thrown out in court o Police use investigative detention to stop and confront suspects (discretion) and allow investigators the time and opportunity to use search powers - Arrest o Police options in charging someone with an offence  Seize (arrest) a person and force them to show up to trial through detention  Arrest, and release but with an order to show up in court  No arrest and just a court date o Arrest – the police power to restrain an individual to deprive liberty  Police must use facts of the case to arrest someone  After collecting information – sent to justice of peace against the identified person  Known as lay an information  Justice of peace determines if evidence is good enough for a case then will issue a warrant or a summons to court  Can be done after (the police arrest first then lay an information)  Arrest without a warrant can be done when a crime is in the act of committing a criminal offence or has just committed one o Must have reasonable grounds to make an arrest – objective  Police arrest is often in the heat of the moment and without much judicial thought - Arrest without a warrant o Arrest can be made without a warrant if person is:  Found committing a crime  About to commit a crime  Police officer has reasonable grounds or has an outstanding warrant  Police officer knows they committed o Will not arrest without a warrant – if summary conviction or an indictable without jurisdiction from court judge - Custodial interrogation o Once arrested, suspects can choose to remain silent since oral and written statements are admissible in court  Stop questioning until counsel is present o Custodial interrogation of a suspect is a primary importance to provide the police with incriminating evidence that can lead to determination of guilt at the end of a court trial  To gain a confession  Only appropriate if given voluntarily – this raises issues in Criminal justice o Issues surrounding involuntary confessions  Involuntary confessions are non-admissible in court  Concerned with techniques of the police and the relationship to either make the suspect confess either because they did it or they did not do it o Possibility that police use superior psychological interrogation techniques to make some suspects confess falsely to crimes they did not commit  Part of the informality of the police to which is used to gander a confession o Police strategies:  Conditioning – officers provide a positive environment to ease the suspect and cooperate with police  Ex. Giving cigarettes  De-emphasizing – informing the suspect that their rights are not important but what is important is the victim and their families – guilt ridden  Suspect in this case will not use legal advice  Persuasion – telling suspect that if they do not tell their side of the story only the victim’s will be heard – ultimatum o Interrogations give evidence through the admissible nature of statements made by suspects therefore can sometimes lead to false convictions  Ex. Mr. Big – undercover drug boss who recruits felons to join a gang and gets them to confess crimes (as a test of legitimacy)  Although effective, some convicted were done on the basis of false confessions - attempt to lie to prove legitimacy o Confessions are also videotaped after hours of police interrogations  Essentially, the duress of the suspect makes them confess – whether they did it or not  Three types of false confessions:  Voluntary false confessions – confess a crime they did not commit; used to protect someone else, make an alibi for a more serious crime or in fear of the person who did commit the crime  Coerced-false confessions – result of intense custodial interrogation; done to end the uncomfortable position or receive the false benefit offered  Coerced-internalized false confessions – suspect may come to falsely recall involvement in a crime; due anxiety, emotions and interrogations  False confessions are shared with elements of:  Vulnerable suspects – youth, interpersonal trust, stress, alcohol or drug abuse etc.  Presentation of false evidence – ex. False polygraph tests - Compelling Appearance, interim release and pretrial detention o If a person is charged, their relevant information is obtained and the information to the case o After this:  If it is a lesser sentence they will be released and given a court order  If residence is far away may be required to give money  Bail – requiring a certain amount of money or a surety (someone to pay for you) in order to condition your release o Conditions for not releasing or giving bail to an individual:  Detention is necessary to ensure attendance to court  Detention is necessary for protection or safety of public  Detention is necessary in order to maintain confidence in the administration of justice - Bail o Officer in charge of investigation gives recommendation to the Crown prosecutor concerning whether the accused should be released  The conditions for the release are also decided upon  This gives way to police and prosecution discretion for bail  Subject to marginalization and increase recidivism of those deemed more threatening to society or to escaping justice  Circumstances are based on:  Seriousness of the crime  Background of the offender  Attitude and circumstances of the accused - Bail reform o Bail reform act  Recommendation that suspects be not placed in detention unless it was the only means to ensure the accused would appear in court  This is based on the research that bail discriminates against the poor  Research also shows that 84% of arrested remained in custody until court appearance – high amount of detainees  Manhattan Bail Project  Designed an experimental pretrial program that investigated individuals who could not afford bail to see how many would appear in court after being released after their first court appearance o Rate was consistently the same or better than those released on monetary bail  Resulted in release-on-recognizance programs  Lead to different types of pre-trial release o Station house release – issuance of a citation to appear in court later  Avoids costly detention  Research showed that most released appeared  Bail Reform act – preference that most offenders be released into community pending trial o Police officers must issue a citation to appear over arrest – unless officers deem public would be placed in danger or the accused has committed a serious indictable offence  Release is required unless prosecutor shows otherwise – “ladder effect” – determining whether the accused should be released o Prosecutor must show why a less severe release mechanism is not appropriate  Criticisms o Marginalized inmates (aboriginal and minorities) are more likely to be denied bail o Spent longer time in pretrial detention o Black  more likely to be remanded o Personality assessments by police  Negative assessments allow for bail to be denied  Subject to police decisions towards racial minorities and the corresponding pretrial detention - Legal aid o Canadians have a right to counsel without delay  Right to legal aid lawyers if they cannot afford o Legal aid is considered a important expression of social responsibility in giving access to justice to all people o When police are questioning they cannot question until they have informed the suspect of their right to counsel and have been given reasonable time to exercise the right and the corresponding reasonable time given to exercise their right o It is a requirement in law now for the federal government to fund legal aid programs  Programs must offer services if:  Accused is charged with an indictable offence  Or, if the accused faces loss of liberty in a summary conviction offence o Cost of legal aid - $632 million/year  Provincial Government proposed cutbacks on legal aid forcing provincial bar associations to pay for them o Federal governments propose cutbacks have a negative effect  Legal aid is now a directionless program from cut backs  Patchwork of services  No national standards  Also, legal aid is only given to Canada’s poorest of the poor and only when facing jail terms  Still state that it is a necessary part of access to justice o Government should treat legal aid as an essential service  Belief that all Canadians have the right to a fair trial o Number of legal aid applicants decreased to 670,000 in 2010/11  Was due to use of prescreening procedures  Changes in legal aid coverage  Increased use of duty counsel and free services by private lawyers  Most legal aid issues were that of criminal matters o 3 models of providing legal aid:  1. Judicare model  Qualified legal aid recipient receives legal aid o Can choose their own lawyer o Normal lawyer-client relationship maintained for poor defendants o Clients can select lawyers whom they feel can best serve their interests  Benefits of o Lower costs o Availability of services o Efficiency of having one lawyer handling case from beginning to end  Lawyers paid too low to cover costs  2. Staff system (public defender model)  Lawyers are employees of the provincial government  Benefits o Lawyers are salaried – client receives competent legal counsel  Lawyers take no money for services o Lawyers able to contact other public defenders  Benefit from group resources and expertise o Better representation – lawyers are specialists o Lower costs o Greater efficiency – centralized system o Better service of the interests of clients  3. Mixed or combined approach  Legal recipient has the right to choose legal counsel, either staff or private, from a panel of lawyers  It is a shift of onus onto individuals to find out what they need from the justice system on their own – self help model  Legal aid helps to provide legal information, advice and representation at various stages of the process Chapter 8 – The courts and Criminal procedure - Access to justice is an essential right to a fair trial o Legal aid is part of this  Someone can receive legal aid if the necessary factors are there:  Characteristics of the accused – financial, language skills, education  Complexity of legal and evidentiary matters  Possible outcome – ex. Jail time - But it is decided that an accused person does not need a lawyer to have a fair trial o Since there is a decline in the amount of people receiving legal aid there is more self- representation - Increase in self representation has lead to “burden of court” o 1. Rising number of self-represented increases pressure on other court actors (judges, prosecutors) who must assist them  Obligation to help to enable a fair trial  Undermines the adversial system (lawyers on both sides debate the innocence or guilt of the accused to come to a fair conclusion) o 2. Self-representation slows down the court process because judges must ensure a fair process  Judges left to help the accused - Function of the courts o Due process model  Primary focus of courts is to protect individual citizens from unfair advantages held by the agents of the state  CR&F allow equalizers to ensure various parties enjoy equal footing  Emphasis on the adversarial system to find the truth  Neutral judge  Prosecution and defense show relevant evidence  Structured procedures through trial o Crime control model  Protection of society is first and protecting the accused is second  Ex. Police are allowed to outwit offenders to gain confessions  Emphasis on punishment  Justice through deterrence and harsh punishments o Bureaucratic function model  Focus on the day-to-day operations of the court  The speed of the courts  Focus on getting those in trial in and out as quickly as possible  Concern about length of trials and backlogs o Those waiting trial can be released because they spent so much time waiting (2 for 1 system)  Success = speed for judges  Less focus on adversarial model and more on tension between ideals of justice and realities of bureaucracy - Organization of criminal courts o Provincial and territorial courts = cases in boundaries  Limited jurisdiction – deal with certain matters (automobile) and small crimes  One judge (justice of the peace) who decides  General jurisdiction – deal with serious cases  Appeal courts – accused appeal decisions of lower courts o SCC = all country  Appeal court to hear law matters of general importance to law - Court system o Involves suspected criminal offences in which a defendant must be proven beyond a reasonable doubt that they committed it o Court can only decide to detain an individual and decide guilt or innocence - Daily business of the courts o Many trials do not go to court and those who do, most of them plead guilty at the first hearing o Lower courts  Police play an important role in prosecutorial discretion  Prosecution relies on information from police when going to trial  Sometimes they follow suggestions of the police involved in the investigation o Police and prosecution work closely together to avoid long trials  If accused admits guilt, prosecution can bargain from a position of strength  60% of guilty pleas receive no benefit o Prosecutors can use discretion to stay proceedings, withdraw chares or dismiss charges  Ex. Settling cases before court to speed up trial and protect victims  Other factors = insufficient evidence, witness problems, due process problems etc. o Defense lawyer  Represent legal rights of the accused in criminal proceedings and insurance of a fair criminal justice procedure  Ensure the client’s legal rights are protected  Assess validity of evidence and reliability of testimonies  Examines evidence collected by police  Question witnesses  Object legal proceedings  Usually fights for a lower sentence and effective plea bargains with the prosecutor o Crown prosecutor  Present states case against defendant  Presentation of evidence relevant to crime and enforcement of law  Require to disclose all relevant evidence and witnesses  Evidence must present a prospect of conviction o Strong cases only presented  Consider public interest in case – ex. Child or elder crimes, organized crime  Pressure to gain as many convictions as possible  Maintain image of succeeding at trials o Provoke less trails – more out of court guilty pleas  Low acquittal rates suggests success in justice  Therefore because prosecutors are trying to gain as many guilty verdicts as possible and the pressures of case load are high they decide on an outcome of a case on expediency over justice  This leads to critics of an assembly line type justice o Judges  Role of judges is upholding the rights of the accused and arbitrating any disagreement that arise between a prosecutor and defence lawyer  Determine guilt due to facts and the length and type of sentence  Objective  Appointed by federal Cabinet - Criminal trial procedure o Start of the adjucation stage  First appearance:  Bail hearing – whether or not accused should be released pending trial  Prosecutor must show that accused is a danger or flight risk  Reverse onus (serious crimes) accused must prove why they are not a risk  Crown elections – crown chooses indictable or summary conviction for hybrid offences  Defence elections – defendant choose to be tried in a provincial court or a Superior court – with or without jury  For a superior court, a preliminary inquiry must be held  Only for indictable offences can they choose  Preliminary hearings – determine if there is sufficient evidence for trial in a Superior court  Accused able to review all evidence of the Crown before heading to a higher court  Fitness hearings – accused is tested to be fit for trial or to be remanded in custody  Trial – begin with accused either entering for a plea of guilty, guilty of lesser charge, not guilty  Not guilty results in trial and the judge will make judgment on evidence to convict - Plea o Beginning of trail, accused pleads guilty, not guilty  90% of trials begin with a plea of guilty – summary  Not guilty most common for indictable o Not guilty = trail date  Summary conviction  summary conviction court  Information read, response of guilty or not guilty o Not guilty  provincial trial date o Guilty  sentence or remanded until submission about case are heard  Max 8 days in remand - Preliminary hearing o Done when accused has to or chooses to face a judge/jury  Used to – see if there is enough evidence for a criminal trial and protect unnecessary trials o Guilt is not determined, only the potential for guilt shown by prosecutors o Prosecution presents evidence sufficient to criminal trial  Accused can cross examine to show illegitimacy  Accused can then evoke own witnesses o After all information, judge makes a decision  able for a trial or not able and accused is set free o Preliminary hearings are usually waived:  Accused is going to plead guilty  Accused wants speedy trial  Accused hopes to avoid negative publicity o Preliminary inquires are deemed wasteful by some and by other important (defence gets to examine witnesses) - Prosecutor screening process* o Crown prosecutors hold discretion when to charge, what to charge and whether charges should be reduced or dropped  Trying case in court on charges, plea bargaining, staying proceedings, dismissing charges  Hybrid  summary or indictable o Prosecutors can decide to proceed and for that decision use a screening process:  Determining strength of evidence  easier for prosecution  Case priorities  violent to court over not  Prosecuting a repeat offender over first time offender  Nature of witnesses (cooperative or not)  Credibility of witnesses (or victims)  Ex. If prostitute or drug addict witness less likely to proceed  Drop if the accused will assist in another trial (small drug dealer to higher) o Case proceedings become a part of strategies for dealing with cases  Transfer model  prosecutor charges most with little screening (high amount of resources to convict)  Unit model  a lot of discretion  Legal sufficiency model  screen on the amount of legal elements to prosecute  System sufficiency model  fast cases, high probability, unclear = rejected  Trail sufficiency model  proceed to court if conviction is likely  Defendant rehabilitation model  potential to rehab the offender – proposition of treatment over incarceration - Plea bargaining* o An agreement for the accused to plead guilty to receive a lesser sentence  Improves efficiency  Lowers cost of prosecution  Prosecution allocated to more important cases o Agreement between defence, accused and Crown lawyer  Charge bargaining  promise to reduce charges, withdraw some charges, not charge others or reduce multiple charges to one  Sentence bargaining  recommendation to the judge for a shorter sentence or in the way of summary for a hybrid  Fact bargaining  agree to not submit certain facts about the case to receive a lesser sentence (leave out aggravating factors) o Prosecution discretion  Obligation to plea bargain on the basis of fairness, justice and public interest  Prosecution can choose to either initiate or respond to a plea bargain  Prosecution often accept plea bargains:  Inherence to focus on serious cases or cases to which have a good chance of conviction  Saves time and money  Reduces risk of loss of trial o Criticisms of plea bargaining  Unfair, held from public scrutiny therefore too lenient  Undermining of core criminal justice values because it avoids due process standards  Innocent may be compelled to plead guilty o Advantages of plea bargaining  Increase efficiency  Reduces costs  Reduce victim trauma of cross examination - Criminal trial o Formal process that follows rules of evidence, procedure and criminal law o Key actors  Prosecutors  Use police reports, witnesses and victims and physical evidence to provoke that the accused is guilty  Defence lawyer  Points out weaknesses in prosecution’s case and provides beneficial evidence for the accused  Insurance of constitutional rights are followed Chapter 9 – Sentencing - At sentencing, justice in the guilty being punished must occur - Controversial because public is concerned with length and type of punishment - Disparity and discrimination lead to a need to reduce judicial discretion by alternative sanctions (mandatory minimums) o Mandatory minimums reduce disparate treatment of offenders in courts o Mandatory minimums focus on deterrence and selective incapacitation over rehabilitation – more severe punishments and more tangible  The public has an immediate response to crime - Pro mandatory minimums o Act as a deterrent o Prevent future crimes through incapacitation o Reduce sentence disparity – criminals will receive similar amount of punishment o Respond to public concern of holding criminals responsible for their crimes - Against mandatory minimums o No deterrent – criminals are afraid of being caught over the sentence o Leads to out of proportion sentences due to limited judicial discretion o Increases prosecution discretion (can stay charges or plea bargain to avoid mms) o Increase prison population - Philosophical rationale of sentencing o Public feel that sentences are not harsh enough  Think that the most important goal of sentencing is to punish the offender (justice model) o An offender can be punished with many forms like fine, imprisonment, probation, community service, intermittent sentence  With all these options judicial discretion has come under scrutiny o Sentencing is concerned with a deserved infliction on criminals and prevention of crime o Four rationales to sentencing  Deterrence  Protection of society through the prevention of criminal acts  Too lenient = less afraid of committing the crime  Too harsh = more inclined to commit a more serious crime o Ex. If harsh sentence for breaking and entering, more inclined to kill a person to avoid witnesses  Two types: o Specific  discourage an individual through punishment from recidivism o General  discourage people to not commit a crime because of the sentence  Selective incapacitation  The restriction of the freedom of offenders, to prevent them from committing more crimes through incarceration  Favours longer sentences to keep chronic offenders off the streets o Those with past criminal history are given higher sentences  Critiqued for its lack of effectiveness in reducing the crime rate  Rehabilitation  The emphasis that many offenders can be treated in a way that once they are released into the community they will not commit crimes o Attempt to correct behaviour through programs o Attempt to treat social and psychological problems  Advantages: o Fair to criminal to give treatment not just incarceration o Success in reducing crime o Does not include imprisonment (community sentences)  Justice model  Offenders should be punished no more or less than what their actions deserve o Severity of crime = severity of punishment  There should be less disparity in sentencing and a more unified sentence for a specific crime o Focus on crime over individual factors (race, gender etc)  Only shall aggravating or mitigating apply to a different sentence  Premise: o Focus on offender’s past behaviour (rather than future criminality and protection of society o Shorter sentences o Two new rationales:  Restoration  Repairing the harm done by the crime  No minimum punishments o Often a deviation from prison in this approach  Used of fines, community service, compensation, reconciliation etc.  Shorter sentences  Healing  Justice comes through transformation and reintegration of victims and offenders into society o Justice is the resolving of conflicts - Judges and sentencing o Sentences are restricted by law (ex. Summary conviction cannot equate life in prison) o Sentences can be based on offender characteristics  Mitigating  reduce sentence  Aggravating  increase sentence  Others there are certain distinctions that do not allow discretion (ex. Mandatory minimums for second degree murder and manslaughter) o Judicial discretion factors  Objective offence factors  Seriousness of offence and character of offender  Documents on the convicted offender  Pre-sentence report – report from probation officers to help sentence o  Judges usually follow (94%) probation officers recommendation o Includes age, character, behaviour o Criminal and alternative measure history o Includes a lot of discretion  Helps judge make the right sentence  Personal characteristics of judges  Must follow statute direction for the offence  Rules and principles also offer guidance to the judge  Other than these the judge can select which sentence o Why judges sentence  A selection from different sentencing options is used for a specific result  Accomplish an objective (deterrence, selective incapacitation, justice or rehabilitation)  Disposition – judicial determination of the legal sanction to be imposed on a guilty offender o Sentencing options  Imprisonment  service of a federal or provincial term for the purpose of the four rationales  Intermittent sentences  service of time on a certain basis like weekends  Limited to a maximum of 90 days  Fines  can be used in combination; offender is not considered a threat to community  Restitution and community service  payment to injured parties; restitution = payment to injured party, community service = offender does benefit to community  Probation  sentence served partially in community  Restorative justice  relationship between victim and offender to be healed (Braitwaithe)  Discharge  not convicted of an offence; conditional = probation  Community-based sanctions  non-criminal alternatives  Conditional sentence  prison sentence is suspended o How judges sentence  Use of information provided by others (pre-sentence reports)  Allow for relevant information about crime and impact of crime  Information about offender  Deliberation from a joint submission  prosecution and defence recommend a sentence (plea bargains)  Judge usually accepts this o May reject if not seen to fulfill public interests or is too far removed from other sentences  Use of information on the sentence itself  Mitigating or aggravating - Issues in sentencing o Sentencing disparity  When similar crimes do not receive similar punishments  Variation is to be accepted with different characteristics per case  3 types:  Case to case  different sentences for similar offenders of the same offence in similar circumstances  Judge to judge  different judges impose different sanctions  Court to court  Different courts in different jurisdictions impose different sentences (use of different standards)  Usually exists due to judicial discretion to the factors of the case o Court community organization  Different rationales held by individuals of the courtroom work group create variations in sentencing  Court community perspective  courts are communities who contain their own social and organizational cultures  These shape informal case processing and sentencing  Potential for extralegal factors to be part of consideration o Sentencing discrimination  When a length of sentencing is influenced by extralegal factors (gender, race, social class or anything not related to the criminal offence)  Focus on two groups  Aboriginal people  Black people o Some can equate these to be a direct result of social conditions and variables of factors like unemployment - Victim Participation in Sentencing o Right of victim to participate in trials  Usually through victim impact statements  Detail effect of the crime on the part of the victim  Forwarded to the judge in sentencing o Influences judicial sentencing  Allows victim’s wishes of status in court proceedings to be realized  Increases dignity and fairness of their ability to be heard in court o Anti-victim participation points:  Reduces effect of adversarial system  crime is to be a offence against the state  Recognition of victim would promote:  Judicial pressure leading to vindictiveness  More court delays, longer trials and increase in legal costs  Disparity in sentencing Chapter 10 – Alternatives to prison - Probation, conditional sentences and intermediate punishment o Known as community sentencing - Probation o Based on the idea that some offenders are not actually dangerous criminals who threaten society  Judge suspends sentence and sentences offender to probation o Can be imposed as:  A single sentence  “Split” sentence  offender is required to complete another punishment before probation o Max 3 years probation and has been increasing as a part or whole sentence (45%)  May be increased to “super probation” if necessary conditions make offenders a possibility to reoffend o Involves an offender being released into the community under supervision of a provincial probation service  Contract between offender and the state to perform under the conditions mandated by court  If broken, possibility of being sent to prison (offence of breach of probation is committed) o Conditions  Remaining in a jurisdiction,  Reporting to probation officer  Keeping peace  Keeping authorities informed of residence  Informing probation officer and courts of employment  Refraining from contact with criminal associates o Any other conditions deemed reasonable for protection and reintegration of offender (ex. Drug treatment) o The eligibility of probation  Commonly used for violent offenders  Reasons:  Violent crimes receiving probation are less serious  Offender’s criminal record o Breach of probation  High amount of probation breaches (43,000)  Committed by unemployed young men with low income, criminal record and history of instability  Females with stable marriages, higher levels of education with employment are likely to succeed - Conditional sentence of imprisonment o A sentence of imprisonment of less than two years that the offender serves in the community under both optional and mandatory conditions  Serious offences are ineligible for conditional sentences (indictable or maximum of 10 year sentences) o Alternative to prison in the hope to reduce prison populations o Same conditions of probation o Conditional sentences should reflect the aims of penal policy for incarceration and probation o Conditional vs. Probation  Enforcement procedures  Conditional sentences are more punitive in regards to tougher conditions  Probation = rehabilitation  Conditional sentences  principles of denunciation and rehabilitation  Can be a longer sentence than incarceration  If breached, the rest of the term is spent in prison o The use of conditional sentences  43,000+ sentenced, median of 8 months  Judge’s opinion:  Judges would impose more conditional sentences if there was more support services were available in the community  67% feel conditional sentences are less effective than jail for deterrence  Study of
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