Chapter 8: Sentencing Flashcards
What is the difference between sentencing philosophies and principles?
Sentencing philosophies are broader overarching ideas, while sentencing principles are what judges refer to.
What are the 5 sentencing philosophies?
- Deterrence.
- Selective incapacitation.
- Rehabilitation.
- Retribution.
- Restorative justice.
What is deterrence as a sentencing philosophy?
Is about sending message, playing on people’s fears of being caught and what would happen if they did get caught.
What are Jeremy Bentham’s 3 criteria that must be met in order for deterrence to be effective?
Swift certain, and severe.
The severity of the punishment needs to be severe enough that… in order for deterrence to be effective.
The costs of the crime outweigh the benefits of the crime.
What is the difference between general and specific deterrence?
General deterrence is when you make an example out of someone, and you punish someone harshly to ensure others do not commit the same act. Specific deterrence is when you punish someone harshly to ensure they do not commit crime again.
Deterrence assumes ___ thought and capacity for reflection. What is problematic about this assumptions?
Rational. However sometimes crimes are done spur-of-the-moment, and rational thought or reflection can be absent.
What does it mean when it is said that criminals tend to be optimists?
They do not really believe that they will be caught, they won’t be prosecuted, they won’t be found guilty, they won’t get a harsh punishment.
Criminals tend to be optimists. Are they wrong in this assumption?
When looking at the dark figure of crime and attrition, there may be some merit to this assumption.
Which aspects of Jeremy Bentham’s criteria for effective deterrence are met in the Canadian justice system, and which are not?
Severity is often met, but swiftness and certainty are often not.
Ultimately, is it the case that deterrence is effective on either first time offenders or repeat offenders?
No, deterrence does not seem to work on first time offenders, and does not even work on repeat offenders who should have learned from their mistakes.
What is the sentencing philosophy of selective incapacitation about?
About controlling people, so that you protect broader society. While the person is incapacitated, they should not be able to harm society.
What is the modern form of selective incapacitation?
Imprisoning people and separating them from society.
What are some historical forms of selective incapacitation?
Britain shipped people off to colonies (transportation), and mutilation and amputation were also methods used for incapacitation.
What is transportation?
A selective incapacitation method used by Britain for those who broke the law.
What is a new form of selective incapacitation, often used during house arrest?
Electronic monitoring.
Is selective incapacitation about punishment, restraint, or both?
Selective incapacitation is about restraint, and controlling people.
What has recently been talked about as alternative measures of restraining people? Give an example.
Chemical castration of sex offenders.
What is the main idea behind the sentencing philosophy of rehabilitation?
Changing people and making them willingly choose law-abiding lifestyles.
Why is the name “rehabilitation” problematic?
Rehabilitation implies that you would restore someone to their original state. However, in criminals, it is more like habilitation, as many individuals never had the basics.
How does rehabilitation involve training and education?
It gives the offender more opportunities to support themselves in the community.
How does rehabilitation involve treatment or therapy?
If there are deep-seeded issues that require therapeutic intervention, such as anger management and mental illness.
In rehabilitation, offenders’ needs are individualized, so rehabilitation must also be ___.
Individualized.
Rehabilitation arose as a sentencing philosophy when crime and deviance became more ___.
Medicalized.
What is the medicalization of crime and deviance?
Trying to understand human behaviour in the context go diseases and treatable conditions.
Drug courts represent a step in the right direction, because…
They do not experience the same stigmatization and formal proceedings of the criminal justice system.
What is the assumption that must be made in drug courts?
The offender is committed to rehabilitation.
Why is rehabilitation, even in cases where the offender wants to change, more idealistic than real?
- Much higher demand for rehabilitative programs than the CJS has the capacity to provide.
- Lack of access can prevent offenders from getting treatment they need.
- Some whose sentences have expired may not have been offered rehabilitative programs.
- Quality of programs.
What is program fidelity in the case of rehabilitation?
Programs are not offered in the way they were meant to be offered. For example, having a 8 week program offered as a 4 week program.
Rehabilitation is not a priority in the current system, and the community is structured to promote ___.
Failure.
Communities are/aren’t receptive to offenders coming into the community.
Aren’t.
When rehabilitation fails, people use this as evidence that…
Punishment, not rehabilitation, is the way to go.
Provincial programs differ across provinces, so there is…
Much variation.
What is the focus of retribution in sentencing?
About getting even.
What is the earliest known rationale for handing out punishment?
Retribution.
What is the difference between historical retribution and modern retribution?
Historical retribution was very harsh; for example, death penalty for stealing. In modern times, there is an emphasis on proportionality.
What is the difference between retribution and other sentencing philosophies?
Other sentencing philosophies look towards the future, but retribution looks at the here and now, and holding people accountable for past behaviour.
In retribution, deterrence is not the priority, rather, the ___ is important. (hint: eye for eye)
Satisfaction.
Using an example, explain why retribution is problematic.
A fine is a very common sentence. For those with financial means, a fine is simply a slap on the wrist. However, for those who are poor, the fine results in incarceration as a result of the failure to pay the fine.
What is the main focus of the restorative justice sentencing philosophy?
About healing and repairing harm.
Restorative justice recognizes that crime is both the ___ and ___ of harm.
Cause, consequence.
Where does the impetus for restorative justice come from?
- Empirical evidence that shows that the CJS hazel little impact on recidivism and concern that the system’s focus on the offender results in abandonment and betrayal of the victim.
- Marginalized, abandoned, and betrayed offenders.
Restorative justice recognizes that people other than the direct victims can be victims of crime. Give an example of this.
The wife of a man convicted of sexual assault was considered guilty by association, but the CJS only recognized the two sexual assault victims as victims.
Are prison terms considered in restorative justice?
Yes. However, alternative means are usually the first course of action.
In Canada, victims may prepare ___ ___ statements.
Victim impact.
Why are victim impact statements important?
If they are called as a witness, they are restricted in what they can say. However, in VIS’s, they can say things that have been excluded from the trial.
What is one thing that the victims cannot say in their VIS’s?
Sentencing recommendations.
What is a reason that victims should not be included in the sentencing process?
Retribution is okay, but vengeance is not. There is the belief that victims may be overly punitive.
What are some sentencing principles that judges must abide by?
- Sentences should reflect seriousness of offence, the degree of responsibility of the offender, and aggravating or mitigating factors.
- Sentences should be consistent.
- Consecutive sentences should not be unduly harsh.
- Imprisonment should not be given unless necessary.
What does it mean when the judge must consider the degree of responsibility of the offender?
The judge must look at the moral culpability of the offender– to what degree did they mean what they did?
What are aggravating and mitigating factors?
Aggravating would increase the sentence, mitigating would decrease the sentence.
Name examples of aggravating factors.
- Position of power.
- Premeditation.
- Use of force/weapon.
