Part 6 Flashcards
purpose of sentencing
protect society and contribute, along with crime prevention initiatives, to the respect for the law and maintenance of just, peaceful, and safe societies through just sanctions
a judges sentence should consider the objectives:
- to denounce
- to deter
- to separate
- to rehabilitate
- to prove reparation
- to promote responsibility and acknowledgment
to denounce
- denounce unlawful conduct
- systematic way in which society can communicate what is wrong
to deter
specific vs. general deterrence
to separate
separate offenders from society in reflection of the crime committed
to rehabilitate
should be an element of rehabilitation in all sentencing
to prove reparation
must be reparations for the harm done to the individual or community
to promote responsibility and acknowledgment
sentencing should acknowledge that the individual is responsible for committing this crime and the sentence should promote responsibility and acknowledgment of the offence
specific deterrence
deter the offender from committing this specific crime through punishment
general deterrence
create general deterrence from committing this crime by showing society what is happening to this offender and the punishment
fundamental principles of sentencing
- proportionality
- restraint
proportionality
- proportionate to the gravity of the offence and degree of responsibility
- fair sentencing based on the severity of the crime
restraint
- sentence is just and appropriate punishment and nothing more
- incarceration vs. community service vs. house arrest vs. fine; as forms of punishment based on the crime committed
3 goals of sentencing
- utilitarian goals
- retributive goals
- restorative goals
utilitarianism
- focus on future conduct
- deterrence
- broad philosophical model
- bring the most good to the most people and least suffering
- prevent future crimes from happening
retributive model
- focus on past crimes
- focussed on the offender and the offense and how to we make them pay
- denunciation
denunciation
- expressing this is not okay, you can’t do this, heres your punishment
- denouncing the offense
restorative
- focus on how crimes impact the victims, offenders and community
- future oriented
- protect society
sentencing options
- absolute discharge
- conditional discharge
- fine
- forfeiture
- prohibition
absolute discharge
- found guilty, but not convicted
- circumstantial
- charges will be removed without formal application within the year
- e.g. not criminally guilty based on mental insanity, victimless crimes, crime of duress
conditional discharge
- found guilty and released, but has to comply with a condition of a probation order of 1-3 years
- no permanent record
- e.g. getting a job, attending court ordered rehab are conditions of probation
forfeiture
- give up goods to the crown
- if you have property or money that you have from illicit/illegal means you must forfeit that to the crown
prohibition
avoiding certain situations (e.g., driving, can’t be near a school, can’t drink)
harsher sentencing options
- suspended sentence
- intermittent sentences
- probation
- conditional sentence
- imprisonment
suspended sentence
- convicted, but sentence is suspended pending successful completion of a probation order for 1-3 years
- if you break the conditions of you probation yo are back in your originally sentence
- you have been sentenced but given probation instead
intermittent sentences
- custodial sentence served on a part-time basis
- serving it on a part time basis
- e.g. halfway house
probation
placed in community supervision
conditional sentence
- confinement for 2 years less a day, but can serve it in the community
other sentencing options
- combining offences
- concurrent sentences
- consecutive sentences
- victims fine surcharge
- judicial determination
- life imprisonment
- dangerous offenders
- long-term offenders
combining offences
- charged with all offences that were committed and the judge combining your offences because they were committed together
- prevents backlog
- e.g. committing armed robbery and assault at the same time and being tried for them together rather then undergoing 2 separate trials
concurrent
- serving together
- e.g. receiving 5 months for assault and 5 months for robbery and serving those at the same time instead of serving 10 months total, you only serve 5
consecutive sentence
- back to back
- e.g. receiving 5 months for assault and 5 months for robbery and serving those back to back and serving 10 months total
victims fine surcharge
- in part of another sentence
- mandatory for federal offenders if assigned too
- e.g. if you’ve committed an offence against a victim you must pay this fine that will go to victim services
judicial determination
- determination of the judges regarding aspects of the offender
- e.g. re-offending, circumstances surrounding them and their crime, etc
dangerous offender status
- crown now has the burden of proof that you are in fact a dangerous offender, you are an imminent danger to society
- offender has to do indefinite time in federal custody
- e.g. paul bernardo
long-term offender status
the offender at minimum has to do at least 10 years of community supervision AFTER your sentence
sentencing considerations
- aggravating factors
- mitigating factors
- case law precedent
- pre-sentence reports
- victim impact statements
- psychological assessments
aggravating factors
- may increase the severity of a sentence
- previous violent criminal history
- situations surrounding the crime (excessively violent)
mitigating factors
- decrease the severity of a sentence
- role you played in the crime (getaway driver vs. actual robber)
- e.g. gypsy rose case is full of mitigating factors
case law precedent
- similar sentences for similar cases
- consistency within sentencing
pre-sentence reports
- info on the offenders background, situation, risk and needs
- a judge or legal defence can push for this information on the offender
- judges discretion if they order it and use it in consideration to sentencing
- e.g. probation officer can fill this out, in order to help the judge determine what sentence will be best in the case of this offender
psychological assessments
- mental state and treatment needs
- e.g. greyhound killer
considerations of identity
- gender
- indigenous offenders
- racialized offenders
- utility of cultural assessments
gender as a consideration of identity
- 2 theories of sentencing women:
1. ‘damsel in distress’: less threatening → less severe sentencing because they need saving
2. women are supposed to be feminine, docile creature so if they act out they must be evil
indigenous offenders as a consideration of identity
- mandates that judges should have special consideration for indigenous offenders
- historically he CCJS and many other systems in - Canada have committed harm to indigenous communities
- gladue reports
gladue reports
report for indigenous offenders that outline special considerations, info about them, underlying circumstances (mitigating factors)
racialized offenders as a consideration of identity
- systematic issues of racism and state sponsored violence, specifically against black communities
- consider if they are adding to the problem and sentencing the individual more severely or unfairly
sentencing disparities
- differences in sentencing based on the offender
- racial or ethnic identity
- socio economic status
judicial discretion in sentencing
- necessary for decision-making
- case-by case variance
- potential personal influential factors
- balancing personal conscience with judicial conscience
dealing with discretion
- statutory guidance
- maximum sentences
- sentencing disparities
- mandatory minimum sentences
statutory guidance
guided by legislation
maximum sentences
maximum sentence for crimes that limit judges from over-sentencing due to personal feelings/bias
mandatory minimum sentences
minimum amount of sentence that can be imposed for a certain crime
circle sentencing
- a strategy that involves collaboration and consensual decision-making by community members, the victim, offender, and CJS actors to resolve conflicts and sentence offenders
- discuss the harms done, what the victims wants, what the offender can do in order to determine potential ways to go forward
- typically only seen in minor offence
