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What is sentencing?
- The judicial determination of a legal sanction upon a person convicted of an offence
- In Canada, relies on judicial discretion
- Impacts future similar cases
What is the philosophy of sentencing in the middle ages?
- the harsher, the better
- public sentences involving physical punishments, tortute, etc
What was the philosophy in the late 18th for sentencing?
- deterrence through rational punishment
- influenced by the Enlightenment
- rational thinking --> move away from religion
- offenders are rational --> costs should outweigh benefits
- focus less on severity
What is the sentencing philosophy in the 20th century?
- rehabilation makes an entrance
- blief that causes of crime are beyond offenders' control, society is the cause
- offenders are amenable to treatment
What are the 5 principles in modern sentencing?
- 1) just deserts- retributive
- 2) incapacitation- ultilitarian
- 3) deterrence- utilitarian
- 4) rehabilation- utilitarian
- 5) restoration- restorative
What is just deserts mean?
- philosophy which holds that criminal offenders deserve the punishment they receive, and punishment should be appropriate to the type and severity of crime committed
- offenders are responsible for their crimes
- proportionality is the most important principle
what is incapacitation?
- the use of imprisonment or othe rmeans to reduce the likelihood that an offender will be capable of committing future offences
- seperate offenders from community so they cant commit crimes
- requires restraint, not punishement
- looks at the future- # of crimes avoided cause offender is in jail
What is the theory and practice of incapacitation?
- in theory, key is to identify recividist and isolate them as long as necessary for societal protection
- in practice, difficult to achieve with efficiency
What is deterrence?
- seeks to prevent others from committing similar crimes to the one for which an offender is being sentenced
- uses punishment to convince people that crim is not worthwhile
- overall goal is crime prevention
What is the gernal and spefici part of deterrence?
- Specific: reduce the likehood of recidivism by convicted offender
- General: try to influence people which have not yet committed crimes- but who may be tempted
What is Rehabilitation?
- The attempt to reform offenders
- Gained prominence in 1930s
- Goal is to reduce the amount of future crimes through treatment, instead of fear
- The idea was almost killed in 1970s --> nothing works
What is restoration?
goal of sentencing which seeks to address the harms made to victims by making them whole again
what are the two sources of restoration?
- a) sanctions have little impact on recidivism
- b) CJS focus too much on offenders, not enough on victims
How is restoration played in the CJS?
under the form of victim impact statements, restitution payments
What are the traditional options for sentencing?
- a) imprisonment
- b) probation
- c) fines
What is imprisonment?
- used in only the most serious cases (35%)
- vary by the type of offence
- Homicide 90%
- Arson 39%
- Theft over $5000 43%
- Drug trafficking 43%
What sentences carry a mandatory min?
- a few offences carry a mandatory min. stences, most involve firearm
- murder: life
- manslaughter w fireamr: 4 years
- manslaughter: no min
- Any firearm related: 1-3 years
- Alcohol-relating driving
What is probation?
- court- ordered sentence served while under supervision in the community
- "freedom with conditions"
What is the goal of probation?
- Allow for some control over offenders while using community programs to help rehabilitation
- most used sentence (46%) because versatile, inexpensive compared to prison and less severe
What are the 3 compulsory conditions to any probation sentence?
- 1) keep the peace and good behaviour
- 2) appear before the court when required to do so
- 3) notify probation officer or court in advance of any change of address, occupation
What are fines?
- often used (32%)
- mostly for minor offences
- more popular: generate money instead of costs
- amount set by judge
- CC sets max for summary convictions $2000
- only 5% exceed 500
- judge sets time to pay fine
How do judges decide what is the appropriate time to spend in prison for unpaid fines?
unpaid fine + $400 cost
What is the inequities of the fine system?
the wealthy and the poor could receive the same fine for the same offence
What are the solutions for the inequities of the fine system?
- only impose fines when offenders has ability to pay
- fine option program
What is absolute discharge?
a sentence where in the accused is found guilty but does not gain a criminal record and is given no sentence
What is conditional discharge?
sentence where the accused is found guilty but does not gain a criminal record and is given no setence expect the offender is placed on probation for a specific time period
What is conditional sentencing?
- a sentencing option which allow offenders to serve their incarceration period in the community under supervision of a probation officer rather than prison
- only sentences less than 2 years
- contains compulsory conditions, normally more onerious than simple probation
What are the goals of conditional sentencing?
- reduce the use of incarceration
- used in 5-8% of sentences but trends is upwards, same for severity
- used in 18% of cases involving sexual assaults, and 35% drug trafficking