REFORMING SENTENCING LAWS - A CANADIAN PERSPECTIVE (FROM NEW DIRECTIONS IN SENTENCING, P 73-96, 1980, BY BRIAN A GROSMAN - SEE NCJ-71049)

• NCJ Number: 69400
• Author(s): K JOBSON
• Date Published: 1980
• Length: 24 pages
• Sale Source: Butterworth
• Language: English
• Country: Canada

Annotation

ARGUMENTS ARE PRESENTED FOR A REDUCTION IN THE USE OF IMPRISONMENT AS PUNISHMENT FOR NONVIOLENT OFFENDERS IN CANADA, ALTERNATIVE SANCTIONS ARE DISCUSSED, AND PROSPECTS OF REFORM FOR THESE OFFENDERS ARE ASSESSED.

Abstract

ALTHOUGH CANADIAN SENTENCING LAWS ALLOW THE COURTS WIDE DISCRETION IN SENTENCING, THE OVERWHELMING MAJORITY OF PERSONS SENTENCED TO IMPRISONMENT IN CANADA ARE NONVIOLENT OFFENDERS, WITH OVER 95 PERCENT OF NONVIOLENT OFFENDERS AGAINST PROPERTY RECEIVING SENTENCES OF 3 MONTHS OR LESS. EMPIRICAL EVIDENCE SUGGESTS THAT SUCH SHORT-TERM IMPRISONMENT DOES NOT REHABILITATE THE OFFENDER, PROVIDE A DETERRENT EFFECT, OR HAVE ANY SIGNIFICANT OVERALL INCAPACITATION EFFECT ON OFFENDERS. EVEN ASSUMING THAT SOCIETY IS WILLING TO BEAR THE HIGH COST OF INCAPACITATING OFFENDERS, INCAPACITATION AS A SENTENCING POLICY COULD NOT BE IMPLEMENTED BECAUSE (1) IT IS UNJUST TO PUNISH OFFENDERS ON THE BASIS OF THIS POTENTIAL FOR COMMITTING CRIMES IN THE FUTURE, AND (2) THE EXPERTISE TO PREDICT ACCURATELY WHICH OFFENDERS ARE LIKELY TO COMMIT FURTHER OFFENSES IS NOT AVAILABLE. THE DETERMINATION OF WHICH OFFENDERS MERIT IMPRISONMENT IS LARGELY A MORAL AND POLITICAL JUDGMENT MADE BY THE JUDGE. THUS, A REDUCTION IN THE USE OF IMPRISONMENT WILL NECESSARILY BE TEMPERED BY THE COMMUNITY'S LEVEL OF TOLERANCE, THE AVAILABILITY OF ACCEPTABLE SENTENCING ALTERNATIVES, AND THE JUDGE'S OWN ATTITUDES. THE COMMUNITY'S LEVEL OF TOLERANCE IS PROBABLY GREATER WITH RESPECT TO NON-VIOLENT OFFENDERS THAN VIOLENT OFFENDERS, AND ALSO MAY BE HIGHER THAN IS REFLECTED IN CURRENT SENTENCING PRACTICES. ALSO, ACCEPTABLE SENTENCING ALTERNATIVES EXIST, SUCH AS SHORT PRISON TERMS, STIFF FINES, AND PROBATION. HOWEVER, CANADIAN COURTS MAY BE UNWILLING TO CHANGE SENTENCING PRACTICES REGARDING NONVIOLENT OFFENDERS BECAUSE OF PUBLIC PRESSURE TO MAINTAIN STIFF SENTENCING PRACTICES, A JUDICIAL RESISTANCE TO SUGGESTIONS FOR REFORM MADE FROM OUTSIDE THE COURTS, AND THE HIGHLY INDIVIDUAL NATURE OF SENTENCING IN RELATION TO THE ATTITUDES AND VALUES OF A PARTICULAR JUDGE. SENTENCING PRACTICES ARE UNLIKELY TO CHANGE UNLESS COMMUNITY AGENCIES AND PROBATION STAFF DEVELOP INNOVATIVE ALTERNATIVE PROGRAMS FOR USE BY THE COURTS. TABLES AND 71 NOTES ARE PROVIDED.