NCJ Number
19069
Date Published
1974
Length
215 pages
Annotation
A WORKING PAPER OF THE LAW REFORM COMMISSION OF CANADA ON 'THE PRINCIPLES OF SENTENCING AND DISPOSITIONS', PLUS TWO INDEPENDENTLY PRODUCED BACKGROUND PAPERS ON 'ALTERNATIVES TO THE ADVERSARY SYSTEM' AND 'THE REFORM OF PUNISHMENT'.
Abstract
THE WORKING PAPER ON PRINCIPLES IS A GENERAL INTRODUCTORY PAPER WHICH OUTLINES THE NEED FOR DIVERSIONARY PROCEDURES SUCH AS PRETRIAL DIVERSION BY SETTLEMENT OR MEDIATION, RESTITUTION, VICTIM COMPENSATION, AND OTHER COMMUNITYORIENTED SANCTIONS. PROFESSOR HOGARTH CALLS ON US TO REEXAMINE THE ADVERSARY SYSTEM AND TO SEEK ALTERNATIVES TO IT. HE DESCRIBES THE UNDERLYING ASSUMPTIONS IN THIS SYSTEM AND ITS LIMITATIONS AND DEVELOPS CRITERIA FOR A RE-EVALUATION. ON THE BASIS OF THESE CRITERIA HE CRITICALLY EXAMINES THE CRIMINAL PROCESS IN THE LIGHT OF PRESENT SOCIAL NEEDS AND THE FUNCTION OF INSTITUTIONS IN THE CRIMINAL JUSTICE SYSTEM. PROFESSOR HOGARTH THEN DEVELOPS VARIOUS CONCEPTUAL MODELS, OPTING PRIMARILY FOR A SOCIAL-EDUCATIVE MODEL OF CRIMINAL JUSTICE. FINALLY HE ATTEMPTS TO DESCRIBE A WORKING MODEL WHICH SHOWS THE INTERACTION OF CONCEPTS, INSTITUTIONS, THE PUBLIC AND THE COMMUNITY. PROFESSOR WEILER RE-EXAMINES THE PHILOSOPHICAL AND MORAL JUSTIFICATIONS OF PUNISHMENT, THE VARIETIES OF PUNISHMENT AND THEIR RELATION TO CONCEPTS SUCH AS MORAL PERSUASION, REWARD, TREATMENT AND CORRECTION. HE THEN ADDRESSES HIMSELF TO THE RANGE OF PROHIBITED CONDUCT AND REASONS FOR PROHIBITIONS AS WELL AS THE SOCIETAL REACTIONS WHICH ARE EXPRESSED IN THE CHOICE OF PENAL INSTRUMENTS AND THE SELECTION OF PERSONS TO WHOM THEY ARE APPLIED. THIS RAISES THE QUESTION OF THE NATURE OF LEGAL AUTHORITY AND CONCERNS ABOUT STANDARDS OF DUE PROCESS. HAVING LAID THIS GROUNDWORK, PROFESSOR WEILER EXAMINES THE JUSTIFICATIONS WHICH HAVE BEEN TRADITIONALLY AND HISTORICALLY, SUCH AS DETERRENCE AND RETRIBUTION. HE ALSO RELATES THE APPARENT LOGIC OF CRIMINAL SANCTIONS TO THE INSTITUTIONAL FRAMEWORK AND THE NATURE OF RESPONSIBILITY AND LIABILITY. HE FINALLY EXAMINES THE PRACTICE OF CORRECTIONS AND THE REHABILITATIVE IDEAL AND ATTEMPTS TO DE-MYSTIFY THESE LATE-COMERS TO PUNISHMENT. (AUTHOR ABSTRACT MODIFIED) (SNI ABSTRACT)