Punishment & Sentencing

Introduction to the Canadian

Justice
 The Purposes of Punishment
General Deterrence - By punishing the offender we hope that others
considering committing the same crime will not think it worth it

Individual Deterrence - Same as above, but with respect to the

offender themselves, not other potential offenders
Incapacitation - If the offender is in jail, society is safe

Retribution - Offenders “deserve” punishment as a payment to

society for their crimes

Moral Outrage - Catharsis and relief for society … closure

Rehabilitation - May provide an opportunity to help the offender

Restitution - Offenders should compensate their victims

 The Sentencing Process
Sentencing typical occurs in a hearing held at some date after the
defendant has been found guilty of the crime … and most typically
the sentence is decided by the judge.

Prior to sentencing the judge receives a dossier prepared by a

probation officer the contains the following ...
• the officer’s written report on the case,
• the offender’s personal history,
• the offender’s prior conviction record,
• and a number of documents outlining the previous procedural
details (dates of hearings and the like)
At the hearing itself recommendations for sentencing are presented
by the DA, the offender is then allowed to make a statement … then
the judge presents the sentence.
 What Factors are Important
A study by Ebbesen & Konecni (1981) examined several aspects of
the sentencing process.

First, the study highlight how quick these hearings typically are,
with the whole hearing often lasting less than a minute or two (see
text for more detailed information)
If also showed that four factors seems generally most relevant to the
sentence that is passed …
1. The type of crime
2. The offender’s criminal record
3. The status of the offender between arrest and conviction
4. The probation officer’s sentencing recommendation **
(with over 80% agreement in general)
 Sentencing Disparity
Recall the issue of discretion versus equality. Many judges wish to
have full discretion with respect to sentencing so that they would
have flexibility to fit the punishment to the details of the crime

The worry though is that different judges might interpret the same
crimes differently dependent on their own biases, and that this
would result in inequality in sentencing … or sentencing disparity
Is this a real worry? The study described on page 477 of the
textbook suggests that it may well be, as Steve will now describe …

It is because of results like this that the legal system has endorsed
the notion of determinant sentencing … but there is still room for
bias, even with determinant sentencing.
 Sources of Judge Bias
Judges are humans, just as are the witnesses and the jurors. Thus they
too are subject to biases in their decision processes. What sources of
bias might be relevant?

Norms and feelings of the local community - manslaughter versus

horse thievery example
Age - an inability to relate to new criminal issues - a generation gap

Experience - Changing views on sentencing as a result of the perceived

success (or failures) of past sentencing decisions
Previous DA experience - most judges were previously DAs

Politics - promotions to higher levels are often made by politicians

Philosophy - different judges may have different view of punishment
 The Death Penalty
In Canada, we have no death penalty … the most extreme
punishment one can receive is life imprisonment without parole

Let’s briefly consider the moral issues of the death penalty here
(e.g., extremeness and irrovocability), and take a rough poll of the
class … Steve’s stats class results
In America, the death penalty has come and gone. It was abolished
in 1972 (Furman vs. Georgia) on the grounds that it had been given
out too indiscriminately in the 60s … but was then re-instantiated in
1976 (Gregg vs. Georgia) with new laws meant to eliminate the
arbitrary nature of previous decisions.

The main flavour of these changes is that (1) only certain crimes are
eligible for the death penalty, and (2) a jury must decide whether
the penalty is appropriate or not
 The Rationale for Death
A full 3/4 or Americans support the death penalty … why?

One reason is simple retribution … a type of revenge if you will.

This view is that anyone who kills another human being deserves the
same treatment themselves, especially in circumstances where the
murder was particularly vicious or calculated (showing no regard for
human life)
Another notion is deterrence … the hope being that the extremity of
the punishment will deter others from committing the same crime
(though there is the possibility of brutalization)

One cannot argue with retribution, but with respect to deterrence,

does the death penalty deter murderers? A poll of Americans shows
that they think it does; 68% yes, 18% no, 10% not sure, 4% declined
 Other Issues
There are many other issues related to the death penalty including:
• The dynamics of the actual process that a jury goes through
when deciding whether or not to impose death
• Current inequalities in the way the death penalty is and is not
administered in America
• Speculation on the future of the death penalty

Read chapters 9 & 2. Locate an article dealing with the death

penalty or issues of sentencing and complete a 1-2 page paper
following the same outline used in the previous assignment.
Make sure that you include a title page. Double space, 12 pitch,
1 inch margins and NO folders or plastic covers.