Chapter 8: Sentencing Flashcards
(130 cards)
1
Q
What is the difference between sentencing philosophies and principles?
A
Sentencing philosophies are broader overarching ideas, while sentencing principles are what judges refer to.
2
Q
What are the 5 sentencing philosophies?
A
- Deterrence.
- Selective incapacitation.
- Rehabilitation.
- Retribution.
- Restorative justice.
3
Q
What is deterrence as a sentencing philosophy?
A
Is about sending message, playing on people’s fears of being caught and what would happen if they did get caught.
4
Q
What are Jeremy Bentham’s 3 criteria that must be met in order for deterrence to be effective?
A
Swift certain, and severe.
5
Q
The severity of the punishment needs to be severe enough that… in order for deterrence to be effective.
A
The costs of the crime outweigh the benefits of the crime.
6
Q
What is the difference between general and specific deterrence?
A
General deterrence is when you make an example out of someone, and you punish someone harshly to ensure others do not commit the same act. Specific deterrence is when you punish someone harshly to ensure they do not commit crime again.
7
Q
Deterrence assumes ___ thought and capacity for reflection. What is problematic about this assumptions?
A
Rational. However sometimes crimes are done spur-of-the-moment, and rational thought or reflection can be absent.
8
Q
What does it mean when it is said that criminals tend to be optimists?
A
They do not really believe that they will be caught, they won’t be prosecuted, they won’t be found guilty, they won’t get a harsh punishment.
9
Q
Criminals tend to be optimists. Are they wrong in this assumption?
A
When looking at the dark figure of crime and attrition, there may be some merit to this assumption.
10
Q
Which aspects of Jeremy Bentham’s criteria for effective deterrence are met in the Canadian justice system, and which are not?
A
Severity is often met, but swiftness and certainty are often not.
11
Q
Ultimately, is it the case that deterrence is effective on either first time offenders or repeat offenders?
A
No, deterrence does not seem to work on first time offenders, and does not even work on repeat offenders who should have learned from their mistakes.
12
Q
What is the sentencing philosophy of selective incapacitation about?
A
About controlling people, so that you protect broader society. While the person is incapacitated, they should not be able to harm society.
13
Q
What is the modern form of selective incapacitation?
A
Imprisoning people and separating them from society.
14
Q
What are some historical forms of selective incapacitation?
A
Britain shipped people off to colonies (transportation), and mutilation and amputation were also methods used for incapacitation.
15
Q
What is transportation?
A
A selective incapacitation method used by Britain for those who broke the law.
16
Q
What is a new form of selective incapacitation, often used during house arrest?
A
Electronic monitoring.
17
Q
Is selective incapacitation about punishment, restraint, or both?
A
Selective incapacitation is about restraint, and controlling people.
18
Q
What has recently been talked about as alternative measures of restraining people? Give an example.
A
Chemical castration of sex offenders.
19
Q
What is the main idea behind the sentencing philosophy of rehabilitation?
A
Changing people and making them willingly choose law-abiding lifestyles.
20
Q
Why is the name “rehabilitation” problematic?
A
Rehabilitation implies that you would restore someone to their original state. However, in criminals, it is more like habilitation, as many individuals never had the basics.
21
Q
How does rehabilitation involve training and education?
A
It gives the offender more opportunities to support themselves in the community.
22
Q
How does rehabilitation involve treatment or therapy?
A
If there are deep-seeded issues that require therapeutic intervention, such as anger management and mental illness.
23
Q
In rehabilitation, offenders’ needs are individualized, so rehabilitation must also be ___.
A
Individualized.
24
Q
Rehabilitation arose as a sentencing philosophy when crime and deviance became more ___.
A
Medicalized.
25
What is the medicalization of crime and deviance?
Trying to understand human behaviour in the context go diseases and treatable conditions.
26
Drug courts represent a step in the right direction, because...
They do not experience the same stigmatization and formal proceedings of the criminal justice system.
27
What is the assumption that must be made in drug courts?
The offender is committed to rehabilitation.
28
Why is rehabilitation, even in cases where the offender wants to change, more idealistic than real?
- Much higher demand for rehabilitative programs than the CJS has the capacity to provide.
- Lack of access can prevent offenders from getting treatment they need.
- Some whose sentences have expired may not have been offered rehabilitative programs.
- Quality of programs.
29
What is program fidelity in the case of rehabilitation?
Programs are not offered in the way they were meant to be offered. For example, having a 8 week program offered as a 4 week program.
30
Rehabilitation is not a priority in the current system, and the community is structured to promote ___.
Failure.
31
Communities are/aren't receptive to offenders coming into the community.
Aren't.
32
When rehabilitation fails, people use this as evidence that...
Punishment, not rehabilitation, is the way to go.
33
Provincial programs differ across provinces, so there is...
Much variation.
34
What is the focus of retribution in sentencing?
About getting even.
35
What is the earliest known rationale for handing out punishment?
Retribution.
36
What is the difference between historical retribution and modern retribution?
Historical retribution was very harsh; for example, death penalty for stealing. In modern times, there is an emphasis on proportionality.
37
What is the difference between retribution and other sentencing philosophies?
Other sentencing philosophies look towards the future, but retribution looks at the here and now, and holding people accountable for past behaviour.
38
In retribution, deterrence is not the priority, rather, the ___ is important. (hint: eye for eye)
Satisfaction.
39
Using an example, explain why retribution is problematic.
A fine is a very common sentence. For those with financial means, a fine is simply a slap on the wrist. However, for those who are poor, the fine results in incarceration as a result of the failure to pay the fine.
40
What is the main focus of the restorative justice sentencing philosophy?
About healing and repairing harm.
41
Restorative justice recognizes that crime is both the ___ and ___ of harm.
Cause, consequence.
42
Where does the impetus for restorative justice come from?
- Empirical evidence that shows that the CJS hazel little impact on recidivism and concern that the system's focus on the offender results in abandonment and betrayal of the victim.
- Marginalized, abandoned, and betrayed offenders.
43
Restorative justice recognizes that people other than the direct victims can be victims of crime. Give an example of this.
The wife of a man convicted of sexual assault was considered guilty by association, but the CJS only recognized the two sexual assault victims as victims.
44
Are prison terms considered in restorative justice?
Yes. However, alternative means are usually the first course of action.
45
In Canada, victims may prepare ___ ___ statements.
Victim impact.
46
Why are victim impact statements important?
If they are called as a witness, they are restricted in what they can say. However, in VIS's, they can say things that have been excluded from the trial.
47
What is one thing that the victims cannot say in their VIS's?
Sentencing recommendations.
48
What is a reason that victims should not be included in the sentencing process?
Retribution is okay, but vengeance is not. There is the belief that victims may be overly punitive.
49
What are some sentencing principles that judges must abide by?
- Sentences should reflect seriousness of offence, the degree of responsibility of the offender, and aggravating or mitigating factors.
- Sentences should be consistent.
- Consecutive sentences should not be unduly harsh.
- Imprisonment should not be given unless necessary.
50
What does it mean when the judge must consider the degree of responsibility of the offender?
The judge must look at the moral culpability of the offender-- to what degree did they mean what they did?
51
What are aggravating and mitigating factors?
Aggravating would increase the sentence, mitigating would decrease the sentence.
52
Name examples of aggravating factors.
- Position of power.
- Premeditation.
- Use of force/weapon.
53
Name examples of mitigating factors.
- History of addiction or mental illness.
- Crime that is committed out of need not greed.
- First offence.
54
Do mitigating factors absolve responsibility?
No, but does recognize that people make mistakes.
55
What is a consecutive sentence?
Where one sentence follows another. 6 months and 8 months is 14 months.
56
What is a concurrent sentence?
Where one sentence is served at the same time as another. 6 months and 8 months is 8 months.
57
If the goals of sentencing can be achieved using alternatives, then judges should use those, especially for ___.
Aboriginals.
58
What legislation goes against the sentencing principle of using alternatives to incarceration?
Mandatory minimum sentencing.
59
Why is mandatory minimum sentencing instituted?
To reduce judicial discretion, and to reduce sentence disparity.
60
Mandatory minimum sentences minimizes the effect of ___ factors on sentencing.
Mitigating.
61
Only one type of sentencing option can be applied for one offence. True or false?
False, a combination of sentencing options can be used.
62
When considering sentencing options, what must judges consider?
Goals of sentencing.
63
Judges are expected to use ___ as last resort.
Incarceration.
64
Which is an expensive sentencing option?
Incarceration.
65
What is the difference between federal and provincial offenders?
Federal offenders are offenders who have 2+ year sentences, and provincial sentences are those given sentences up to and including 2 years less a day.
66
Where do federal offenders go?
To a federal institution under control of the CSC.
67
Where do provincial offenders go?
To a provincial institution.
68
What is the 2 year rule?
The rule that determines whether the offender is a provincial or a federal offender.
69
Intermittent sentences are available for sentences of ___ or less.
90 days.
70
What are intermittent sentences?
The offender can serve time on weekends, and can go to work or fulfill other responsibilities throughout the week.
71
What does intermittent sentences acknowledge?
That prison terms can uproot lives, and hamper an individual's ability to support themselves in the community.
72
When people with intermittent sentences are out in the community, they are on ___.
Probation.
73
Approximately what percentage of sentences use fines?
30%.
74
What are victim surcharges?
Additional fees on top of a fine that goes to a provincial or territorial victims fund to be accessed generally by crime victims (instead of going to the government).
75
What is the difference between a victim surcharge and restitution?
Victim surcharges go to a general victim surcharge fund, while restitution is paid to the victim directly.
76
In 2013, there was a change in the victim surcharge policy. What did it do?
Effectively doubled the amount that offenders would have to pay for victim surcharge (in the case of fines, 15% was increased to 30%).
77
If you are not sentenced to a fine, do you still have to pay a victim surcharge fee?
Yes.
78
What is the victim surcharge fee that you must pay if you are not sentenced to a fine?
$100 for summary and $200 for indictable offences (this was raised from $50 and $100 respectively in 2013).
79
Before the changes to victim surcharges in 2013, judges were allowed to excuse people from paying the victim surcharge fee. However, it is now mandatory. What is the result?
Judges have ignored this change, and have continued to excuse people from paying the victim surcharge fee.
80
What is a consideration that judges make when sentencing with fines?
Capacity to pay.
81
The capacity for offenders to pay is a legitimate concern in the criminal justice system. How is this remedied?
Giving a certain amount of time to pay, fine option program, and institutional fine program.
82
When offenders fail to pay fines by a certain time, what happens?
They are incarcerated.
83
What is the fine option program?
Allows offenders to pay off their fine through community service (only available to offenders with sentences of less than 2 years).
84
In the fine option program, how are wages calculated?
At minimum wage rates.
85
What is the institutional fine program?
Allows offenders to serve time to pay off fine.
86
What is restitution?
A sentence that a judge can hand down, where the offender pays the victim directly (not to a victim surcharge fund).
87
A restitution always has to be a standalone order. True or false?
False, can be a component of other sentences.
88
Restitution is a very common sentence. True or false?
False, it is only used in about 3% of cases.
89
What is the problem with restitution?
They often go unpaid, as there is no enforcement provisions. IF the offender does not pay, the victim must pursue civilly.
90
Restitution can only be ordered for something that is easily calculable. What does this mean?
Things like pain and suffering are not dealt with in criminal court. Only things like medical bills or damage can be considered when making a restitution order.
91
What is community service?
The offender is expected to do something in the community for public good.
92
What is the most common sentence?
Probation.
93
Probation is used in about __% of cases.
45.
94
Probation is a necessary part of the ___ sentence.
Intermittent.
95
Can probation be paired with prison sentences?
Yes.
96
What type of prison sentences can probation be paired with?
Provincial offenders. Federal offenders are only considered when their sentences are exactly 2 years.
97
If a person is given a prison sentence and probation, then which is served first? How does it work?
The prison sentence is served first, then at expiry, the probation order takes effect.
98
What is the maximum probation for adults and youth?
3 years for adult, 2 for youth.
99
What are some mandatory conditions that must be met in probation?
Keeping peace, good behaviour, appear before court when called on, notify probation officer of any change in occupation, name.
100
What are some optional conditions that may have to be met in probation?
Participation in a program, abstinence from alcohol, staying away from certain people.
101
What happens when a person fails to comply with the probation sentence?
It is treated as a new charge of breach of probation.
102
What is breach of probation?
A hybrid offence that can result in a sentence as long as 2 years if it is treated as indictable.
103
What is discharge?
When the offender is found guilty, but not convicted.
104
If you receive a discharge, will you have a criminal record?
After a certain period of time, no.
105
Is discharge available for serious offences?
No, it is only available to minor offences and when it is not contrary to the public's interest.
106
What is an absolute discharge?
The offender is free to go, with no sentences nor requirements. Their record is wiped clean after 1 year.
107
What is a conditional discharge?
The offender is free to go, but has to meet certain conditions. Takes 3 years to be eliminated from the person's record.
108
Conditional discharges, if the conditions are met, turn into...
Absolute discharges.
109
What happens if a person violates the conditions in a conditional discharge?
They can be charged for the original offence, in addition to any new offence they may have committed.
110
What is the difference between a suspended sentence and a conditional discharge?
In the case of a suspended sentence, the person is convicted (they will have a criminal record).
111
What happens in a suspended sentence?
For a period of time that the judge determines, the person is on probation. If the probation goes without incident, there is no further sentence.
112
What happens when someone breaches probation (or commits another crime) during a suspended sentence?
They can be sentenced for any offence under the original charges, in addition to any of the new offences they may have committed.
113
This sentence is a fairly new option (1996) in response to a fairly high incarcerated population.
Conditional sentence.
114
Conditional sentences are available for offenders who have been sentences for under _ years.
2.
115
What is a conditional sentence?
Instead of serving their time in a correctional facility, they serve time in the community.
116
Are probation and conditional sentences the same thing?
No.
117
What is the difference between probation and conditional sentences?
Probation is intended to be rehabilitative, while conditional sentences are meant to be punitive as well as rehabilitative.
118
Which is more restrictive and onerous? Conditional sentences or probation?
Conditional sentences.
119
What is a restriction that is often given in conditional sentences?
Curfew.
120
Legally speaking, with probation sentences, they are not required to attend treatment. How is this different in conditional sentences?
They are legally required to attend treatment if prescribed by the judge.
121
What are some options for judges when a person on a conditional sentence violates the conditions?
- Can be forced to serve remainder of sentence incarcerated.
- Can be no consequences.
- Can be change made to optional conditions.
- Can suspend the conditional sentence, and make the offender serve part of the remainder in prison.
122
Why would a judge change optional conditions when an offender violates them in a conditional sentence?
They do not want to set the offender up for failure. They can revisit and modify conditions to make them realistic.
123
What are the two extraordinary measures that judges can take?
Dangerous offender designation and long term offender designation.
124
When does the Crown apply for the offender to be labelled a DO?
After the conviction but before the sentence.
125
In what cases are dangerous offender designations handed down?
It had to have been a serious personal injury offence, and the offender must pose a danger to the life, safety, or physical/mental well-being of others.
126
What do judges consider before handing down a dangerous offender designation?
Past offence history and likelihood of such offences occurring in the future.
127
What happens when an offender is given a dangerous offender designation?
They are handed an indeterminate (open-ended) sentence. They are eligible for parole review after 7 years, and every 2 years thereafter.
128
When are long term offender designations given out?
In cases where the offender could get a sentence of 2 years or more, and there is a substantial risk of re-offence and reasonable risk of controlling that risk in the community.
129
What is a long term supervision order?
After a period of incarceration, the offender is supervised in the community.
130
What is the maximum (and most common) time given for a long term supervision order?
10 years.
