The Appropriate Sentence

The crimes of violence committed across this country are horrific, unpleasant to think about and even more unpleasant to talk about. Unjustifiably moderate sentences that often follow criminal convictions are an insult to victims and their families, and show a lack of consideration for the basic social need of retribution.

There are several major goals in sentencing criminals. We sentence to rehabilitate, to create specific and general deterrence, to provide protection to the general public and to hand out retribution or punishment. The relative weight given to each of these goals by both our legislators and judges will ultimately determine a sentence.

Rehabilitation

Rehabilitation is a concept lauded by many lawmakers, judges, and corrections officers. It is obvious why the idea of rehabilitation is a praised one. However, the practice of rehabilitation is clearly failing to deliver its promised results. We know this is the case because the majority of our offenders have already been through our “rehabilitation” system once, if not many, times. (See Repeat Offenders)

When rehabilitation is emphasized in the sentencing process, judges will often use sentences that allow the offender to be integrated back into the community as soon as possible, usually bypassing prison time altogether. It can also mean the use of alternative sentences aimed at helping the offender work through his or her problems via counseling or other programs. What is described by a judge as a rehabilitative sentence is often described by the public as a weak sentence. Rehabilitation has emerged as the dominant factor in many of the sentences delivered by Canadian courts.

Deterrence

Specific deterrence is the idea that a sentence will keep the offender in question from re-offending. General deterrence is the idea that tough sentencing will dissuade future law-breakers.

The success of deterrence through tough sentencing is hard to prove. Most western countries have moved steadily towards more lenient sentencing and punishment over the last several hundred years. It is difficult to successfully compare different eras when we do not have historical statistics to do so. Crime rate statistics appropriate for year over year comparisons were not available in Canada until 1962. One must also recognize that factors other than sentencing contribute to crime rates. For example, social and economic conditions and demographics. It is very difficult to conclusively prove that tough penalties deter crime; however, common sense would suggest that they would have at least some effect.

Some argue that no sentence will be capable of dissuading those who commit our most abhorred crimes, as these criminals are driven by psychopathic and anti-social tendencies. If this is true, it is no justification for less jail time.

Protection of the Public

Protection of the public is a sentencing goal that would hardly seem controversial. Every community wants safe streets and residents free from danger. Public protection is easy to deliver. There is no question that the public is protected when criminals are securely locked up. The longer the sentence, the longer the public can be certain that they will be safe. There are those who do not feel this goal should play a prominent role in sentencing decisions. One idea behind this is that it is wrong for society to lock up problem citizens and put them out of sight, out of mind. Some feel that we owe it to criminals to help them through their problems and accept them back into society. But at what cost? We do not have an effective criminal rehabilitation system. Unless we can be sure the public is safe from known criminals, the best approach is to err on the side of caution.

Today in Canada the protection of the public has become a goal overshadowed by the desire of policy makers not to infringe on the life and liberty of convicts, to give convicts second chances, and to cut costs. Recent laws such as the Youth Criminal Justice Act and conditional sentencing provisions for violent offenders demonstrate this.

Retribution

The final major sentencing goal is retribution. Retribution can be best described as a basic social need to condemn crime, to say to those who terrorize their fellow citizens and violate them, “we do not tolerate this as a society”. Assurance that a perpetrator will not commit another crime (if that were possible) would not satisfy our basic need to condemn the crime in question and see justice done on behalf of the victims and on behalf of society.

We all have a basic need to see justice done. Throughout history and in many places around the world today, individuals take the need to punish those who have committed crimes into their own hands. The societies that practice vigilante justice do so because there is no central system to deliver justice for them, or if there is, it is corrupt and worthless. In our society we believe all criminals should have the right to a fair trial before paying for their crimes. We also believe that punishment should be proportional to a crime. The state is best able to remove the flaws related to individually administered revenge. For these reasons we collectively entrust the responsibility of sentencing and retribution to our government institutions.

Our society has enabled our government to carry out the task of administering retribution on behalf of its citizens. Why then has the principle of retribution fallen by the wayside in determining appropriate sentences? Sentencing for the sake of retribution has lost all clout, brushed aside as a primitive instinct. In reality, this innate desire to see criminals pay a price for their crimes is central to our humanity. It is a justifiable objective in sentencing. Is it being delivered? A quick glance at our present system tells us it is not.