Under our Constitution … offenders will know what their
punishments will be if they offend against the criminal laws of the land.
Sir John A. Macdonald
Confederation Debates
1865
1. Introduction
Public opinion polls in recent years reveal a low level of confidence in Canada’s criminal justice system compared to other governmental institutions.
Lenient sentencing by judges seems to dominate this discontent. Additional complaints include the legislative lowering of sentences for time served pending trial, early release by reason of earned remission and mandatory parole.
“Truth in sentencing” is one alternative. It is a sentencing system that requires all offenders to serve out their full judicial sentences without any deductions. Probably, the majority of Canadians would find it too severe and unlikely to change criminal activity to any degree.
This posting compares Canada’s sentencing system with American federal and state systems. It recommends a sentencing model that takes away most judicial discretion using a Sentencing Guideline System: http://www.ussc.gov/ANNRPT/2007/chap1_07.pdf
2. Canada’s sentencing system
A history
Federal legislation enacted over 100 years ago sets the maximum sentence that judges may impose for the commission of every crime. It also has many wooly provisions that encourage trial and appellate court judges to give lenient sentences. These include directions that consecutive sentences imposed on offenders by judges for the commission of many crimes should not be “unduly harsh”; defendants should not be deprived of their liberty if less restrictive sanctions are available”, etc.
Judges may also impose conditional sentences on offenders of less than two years (no jail time); if “satisfied (they) would not endanger the safety of the community and would be consistent with the … principles of sentencing.” How judges are supposed to translate those words into a sentencing figure the Criminal Code does not say.
Arguably, the legislative thinking behind these nebulous provisions arose from sociological thinking that prevailed in the mid 20th century. Then, there was the naïve belief by many that since jail often was a school for crime, keeping offenders out of jail by having shorter sentences was a better solution.
There was then and still is the argument by many that jail is not the answer. Those who hold such views have never been able to suggest a system that is the answer.
In the mid 20th Century, drug crimes were relatively few. Legislators seemed persuaded by sociologists that drug addiction was a sickness and not a crime and with treatment it could be cured. Few independent studies prove that the vast majority of addicts are no longer addicted five years after treatment ends.
There has been no “war on drugs” by way of severe sentences for traffickers and importers. There have only been light skirmishes. Today, most experts say that 75% of all crimes are drug related.
Politicians seem to believe that taxpayers’ money is better spent on projects that will get them reelected. New jails are not one of them: even though the first duty of government is to protect their citizens from harm. Regrettably, only jail does that. While offenders are in jail, they are not harming other law abiding citizens.
The judicial sentencing system
Trial judges do their best to impose sentences that comply with fuzzy federal legislation and appeal court decisions interpreting its provisions. There can be hundreds if not thousands of appellate court sentencing decisions in each province. Many may uphold the trial judges’ sentences. Many may disagree with them and impose a higher or a lower sentence than that given by the trial judge.
Generally in B.C., when the BCCA disagrees with trial judges’ sentences, they reduce nine of them and increase one. This sends a message to B.C. trial judges that they should sentence leniently. When they do, this often brings public wrath and ridicule on the trial judges who are just trying to do their duty within a bankrupt system. Each provincial appellate court has different sentencing ranges for similar crimes.
From this discussion, it seems safe to say that the 1865 forecast of Sir John A. Macdonald has not come true.
3. The U.S. federal sentencing guideline system
American federal and state sentencing Guideline Systems offer a progressive alternative compared to Canada. Before 1 November 1987 U.S. federal trial judges had the discretion to sentence any offender up to the maximum time allowed by federal law. Sentences did not need to be comparative.
Unlike Canada, American Federal appellate courts treated trial judges’ sentences as discretionary. They seldom interfered so long as trial judges sentenced within the minimum and maximum limits set by federal legislation. As the USSC once said, “We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range.”
Federal Parole Boards decided whether offenders should be released before their sentences expired.
Sentences then were based on the punishment philosophy of each trial judge. Some believed in the power of rehabilitation and gave short sentences. Others did not. Offenders who had similar backgrounds and committed essentially the same crimes could receive widely different sentences depending on the sentencing philosophy of the sentencing judge. This created a justifiable sense of unfairness.
After 1 July 1987 the U.S. Federal government enacted laws designed to simplify the sentencing system so that those who committed offences would receive similar sentences depending on the way they committed the crime and their criminal records. To do this, Congress established a Sentencing Commission. It developed a Sentencing Guideline grid containing maximum and minimum sentences for every federal crime.
http://en.wikipedia.org/wiki/Federal_Sentencing_Guidelines
http://www.ussc.gov/2008guid/TABCON08.htm
So long as trial judges complied with the grid, there was no right of appeal by the prosecutor or the offender. Trial judges could sentence above or below the Guideline limits but they had to give reasons. Both sides had a right of appeal from these out of Guideline sentences. Appellate courts rarely overturned sentences that were within the Guidelines.
4. U.S. Supreme Court (USSC) changes to the Guideline System
On 17 July 2007, in cases called Booker and Fanfan, the USSC declared that for constitutional reasons, the Guidelines were no longer mandatory. They were only discretionary.
Nonetheless, about 85.9% of federal trial court judges continued to apply the Guidelines when handing down their sentences. Many federal appellate courts decided that trial judges’ sentences within the Guidelines were “presumptively reasonable.” In other words, these courts rarely altered Guideline sentences The post Booker regime remains a work in progress.
5. American state sentencing guideline systems
Using funding provided by the federal government, U.S. States began experiencing with Sentencing Commissions and Guidelines during the late 1970s. By 1987 when the federal Guidelines came into effect 11 states had their own Guideline Systems. The American Law Institute and the American Bar Association recommended Guideline systems for every state. Nearly half the states now have their own systems. They are not identical nor do they necessarily follow the federal model
For example, in Washington State, there is no right of appeal from trial judges’ sentences so long as the sentences are within the Guidelines. Minnesota crafted its system to meet the existing number of prison beds. On the other hand, the federal Commission fixed the number of prison beds needed as based on its Guidelines and Congress agreed to supply those beds.
http://www.sgc.wa.gov/PUBS/Statistical_Summaries/Adult_Stat_Sum_FY07_All_Pages_posted.pdf
http://en.wikipedia.org/wiki/Federal_Sentencing_Guidelines
Bottom Line:
1. Canada’s sentencing system needs a complete overhaul. Superficial amendments to our Criminal Code will produce little public satisfaction or reduce crime.
2. A Canadian Sentencing Commission that drafts Sentencing Guidelines, has an intimate knowledge of recidivism rates, rehabilitation programs, probation and parole systems and is responsible to Parliament will provide a far better model than the unpopular dysfunctional sentencing system we now have.
3. A Guideline System will keep sentences within the control of legislators and away from judges who have little familiarity or control over these sentencing features.They will also renew public confidence in the judicial system. Judges will no longer carry the blame for politicians' failures.
4. Legislation should prevent appellate courts from interfering with any sentence that is within the Guideline range.
3 January 2009
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