Sentencing

This article is a response to the critique of the author's PhD thesis methodology and findings presented in Judith Buckingham's article titled “Newsmaking Criminology” or “Infotainment” Criminology? It explains in more detail the author's thesis study and provides responses to Buckingham's arguments.

This bulletin uses propensity score matching to compare re-offending rates between adults given a community service order (CSO) and those given bonds (both supervised and unsupervised) or a suspended sentence (both supervised and unsupervised).

" Three strikes laws, " which are based on habitual offender laws passed in the 1920s and 1930s, were adopted by many states and the federal government in the 1990s and mandate significant enhancements to the sentences of offenders with prior convictions who are then convicted of a new crime. Despite promises by proponents that the laws would reduce levels of serious crime, little empirical evidence exists that three strikes laws have had any measurable impact. In fact, some evidence indicates the laws actually worked in the opposite direction and increased some crimes, including murder.

Objective We examine whether affective, verbal, and restitutive displays of remorse are associated with perceived offender immorality, as well as whether displays of remorse exert indirect effects on preferences for criminal sentencing via perceived offender immorality. Method Data are from an online survey, which included a sentencing vignette with experimental manipulations for offender remorse and items measuring sentencing preferences, perceived offender and offense immorality, and controls (N = 352). OLS regression and bias-corrected bootstrap confidence intervals were used to estimate direct and indirect effects. Replication analyses were conducted with two student samples (N = 103 and N = 131). Results Displays of remorse were associated with perceived offender immorality. Displays of remorse also exerted indirect effects on preferences for sentencing severity and support for particular sentencing goals (including incapacitation, rehabilitation, and restoration). Conclusions Affective, verbal, and restitutive displays of remorse may be associated with sentencing preferences via perceived offender immorality.

This paper was prepared for a presentation on “Gladue and the Current State of the Law” for the Continuing Legal Education Society of British Columbia’s November 2018 Gladue Submissions Course. While the presentation focused on current trends in the jurisprudence in 2018, this paper provided a backgrounder on how these trends fit within guidance from Ipeelee, Gladue, Wells, and earlier cases. Nothing is necessarily new in the Gladue jurisprudence except what might be forgotten, ignored, or still simply misunderstood.

Perverse complicity in Christian celebration of pain?
Futility of highlighting denial of Christian complicity in torture
Promotion of enhanced torture on behalf of the American people
Crowdsourcing appropriate punishment for enemies of the American people
WikiJustice, WikiRetribution, WikiPunition, or WikiSalvation -- for Assange?
Types of torture variously used by Christians and applicable to Assange
Hanging, drawing and quartering as symbolic of Christian retribution?
Christian complicity in distortion of the truth symbolized by Cross
Religious enactment of the suffering and torture of Assange
Whistleblowing as a "crime of passion" -- for the truth?

This article takes an in-depth look into sentencing and into a concept that seems to be inherent within it, that is, the trial penalty. It seeks to answer the question " Should there be a trial penalty? ". In doing so, it begins by analysing the pros and cons of plea bargaining and argues that the weight of the disadvantages of the process, taken together with the need to respect entrenched constitutional rights regarding the presumption of innocence and the right to a fair trial, mean that a trial penalty should not exist. It is then argued that while the intuitive existence of an explicit trial penalty is accepted by many within the system, there is a lack of empirical evidence to prove said existence. The article concludes by offering possible solutions to various problems associated with the plea process, as it is currently practised.

The article examines whether the ICC's jurisprudence on sentencing subverts or adopts a victim-oriented justice and whether the Chambers' discourses are consistent with the Rome Statute's legislative history. It argues that this legislative history is an instructive reflection of the drafters' goals regarding victims' rights and justice. A doctrinal review of the court's Preparatory Works and sentencing jurisprudence reveals a potential for a victim-oriented approach to justice. This article thus advances a theory of justice for victims during the court's sentencing practice. Ultimately, it has implications for our understanding of substantive rights of victims, beyond the procedural notions of international criminal justice.

The current restorative justice theory dwells theoretically outside the penal proceeding or penal court in order to mediate a resolution between the victim and the offender; and sometimes with each representatives and/or wider community as well, as such the modern restorative justice becomes the based theory for Alternate Dispute Resolution (ADR) or Penal Mediation. But the traditional restorative justice did not show the outside the court proceeding such as the modern theory has.
While studying and building a recommendation for a sentencing guideline theory that can provide justice, deterrent effect, and possibly effectively achieving Criminal Justice’s goals; it is found that the traditional Restorative Justice model is the key in building a Criminal Justice System that is just, deterrent, and yet humane and merciful. Adopting the traditional way of Restorative Justice, while still taking the best part of the modern one, can be what is needed in answering the current conditions of criminal justice system in Indonesia; and possibly elsewhere, that is full of outcry of injustice, increasing crimes, heavy economic burden in enforcing the law, and repeating crimes.   
Built by adopting the same principle of God’s Law in Karmic Law, and using a framework which is derived from Indonesian Ideology; Pancasila (The 5 Values), which could be generalized into one basic value that is “equilibrium of values”, this paper describes a Restorative Justice based model in a Sentencing Reform. Thus is argued that; if adopted, will create a ripple of positive changes in Sentencing Guideline theory and/or its implementation. Restorative Justice-based Penal Code and Criminal Justice Reform that can provide the foundation toward a criminal justice system that is humane but decisive and definite; and therefore will achieve justice: a Criminal Justice Reform that is just and oriented humanely to the perpetrator, the victim, and the state (In Dutch can be called: Dader-slachtoffer-staat Straftrecht)

In the past two decades, Canadian policies governing the structure and content of pre-sentence reports (PSRs) have shifted to focus more directly on the systematic identification of offender's criminogenic risk and needs. In this article, we (1) examine how risk-based approaches to offender management have altered the structure and format of the PSR in Canada, and (2) contrast the structure of risk-based PSRs to Gladue reports for Aboriginal offenders in Canada. Gladue reports are designed to identify the unique systemic race/cultural and historical factors specific to Aboriginal offenders and to recommend alternatives to incarceration. We argue that although risk-based PSRs incorporate recognition of race-related issues, their structure and emphasis on actuarially based risk assessments frames race and risk differently from Gladue reports. In Gladue reports, holistic approaches and cultural impact factors are documented and used to understand risk and need. Finally, we argue that the conceptualization and relevance of race is limited by actuarial risk logic. Sentencing is an important aspect of legal decision making, in which information about an offender's risk and needs is produced, contested and used to craft sanctions. 2 Risk information is clearly relevant to the judiciary during the sentencing process (Vigorita, 2003): to evaluate 'risk', judges use information from a variety of sources (i.e. criminal history, professional assessment, pre-sentence, 'Gladue reports' 3 and offender statements), and decisions based on risk are often informed by conflicting penal rationales (i.e. rehabilitation, deterrence, incapacitation). Scholars have recently raised concerns about how criminal law, and sentencing

The role of lay magistrates in England and Wales has been progressively undermined by protracted processes of reform over the last two decades. Current government proposals aim to reorient and ‘strengthen’ their function through the creation of new magisterial responsibilities such as oversight of out of court disposals and greater involvement with local justice initiatives. This article argues that while these proposals embody necessary and important areas for reform,
taken in isolation they will fail to consolidate the role of magistrates in summary justice unless they
are enacted alongside other measures which aim to reaffirm the status of lay justices, and which seek to reverse the trend which has prioritised administrative efficiency at the expense of lay justice. Rapidly declining magistrate numbers together with continuous (and continuing) programs
of court closures are irreconcilable with the future viability of a lay magistracy.

In this paper, I argue that justice is best understood as an evolving regulative ideal. This framework avoids cynicism and apathy on the one hand as well as brash extremism on the other. I begin by highlighting the elusive quality of justice as an ideal always on the horizon, yet which is nevertheless meaningful. Next, I explain the ways in which it makes more sense to see justice as evolving, rather than as fixed. Finally, I demonstrate the value of Charles Sanders Peirce’s concept of a regulative ideal for framing a pragmatist outlook on justice. Peirce helps us at the same time to appreciate ideals yet to let go of outmoded understandings of their metaphysical status. Ideals are thus tools for regulating behavior. Each of these
qualifications demonstrates that justice is best conceived of as an evolving regulative ideal.

This report presents evidence of community views in Victoria about the use of alternatives to imprisonment. It is the first in a series of reports that the Council will publish on community views about crime, courts and sentencing. The findings of this paper are particularly relevant and timely. At the time of writing, Victoria's prison population stands at 4,488 prisoners, with only 4,228 permanent beds in the state's prisons. Prisoners are being housed in police cells, unable to be assigned a prison bed. Both the former government and the new government have committed to a substantial increase in the number of prison beds, at least partially in recognition of the likely increase in prisoner numbers as a result of the abolition of suspended sentences. But until new prisons are built or new beds provided, the issue of prison overcrowding remains a salient one. In such times it is useful to consider the viability of increasing the use of appropriate alternatives to imprisonme...

A key aspect of the focal concerns perspective of sentencing is that time and information restrictions within the courtroom create the conditions under which perceptual shorthands may impact sentencing determinations. These shorthands are based stereotypes related to offender characteristics including minority group statuses (i.e. ethnicity, race, Indigenous status) (Steffensmeier et al., 1998). To date, sentencing scholars drawing on the focal concerns perspective have only considered the impact of minority group statuses on sentencing in the mainstream courts (Mitchell, 2005; Spohn, 2000). Utilizing multiple regression techniques the current paper explores the impact of Indigenous status on the decision to imprison in the problem solving courts of South Australia. Unlike the mainstream courts, sentencing determinations within the therapeutic problem-solving court environment involve a more extensive examination of offenders and their cases and by extension, perceptual shorthands should be less influential. Evidence supporting this argument is provided by the current research. Results show a direct relationship between Indigenous status and the likelihood of imprisonment, with leniency being extended to Indigenous offenders.

This paper outlines for a broad audience whether the proposal to extend the presumption against short custodial sentences will work. If it will not, what could?

CURRENTLY,  Scotland has one of the highest proportionate rates
of imprisonment in Western Europe, which the Justice Secretary
has described as “totally unacceptable”. He wants
to reduce radically the size of the prison population so that investment
can be switched from incarceration to community penalties. Presently,
extending the existing presumption against passing short custodial
sentences appears to be the main tool in the Government’s box. Yet, will
extending the Presumption work? If not, what else can be done?

The right to ‘freedom from all forms of violence from public or private sources’, enshrined in Zimbabwe’s new Constitution, could have a significant impact on efforts to end violence against women (VAW) in the country. The right is particularly relevant in the Zimbabwean context where VAW occurs in a range of settings, from the most intimate of relationships in the home to the state’s use of rape as a political weapon. One way in which the state can fulfil its duty to address VAW is through the reform of the country’s rape law. With comparative reference to the impact of the right to freedom from violence in South African law, this article discusses three areas of Zimbabwean law that present potential obstacles to achieving justice for rape survivors: the definition of the crime of rape, the abolished but tenacious cautionary rule, and the sentencing of sexual offenders.

Data from the State Court Processing Statistics Series was used to analyze the cumulative effects of racial and ethnic disparities in criminal processing of men who are charged with felony drug offenses in large urban counties from 1990 to 2002. Estimating a series of models, I find not only that Black and Latino men receive less beneficial sentencing decisions than White men with similar legal characteristics, but also that these disparities are produced through a combination of direct and indirect effects. More particularly, I find that Black and Latino men are less likely to be granted non-financial release, more likely to be denied bail, and are given higher bails than White men with similar legal characteristics; that Black and Latino men are more likely to be adjudicated as felons than White men with similar legal characteristics; and that sentencing outcomes are determined by a combination of current case characteristics, prior record, economic resources and networks, and rac...

I. Introducción: dos puntos de vista acerca de la comprensión de la individualización judicial de la pena con respecto al hecho punible y el sistema penal. II. Modelos teóricos básicos. 1. Compensación de la culpabilidad: a) La medida del “injusto culpable”; b) Las escalas de pena. 2. Orientación a las consecuencias: a) Teorías de la pena v. teorías de la individualización judicial de la pena; b) Particularismo y los límites de la “individualización”. III. Conclusiones. IV. Nota bibliográfica.

Since 2011, s. 745.51, which provides sentencing judges with the option of imposing consecutive periods of parole ineligibility for multiple murders, has been applied over 50 times, with nearly half of the accused being sentenced to what is effectively lifelong imprisonment. In late 2020, the Quebec Court of Appeal (QCCA) declared s. 745.51 unconstitutional and struck it down in Bissonnette c R.  This article reviews the constitutional arguments upheld by the QCCA in Bissonnette and weighs them against the challenges that trial judges have encountered in applying s. 745.51 since 2012. By drawing on a qualitative review of cases in which s. 745.51 has been applied, as well as  Charter principles, sentencing case law and international practices, this article posits that the QCCA was correct in its approach to s. 745.51, both in finding it unconstitutional and in finding that the provision should not be read down to render it constitutional. This article advances the central argument that, in the context of an already problematic sentencing regime for murder, a piece of legislation that allows for consecutive periods of parole ineligibility of any length, even when its application is circumscribed to certain offenders, will likely continue to raise issues in its application and effects. Thus, when Bissonnette is heard by the SCC, the QCCA’s decision should be upheld. Moreover, Parliament would be well advised to resist any attempts to rewrite this provision and pass another version of it.

With the advent of a postmodern society that questions the established fabric of 'culture' and attempts to deconstruct conventional gender roles, various pertinent issues have emerged. One of these issues is forcible sexual assault on a woman without her consent, recognized as the offence of rape. It is considered to be one of the most heinous offences which can be committed against the person of an individual and demands urgent attention due to the spike in the rate of its occurrences. In this article, an attempt has been made to formulate a uniform sentencing policy for rape convicts and to analyse the ramifications of allowing out-of-court compromises, between the convict and the victim, upon such a policy. It begins by tracing the extent of sexual violence in India, defining and discussing the offence of rape as provided in the Indian Penal Code. Thereafter it examines how courts have dealt with the question of allowing rape convicts to make compromises with the victims by, for instance, agreeing to marry them and the effects such compromises have on the overall sentence of the offender. It further explores the need for maintain uniformity with regard to the sentencing policy for rape cases in light of the fundamental principles of sentencing laid down by Indian as well as international courts. The article concludes with certain recommendations about the creation and implementation of such a uniform sentencing policy in rape cases.
https://nujssacj.wordpress.com/2018/08/31/developing-a-uniform-sentencing-policy-for-rape-with-special-reference-to-the-issue-of-compromise/

After 10 years in force, has the CMCHA 2007 been a success or inadequate on a practical level? This research paper investigates whether the Corporate Manslaughter Legislation adequately holds organisations to account for serious failings resulting in death and how the advice legal practitioners provide has changed in its wake (if at all). The Author has found that there has been some "improvement" on the previous regime since the 2007 Act's enactment, however, there would certainly seem to be multiple deficiencies remaining.

This article highlights the importance of copyright industries for the developed economies and argues that criminal copyright infringement is a widespread offense, producing major economic losses for stakeholders, negatively impacting creativity, and raising significant cybersecurity and rule of law concerns. The article explains why there is a need for criminal protection of copyright protection and outlines the U.S. framework. In a comprehensive approach, based on a large corpus of data, consisting of cases brought to federal courts, in violation of Section 506 of Title 17 of the U.S. Code, and press releases and reports by law enforcement and industry groups, Section 3 describes the forms and extent of the phenomenon. Section 4 discusses essential aspects involved in the prosecution of these cases. Based on the number of cases brought to courts versus the criminal copyright infringing reports and estimates, the article concludes that this criminal phenomenon is significantly under-prosecuted and proposes a number of measures that could improve the criminal protection of copyrighted works.

Interrogé sur la «juste peine» à attribuer à quatre figures de délinquant (un chauffard, un cambrioleur, un violeur et un banquier malhonnête), une large part (48,4 %) d'un échan-tillon représentatif de la population suisse préconise, dans l'un des quatre cas au moins, de prononcer uniquement une sanction alternative – c'est-à-dire non prévue par le code pénal. Partant de ce constat, nous décrirons d'abord les types de sanctions alternatives suggérées pour chaque situation. Puis, nous interrogerons le profil des enquêtés ayant privilégié ces sanctions alternatives. L'analyse des sanctions alternatives proposées révèle une grande hétérogénéité en termes de finalité et de sévérité de la peine. Le fait de refuser une peine traditionnelle n'informe donc en rien sur la forme de justice préconisée à la place, ni sur son degré de punitivité. Par ailleurs, cet engouement pour les sanctions alternatives révèle une critique du système pénal contemporain et une forme de plébiscite pour un modèle pénal alternatif. Ce modèle – dont l'essor récent de la justice restauratrice à l'échelle internationale illustre la vigueur – propose une justice plus horizontale, plus personnalisée, et qui prend davantage en compte les victimes. Mais il ouvre aussi la porte à des sanctions potentiellement plus longues et contraignantes.
Mots-clés: sanctions alternatives, juste peine, modèles de justice, justice restaurative
Summary Asked about the «fair sentence» for four types of criminal offences (traffic offence, burglary , rape and money embezzlement), a large proportion (48.4 %) of a representative sample of the Swiss population advocates, in at least one of the four cases, to pronounce only an alternative sanction – that is to say, not provided for by the criminal code. Based on this finding, we first describe the types of alternative sanctions suggested for each offence. Then, we examine the profile of the respondents who opted for these alternative sanctions. The alternative sanctions proposed are heterogeneous regarding the purpose and the harshness of the sentence. Thus refusing a traditional sentence does not inform in any way about the form of justice advocated instead or its degree of harshness. Moreover, this enthusiasm for alternative sanctions reveals a critique of the contemporary penal system and a claim for an alternative penal model. This model – illustrated by the rise of restorative justice at the international level – offers a more horizontal and individualised justice that takes victims more into account. But it also takes a step towards potentially longer and more restrictive sanctions.

This Article traces the history of dissatisfaction with disparity in sentencing during the first half of this century, as that dissatisfaction was manifested by a number of attempts to demonstrate empirically the existence of disparity and proposals to eliminate it. In addition, this Article notes how the same concerns have arisen twice during the last
hundred years, resulting, during the 1940's, in the indeterminate sen- tencing system and, during the late 1970's and early 1980's, spread adoption of determinate sentencing.