Sentencing and Clemency

The theory and practice of sentencing is an opportunity to explore anew some of the fundamental questions that we examined on the justification of criminal justice, except this time with a focus on the individual who has been convicted. The law of sentencing is obviously an important part of the criminal justice system, although it often gets less attention than the law of guilt. Nonetheless, sentencing can both be a source of considerable injustice and justice. It perhaps most evidently connects issues of the application of the criminal law to the individual to some of the broader societal and distributive justice issues that we have looked at throughout the course. Sentencing is often an issue that attracts strong public reactions and is vulnerable to the pressures of penal populism.

Over punishment may lead to grave social problems, especially in view of what we saw are the declining returns of punishment. Perhaps more importantly, it is fundamentally unfair to the defendant. Under punishment may leave society vulnerable and let victims down. In practice, however, what counts as under and over punishment will be hard to gauge. Note that there are legislative (the broad parameters of punishment), constitutional (the limits of punishment) and judicial (the determination of individual punishment) parameters to this debate which obviously interact.

Canadian judges have the advantage that the Criminal Code actually sets out the logic of sentencing in section 718. As you will notice, however, the goals of sentencing are numerous and potentially in tension with each other. For example, the objectives of denunciation, deterrence, and separation may be at odds with the goals of rehabilitation. Moreover, certain goals are specifically foregrounded when it comes to particularly grave offenses.

One very significant phenomenon over the last decades is an effort to both remedy excessive resort to incarceration, particularly (but not only) as it affects aboriginal offenders. Conditional sentences are a big part of this strategy, leading offenders to serve time but in the community (rather than having a sentence suspended altogether).
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