Special Sentencing: Morally Right Or Wrong?

In R. v. Gladue, the Supreme Court of Canada addressed the issue of proper interpretation of s. 718.2(3) for the first time. The accused was an Aboriginal women charged with second-degree murder for the killing her common-law husband. Gladue’s defence counsel did not raise that she was an Aboriginal offender in his submissions on sentence at trial and she was sentenced to three years imprisonment and a ten-month weapon prohibition. Gladue appealed her sentence to the British Columbia Court of Appeal, and again to the Supreme Court of Canada in December 1998. Although her appeal was dismissed again, the Court went to provide a framework for interpreting s. 718.2(e). In this case, it was determined that the Court was required to consider all reasonable alternatives to imprisonment for all offenders with particular attention to the circumstances of Aboriginal offenders generally and not only to those living on the reserves. In particular, there needs to be more emphasis on restorative justice, where community members and the victim will also be involved in the process. The Court is allowed to take into account prior findings of guilt when determining the appropriate sentences and in some offences prior guilt will create a higher minimum sentence, which the Court

Aboriginal circle sentencing in New South Wales (NSW) is a form of restorative justice and was introduced largely to deal with the over representation and incarceration of indigenous people in the criminal justice system. Government programs thus far do not seem to have made a significant impact in addressing this problem. Circle sentencing was first introduced in NSW in Nowra in 2002 and was primarily based on the Canadian model of restorative justice. Research conducted on the effectiveness of circle sentencing in NSW is difficult to decipher due to the different research methods used and the way effectiveness is tested, however circle sentencing has been shown to have some success in the indigenous community. The implications of these findings

Enhanced Sentencing Provisions has been speculated by many academics and scholars alike to be the demise of hate crime legislation, however, The Law Commission have stated that “a new sentencing approach guidance would be adopted with more robust recording practice of enhanced sentencing cases would address the provision’s shortcomings.” Nonetheless, the vast and capricious nature of the Criminal Justice System with respect to their limitations and the subsequent impact on the victims of hate crimes can unfortunately mean that their engagement with it as a person who has been affected by the crime committed has potential to do more harm than good.

They could adopt one of the most effective types of aboriginal justice; circle justice. However to truly understand how effective circle justice is we fully understand how the system works. Circle justice is a form of restorative justice, which everyone is treated as equals and the offenders and victims get a chance to talk uninterrupted. Circle justice is a type of Canadian

The utilitarian theory of punishment is another approach to the criminal justice system. Richard B. Brandt believes that this type of punishment is frequently found in Great Britain and the United States. He believes that utilitarian’s differ in their thoughts as to what is the “ideal” system would be but the punishment extended should be fair and that the threat of punishment may be more important than the punishment itself. Brandt discusses the difference in the prosecution and defense used to obtain maximum utility and how the punishment should be implemented and how to mitigate the punishment.

The laws were strategically designed to disproportionately affect or communities. For example, before the passage of the Fair Sentencing Act in 2010, the possession and selling of crack cocaine (used predominantly in black communities) was harsher than possessing and selling powdered cocaine (used predominantly in other communities), even though data proved that both drugs had the same adverse effects on their consumers. It's unfortunate that as a result of certain illegal drugs now having a devastating impact on other communities, many are calling for sympathy and allocation of funds towards treatment, education, and prevention, but our community was faced with a frivolous "war on drugs"

This weeks topic talks about reasonable sentencing, one that follows the guidelines set by the United States Sentencing Commission (Lane, 2007), and unreasonable sentencing, one that does not fall within those guidelines and is not justified by the judge (Lane, 2007). Many factors are taken into account when determining the sentence issued by the judge. Some of these factors are drug involvement, criminal history, premeditation, amount of harm or damage done, and whether or not the accused accepts responsibility for their actions (Sentencing and Rehabilitation, 2012). If the judge feels that a more severe or less severe punishment is warranted and can give justifiable reasons for such he can issue such a sentence and still be considered

The Canadian criminal justice system is often represented by the balanced scales of justice. These scales symbolize the need for the law to be viewed objectively in order to ensure a fair determination of innocence (Griffiths, 2011). Ideally, the criminal justice system should incorporate the values of the scales of justice to control crime and impose penalties on those who violate the law. However, despite justice being supposedly impartial, there is an overwhelming representation of Aboriginal people in all stages of the criminal justice process, from the charging of the individuals in court to their sentence in prison (Jordan, 2014). This is a clear indication that the criminal justice system is not adequately representing the needs of

Mandatory minimum sentencing is the lowest amount a judge can impose for sentencing the defendant to which has been predetermined for specific types of crime. This was a decision made by congress in 1984 which removes the courts discretion during the sentencing of a guilty defendant. The purpose of which was to have uniform sentencing for similar crimes as well as a deterrent to reduce criminal behavior (Bernick & Larkin, 2014).

This learner was not surprised that racial biases exist within our court system when it comes down to sentencing. So, are we saying the judges are racist? This learner hopes not, but she cannot help but wonder if they are just based on the number of African American that is housed in our jails/prisons. There just seems to be an overwhelming amount of us incarcerated verses Caucasians. It is also amazing that some of the sentencing time that judges past down for the same type of criminal act (e.g., burglary, auto theft, etc.) seems to be worst for African Americans more than there Caucasian counterparts. Especially if they are both first time offenders. Now, there could be other reasons for this, like pleading out their case verse going to trial. So, why is that? There could be many reasons, but for this discussion this learner will examine ways that we could eradicate some of the bias and discretion in the sentencing process.

What has society done about reforming sentencing laws in order to reduce the incarceration population? The fair sentencing Act which was signed by president Obama has helped reduce the number of inmates impacted by mandatory minimum sentencing by “reducing the disparity in the amounts of powder cocaine and crack cocaine required for the imposition of mandatory minimum sentences and eliminates the mandatory minimum sentence for simple possession of crack cocaine, it also increases penalties for major drug traffickers” (White House 2010). What the Act did was changed the ratio of Crack cocaine v Cocaine from 100:1 to 18:1 (U. S. Department of Justice 2010). This Act is beneficial because it

Bopp and Bopp (2007: 45) argue that the tendency of making use of uniform strategies in restorative justice loses values and often overlooks the heterogeneity of identities as well as the experience of the native people. This means that it is important to acknowledge the differences amongst the aboriginal people. It is evident that the use of retributive model of justice has been used in many of the corrections in Canada. This method has not been effective in reducing crime amongst the aboriginal people.

Section 718.2(e) fails to address the direct cause as to why there is a large percentage of indigenous offenders and only simply attempts to mend the issue in regards to the number of inmates by allowing future offenders to avoid imprisonment. Furthermore, the central argument against special sentencing is an equality matter. Aboriginals are not the only ones who face discrimination from the justice system or to come from a disadvantaged background (Stenning and Roberts, 2001), so it is simply unfair that they receive leniency while other groups do not. How is it morally correct if we give the aboriginals an advantage and the right to avoid imprisonment? Equality means that everyone must be treated on the same grounds and be given the same amount of rights, so section 718.2(e) is a violation of the Canadian Charter of Rights and Freedom’s section 15(1), which

Mandatory sentencing is a set penalty approved by parliament for committing a criminal offence. This sentence can involve any type of consequence, it normally refers to prison sentencing. All Australian states and territories have mandatory sentences, most of them introduced life imprisonment for murder after the death penalty’s abolition but, over time, most jurisdictions adjusted the minimum penalty. (Roche, 1999)

This essay will consider what legal punishment is; it will draw a distinction between the two main categories.[3] It will focus on utilitarianism