Control Philosophy

and Criminal Justice

Policy
Midterm: Key Information
• Combination of 40 multiple
choice/true or false questions
• 1.5 hours: 2:10pm-3:40pm
• Willcover all material introduced
thus far, up to and including today’s
class material
What are the
philosophies that
underlie our criminal
justice system?
Criminal Justice Philosophies
• Four main philosophies – guide
CJS:
• Deterrence
• Justice
• Rehabilitation
• Selective Incapacitation
Criminal Justice Philosophies
•Indigenous and
restorative justice
systems
Deterrence
• Oldest of the four main philosophies
• 18th century Europe
• Cesare Beccaria
• Jeremy Bentham
• Reforms to criminal justice system
• Goal of criminal justice system – prevent future
crimes by those apprehended, and broader society
(those thinking about committing a crime)
Goal of criminal justice system –
prevent future crimes by those
apprehended, and broader society
(those thinking about committing a
crime)

Specific Deterrence
Goal of criminal justice system –
prevent future crimes by those
apprehended, and broader society
(those thinking about
committing a crime)

General Deterrence
Cesare Beccaria
• On Crimes and Punishment (1764)
• Due process
• Sentencesreflect harm done to
state and victim
• Punishment:quick, certain and
contain a degree of deterrence
Jeremy Bentham
• Calculus
• “legislators must calculate the amount of punishment
required to prevent crimes and punish criminals” (Goff,
80)
• Criminal Justice System:
• Catch suspects with certainty
• Process cases – speedy yet efficient
• Appropriate punishment

• Belief in rationality, free will

Deterrence Model
• Assumption:

• Carefulconsideration of risks (costs) and

benefits (rewards)
• Punishment – induce compliance with law
• Fear punishment - stake in conformity
• Reality however, – some unplanned
Deterrence Model
• Policies– greatest: certainty
(capture), swiftness (prosecution),
severity (punishment)
• Goal – prevent future crime
• Emphasis: protection of society and
public vs rights of defendants
• Assembly line process
Justice Model
• Proportionality - punishment
proportionate to crime
• Most serious crimes – most severe
punishment
• Rights of the accused guaranteed
- Due Process protections
Justice Model
• Assumption:
• DirectRelationship: seriousness of
offense and severity of punishment
• Ideal: personal circumstances ignored
• Only: prior record
• Example of Proportionality?
Justice Model
• Major contribution: supports creating and
proliferation of alternative sanctions
• Example:
serve all/some of punishment in
community
• Preference for alternatives for minor offenses
• Community service and probation – preferred for
1st and 2nd time property offenders
• Result?

• Many offenders – no time in prison

Justice Model
• Significant – guarantees due process rights for all
individuals accused
• Pretrial, trial and post trial procedural rights
• Prevent officials from overextending powers
• Due process - ensures:
• Only facts of case
• Formal hearing – impartial arbiter
• Maintenance of procedural regularity
Justice Model
• Main goal: eliminate/control discretion
• Prosecutors/judiciary/parole boards
• Main barrier to justice = discretion
• Solution – fairness and equity
• Supporters – judges have too much discretion in
sentencing
• Concerns relating to discrimination in sentencing
• Concern regarding parole boards
Selective Incapacitation
• “attempt to separate high-risk offenders from low-risk ones
and to incarcerate for a long time those who are most likely to
be dangerous once released.” (Goff, 83)
• Recent approach
• James Q. Wilson
• Thinking about Crime (1975)
• Focus: “dangerous offenders”, repeat offenders (recidivists)
• Three Strike Laws
• Dangerous – past and future
Selective Incapacitation
• Focus – few individuals who commit most
crime
• If
chronic criminals incarcerated long
enough, crime rate will decrease
• Criticism – can’t predict future criminal
behavior
Rehabilitation
• Source of crime – outside of individual control
• Individualized treatment versus punishment
• Focus on offender versus criminal act
• Criminal sanctions: “…meet the needs of
offender instead of being based on
“considerations of social harm and deterrence”
(Cullen and Gulbert 1982:34 in Goff, 88)
Rehabilitation
• Indeterminate sentences – essential
• In prison: “as long as it takes” to “cure”
• Evaluation of success for rehabilitation
programs – recidivism
• Enhance discretion
• Criminal justice agencies – improve chance of
societal return – better person
Indigenous and Restorative Justice
Systems
• Shift from previous philosophies
• Shared principles:
• Government needs to give up their monopoly over
our society’s response to crime, and must stop
being the sole regulator of those who are most
directly affected by the crime- the victim and the
offender.” (Goff, 91)
• Relationshipbetween victim and offender
restored – process of participation
Indigenous Justice Systems
• Differ
from restorative justice systems -
multiple ways:
• History of colonization in Canada
• Residential school system
• “…resultedin the devaluation of their
cultures and the destruction of traditional
methods of social control.” (Goff, 91)
Indigenous Justice Systems
• Many communities - emphasis on restorative
justice
• Restorative justice: “…an approach to
remedying crime in which it is understood
that all things are interrelated and that crime
disrupts the harmony that existed prior to its
occurrence, or at least should have existed.”
(Goff, 91)
• Appropriate sanction: determined by needs of
victim, community and offender
Federal/Provincial Inquiries
• Aboriginal Justice Inquiry of Manitoba (1991)
• Manitoba justice system “decidedly unequal”
• Systemic discrimination
• 300 recommendations – separate Indigenous justice system
• Alberta Task Force (1991)
• “the imposition of the majority’s justice system on the Aboriginal minority
results in unfairness and inequity” (vol. 1:1-2)
• 350 recommendations
• Saskatchewan Indian Justice Review Committee/Saskatchewan Metis
Justice Review Committee (1992)
• Indigenous involvement in changes to justice system
Federal Provincial Inquiries
• Law Reform Commission of Canada Report Aboriginal Peoples and Criminal
Justice (1991)

• Support concept of Indigenous justice

• “present system fails the aboriginal peoples.” (16)

• “current regime fails to respect the Charter’s guarantees of equality and

fundamental justice in a number of important respects” (75)

• “From the aboriginal perspective…the system is deeply insensitive to their

traditions and values: many view it as unremittingly racist” (5)

• Royal Commission on Aboriginal Peoples (1996)

• Criminal justice system - failing indigenous people of Canada (Goff, 92)

Essential Components
• Fundamental: faithful to Indigenous traditions
and cultural values
• Care for interests of collective
• Reintegration into community
• Mediation and conciliation
• Importance of Elders and Leaders
• Focus: reparations; making parties “whole”
• Avoid: blaming offender
Underlying Notion
• “resolution
of disputes, the healing
of wounds and the restoration of
social harmony.” (Hamilton and
Sinclair, 1991)
Restorative Justice
• Recent
• “…an offenders conscience (i.e. internalized
norms) and significant others (friends, family
and so on) can be incorporated into deterrence
and serve as potential sources of
punishment.” (Goff, 96)
• Deterrence
– not only legal – “fear negative
consequences”
• Shame
Restorative Justice
• Sanctions:
• Represent variety of interests – victim,
public, community
• Informal
• Alternatives to incarceration
• Community
• Focus: Addressing harm versus
determining guilt and punishment