History of Punishment and Sentencing

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History of Punishment and Sentencing

Historical Approaches to Punishment

Ancient Societies

The common forms of punishment in ancient communities like Greece and Rome included:
capital punishment (over time, capital punishment has taken many forms: stoning, throwing the offender off a cliff, burning at the stake, crucifixion, being buried alive, being hanged (dragged, quartered, entrailed), the guillotine, electrocution, gas chamber, etc.)
physical mutilation (e.g., cutting the hand off of a thief, or cutting off a tongue or ear, or branding)
corporal punishment (e.g., whipping, torture etc.)
confiscation of property
exile (as an alternative to capital punishment)
loss of civil status
forced labour (e.g., working in the salt mines or in the galley of a boat or forced to participate in gladiatorial combat)
prison was usually only used to hold persons awaiting trial or execution, or for debtors
public shaming or denunciation was used for minor offences.

Medieval England

In England many of the same punishments were in effect. Punishment was often conducted in public to deter others.
For serious crimes, capital punishment, exile, transportation (e.g. to Austalia, other colonies) or physical mutilation were used.
By 1800, capital punishment was available for as many as 200 offences (felonies).
Benefit of clergy was used as a way to avoid capital punishment (p. 8). [Clergy were only answerable under ecclesiastical law. Therefore common law courts could not impose capital punishment. As benefit of clergy expanded, Parliament enacted statutes saying that many serious crimes were not "clergyable".]
For less serious crimes various forms of public shaming were used -- the stocks, the pillory and branding.
In the 1600s, and especially in the 1700s, transportation to new colonies [involving forced labour in a penal colony or indentured servitude] became a popular form of punishment (especially as an alternative to capital punishment).
Forced labour (in workhouses or ship galleys) was another form of punishment for less serious offenders, especially for beggars and vagrants.
In England anyone convicted of a felony also lost all property rights (existing property and the right to inherit property) [attainder and corruption of blood] [page 8 and 9].

Rise of the Penitentiary

In the late 1700s transportation to the new colonies became less and less popular (to those inhabiting the new colonies). It was at this time that penitentiaries arose as an alternative to capital punishment or transportation. Penitentiaries were designed for long-term imprisonment. Two main models of penitentiaries arose.
The Pennsylvania Model -- or separate system -- involved keeping prisoners confined separately at all times. Prisoners would eat, work and pray separately and alone. Theoretically this was to give them time to reflect upon their waywardness and to keep them away from the bad influences of others while they engaged in a process of self-correction.
The other penitentiary model was the congregate or Auburn model where prisoners were confined in separate cells, but came together for work, study and prayer. In this system the prisoners were still prohibited from communicating with each other, except in exceptional circumstances.
The first penitentiary in Canada was opened in Kingston, Ontario in 1835 and it, like other subsequent Canadian penitentiaries, adopted the congregate or Auburn system.

Punishment in Canada

Punishments for crimes in Canada at the beginning of the 19th century were similar to England -- capital punishment, corporal punishment, transportation or banishment, pillory and branding.
In 1800, fines were introduced in Upper Canada as an alternative to branding, [p. 15] as was imprisonment with hard labour (for 6 to 24 months) in work houses or local jails.
In 1830, branding was abolished as a punishment in Upper Canada.

Corporal punishment in the form of public flogging was abolished in the 1830s, but whipping in the private confines of the prison continued in force for serious crimes. Whipping remained an available punishment for sexual offences in Canada until 1972.

Capital punishment was also losing favour. In 1833 the Upper Canada legislature restricted capital punishment to 9 serious crimes, including treason, murder, rape, buggery, bestiality, robbery, arson, and burglary.

Codification of Punishment and Sentencing

At the time of Confederation in 1867, the federal government was given exclusive legislative jurisdiction for determining crimes and punishments.
In 1869, the federal government enacted a number of Consolidation Acts. One of those Acts largely adopted the penalty structure which had been set out in a similar English Act of 1861.
That penalty structure for offences started with -- capital punishment, then life imprisonment, then terms of imprisonment of 14, 10, 7, 5 or 2 years or 6 months (summary conviction) imprisonment. That penalty scheme was then adopted in the first Canadian Criminal Code of 1892 and has pretty much remained in effect.
The BNA Act [s. 91(28)] also assigned responsibility to the federal government for establishing and maintaining "penitentiaries" and s. 92(6) assigned responsibility for local jails and reformatories to the provinces.

Capital punishment (hanging) was officially abolished in 1975, but the last hanging to occur in Canada was in 1962.
New rules for parole ineligibility were set for murder -- no parole eligibility for 25 years, subject to a "faint hope clause" application to a jury after 15 years to reduce parole eligibility to something less than 25 years.

Throughout the 20th century, imprisonment remained as the primary sentencing response to crime, although fines and probations gained some ground during the course of the twentieth century.
Imprisonment is available to every offence in the Criminal Code!

Changing Focus of Punishment

The "Changing Focus of Punishment" from the 18th to the 21st centuries is summarized as follows:
At the end of the eighteenth century, most sentences were directed at the body of the offender either in the form of execution or mutilation.
Exclusion was also a dominant feature, achieved through transportation, banishment, and civil disability.
The birth of the penitentiary provided a change in course, to stipulated periods of deprived liberty during which, optimistically, some reformative process would take place.
Initially, the engines of reformation were thought to be penitence, discipline, and hard labour.
Later, the rehabilitative ideal replaced these regimes with psychological, vocational, and education programs.
In the twentieth century, various factors produced a renewed interest in fines and the new sanction, probation.
Now, at the beginning of the twenty-first century, we are in the midst of a debate about the overuse of imprisonment and the continuing search for non-custodial alternatives. One can anticipate that various disparate factors like rapidly expanding costs of imprisonment, the enthusiasm for restorative justice, and dissatisfaction about the state of criminal justice in aboriginal communities will combine to encourage new community-based alternatives with a large role for members of the community, both as contracted service providers and volunteers.

Developments Leading to Reform of Sentencing in Bill C-41 (1996)

Earlier reports on sentencing reform:

Archambeau – 1939
Fauteux – 1956
Ouimet – 1969

Law Reform Commission of Canada (LRCC)

Established in 1972 – commission composed judges and well-known academics
First act was for draft a new Criminal Code
1970s - Produced a number of reports on sentencing
1984 – Established a sentencing commission
1987 – Released a detailed report on sentencing
1996 – Bill C-41

Statutory Structure of Sentencing Before Bill C-41

No legislative statement of penal purposes (aims and objectives of sentencing). Courts said sentence must be a wise blending of conflicting goals:
Retribution/denunciation
Deterrence [general/specific]
Incapacitation [long term imprisonment and Dangerous Offender designation]
Rehabilitation [probation/parole etc.]
No legislative statement that one purpose has priority over another [Sentencing is an art, not a science.]
No legislative statement of sentencing principles in the Code
E.g., proportionality, least restrictive sanction, parity (similar sentence for similar case)
Only guidance in the Code: maximum punishment is specified.
Max. is based on "worst case" scenario
Even then, max. is grossly beyond realistically fair sentence
Thus there is no guidance for ordinary, usual, unusual or average offence.
No guidance for the most critical decision: jail/no jail, [in/out decision]; i.e. no guidance on when to use probation or fine rather than jail
Over-reliance on imprisonment: i.e. available for all criminal offences. Treats imprisonment as the primary sentencing option.

Offence descriptions are too broad:
E.g. offences not sub-divided into Robbery 1st, 2nd, 3rd degree etc. - same penalty available for all levels of robbery
Code's existing scale of offence seriousness needs review (100-150 yrs. old)
E.g. B & E of a dwelling house = life; forgery of passport = 14 years max.; while assault causing serious bodily harm is 10 years max.
Prosecutorial discretion can greatly affect sentence - no legislative guidelines or supervision on exercise of prosecutor's discretion
Number of charges
Indict/summary
Agreed facts
Plea bargaining
Joint sentencing submissions
Even who your judge is

Parole and remission: reduction of judge's sentence of imprisonment by as much as 2/3rds by parole or 1/3 by statutory remission release results in "lack of truth" in sentencing and creates public cynicism.
Victim is ignored (no victim impact statements, restitution seldom granted).
Sentencing law is largely inaccessible / unknowable to ordinary person.
Criminal Code provides little guidance – bulk is from the unwritten common law

Conclusion

The above structure leads to (i) arbitrary sentencing; (ii) unequal and disparate sentencing; and (iii) confusion, uncertainty and loss of respect for the system
Sentencing is largely "lawless" discretion: each judge may apply there own sentencing philosophy, so there is often no unifying model and results vary widely
Statutory delegation to judges with virtually no structure or guidance

Synopsis of Sentencing Reform Chronology

Between 1972 and 1977, the LRCC produced several Working Papers and Study Papers on sentencing, culminating in A Report on Dispositions and Sentences in the Criminal Process (1977). Although the LRCC recommendations were not converted into legislation, its studies and reports did stimulate changes in judges’ sentencing practices. [e.g., more use of restitution, community work orders and fine option programs]
Sentencing reform was an acknowledged part of the government’s Criminal Law Review Initiative. General principles for the reform of criminal law and sentencing appeared in the government’s 1982 Report, The Criminal Law in Canadian Society.
In 1984 Justice Minister MacGuigan introduced the Criminal Law Reform Act 1984, known as Bill C-19. Bill C-19 was a massive bill involving changes in procedure, substantive criminal law and virtually a new code in regard to sentencing. Bill C-19 was approximately 300 pages in length. Parliament was dissolved in July 1984 before the Bill received second reading.
Justice Minister MacGuigan also released a Report entitled Sentencing in February 1984, which discussed sentencing issues and concerns and explained the rationale for the sentencing proposals found in Bill C-19. The Report also announced that a Sentencing Commission would be established.
The Sentencing Commission was established in May, 1984 to examine the current level of maximum penalties, to develop model sentencing guidelines, and to advise on the best use of sentencing guidelines.
After the 1984 election, John Turner’s Liberals were defeated and Brian Mulroney’s Conservatives came into power. The Criminal Law Amendment Act of 1984 was reintroduced as Bill C-18 in the next legislative session which began on December 19, 1984. However, Bill C-18 was substantially pared down in size (172 pages) and did not involve the sentencing reforms that were found in Bill C-19.
The Sentencing Commission published its final Report in 1987, calling for extensive changes.
The Commission’s recommendations were studied by the House of Commons Standing Committee on Justice and Solicitor General. That Committee, chaired by David Daubney, produced its Report, Taking Responsibility, in August 1988, containing 97 recommendations for change.
In 1990, the Department of Justice issued a Discussion Paper entitled “Sentencing: Directions for Reform”.
In June, 1992 the Government gave first reading to Bill C-90, An Act to Amend the Criminal Code on Sentencing. The Bill received second reading May7, 1993 and then died on the order paper when the general election was called.
Following the election and further consultations, Justice Minister Rock introduced Bill C-41 in 1995. It was ultimately passed and proclaimed in force on September 3, 1996. Bill C-41 involved significant sentencing reform, although it did not incorporate the Sentencing Commission’s recommendations for presumptive guidelines and the establishment of a permanent Sentencing Commission.

Synopsis of Law Reform Commission of Canada Ideas and Proposals

The first comprehensive attack on Canada's sentencing laws and structure was initiated by the Law Reform Commission of Canada. Between the years 1974 to 1977, the Commission issued a number of Research Papers, Working Papers and Final Reports on Sentencing.
Many of the ideas and proposals advocated by the Law Reform Commission were considered at that time to be novel, some even heretical, to lawyers, judges and others involved in the criminal justice system. Amongst other things, the Commission argued:
that widespread and unwarranted disparity in sentencing existed; uncritical acceptance of the legitimacy of "individualized sentencing" (i.e. each case is different, therefore sentences are understandably different) was wrong;
that imprisonment was over-used as a sanction;
that "just deserts" should be the operational principle in determining sentences;
that rehabilitation and deterrence were largely ineffective, and were not legitimate goals in determining length or severity of sentences;
that restraint, and the least restrictive option, should be used at all stages of the criminal justice system including the imposition of sanction;
that imprisonment in default of payment of fines was commonplace and should not be;
that greater regard should be paid in sentencing to reconciliation and repairing the harm done;
that compensation and restitution orders should become an integral part of sentencing;
that community-based alternatives to imprisonment be developed and that community work orders be used where an offender could not afford to make financial compensation or restitution.

Although Parliament did not immediately enact legislation to embrace the Commission's proposals, the Commission's work has been very influential informally in changing sentencing practices and especially encouraging experimental projects on community-based sanctions, restitution and fine-option programs. It is testimony to the Commission's influence that many of their ideas today sound commonplace.