Vol. 9 No. 12 (December 1999) pp. 547-549.
MAKING SENSE OF SENTENCING by Julian V. Roberts and David P. Cole (Editors). Toronto: University of Toronto
Press, 1999. 381 pp. Cloth
$65.00. Paper $27.95.
Reviewed by Mary W. Atwell, Radford University, Department of Criminal Justice.
Julian V. Roberts, a Professor of Criminology, and David P. Cole, a Provincial Court Judge, have compiled a series
of twenty-one essays dealing with the current state of sentencing policy in Canada. The volume begins and ends
with the notion that sentencing is both widely criticized and widely misunderstood by the public. In that respect,
Canada bears a strong resemblance to the United States. To shed some light on the complicated subject, the editors
include chapters written by scholars as well as by practitioners. They limit their scope to contemporary sentencing
and parole and focus mostly on adult offenders convicted of non-white collar
crimes.
In 1996, the Canadian Parliament enacted a major sentencing reform bill. Most of the book is concerned with an
analysis and discussion of the contents and application of that legislation. The essays vary in style and focus.
Several are more like reference pieces providing a summary of major sentencing laws. Other chapters such as the
one on sentencing alternatives by Jonathan Rudin advocate strongly for a nontraditional approach to sanctions.
The collection seems so eclectic that it does not really succeed either as a reference or as a critical discussion.
Nonetheless, one might select some general questions from the volume and
use those as points of comparison between sentencing issues in Canada and in the United States.
As a response to several concerns-a public perception that sentences were too lenient, a recognition that rates
of imprisonment in Canada were higher than in most modern democracies, and a sense that there were wide disparities
among judges and jurisdictions-a reform process began in 1984 when the Canadian Sentencing Commission was formed
with a particular mandate to study sentencing guidelines. After three years, the Commission proposed not only
a system of guidelines, but also revisions of the maximum and minimum penalty structure, and a statement of the
purposes and principles of sentencing. Next a parliamentary committee took up the subject, and after a series
of public hearings and investigations of correctional institutions, came up with over a hundred suggestions for
reform, many of which echoed those of the Sentencing Commission.
The 1996 legislation was the culmination of this nationwide debate and extended discussion. One can assume that
a significant number of Canadians had the opportunity to make a contribution to the deliberation, and that the
resulting law, Bill C-41, should reflect at least a reasonable consensus. The process of looking thoroughly at
the whole range of issues associated with criminal sanctions, including the assumptions which underlie the choice
of methods of punishment, is one that would
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be beneficial in the United States but one which most politicians seem loathe to undertake.
Bill C-41 contains several sections of interest. One provision encourages the use of alternative measures, and
grows out of an expectation for individualized, creative ways of addressing minor offenders. A most intriguing
feature of the law is its discussion of the purposes and principles of sentencing. Many supporters of sentencing
reform believed that if Parliament could define the purpose of sentences, they could move logically to a coherent
set of policies. Few students of sentencing would argue with the law's statement that the fundamental purpose
of sentencing is "to contribute, along with crime prevention initiatives, to respect for
the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions." It sets out
a comprehensive list of sentencing objectives: denunciation, general and specific deterrence, isolation of offenders
from society, rehabilitation, and reparations to victims and communities, and acknowledgement of harm to victims
and to the community. Therein lies the problem cited by many authors in the Roberts and Cole volume. By listing
all the possible objectives of sentencing, the act provides no guidance at all to judges trying to decide which
is the most important of several competing purposes, and the door remains open for disparities and perceived inequities
to enter sentencing.
The provision in Bill C-14 that provided the greatest subject for debate among the contributors to MAKING SENSE
OF SENTENCING is a new sentencing
alternative--the conditional sentence of imprisonment. An offender who would otherwise be expected to serve a
term in jail of less than two years may be required instead to serve his time in the community. The conditional
sentence differs from probation in that the sanctions for violating its terms are swifter and surer than those
for breaching probation. A number of the authors in Roberts and Cole argue that the conditional sentence will
contribute to a decrease in the high rate of
imprisonment in Canada. On the other hand, there is little unanimity about whether the policy will reduce discretion.
In fact, there is some evidence that the conditional sentence actually results in "widening the net"
of the corrections system by its application to some offenders who would otherwise have no custodial sentence.
The last essay in the volume, by Anthony M. Doob, is entitled "Sentencing Reform: Where Are We Now?"
Doob argues that long-standing problems remain
unsolved. The principle that a sentence should be proportionate to the crime is contradicted by a policy that
takes prior offenses into account in rendering sanctions. The primary purpose of punishment has never been defined.
Does the community look backward to the crime committed or forward to making a society safer by reforming the
offender? By listing both objectives, and others, Parliament clarified nothing. Doob asserts that subjective
decision making by judges continues, and with that subjectivity comes unwarranted disparities. He takes issue
with the criterion that as long as a judge can provide a logical and legal basis for a ruling, he or she has made
a "correct" decision. In telling judges to treat similar offenders and similar offenses in a comparable
way, Bill C-14 offers no guidance fr evaluating the relative advantages and disadvantages of offenders' lives.
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Despite his generally pessimistic assessment of sentencing reform, Doob concludes that an irreversible process
has taken hold with the 1996 legislation. Parliament has taken sentencing policy making away from the courts and
into its own hands. However, Doob, the editors, and the other authors included this volume cannot predict how
moving sentencing policy out of judicial purview and into the political realm will play out in the future.