Objectives and Philosophical Dimensions of Punishment There is an important distinction between punishment and sentencing Punishment is the intentional infliction of pain, deprivation or suffering. How can this be justified? Three main schools of thought: I – Retributivist The justification for punishment flows directly from the offence; the violation justifies the penal purpose. Three hallmarks: The offender deserves to be punished; The state has an obligation to punish that person; The punishment must be proportional. Kant said that human beings are rational and autonomous. These two capacities (to know right from wrong and to choose freely between them) mean that humans deserve to be punished when they choose to do wrong. On this theory, the punishment isn’t to achieve a social goal; it’s an end in itself. said that the purpose of imposing punishment was to annul the crime and restore any violated rights. This theory has more room for the goals of restoration and reformation. James FitzJames Stephens said that society was entitled to hate criminals and punishment was premised on the notion of the offender deserving it. Retribution, however, is not vengeance. People were confusing it with such and it was getting a bad reputation. The courts started to suggest that the word shouldn’t be used because of the conflation (Hinch). Distinctions between retribution and vengeance (Robert Nozick): R addresses wrongs; V responds to any event that need not be a wrong; R is inherently limited by the seriousness of the offence; V knows no internal limits; of R has no personal ties; V is personal; R requires no emotion; V carries pleasure of self-satisfaction; R rests on a clear general principle that offences deserve punishment. V has no similar principle and is arbitrary. R. v. M.(C.A.) Lamer specifically endorsed retribution as a fundamental and legitimate objective of sentencing by differentiating it from vengeance. “Vengeance has no role to play in a civilized system of sentencing. Vengeance, as I understand it, represented an un-calibrated act of harm upon another, frequently motivated by emotion and anger, as reprisal for harm inflicted on oneself by that person. Retribution, in a criminal context, by contrast, represents an objective, reasoned and Trial
Primary actor that acts through agents and pursues the state’s needs Has varying role depending on process. Process involves: Two distinct and sentence Involves just the resolution process Happens Is never necessary because offender has admitted responsibility voluntarily. Sentencing Is still adversarial and formal. Victim still has limited role. Community has no say. No victim-offender dialogue. Punishment is the primary response. matter of consensual dialogue and discussion. Fairly informal. Controlled by participants. Victim has full opportunity to present their view. Usually involves direct dialogue between victim and offender. Overview of Sentencing Options In ascending of seriousness, here are your sentencing options: Sanction Sections Availability Alternative measures s. 717 Where program exists Appropriate regarding needs of accused and interests of victim/society The person freely consents Person has been advised of right to counsel The person accepts responsibility There is sufficient evidence to proceed The prosecution is not barred at law Absolute discharge s. 730(1) Is no minimum punishment Where max. is less than 14 years or life Accused is not an organization Best interest of accused/public