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Improving our Practice of Sentencing

Published online by Cambridge University Press:  26 January 2009

Brenda M. Baker
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Abstract

Restorative justice should have greater weight as a criterion in criminal justice sentencing practice. It permits a realistic recognition of the kinds of harm and damage caused by offences, and encourages individualized non-custodial sentencing options as ways of addressing these harms. Non-custodial sentences have proven more effective than incarceration in securing social reconciliation and preventing recidivism, and they avoid the serious social and personal costs of imprisonment. This paper argues in support of restorative justice as a guiding idea in sentencing. As part of this defence, it considers whether the use of the idea of restorative justice will conflate criminal law with civil law or displace the authority of the criminal courts, and whether the sentences it recommends are best thought of as punishments or alternatives to punishment.

Type
Research Article
Information
Utilitas , Volume 9 , Issue 1 , March 1997 , pp. 99 - 114
Copyright
Copyright © Cambridge University Press 1997

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References

1 Blackstone, W., The Sovereignty of the Law: Selections from Blackstone's Commentaries on the Laws of England, ed. Jones, Gareth, Toronto, 1973, p. 190Google Scholar.

2 ‘Justice and Equality’, Social Justice, ed. Brandt, R. B., Englewood Cliffs, New Jersey, 1962, p. 47Google Scholar.

3 During the writing of this paper, an excellent 10-hour critical exploration of prisons and other sentencing options, ‘Prison and Its Alternatives’ produced by David Cayley and Alison Moss, was aired on the Canadian Broadcasting Corporation's Ideas programme. My thinking about incarceration is deeply indebted to that series.

4 The importance of personal interaction in countering severity in judgement and treatment of others has been emphasized by Christie, Nils in his writings, especially in Crime Control as Industry: Towards Gulags Western Style, London, 1993, 1994Google Scholar.

5 Taking Responsibility, Ottawa, 1988Google Scholar.

6 The John Howard Society of Alberta Reporter, x, no. 2 (06 1993)Google Scholar.

7 London, 1992. See also Christie, Nils, Limits to Pain, Oxford, 1991Google Scholar.

8 Blackstone himself appreciates the enlarged effects of a crime. He says: ‘In all cases the crime includes an injury: every public offence is also a private wrong, and somewhat more: it affects the individual, and it likewise affects the community’; and later ‘… in taking cognizance of all wrongs, or unlawful acts, the law has a double view: viz. not only to redress the party injured, by either restoring to him his rights, if possible; or by giving him an equivalent;… but also to secure to the public the benefit of society, by preventing or punishing every breach and violation of those laws, which the sovereign power has thought proper to establish, for the government and tranquillity of the whole.’ Black-stone, pp. 190–1.

9 This comparison is not straightforwardly of ‘equals’, since theories of punishment may aim to provide comprehensive justificatory accounts of criminal justice institutions as a whole, including criminal offence legislation and the trial process in addition to sentencing. Here I am confining myself to a comparison only of the implications of these accounts for sentencing policy, or what is familiarly understood as punishments.

10 Duff, R. A., Trials and Punishments, Cambridge University Press, 1986Google Scholar; Hampton, Jean, ‘The Moral Education Theory of Punishment’, Philosophy and Public Affairs, xiii, no. 3 (1984)Google Scholar.

11 Social Science and Social Pathology, London, 1959Google Scholar, and ‘Diminished Responsibility: A Layman's View’, 76 L.Q.R. (1960).

12 In ‘Alternatives to Punishment – or Alternative Punishments?’, Retributivism and Its Critics, ed. Cragg, Wesley, Stuttgart, 1992Google Scholar, R. A. Duff rightly criticizes the view that we should regard criminal offences as simply conflicts which are the ‘property’ of those immediately affected by them, and so to be resolved exclusively by these persons.

13 See ‘Alternatives to Punishment – or Alternative Punishments?’

14 Ibid., p. 50.