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Post #163

One of the challenges in criminal law is what to do about crimes that took place many years ago.  Should these still be prosecuted after many years?  And if we prosecute, do we apply the standards we have now, or those that applied when the crimes took place?

A recent book chapter by Toronto-educated Oxford University professor Julian Roberts examines these questions.  As Roberts writes, “Sentencing is a culturally and historically variant enterprise; attitudes to­ward crimes and punishments evolve continually, as do conceptions of blame­worthiness and moral fault.”

These are not theoretical questions.  Every year many people are sentenced for crimes – especially sex crimes – that took place 30 or more years ago. Roberts cites an Australian study which found that “almost half of sexual abuse cases were sentenced more than 25 years after the offense was committed.”

Issues in prosecuting long-ago crimes

Prosecuting charges from many years before is already fraught with difficulty due to “the diminishing reliability of witness testimony and the physical degradation of evidence over time.”  The chances of a wrongful conviction increase.  That is why many jurisdictions, though not Canada, have statutes of limitations on some or all crimes.

And how should we treat events from many years ago when our ideas about them have greatly changed since then?  Sentences for long-ago crimes may reflect current views of harm and punishment, not what existed when the crime was committed.  The person accused may be subject to a much harsher penalty than would have existed at the time.  That is true of many sex crimes today, where the grounds for conviction have changed and the penalties have increased significantly.  In Roberts’ view, “courts should not routinely override the historical tariff with the sentence currently imposed.’

Creates new mitigating and aggravating factors

The time between crime and punishment also raises other questions.  If the person committing the crime has lived a crime-free life for many years since then, punishing him has no deterrent value.  Those offenders “…may now present a very low risk to reoffend, in which case a milder punishment… or even a discharge may be appropriate. Incapacitation, specific deterrence, or re­habilitation is also less necessary if the offender has spent the period in the community since the crime occurred without further offending.”   On the other hand, if a victim has had many years of suffering as a result of the crime, does that make the crime worse and justify a longer sentence?  Sentencing guidelines in most countries, including Canada, do not speak to this important issue.

Roberts concludes that “The offender should not be sentenced as if the crime had just occurred, nor should he or she be sentenced as if the court could move backward in time, weighing circumstances exactly as they existed at that time. The period between crime and punishment must be considered.”

Yet in Canada, although historic crimes are charged according to the criminal code as it was when the crime occurred, sentencing is based on current standards.  That is “potentially unfair as it represents a retroactive recalibration of the crime and the offender’s culpability, and … may violate the principle of parity in sentencing involving defendants convicted of the same crime but punished years apart.”  After all, we do not prosecute people for things they did that were legal at the time, even when those things are now illegal, so why should their sentences reflect what we think now instead of what was thought at the time?

Negative effects of prison badly underestimated

Roberts makes other points that are true of criminal sentencing generally.  First, “The traditional view of a sentence of custody was that severity was almost entirely captured in the duration of the sentence”. However “…there is a large and growing body of research demonstrating the long- term, sometimes irremediable effects of imprisonment on a range of indicators, including life opportunities, employment prospects and lifetime income, physical and mental health, and family relationships “.  He cites research that after controlling for a range of other explanatory factors, each additional year in prison increases the odds of early death quite significantly.

Moreover, the negative effects of imprisonment operate not just on those sentenced, but also on their families, especially spouses and children, who, after all, did not commit the crime yet are also punished for it.

The consequence of this evolution [in knowledge] is that a 20- year prison sentence is, or should be regarded as, a much more severe sentence than hitherto, and this should trigger a greater reluctance to impose such sentences and a second- look review of existing long- term sentences.”  That is especially the case because “Although courts in many jurisdictions continue to endorse lengthy prison sentences for deter­rent purposes, the research evidence suggests they are far from effective.

Roberts contends that there should be regular reviews of the situation of anyone who has been in prison for many years, because the passage of so much time suggests that both their situation and the law may be quite different than when they were originally sentenced, meaning that the sentence is no longer appropriate.

Sentencing always arbitrary to some degree

Sentencing is, in any case, a rather arbitrary exercise according to Roberts.  First of all, “offense rankings or statu­tory sentences are more likely to reflect haphazard political initiatives rather than any systematic examination of whether existing penalties have become outdated.”  Then, “Sentencing severity changes over time, often for reasons unrelated to the seriousness of the offense in question”. “Revisionist, upward drifts in the perceived seriousness of some offenses are often unprinci­pled and reflect something other than a sound theoretical justification.” And “History is replete with examples of moral panics that triggered a sudden and dramatic increase in sentence severity in the absence of a systematic and compelling recalibration of the seriousness of the crimes affected.”

Roberts argues that sentences provide little deterrent effect in part because “the vast range of severity for even a middle- ranked offense such as burglary means the average citizen can have no accurate idea of his or her likely sentence; for most serious offenses, the sky’s the limit.” If one has no idea of the punishment, it can have little deterrent effect.  In any case, “For most crimes, the maximum penalties provide no guide to the average or the relative severity of punishments” in any given case, further undermining deterrent effects.

All of this suggests that we should err on the side of caution and lenience in such cases, but the generally punitive nature of our criminal justice system means that the reality is quite the opposite.





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