Sentencing - Rehabilitation

Sentencing in Criminal Cases -- a Series

Part I

It is one of the duties of our profession to educate the general public about our judicial system.  Education can prevent the perception that the justice system does not work.  This is particularly true in the area of criminal sentencing.  The criminal code of Canada sets out detailed sentencing principles, which are too long to repeat here.  I will discuss some of the main principles: denunciation, general and specific deterrence, protection of the public and rehabilitation.

When discussing these principles, it's important to keep in mind that locking up offenders does not solve crime: it just prevents criminals from committing more crimes for the time being.  The solution is to stop offenders from committing any more crimes.  Of course, this does not happen in a perfect world and some offenders will never stop offending.  We also know from studies that criminals are more likely to repeat if they have been in jail.  Its common sense: lock someone up with a group of other criminals, and you do not have a great recipe for rehabilitation.  The principles of sentencing trying to balance these sometime competing interests.  We accept that the system is not perfect and we try to improve the system whenever we can.

One principle of sentencing is rehabilitation.  If, as a result of the judicial process, a criminal never commits another crime, we have had success.  For this reason, the courts encourage sentences that are more likely to cause someone not to offend again.  There is no benefit to putting a small time thief or drug user in jail.  Nothing about jail directly helps these people change their behavior. 

Correcting criminal behaviour is one step better than preventing it.  It is also far more complicated.  If all we cared about was prevention, we would lock up every criminal for life: they would never offend again.  Of course, that is a ridiculous proposition, and would be way to harsh in almost every case.  However, once we stop talking in absolutes, we have to decide when it is appropriate to let an offender back into society.  This is where the controversy begins.

Alternative sentencing measures that may, for example, make the drug user more aware of the dangers of his or her activity, are likely to be more effective.  If the drug user is an addict, requiring them to attend substance abuse counselling is likely to have a better effect.

For the thief, restitution and community service may have a better effect in making the thief more aware of the consequences of what he may think is a "victimless" crime. Obviously, in some cases, restitution is not an important factor in sentencing.  A career thief may give the courts no choice but to imprison him.  On the other hand, someone who steals to support a drug habit has an underlying problem (his addiction) which, if cured, could lead to an end to the theft.  In this kind of case, the court will impose conditions which are more likely to solve the underlying problem, rather than punish the offence.

Rehabilitation is only one of the many factors and cannot be considered without the other principles.  Next week, we will examine another principle.