Wednesday, May 23, 2012

A sentencing judge should refrain from imposing a sentence which exceeds an offender's expected remaining life span

R. v. Johnson, 2012 ONCA 339 is a useful source for the principle, applied in Canada but not the United States, that a sentencing judge should generally refrain from imposing a fixed-term sentence which exceeds an offender’s expected remaining life span:

[29]       In my view, the appellant’s potential for rehabilitation should not have been disregarded completely, albeit that his antecedents suggest the prospects may be dim and that the concepts of denunciation, deterrence and protection of the public are paramount in these circumstances.  As Professor Allan Manson notes in The Law of Sentencing (Toronto: Irwin Law, 2001), at p. 102, “[e]ven when there is little evidence of positive rehabilitative prospects, total sentences should not be so long as to crush optimism about eventual re-integration.”  See also R. v. Manybears, 2009 ABCA 82, 457 A.R. 101, at para. 8.  To repeat the guiding language of Lamer C.J. in M.(C.A.), at para 74:

… the sentencing judge should be mindful of the age of the offender in applying the relevant principles of sentencing.  After a certain point, the utilitarian and normative goals of sentencing will eventually begin to exhaust themselves once a contemplated sentence starts to surpass any reasonable estimation of the offender’s remaining natural life span.  Accordingly, in exercising his or her specialized discretion under the Code, a sentencing judge should generally refrain from imposing a fixed-term sentence which so greatly exceeds an offender’s expected remaining life span that the traditional goals of sentencing, even general deterrence and denunciation, have all but depleted their functional value. [Emphasis added.]



The Rat said...

Woohoo, we have a second age category where you cannot be held responsible for your crimes! Such a progressive world we live in. I'll be sure to tell my 80 year old dad that, because he has already passed the average life expectancy of a white Canadian male, he is free to commit whatever crimes he wants because any sentence would exceed his expected remaining life!

In fact, a male child today is expected to live to 78.8 and those born earlier have less, so a murderer can expect less than 25 years if he's over 53! Bonus!

These judges are so right, hope is really important for a career criminal...

Anonymous said...

Rat, you're an idiot.

Right, so, I'm 26 now, and the above would mean that a sentence of 50 years would be reasonable (since being released at 76 means I may still look forward to leaving prison alive); does this now make it 'worth it' for me to commit a serious crime that costs me the majority of my remaining years?

This just means 'don't give an 80 year old a 30 year sentence; give him 10 instead', etc. The reasoning is along the lines that a prisoner will no longer behave as if they have nothing to lose; so long as there is light at the end of the tunnel - that there is a chance of seeing the light of day again - they may change themselves.

Anonymous said...

Also, I'm not sure how you managed to interpret this article as suggesting that 'people over the average life expectancy be exempted from serving time in prison'.

I'm guessing you voted for Harper, and support his prison expansions?

The Rat said...

I guess I'm just an idiot who thinks if the crime deserves a 30 year sentence then give a 30 year sentence. If you'll let me return the compliment, idiots like you think that letting judges make exceptions and exemptions based on whatever flavour of the day comes up is a good thing. Now we have another exemption that will become precedent, and just so you know, idiot, you can't get a 50 year sentence in Canada; "life" is the max, but we know that is very rare and it's 25 years max until you get parole eligibility. You see, in Canada we also give a bulk discount on crime by banning consecutive sentences. Kill 1 or 300, it's the same sentence.

Oh, by the way - you're an idiot.

James C Morton said...

Now now, play nice. Rat has a point -- and I say that as a Liberal who doesn't believe in prison for punishment (only for segregation from soicety). That said, if you believe in equality and punishment then the idea of penalties being grossly different for people of different ages is a problem. You can try to square the circle by saying that to be imprisoned for the bulk of your remaining life is the same punishment for a 20 yo and an 80 yo -- but somehow that doesn't make a 5 year sentence feel like a 60 year sentence (which we don't really have in Canada anyway). All that said, and probably because of my views on prison and punishment as opposed to degregation for the protection of society, I am not really fussed by this decision.