A blupete Essay

What's To Be Done, Part 7 to blupete's Essay
"On The Theory of Punishment"

Here, in Canada, we can trace our existing criminal code to that which was passed in 1892. Though there has been some attempt to restructure and to check its growth and to make it logically consistent,15 the Criminal Code of Canada is the same beast that came into being over a hundred years ago, and, since, has grown even more into an agglomeration of forbidden acts and transactions as has been dreamt up by successive political conclaves. It is, without a doubt a hodge-podge, a farrago, an unmethodical assemblage, a galimatias. It is full of repeating and disjointed sections most all of it written in arcane language which confuses and confounds the most experienced magistrates. The average officer of the law can not work with it. And as for the chances of the citizenry, whom the code is meant to govern, coming to an understanding of what acts are criminal and what are not; well, -- forget it: there is absolutely no chance. A citizen -- outside of the acts of murder, assault, robbery and alike -- will only know he has run afoul the criminal law when a policeman has come to his door to advise him of such. The Criminal Code, from start to finish needs to be rewritten, so to simplify and reduce.16
"'The more laws there are the more crimes there will be', said the founder of Taoism about the sixth century B.C. As the Lord Chancellor in a recent speech well said - 'The respect which the people of this country show to law and order is our greatest guarantee of getting through difficult times and it is incumbent upon the legislator to remember that when he piles one law upon another he may endanger that respect'. So it may be the task of future reformers of the law to agitate for the elimination from our criminal code of many of the innumerable offences which involve only what Dr. Radzinowicz terms 'administrative criminality' and evoke no moral reprobation except in so far as any breach of the existing law is reprehensible."17
Once a person is found through a fail safe process to be a criminal, then, he ought to be punished, taking into account the factors considered: retribution, deterrence and rehabilitation. The process ought to take in account the wishes of the victim and/or his family; and, if so willing, they should be brought right in on the process. It maybe that the determination of the appropriate sentence, ought, in the first instance, be left to a specialized group.

Benjamin Cardozo:

"Among students of criminology there are now many who maintain that the whole business of sentencing criminals should be taken away from the judges and given over to the doctors. Courts, with their judges and juries, are to find the fact of guilt or innocence. The fact being ascertained, the physician is to take the prisoner in hand and say what shall be done with him. ... after guilt has been determined by legal process, instead of sentence being fixed by judges according to statute, I should like to see offenders who have been adjudged guilty detained by the state. They should then be carefully studied by a board of expert mental and physical specialists, who after careful study of all the elements entering each case would decide and fix the penalty for the crime. I realize the complexity of such a fundamental change. It probably required even constitutional amendment."18
A factor which should weigh in large is whether a respected member of the community might come forward, hopefully one from the criminal's own family. Where no such person is willing to come forward, then the criminal is to be left to face the severest of penalties.19 Now, a person who undertakes some specific responsibility on behalf of another who remains primarily liable, or who makes himself liable for the default or miscarriage of another, or for the performance of some act on his part, is a person who is going to have to make a very careful assessment of the individual for whom he vouches. Why should a person put his reputation or property on the line for another? Well, to begin with he must have some faith that the person for whom he is willing to go good, will deliver on the promised act or promised restraint. To institute a system20 of releasing a criminal where some responsible person in the community comes forward, at least in respect to the first offence, would, it seems to me, be of much benefit -- not, just to the criminal at that moment; but, for enumerable other people in their daily dealings with family, friends and associates. The business of gaining an ally before the need of one through a history of cooperation and fair dealing should be capital that a person might spend in a court of law. A person is to understand by his experiences that a criminal act hurtful to others will result in equal or comparable punishment to him; and, repeated acts of kindness and considerations to others will get him off when once he made a mistake.

Lord MacMillan, in his introduction to Professor Leon Radzinowicz' work, History of Criminal Law and Its Administration, op. cit., in quoting the Irish historian and philosopher, William Lecky (1838-1903), was to write, as follows:

"To distinguish between crime that springs from strongly marked criminal tendency and crime that is due to mere unfavourable circumstances or transient passion or weakness of will; to distinguish among genuine criminal tenancies between those which are still incipient and curable and those which have acquired the force of an inveterate disease, is the basis of all sound criminal reform. It cannot be carried out without much careful classification and many lines of separate treatment. The agencies for reclaiming and employing juvenile criminals; the separate treatment of intoxication [and drug addiction]; the broad distinction drawn between a first offender and an habitual criminal; the prison regulations that check the contagion of vice, have all had a good effect in reducing the amount of crime. Most of these things cost much, but they produce a speedy and ample return. Money is seldom better or more economically spent than in diminishing the sum of human crime and raising the standard of human character."
The agencies to which Harold MacMillan referred in 1948 have diversified and multiplied and so has the cost. I am not so sure that any of it, however, has produced "a speedy and ample return." Fifty years have now passed and many of my fellow citizens are ready to express the sentiment that the sentencing of the convicted criminal has grown more and more ineffective, sentimental and meaningless. If the system we desire is one which converts the convicted criminal to a respectable law abiding citizen, and which -- when such a conversion is not possible (this being, I suspect, the situation for the vast majority of cases) -- is to deter the criminal from committing further crime; then, we do not presently have the desired system in place. What we have, it seems, has failed in both departments; but, most certainly, has wholly failed to make crime difficult and unattractive.


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Peter Landry

2011 (2019)