An analysis of public support for severity and proportionality in the sentencing of youthful offenders.

• Author: Barber, Jody

In May 1998, Minister of Justice Anne McLellan surprised many people by announcing that instead of offering more amendments to the Young Offenders Act (YOA), she would introduce "a new youth justice statute to underscore the renewal of youth justice" (McLellan 1998: 17). The reasons for this decision are obviously complex, but it is clear that one factor in the decision to bring in a new law rather than amending the YOA was the view that "in the eyes of many Canadians [the youth justice system] has fallen short" (McLellan 1998: 1). The Minister listed a number of weaknesses with the youth justice system as a whole, at least two of which have had direct bearing on sentencing under the Youth Criminal Justice Act (YCJA): the manner in which the most serious cases are dealt with and the overreliance on custody for less serious cases.

There is ample evidence that the public was, in fact, concerned with sentencing under the YOA. In a 1997 Ontario public opinion poll, respondents were asked to assess the severity of adult and youth court sentences. More people thought that youth sentences were too lenient (88%) than those who thought that adult sentences were too lenient (77%) (Doob, Sprott, Marinos, and Varma 1998: 9). These results were remarkably similar to a national poll (Macdonald 2001, cited in Doob and Cesaroni 2004: 219) showing that across Canada 80.6% of the adults surveyed thought that youth court sentences were not severe enough. The only province that differed significantly from the overall pattern was Quebec, where only 66% thought that sentences were too lenient.

The sentencing provisions of the YCJA are easily accessible (see, in particular, ss. 38 and 39 of the YCJA) and have been analysed quite thoroughly by a number of scholars (e.g., Anand 1999, 2003; Bala 2003; Doob and Cesaroni 2004; Doob and Sprott 1999a, 1999b, 2004) and, therefore, need not be described here. However, a key provision of the YCJA was designed, in part, to address the two concerns mentioned above which were identified by Minister of Justice McLellan: that "the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence" (s. 38(2)(c)). One can easily argue that the concept of proportionality in responding to offending by youths is a central feature of the YCJA (Anand 2003; Bala 2003, Doob and Sprott 1999a, 1999b, 2004). However, as others have pointed out (Brodeur and Roberts 2002; Canadian Sentencing Commission 1987; Roberts and von Hirsch 1999), proportionality does not necessarily translate into more severe sentences. Rather, proportionality and severity of sentences are orthogonal dimensions. In other words, a proportional sentencing structure can result in mostly harsh sentences, mostly lenient sentences, or some of each.

The introduction of "proportionality" does not, therefore, address directly the concern about sentencing that is expressed by the majority of the public--that sentences are too lenient. However, if the public's focus is, as the minister of justice implied in 1998, largely on serious violent offences, proportionality should address some of the concerns expressed by those members of the public most likely to question the legitimacy of youth sentences.

This study, then, is an attempt to provide some preliminary data that could help interpret variation within the public in the acceptability of some of the key principles that form the basis of the YCJA. A major focus of this study is the concept of proportionality and its relationship to the perception of the appropriateness of the severity of sentences.

Method

In order to understand the public's acceptance of the principles of sentencing under the YCJA, it would have been ideal to have been able to carry out a large-scale study of a representative group of Canadians. However, we believe the alternative used in this study--a relatively small sample of Toronto residents--though not ideal, is adequate for our purposes for three reasons. First, we used measures that allowed us to compare certain relationships within our sample with the relationships found in larger samples that are known to be more representative of Canadians. Second, we built procedures into our methodology that allowed us to estimate whether non-respondents to our survey were likely to be significantly different in our measures from those who did respond. Third, the study focuses, for the most part, on relationships among variables rather than attempting to estimate population values.

A total of 400 questionnaires were distributed in several different neighbourhoods in Toronto during May and June 2002. Questionnaires, with stamped addressed envelopes, were placed in prospective participants' mailboxes with the request that they be filled out and returned to the first author, who in the covering letter, identified herself as a graduate student at the Centre of Criminology. For the first 200 questionnaires that were distributed, half included a $1 coin "as a token of [the author's] appreciation for completing the survey." The purpose of doing this experiment was not simply to increase return rates (as has been shown to be the case in a number of studies, e.g., Doob, Freedman, and Carlsmith 1973), but rather to estimate whether non-respondents to this particular survey were likely to hold different attitudes from respondents.

In this instance, 26% of those who did not receive the $1 returned completed questionnaires as compared with a response rate of 43% of those who did receive the $1 ([chi square] = 5.66, df = 1, p

The questionnaire that was given to respondents contained fixed alternative questions relating to the perception of crime and the youth justice system. These questions will be described in more detail in the results section.

Results

Comparability with other findings

As with previous surveys, the vast majority (73%) of respondents indicated that they thought that sentences of the court were too lenient. (2) As is the case in other surveys (e.g., Statistics Canada's General Social Survey 1999) people tend to see crime (youth crime in this survey) as more of a problem in the province generally than their own neighbourhoods. In this case, many more people saw youth crime as having increased in Ontario (77%) than in their own neighbourhoods (46%). However, when compared with respondents to the 1999 General Social Survey, this downtown Toronto sample was somewhat more afraid of walking alone in their own neighbourhoods (47% indicating that they felt unsafe compared with 17% of the General Social Survey) and of being home alone in the evening (54% indicating that they were very or somewhat worried compared with 20% in the General Social Survey). These differences in fear levels would be problematic for drawing inferences about the usefulness of this sample were it not for the fact that the relationships between these fear questions and other questions were similar to those found in other studies.

For example, it was round that those high in "fear" (as measured by each of these two questions) were more likely to believe that sentences were too lenient than were those low in fear. This finding is the same as that reported by Sprott and Doob (1997) based on a representative sample of the Canadian adult population (the 1993 General Social Survey). Similarly, those who believed that crime had increased in their own neighbourhoods or in Ontario generally were much more likely to believe that sentences were not harsh enough than those who...