"Nothing" works: sentencing "reform" in Canada and the United States.

• Author: Tonry, Michael

Reading all of Tony Doob's published writings on sentencing--and a few that are unpublished and fugitive but nevertheless traceable--gives us a birds-eye view of the Canadian sentencing policy landscape and a longitudinal account of the unfolding of policy in Canada and the United States. Themes emerge.

I: Similarities and differences

In many ways, the sentencing policy landscape in Canada appears nearly identical to that in the United States. The Canadian general public knows little about what happens in criminal courts but, on the basis mostly of mass media depictions of serious but unrepresentative cases, believes sentences are too lenient (Doob and Roberts 1984; Cohen and Doob 1989). When more complete information on individual cases is provided, perceptions of undue leniency are greatly reduced (Doob and Roberts 1988). When asked yes/no questions, the general public, likewise, strongly supports the use of imprisonment, but when provided fuller information on prison alternatives, is much less insistent (Roberts and Doob 1989). Given a choice between greater expenditure on prisons and greater expenditure on community-based sentencing and treatment programs, heavy majorities favour the latter (Roberts and Doob 1990). Legislators, in some periods, have found proposals for mandatory minimum sentence laws politically appealing (Doob and Cesaroni 2001), but there is no convincing evidence that they are effective deterrents to crime (Doob and Webster 2003b; Webster and Doob 2012). Unwarranted disparities in sentencing are common, but most efforts to diminish them are unsuccessful (Doob 1999a, 1999b, 2011). Partly, this is because many judges don't believe disparities are a significant problem. Partly, it is because the subject seldom commands sustained attention from policy makers. Partly, it is because--unlike in many European countries--there is no broadly shared agreement among practitioners about the purposes or principles that should guide sentencing (Doob and Brodeur 1995).

The major topographical difference between Canada and the United States concerns the politics of crime and punishment. The prevalent attitude among Canadian politicians and policy makers for most of the past 75 years has been one of benign neglect (Doob 1999a, 1999b). Unlike in the United States or England and Wales, crime has seldom been a central or partisan political issue nationally and never a galvanizing or preoccupying one (Webster and Doob 2007). Among the results of this are that the imprisonment rate has not changed much for many years and--despite the efforts so far of the current Stephen Harper government--the sentencing landscape is not dominated by fundamentally repressive sentencing laws, Death Rows, or huge numbers of inmates serving terms measured in decades and lifetimes. On any twenty-first-century day, Canadian prisons and jails have held slightly more or somewhat less than 100 per 100,000 of residents in Canada, as they have on any given day since 1950 (Webster and Doob 2011). The United States, in 2011, confined more than 708 per 100,000 of its residents. That's down from a peak in 2006-7 that exceeded 750 (Carson and Sabol 2012).

The longitudinal account of the unfolding of sentencing policy in the two adjacent countries since 1970 documents divergence and thereby indicates in what ways punishment patterns and policies are so different but in the end fails successfully to explain why (Doob and Webster 2006; Webster and Doob 2011). Nor, quickly I add, has anyone else. In 1970, the American imprisonment rate was about 150 per 100,000, the Canadian around 100. There are wide regional variations in prison use and imprisonment rates in both countries (Sprott and Doob 2001; Carson and Sabol 2012). Members of visible minority groups are disproportionately present in the criminal courts and prisons of both countries (Roberts and Doob 1997; Tonry 2011). Canadian legislation in 1996 directed judges to give special consideration to distinctive issues arising in the sentencing of Aboriginal offenders, but that hasn't made much difference (Dioso and Doob 2001). Attitudes toward punishment in both countries began to shift away from support for and belief in rehabilitation and incapacitation as primary aims of punishment and individualized and indeterminate sentencing as means to achieve those aims and toward "just deserts" and consistency as primary aims and presumptive sentencing guidelines as means (e.g., Blumstein, Cohen, Martin, and Tonry 1983; Canadian Sentencing Commission 1987). Crime rates in both countries--including for violence generally and for homicide--began to increase in the 1960s and continued, with fluctuations, to do so until the early 1990s. After that, crime rates began a long-term and substantial fall in both countries (Webster and Doob 2007). There the similarities end.

It does not exaggerate by much to say that, in both countries, attitudes toward punishment changed, elites proposed major overhauls in sentencing policy, and crime rates rose for a quarter century. American sentencing laws were radically changed. In Canada ... nothing much happened. In the 1980s, five provinces experimented with sentencing information systems premised on the idea that judges would want to know what kinds of sentences their colleagues imposed and would be influenced by that knowledge; the systems withered away (Doob and Park 1987; Doob 1989, 1990). In 1987, the Canadian Sentencing Commission, a government-appointed ad hoc advisory body, proposed that Canada create a permanent commission and charge it to develop presumptive guidelines (Doob 1991, 2011). Nothing much happened.

Legislation enacted in 1996 specified purposes to be pursued in imposing particular sentences. Not too imaginatively, the purposes identified were the traditional stand-bys of deterrence, incapacitation, and rehabilitation, plus fostering respect for the law while respecting the principle that punishments should be proportional to offence gravity and offender responsibility (Doob 1997a). However, judges were given no guidance on when or why to choose particular purposes or on what was required or implied by the allusion to the proportionality principle (Doob 1997b). Several mandatory minimum sentence laws were enacted in 1996, initially requiring 4-year minimum sentences for 10 violent crimes involving guns that, for the most part, had previously received minimum--albeit not mandatory--sentences at least that long (Webster and...