RSS FeedThe death of Troy Davis
On September 21, 2011, at 11:08 pm Eastern Daylight Time, Troy Anthony Davis was declared dead.
Cause of death: lethal injection. Administered by: employees of the state of Georgia. Legal justification of homicide: a court order. Grounds for the court order: Troy Anthony Davis’s murder conviction.
Societies punish crimes for specific reasons. Section 718 of the Canadian Criminal Code is a good summary of purposes of criminal sentencing:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
Death penalty doesn’t rehabilitate or deter the offender, doesn’t compensate anyone, and doesn’t make the very dead offender feel any responsibility for or acknowledge anything. It should be pretty clear by now that it doesn’t deter others too. It does separate the offender from society, so to speak, but usually prisons do that job perfectly.
But denounce, it does.
So the only true reason for death penalty is denunciation. All other reasons either do not exist or do not require death penalty. Societies, at least rational societies, kill only to denounce, to show contempt for the crime, to assign a special measure of gravity to the illegal act. There is no other reason. The only reason for death penalty is really a symbol.
No doubt, denunciation can be a valid reason. But let’s see what price we pay for denouncing by death.
You can look up Troy Davis yourself and find out that his conviction was based on eye-witness testimony much of which was later recanted. I probably don’t need to explain why this creates a possibility that he was innocent. This possibility is also called reasonable doubt. And the supreme value of our society is preservation of innocent life. You would think the courts would choose the chance and the possibility of preserving innocent life over a chance to denounce murder. After all, no one would think more kindly of murder if Troy Davis got a life sentence or if he was released based on reasonable doubt in his guilt. And there is another value the courts would have protected if they spared Davis’s life: fairness. The more opportunities an accused person has to clear his name, the more fair our legal system is.
But the courts chose a different value over all the others: finality. Its purpose is to unclog our court system and to give litigants some sort of confidence that their case is not going to be reopened. This value is very important in civil litigation: hence, limitation periods, res judicata, etc.
In criminal law, finality serves victims and their families and the public purse to some extent. It doesn’t usually serve the accused, and it certainly didn’t serve Troy Davis.
The courts chose finality for the victim’s families and the public purse over fairness to Davis and preservation of his potentially innocent life. You decide if it was the right choice.
Pulat Yunusov is a Toronto litigation lawyer.
(Post sponsored by AdviceScene)
Pavlov’s Law and the Criminal Justice System
From my experiences dealing with the different participants in the justice system (accused, victims, witnesses, court personnel, etc) and listening to the public’s opinion, I feel confident in saying that most people are frustrated with the length of time it takes for a case to be completed in court after an offence is actually committed.
I think that most people believe in the old adage that “justice must be swift to be maintained” and the perception is that this is not happening. Indeed, this is not merely perception, but reality. Statistics from 2009 indicate that the average number of days a court case takes in the Province of Ontario until a disposition is reached is 214, with an average of 9.2 appearances in court. In some regions in Ontario these numbers are as high as 330 days and 13.1 appearances. This is an increase of 21.6% and 42.4% respectively.
Based on these numbers I would suggest that the public’s perception is very justified and polls show just how widely held this perception is. According to the Department of Justice’s Review of Opinion Polls of Public Perceptions of Crime and Justice in Canada, 36% of Canadians claimed to have little to no confidence in the provincial court system, with a further 48% stating that they have only “some” confidence.
Might that be (at least in part) because, like Pavlov training his dog, people understand on some level that the effect (the punishment) must be proximate to the cause (the crime) in order for the association to effectively be made? If it is not, how can the offender understand the consequence of their actions? How can their sentence properly act as a deterrent? If your five year old child draws on the wall with crayon and 7 months (214 days) later you punish them for it, are they really going to learn their lesson?
Disparity in the proximity between the time of the offence and the time of sentencing causes problems for other participants in the justice system than just offenders, including victims, witnesses, and police.
Victims of crimes I’ve investigated have often expressed to me that they feel as though they are continually being victimized while the court process drags on and that they can’t really move on until it’s complete and they have some sense that justice has been done. This is especially true in cases where the crown intends to seek restitution from an offender for some loss that a victim has suffered.
Witnesses in cases I’ve had have often become more reluctant as time goes on to testify in court. Sometimes this is because their memory of the incident gets less clear as time goes on and they don’t want to put themselves in a position where they will be asked about details that they can’t remember. Sometimes, in cases involving criminals who are witnesses against other criminals, this is because there has been time for the accused to tamper with or intimidate the witness or because they’ve had a lot of time to dwell on the possible repercussions of testifying and have convinced themselves that the worse case scenario will happen, that the accused will “get them when they get out.”
Police are subject to the same problems as other witnesses with respect to their memory of an incident degrading over time. This is why police make notes of the incident to refresh their memory in court, but when you’ve dealt with a hundred similar cases since the one in question, the details sometimes blend together and answering questions about details strictly from your recollection (that you made no notes on) becomes very difficult and can adversely affect the prosecution of a case.
This happened in my first impaired case. I stopped a young man just down the street from where he had dropped his friend and his (the friend’s) girlfriend off. They were both drunk and were fighting and rolling around on the boulevard and the in the street. I suspected, based on the driving I observed and the report of the complainant who stated that he thought that all three were drunk, that the driver might have been drinking, but I didn’t have time to confirm the grounds.
Immediately after stopping the vehicle, I took the keys from the driver to keep him there and went to deal with the other two, who were in danger of being hit on the road. I ended up having to arrest both of them for public intoxication, for their own safety, in order to get them off the road. I called for another unit to take over their arrest and dealt with them until the unit arrived. A short time later I returned to the vehicle, confirmed that I had grounds to make a roadside demand and produced the breathalyzer, which the driver blew into and failed. He was arrested for Impaired and Over 80.
When the case came to court, over a year and many impaireds later, I was asked specific questions by the defence counsel about how long the accused was detained while I dealt with the other two and what exactly I was doing with them the entire time and how long it took me to get back to the accused and form my grounds. I couldn’t remember all the details and I hadn’t made notes on what I was doing at every moment. The case was dismissed based on the fact that the judge felt that we had unjustifiably detained the accused for too long without having formed grounds and made the breath demand.
Had I been able to recall better what exactly I had been doing during this time and articulate how I couldn’t have gotten back to the accused any sooner, the case might have gone differently. That is just one personal example of the problems associated with delays in court. I have many more.
Fortunately, the provincial government has acknowledged these issues and has developed a strategy to deal with them. But this post has gone on long enough so check out my next one for the details of how the government is addressing these issues.
Speaking of getting “tough on crime”, how about “hate”?
When a local Georgian Township man, Trevor Middleton, was convicted of assault and criminal negligence in December, 2009, friends and family of the victims were hopeful that justice was served.
The Toronto Star
During the case, the jury had heard how Middleton and his friends had engaged in the practice of “nip-tipping” – that is, they would push into the water individuals who were fishing and who were of visibly Asian descent. This would be on the pretense that such people were fishing illegally, without licenses, or catching more fish than they were allowed to.
As well, the jury had heard how, after this altercation, Middleton had pursued the victims in his F-150 pick-up, how he had rammed their Civic with his truck, and how the victims were forced off the road and into a tree. The jury also had heard how one of the occupants, Shayne Berwick, suffered severe brain injury and is now confined to a wheelchair.
As a result, the jury had taken all of three hours to find Middleton guilty.
The End of 2-for-1 Credit & the Fallacy of ‘Getting Tough’
The March 8th 2010 issue of Maclean’s, “Canada’s magazine”, has this to say about the Conservative government’s elimination of two-for-one credit for pre-sentence custody:
Do the time
“It seems like a no-brainer: convicted criminals shouldn’t get a break for prison time served prior to court dates. And yet, it’s taken four years for the federal government to enact legislation ending two-for-one jail credits. As the old saying goes: you do the crime, you do the time—the whole time, not just half. Convicted criminals have been gifted shorter sentences by the justice system for too long. It’s time to get tough.”
Fortunately, old sayings do not figure among our sentencing principles. The objectives of our sentencing regime are enumerated at section 718 of the Criminal Code, and they are as follows:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
Parliament enacted those objectives to guide the courts in fashioning sentences that are just and appropriate to the circumstances of each case. By looking beyond the obtuse imperative to “get tough”, a judge can craft a sentence that neither threatens the safety and security of the public nor condemns the offender to a lifelong cycle of recidivism.
Equitable and progressive though they might be, however, Parliament’s sentencing principles do not take into account the backlog that plagues the criminal justice system. Too often, prisoners languish in dangerous, dirty, overcrowded jails for weeks and months before their cases can be heard.
It was this dubious “gift” that the two-for-one sentencing regime was meant to address: the policy acknowledged that outrageous pre-sentence delays, coupled with deplorable conditions in some Canadian prisons, resulted in suffering that our sentencing provisions did not countenance. Moreover, this hardship is utterly preventable, but for a lack of public or political will. (As ever, “get tough” is a politically unassailable stance.)
To be sure, giving double credit was a bandage on the problem, not a curative. Jail conditions remain execrable, and the Attorney General’s “Justice on Target” initiative has only just begun to rein in administrative delay. But instead of curing these ills, the government has decided to rip off the bandage.
In that respect, Maclean’s was right: it’s a no-brainer.
Sexual assault sentencing
Quebec woman avoids jail for sex assault on son
A 55-year-old woman has been given a conditional sentence, to be served in the community, for sexually assaulting her teenage son.
A story of crime (?) and punishment (!)
If a teacher and a student fall in love and have a consensual sexual encounter, should the teacher go to jail for 10 years? What if the student is of the age of consent? What if both of them are female? This is a real case: a trial court in Georgia convicted a woman of sexual assault on her female student and sentenced the teacher to 10 years in jail plus 5 years of probation. The court rejected the consent defence. Although, the Georgia Supreme Court overturned the trial court on this point, the real possibility of 10 years in jail for an encounter with an of-age student lover is shocking. It does not serve the state interest in protecting children, places a disproportionate burden on teachers, and is possibly in this case a product of homophobia.
Read more
Serial bum pinching and statutory interpretation
Judge ignores legislation, gives bum pincher light sentence
(post sponsored by advicescene.com)
Reformed “Computer Terrorist” Kevin Mitnick Reflects on his Crime and Punishment
Elinor Mills of CNET.com has conducted an interesting interview with the famous hacker, Kevin Mitnick.
Beginning at 12-years of age, Mitnick primarily used social engineering to manipulate and gain unauthorized access to telecommunications networks; for example, to evade long-distance charges or access the speaker systems of fast food restaurants. In the late 70s, as his intellectual curiosity grew and telecommunications became digital, Mitnick began cracking computer networks and pursuing larger “trophies”.
In 1988, he was convicted for this activity and sentenced to 12 months in prison. During the subsequent period of supervised release, Mitnick hacked into Pacific Bell voice mail computers–then evaded the FBI for two and a half years.
Though Mitnick gained access to these networks and often stole code, he claims he never profited from these activities or caused damage to his victims beyond their wasted time and frustration. Nevertheless, at the time of his arrest, he was the most wanted computer criminal in United States history.
In 1999, Mitnick confessed to various counts, including wire and computer fraud, as part of a plea agreement. He was sentenced to 46 months in prison in addition to 22 months for violating the terms of his 1989 supervised release.
In the interview, Mitnick had this to say about his crime and punishment:
I served five years, and I ended up in solitary confinement for a year because a federal prosecutor told the judge that if I got to a phone I could connect to NORAD (North American Aerospace Command) and somehow launch an ICBM (Intercontinental Ballistic Missile). So the judge, reflecting on the movie War Games, put me in solitary confinement. I think it was a strategy they used to get me to plead out or cooperate. I was held for four and a half years without a trial. I spent a lot of time focused on the defense and reading cases and serving as assistant to my attorney. At the end of the day I realized justice is economic; unless you have enough money to properly mount an effective defense you always lose.
I wanted to admit that I was hacking, but the intention and the purpose of it wasn’t fraud because to commit a fraud you have to convert property to your own use and benefit, to profit. In my case that was lacking. I was doing it for the trophy. I was cloning my cell phone to random subscribers and dialing into computers from the cell phone. The purpose wasn’t to make free calls; it was to make it more difficult for the government to track me. They claimed all my hacking into those companies was a huge elaborate fraud and that I caused $300 million of damage. They said the value of property I copied, the R&D development cost, was $300 million. The government tried to use the old (definition of) loss for tangible property. If I copied that code and they no longer had use of it, it would be a $300 million loss or whatever.
They told my attorney that if I didn’t cooperate and plead out, not only would they take me to trial in Los Angeles, but they would put me in a revolving door of trials and put me on a bus and take me from federal jurisdiction to federal jurisdiction. So I signed the deal and admitted causing between a $5 million and $10 million loss. I signed it not believing it. I signed it to get out. I really don’t believe to this day that my actions caused that amount of loss, because none of the victim companies lost use of their code, they never claimed any losses due to my activities. Sure there were losses, maybe in the thousands of dollars, for their time to investigate who hacked into their systems and to secure them. Those are the real losses. But I was the example for the federal government, so they needed to put me away for a long time. That’s why I was very angry and bitter against the government at the time, because I wasn’t being punished for what I did. I was being punished for what I represented at the time. I have no qualms about being punished for what I did. The punishment should fit the crime.
Since his release, Mitnick has founded a successful security consulting company, published two computer security books, and lectured on the subject around the world.
Read the interview here.
SCC constitutionalizes diminished criminal responsibility for youths
If I have a theme for this week, I guess it would be “implied constitutional principles.” Following up on the California gay marriage ruling, I have another post today, this time from much closer to home.
The Supreme Court of Canada this morning issued a landmark decision on sentencing under the Youth Criminal Justice Act (YCJA). Before I get into the constitutional (and political) implications of SCC’s decision in R. v. D.B., 2008 SCC 25, I’ll start with a bit of background.
The Harper government campaigned on a promise of amending the YCJA to impose tougher sentences on youth. In particular, the Conservatives seem to have taken issue with the Supreme Court’s decision in R. v. B.W.P.; R. v. B.V.N., 2006 SCC 27 that deterrence and denunciation are not goals of sentencing applicable to youth.
Instead, the court ruled that youth sentences must be aimed at “rehabilitating and reintegrating young persons into society … by holding young persons accountable through the imposition of meaningful sanctions related to the harm done” (para 4).
Beyond the government’s desire to make deterrence a principle of youth sentencing, the Conservatives have also been trying to implement automatic adult sentences for youth convicted of violent crimes or repeat offences.
Today’s ruling in R. v. D.B. will throw a monkey wrench into Harper’s plans. Allow me to explain.
When sentencing youth under the YCJA for so-called “presumptive offences” (e.g. manslaughter), the onus was on the youth to prove why they shouldn’t be treated as an adult. D.B. was charged with manslaughter, and he brought a Charter application claiming that these reverse onus provisions of the YCJA were unconstitutional and should be struck down. The Supreme Court, by a narrow 5-4 margin agreed with him.
So the reverse onus provisions are now unconstitutional. It sounds like a rather unimportant decision that will not have a particularly large practical impact on youth criminal justice in general.
But here’s where it gets interesting.
In coming to its decision, the Supreme Court recognized a new principle of fundamental justice: an implied constitutional principle.
According to Abella J., who wrote for the majority, it is a “principle of fundamental justice that young people are entitled to a presumption of diminished moral culpability” (para 70).
Justice Abella also wrote (at para 68) that:
… a broad consensus reflecting society’s values and interests exists, namely that the principle of a presumption of diminished moral culpability in young persons is fundamental to our notions of how a fair legal system ought to operate.”
Since a new principle of fundamental justice has been implied into our constitution, the courts are now empowered to strike down legislation that violates it. Whatever attempts the government makes to amend the YCJA, they will now have to be consistent with the notion that young people have diminished moral culpability.
Conservative criticism of the decision has been swift and harsh. Check out Colby Cosh’s comments in the National Post Blog, where he says that the Supreme Court:
“… gave a command performance in the role … [of] a gang of aggressive fanatics determined to push the pace of social “progress” to a sprint, thwart the parliamentary balancing of public interests, and permanently enshrine every liberal legislative mistake of the past.”
Snappy!
