Critical Reading Reflection 1
Criteria:
– Address a topic from Part 3 (Sentencing)
– Single-spaced
– 12 point font, times new roman
– About 1-2 pages
– NO outside sources, use assigned course materials and use embedded citations
– A reference page is not needed because your sources are assigned text
These written assignments will be in the form of a Quotation-Comment-Question or Q-C-Q. Start by
locating a quotation in one of the assigned texts within a given course topic that you find interesting or
controversial and worthy of further discussion. Next, discuss the quotation: explain its significance in the
context of course themes in 400 to 500 words. Finally, pose one question that will prompt further
discussion of the issue. This discussion question should not be a clarifying question about the material.
The purpose of these assignments is to think critically about and to apply socio-legal knowledge to issues
of sentencing and punishment. Do not simply define terms or summarize content. Make use of the
readings and materials assigned in the weeks preceding the reflection deadline. You will be evaluated on
how well you follow instructions and how well you explain your quotation using course themes.
Topic: Social Conditions at Sentencing I: Indigenous Overrepresentation in the Criminal Justice
System
– Reading
o Kramer, Kristen and David Sealy
o R.v.Gladue
? https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1695/index.do
– Social Conditions at Sentencing I- Week 7 PowerPoint Slides
Other readings/PowerPoints from the weeks previous that should be used in answering the
question, such as key concepts
– Social solidarity and the racialization of crime ppt
– Philosophies of punishment, class control, and technologies of power ppt
– Sentencing, Punishment, and Society ppt
o https://muse.jhu.edu/article/633282
– Chapter 5 Punishment as Ideology and Class Control: Variations on Marxist Themes
reading
SOCIAL CONDITIONS AT SENTENCING I:
INDIGENOUS OVERREPRESENTATION IN THE CRIMINAL JUSTICE SYSTEM
SOSC 4350 Week 7
Formal v. Substantive Equality
the universal liberal subject is not representative of the population, but is instead a
white, able-bodied male who is at once rational, autonomous, monied, and
educated. To the extent that the principles informing the administration of criminal
justice are tailored to this concept of the liberal subject, the criminal justice system
will reproduce inequality in its decision-making processes (Naffine, 1990 qtd in
Kramar and Sealy, 2006, p.124).
Section 718 of the Criminal Code
The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives,
to respect for the law and the maintenance of a just, peaceful and safe society by imposing just
sanctions that have one or more of the following objectives:
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 of the community; and
f) To promote a sense of responsibility in offenders, and acknowledgement of the harm done
to victims and to the community.
Section 718 Continued
S. 718.1 Proportionality: A sentence must be proportionate to the gravity of the offence and
the degree of responsibility of the offender
S. 718.2 Other principles:
a) Increasing or reducing the sentence to account for any relevant aggravating or mitigating
factors
b) Imposing similar sentences on similar offenders for similar offences
c) Avoiding unduly long or harsh terms when consecutive sentences are imposed
d) Avoiding incarceration if less restrictive sanctions are appropriate in the circumstances
e) All available sanctions other than imprisonment that are reasonable in the circumstances
should be considered for all offenders, with particular attention to the circumstances of
aboriginal offenders. [amended in 1996]
In sentencing an Indigenous offender, judge
must consider
A. the unique systemic or background factors which may have played a part in bringing the
particular offender before the courts
B. the types of sentencing procedures and sanctions which may be appropriate in the
circumstances for the offender because of his or her particular aboriginal heritage or connection
(para 66)
As a result
The jail term for an aboriginal offender may in some circumstances be less than the term imposed
on a non-aboriginal offender for the same offence. However, s. 718.2(e) is not to be taken as a
means of automatically reducing the prison sentence of aboriginal offenders; nor should it be
assumed that an offender is receiving a more lenient sentence simply because incarceration is not
imposed. (Summary at 12)
Years of dislocation and economic development have translated, for
many aboriginal peoples, into low incomes, high unemployment, lack
of opportunities and options, lack or irrelevance of education,
substance abuse, loneliness, and community fragmentation. These
and other factors contribute to a higher incidence of crime and
incarceration. (para 67)
Purpose of S.718.2(e)
To address the problem of overincarceration of Indigenous peoples
Special emphasis on non-custodial sentences for Indigenous peoples
Judges instructed to consider all possible alternatives to imprisonment for Indigenous
offenders
Permits judicial discretion to establish more creative, restorative solutions for all offenders, but
particularly for those who are Indigenous
CRITIQUE:
race-based discount on sentencing (p.127)
reverse-discrimination for non-Indigenous offenders (paras. 86-88)
Infographic 1
Most Indigenous people live in Ontario and Western Canada, but account for larger
share of overall population in territories
202Indigenous Representation by Proportion, Provincial Population v. Provincial Custodial Admissions
100
90
80
70
60
50
40
30
20
10
0
Proportion of Provincial Population
Proportion of Provincial Custodial Admissions
Substantive Equality
By means of s. 718.2(e), sentencing judges have been provided with a degree of flexibility
and discretion to consider in appropriate circumstances alternative sentences to
incarceration which are appropriate for the aboriginal offender and community and yet
comply with the mandated principles and purpose of sentencing. In this way, effect may be
given to the aboriginal emphasis upon healing and restoration of both the victim and the
offender. (para 81)
Limits of Criminal Courts to Effect Change
It is clear that sentencing innovation by itself cannot remove the causes of aboriginal offending and
the greater problem of aboriginal alienation from the criminal justice system. The unbalanced ratio of
imprisonment for aboriginal offenders flows from a number of sources, including poverty, substance
abuse, lack of education, and the lack of employment opportunities for aboriginal people. It arises
also from bias against aboriginal people and from an unfortunate institutional approach that is more
inclined to refuse bail and to impose more and longer prison terms for aboriginal offenders. There
are many aspects of this sad situation which cannot be addressed in these reasons. What can and
must be addressed, though, is the limited role that sentencing judges will play in remedying injustice
against aboriginal peoples in Canada. Sentencing judges are among those decision-makers who
have the power to influence the treatment of aboriginal offenders in the justice system. They
determine most directly whether an aboriginal offender will go to jail, or whether other sentencing
options may be employed which will play perhaps a stronger role in restoring a sense of balance to
the offender, victim, and community, and in preventing future crime. (para 65)
Contemporary Application:
R. v. King, 2022 ONCA 665
Sentencing,
Punishment,
and Society
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Purpose and everyday
functions of the criminal
justice system.
LAST WEEK:
Discretion the power to
decide or act according to
their judgment.
Relationship between crime
and punishment.
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THIS WEEK:
HOUSEKEEPING
ITEMS
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THE FUNDAMENTALS
OF SENTENCING
PUNISHMENT AND
SOCIETY
Housekeeping
Volunteer Note-Taker
Needed
https://www.yorku.ca/sasweb/note
share/show2
Lecture Slides
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Note Buddy
Changes to Syllabus
1
2
3
Week 3 Philosophies
of Punishment, Class
Control, and
Technologies of Power
Week 4 Social
Solidarity and the
Racialization of Crime
Week 5 Writing and
Research Workshop
Daniel Perlin, Osgood
Hall Law Library
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Key Terms
History of Sentencing in Canada
Fundamentals
of Sentencing
Principles of Sentencing
Some Sources of Information at
Sentencing
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Key Terms
Indeterminate Sentencing: Judge selects
sentence within wide statutory range.
Structured Sentencing: Legislature stipulates
recommended sentences, judges select within
narrow statutory ranges.
Determinate Sentencing: Judge required to
impose particular sentence upon conviction of
particular offense (eg, mandatory minimums).
Truth in Sentencing: Parole is abolished, so that
specific sentence length announced by the
court is actually delivered.
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History of Sentencing
in Canada
?
?
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SRC Recommendations
?
?
?
?
?
?
?
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Judicial appointment
Anonymized prosecutorial system
Protective
Factors in
Canada
Jobs and promotions are not contingent on
conviction rates
Only one elected legal official in each province: the
Attorney General
Federal control over criminal law
Appellate review
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Individualized
Sentencing
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Principles of Sentencing, S.718 of the Code
A) Denunciation
B) Deterrence
C) Incapacitation
D) Rehabilitation
E) Reparation
F) Restoration
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(Some) Sources of
Information at
Sentencing
Aggravating and Mitigating
Factors
Psychiatric Report
Pre-Sentencing Report
Gladue Report
Bound by Precedent
Victim Impact Statement
Proscribed Sentencing Range
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Section 12: Cruel and Unusual Punishment
Proportionality
Provision
Everyone has the right not to be subjected to any cruel and unusual
treatment or punishment.
Grossly Disproportionate
Would outrage our societys sense of decency (R. v. Smith [1987] 1
S.C.R. 1045 at 1072; R. v. Morrisey, [2000] 2 S.C.R. 90 at para. 26)
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Disparity in Sentencing
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Proportions of Offenders Admitted with an Offence
Punishable by an Mandatory Minimum Penalty
BREAK TIME
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CHOOSE
PRESENTATION
TOPICS
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Punishment and
Society
?
?
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This Photo by nknown Author is licensed under CC BY-SA-NC
Settler Colonialism
in Canada
?
?
?
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Colonial Roots of
Punishment
?
?
?
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Critical Colonial Framework
?
?
?
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Sociology of
Punishment
?
?
?
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This Photo by Unknown Author is licensed under CC BY-NC-ND
WHY DO WE
PUNISH?
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How do we
punish?
Non-custodial /
Community
Sanctions
Absolute and
Conditional
Discharges
Suspended
Sentence
Fines
Diversion
Programs
VictimOffender
Mediation
Conditional
Sentences
Probation
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The Correctional Institution: Prison
?
?
?
?
?
?
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Punishment and
Sentencing
?
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Things to Consider
?
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?
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SOCY 4350 Week 3
P H I L O S O P H I E S O F P U N I S H M E N T, C L A S S C O N T R O L ,
AND TECHNOLOGIES OF POWER
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Key Terms
LAST WEEK:
F U N D A M E N TA L S O F
SENTENCING
AND
PUNISHMENT AND
SOCIETY
History of Sentencing in Canada
Principles of Sentencing
Some Sources of Information at Sentencing
Colonial Roots of Punishment
Punishment as a Social Enterprise
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T O D AY S F O C U S
Philosophies of Punishment (optional readings)
Utilitarianism
Retribution
Offender as Citizen (not covered in lecture; in optional readings)
Ideology and Class Control (Marx)
Privileging Property in Criminal Law
Technologies of Power (Foucault)
Weaponized Architecture
Exercise Applying Theory: The Prison in Twelve Landscapes (Documentary)
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DISCUSSING SENSITIVE CONTENT
Our classroom provides an open space for the critical and civil
exchange of ideas. Some readings and other content in this
course will include topics that some students may find offensive
and/or traumatizing. Ill aim to forewarn students about
potentially disturbing content and I ask all students to help
create an atmosphere of mutual respect and sensitivity.
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PHILOSOPHIES OF PUNISHMENT
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PHILOSOPHIES OF PUNISHMENT CONSIDER:
Why do we have
the institution of
legal punishment?
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How can the
imposition of
punishment by
the state be
justified?
Assumption: The
deprivation of
freedom demands
justification.
WHY DOES PUNISHMENT
NEED TO BE JUSTIFIED?
Designed to inflict pain
and suffering.
Imposed on people against
their express will.
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TWO MAIN PHILOSOPHICAL TRADITIONS:
U T I L I TA R I A N / C O N S E Q U E N T I A L I S T
Jeremy Bentham / John Stewart Mill
Infliction of pain by State is justified in so far as it promotes favourable
consequences
i.e., reduction in crime through deterrence, denunciation, incapacitation, and/or
rehabilitation
With respect to a given individual, the recurrence of an offence may be
provided against in three ways:
1. By taking from him the physical power of offending.
2. By taking away the desire of offending.
3. By making [them] afraid of offending. (Bentham, 1879)
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C R I T I Q U E O F U T I L I TA R I A N I S M
The point of a system of criminal punishment is its beneficial effects and the
extent that the benefits outweigh the systems costs.
YET, punishment may efficiently serve its justifying aims and still be unjustified if it fails to satisfy further
moral constraints.
Utilitarianism critiqued for having little regard for human dignity.
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TWO MAIN PHILOSOPHICAL TRADITIONS:
RETRIBUTIVE
Immanuel Kant and George Wilhelm Freidrich Hegel
The guilty deserve to suffer
Based on ancient premise an eye for an eye
Punishment is imposed because it is deserved by an offender for the
commission of an offence.
Whether there are any beneficial consequences arising from imposition of
punishment is irrelevant.
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CLASSICAL
RETRIBUTIVISTS
Punishment
Repays a debt to society
Restores the balance
Annuls the crime
New retributivism: Just Deserts
Theory
Proportionality in sentencing
Has influenced wave of determinate
sentencing guidelines
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PUNISHMENT
THEORIES
Legal Theory
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Multidimensional,
interrogative process in pursuit
of a better understanding of
the nature and functions of
law (Devlin)
What purpose do criminal law
and punishment fulfill in
society?
IDEOLOGY AND CLASS CONTROL
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KARL MARX
1818-1863
Born in Germany while it was
under Prussian rule
Absorbed rationalism and other
ideas of the French Enlightenment
period
Inspired by Hegel
Journalist in 1840s and 1850s
German Ideology (1845)
Communist Manifest (1848)
Capital (Vol. 1) (1867)
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This Photo by Unknown Author is licensed under CC BY-SA
Idealism (Hegel)
MARXS THREE
PRIMARY
INFLUENCES
Materialism (Feuerbach)
Political Economy (Enlightenment)
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HISTORICAL
M AT E R I A L I S M
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The nature of individuals
depends on the material
conditions determining their
production (Marx & Engles,
1845, p.150).
Base and Superstructure
T H E C A P I TA L I S T O R D E R
Exploiting class = Ruling class
Though the State is a product of class
antagonism, it takes on the appearance
of being above society and embodying
the interests of the community as a
whole.
Class character of the legal system:
Perpetuates and Reproduces existing
form of class domination
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Distinctive feature of legal systems of
class societies is the fact that they
embody the material interests of the
ruling class in a universal form, and thus
resent law as the embodiment of the
interests of the community as a whole
(Hunt, 178)
LAW AS
IDEOLOGICAL
D O M I N AT I O N :
Domination is a universal feature of
class society
Law operates to maintain class
domination
Law is ideological: it conveys or
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transmits a complex set of attitudes,
values, and theories about aspects of
society
LEGAL RULES AND
S O C I A L R E L AT I O N S :
The most pervasive
ideological effect of law is to
be found in the fact that legal
rules and their application give
effect to social relations
(Hunt, 182).
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BOURGEOIS
LEGAL
IDEOLOGY
Rule of Law: All are equal before and under the law.
Law posited as separate from class interests.
Everyone has an interest in the existence of law:
cornerstone of a civilized nation.
Adherence to law is natural. Those who do not adhere to
law are deviants.
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LAW AND
PUNISHMENT
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Those who violate law are deviants.
The very existence of the State (and its laws) is a sufficient
condition to make obedience to law obligatory to all
citizens.
T H E S TAT E P R O T E C T I N G I T S I N T E R E S T S
State possesses a powerful array
of techniques of legal coercion
that enable it to intervene in the
class struggle and defend its
interests.
e.g., Emergency Powers Act
Legal devices which target public
i.e., riots, unlawful assembly, breach of peace
disorder
Strategies of the police:
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Charge of violence which can be separated from political motivation
Blanket conspiracy charges which do not require same degree of
procedural and evidentiary burdens
CLASS
STRUGGLE
Continual struggle for influence
between classes
Law is an arena of struggle.
Does not mean that legal system is
a neutral territory in which classes
wrestle for control
Law defines the parameters of class
struggle, but it doesnt necessarily
stay confined within this framework.
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TECHNOLOGIES
OF POWER
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M I C H E L F O U C A U LT
1926 – 1984
French, postmodern, philosopher,
historian, sociologist, and theorist
Known for
The Archaeology of Knowledge (1970)
Discipline and Punish (1975)
The History of Sexuality (1984)
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Interested in how systems of
knowledge and definitions of the
self become concretized in societal
institutions like asylums, hospitals,
schools, prisons, the military, and
sexual practices.
Normal / Abnormal
POWER AND KNOWLEDGE
Concept of power is central in Foucaults work
POWER
Repressive, top down, prohibitive
Embedded in Social Relations
Productive, Pervasive
KNOWLEDGE
Form of Power
Disciplinary, Normalizing
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POWER/KNOWLEDGE
We should admit rather that power produces knowledge
(and not simply by encouraging it because it serves power
or by applying it because it is useful); that power and
knowledge directly imply one another; that there is no
power relation without the correlative constitution of a
field of knowledge, nor any knowledge that does not
presuppose and constitute at the same time power
relations
(Foucault, 1977, p.27)
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POWER /KNOWLEDGE AS PERVASIVE
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JURIDICAL VERSUS DISCIPLINARY
POWER
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JURIDICAL VERSUS DISCIPLINARY
POWER
Disciplinary power operates in two directions at
once
Discipline permeates all space
Discipline produces norms
Disciplinary power is invisible while in force
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PA N O P T I C O N :
M E TA P H O R F O R
SOCIAL
CONTROL
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T H E P R I S O N I N T W E LV E
LANDSCAPES
Directed by Brett Story
Through vignettes showcasing communities desperate for
prison jobs, people paying huge fines for minor offenses,
and the massive changes to communities across the country,
the film weaves a portrait of a culture where jailtime is part
of daily life.
©Rampersaud
THINGS TO CONSIDER:
What are the similarities and differences between Marxist and Foucauldian theories of
punishment?
Are laws a body of knowledge/rules, unified in intent, theory, and practice OR are laws subjective,
experiential, political, historically contingent?
How does the law produce and sustain social relations?
How does law exercise power?
Is there evidence of panopticism in todays society, beyond the prison?
Can you connect the ideas of class conflict and power to ideas discussed in The Prison in Twelve
Landscapes?
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SOCIAL SOLIDARITY
AND THE
RACIALIZATION OF CRIME
SOSC 4350 WEEK 4
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? Philosophies of Punishment
? Why do we have legal punishment?
? How can the imposition of punishment be justified?
? Punishment as Ideology and Class Control (Marx)
? Law breaking = deviance
LAST WEEK
? The existence of laws is a sufficient condition to
warrant obedience to the law
? Punishment as ideology; an expression of the
States interests (via the ruling elite)
? Technologies of Power (Foucault)
? Juridical versus Disciplinary Power
? Panoptic schema, surveillance, and social control
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THIS WEEK
? Social Solidarity
? Racialization of Crime
? Documentary: The Prison
in Twelve Landscapes
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ÉMILE DURKHEIM
1858-1917
? French Jewish background
? Profound religious influence
? Known for:
? The Division of Labour (1893)
? The Rules of Sociological
Method (1895)
? Suicide (1897)
? The Elementary Forms of the
Religious Life (1912)
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STRUCTURAL
FUNCTIONALISM
? Society is a complex system
whose parts work together to
promote solidarity
? Focused on the structures
that shape society, and the
functions that they perform
? Society is an organism,
maintained by the proper
functioning of its constituent
parts
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SOCIAL FACTS:
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THE SOCIAL ORGANISM
AND FUNCTIONALISM:
? Durkheim was a functionalist:
?
Each element of the social system
functions within a greater social
body
? Institutions and norms serve the
general needs of the social
organism
?
E.g., religion, police, education
? Functions of social institutions like
functions of organs in our body
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? Function of a thing may be separate from its
CAUSE AND FUNCTION
cause
? E.g., One function of punishment of
criminals is to reinforce social rules,
though the cause of crime might be
poverty
? When society is not functioning properly, it
is in a pathological state in need of a cure
(borrows conceptualization from biology)
? Properly functioning societies are ones in
which its members adhere to norms
? Critique: Privileges the status quo
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COLLECTIVE CONSCIENCE /
CONSCIOUSNESS
?
Societies have a collective conscience: we
share basic moral values
?
?
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Collective conscience is the metaphysical and
moral glue that holds a society together
Societies have a collective consciousness: we
agree on basic ideas about time, space, and
reality as a whole
MECHANICAL VS. ORGANIC SOLIDARITY
MECHANICAL SOLIDARITY
ORGANIC SOLIDARITY
? People similar
? In advanced societies no single set of norms governs
all people, yet they all still seem to fit together
? Perform similar tasks
? Looser sense of solidarity held together not by rigid
? E.g., primitive societies with low
division of labour and strong collective
consciousness
traditional customs but by interdependence of roles
? Takes the place of a strong collective conscience in
modern societies
? Dualistic
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LAW AND PUNISHMENT
? Crime and punishment integral features of organized social life
? Social facts that reveal the inner workings of society and mechanism
through which societies change
? Two propositions concerning the evolution of the apparatus of
punishment:
? The law of quantitative change
? The law of qualitative change
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PUNITIVE INTENSITY
? The more complex a society, the more restitutive are
its punishment mechanisms.
? The less complex a society, the more repressive are
its punishment mechanisms.
? Durkheim believed that the modern shift to
imprisonment represents a more lenient punitive
response.
? Exceptions: Developed societies that adopt
excessively punitive controls
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THE FUNCTION OF
PUNISHMENT:
? Deterrence
? Restoration
? Rebuild and reinforce
social solidarity
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CRITICAL RACE STUDIES
TODAY: Conceptualizing
the process of the
racialization of crime
Concept of racialization
from the Critical Race
Theory (CRT) tradition
Contemporary umbrella
of Critical Race Studies
includes CRT, Critical
Whiteness Studies, etc.
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CRT evolved from and
in response to the
Critical Legal Studies
movement
LIBERAL CLS CRITIQUES
LEGALISM
CRITICAL LEGAL
STUDIES
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Rule of Law
Used by powerful to oppress less
powerful and maintain the status quo
Formalism
Law is contradictory
Neutrality
Judges bring their political and
ideological biases to adjudication
Abstraction
Law should be contextualized
Individual Rights
Rights discourses legitimate and
maintain the status quo
CRITICAL RACE
THEORY
?
Duality of law
?
Account of social reality of
race and racism in law
?
Critiques formal equality
?
Encourages race
consciousness
?
Critical of Rights Discourses
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INTERSECTIONALITY
?
Coined by Kimberlé Crenshaw
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? Race is not a natural, biological, or trans historical feature, but a sociological
classification situated in a particular time and contest (Backhouse, 1999).
? With race [
] there is nothing on the nature side: there are no essential differences
measurable through the problematized techniques of science. Rather there is only
social belief. Race is purely a social construction, and the science of race is purely
the science of social myth (authors original emphasis, Lopez, 2006, p.96).
RACIALIZATION
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? Courts are perceived by some to be a vehicle for
RACIAL
INJUSTICE
AND THE
LAW
social progress and racial justice
? Can the courts contribute to meaningful structural
change?
? Can democratic or legislative reform bring anti-
racist change to the criminal justice system?
? CRT argue that the problem is not with the law on
the books, but with those who argue and interpret it
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PUNISHMENT AND EXCLUSION
? Durkheim argues that crime is a social fact to be managed and contained
? Punishing threats to the social order affirms shared values and re-establishes social solidarity
? Limits to this consensus perspective in a contemporary, racially stratified society
? Ruling elite establish norms around which laws are structured
? Social order is an intentional attempt to impose uniformity, regularity and predictability on a
human world,
which is endemically diversified, erratic and unpredictable (Bauman, 2000,
p.206).
? Punishment represents a collective decision to build inequalities (Brown, 2009, pp.33-4).
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THE PRISON IN TWELVE LANDSCAPES
Directed by Brett Story
Through vignettes showcasing communities desperate for prison
jobs, people paying huge fines for minor offenses, and the massive
changes to communities across the country, the film weaves a
portrait of a culture where jailtime is part of daily life.
©Rampersaud
