NEOCLASSICAL CRIMINOLOGY

· Individual rights and due process: conditional sentences, alternative modes of incapacitation that don’t require imprisonment, such as home confinement, the use of halfway houses, psychological treatments, etc.

· Law and order: death penalty and general deterrence

DUE PROCESS: Legal rights

• Life, liberty and security of person
• Right not to be deprived except in accordance with the principles of fundamental justice
• Search or seizure
• Right to be secure against unreasonable search or seizure
• Detention or imprisonment
• Right not to be arbitrarily detained or imprisoned
• Arrest or detention
• To be informed promptly of the reasons
• To retain and instruct counsel without delay and to be informed of that right
• To have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful
• Proceedings in criminal and penal matters
• To be informed of the specific offence
• To be tried within a reasonable time.
• Not to be compelled to be a witness in proceedings against that person in respect of the offence
• To be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
• Not to be denied reasonable bail without just cause.
• Trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;
• Not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;
• No double jeopardy.
• If the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
• Treatment or punishment
• No cruel and unusual punishment.
• Self-crimination
• Interpreter

Law and Order

General deterrence

A relationship exists between crime rate and the factors of

(i) Certainty

(ii) Severity

(iii) Celerity of the punishment

Where deterrence has been found it is the certainty and not the severity of the punishment that seems to influence people.

Informal sanctions

The fear of informal sanctions, such as disapproval of significant others leading to embarrassment and shame, may have a greater reducing impact than the fear of formal legal punishments.

Rethinking deterrence

Specific and general deterrence should be considered interactive and not independent.

Incarceration is limited as a deterrence and the best solution is to use alternative measures, such as conditional sentencing, and to try to return the offender to the community.

Sentence enhancements

Three strikes out policy in the US: people convicted of three violent offenses receive a mandatory life term without parole.

(i) Three-time criminals are on the verge of aging

(ii) Current sentences for violent crimes are already severe

(iii) The police would be in danger because two-time offenders would violently resist a third arrest, knowing they face a life sentence.

Bill C-36

Choice Theory

Beginning in the mid 1970’s the classical approach began to reemerge and the rehabilitation of criminals –a tenet of positivism- came under attack.

Choice theory (James Q. Wilson, 1975):

· Criminals are rational actors who plan their crimes, fear punishment and deserve to be penalized for their misdeeds.

· Efforts should be made to reduce criminal opportunity by deterring would be criminals and incarcerating known offenders.

· Does crime pay?

The concepts of rational choice

· A crime occurs when an offender decides to risk violating the law after considering both personal factors –need for money, revenge, thrills, entertainment- and situational factors –how well a target is protected, the efficiency of local police force.

· Reasonable criminals evaluate the risk of apprehension, the seriousness of expected punishment, the potential value of the criminal enterprise and his immediate need for criminal gain.

· The decision to commit a crime is a personal decision based on weighing the available information.

· Rational choice theorists view crimes as both offense-specific, i.e., offenders will react selectively to the characteristics of the particular offense, and offender-specific, i.e., each criminal makes decisions.

The decision to commit crime is structured by the choice of:

· Where the crime occurs

· The characteristics of the target

· The means (techniques) available for its completion