The Mark 2010

Better to offer a small carrot near the end of a prison term, than resort to the stick and nothing but the stick.

In a recent contribution to The Mark, entertainment lawyer Bob Tarantino takes me to task for my opposition to elimination of the faint hope clause. Although there is a good deal of vitriol, anger and ad hominem sentiment in his piece, his essential argument is relatively simple: punishment trumps deterrence, and murderers need more punishment, not less. In his view, if we maintain the faint hope clause, not only do we fail to adequately denounce the crime, we also ask the relatives and friends of murder victims “to relive their experiences” (should they wish to testify at an unlikely but possible jury inquiry into the possibility of parole after at least 15 years of imprisonment).

It’s certainly fair to note that denunciation of morally outrageous conduct is an important goal of sentencing in criminal courts. But the point here is about the limits of punishment, and the reality that both first and second-degree murderers will, for the most part, return to the community. It seems infinitely better to offer a small carrot towards the end of their lengthy terms of imprisonment, rather than resort to the stick, and nothing but the stick. This appears to be Mr. Tarantino’s view of criminal justice – it’s only about the stick – denunciation trumps all other purposes of punishment. In most of the more civilized nation states of Western Europe, our Canadian terms of imprisonment for homicide would be viewed, from the perspective of denunciation, as harshly excessive. I might add, from the practical vantage point of deterrence, that homicide rates are actually lower in most of these European jurisdictions.

Further, the combined effect of both plea negotiations and anomalous jury verdicts dictates that some of those convicted of first-degree murder might have been more accurately convicted of second-degree murder, or even manslaughter. Needless to say, the converse holds true; all justice systems have degrees of fallibility.

Finally, victims are not a uniform group. Some actually want to testify at faint hope hearings (for and against) and, of course, there is no requirement that victims participate at all. The elimination of the faint hope clause can only be justified on the ground of denunciation – and that is only if one is inclined to endorse the prospect of punishment without moral or practical purpose.