NCJ Number
194108
Date Published
2000
Length
7 pages
Annotation
This document questions whether the punitive nature of the conditional sentence can accommodate the objectives of restorative justice.
Abstract
The Canada Supreme Court situated the conditional sentence of imprisonment between a term of actual incarceration in a jail and a suspended sentence with probation. As a rule, a conditional sentence should include some restriction of liberty or confinement such as house arrest, curfew, or electronic monitoring. While the presence of aggravating factors will not necessarily preclude a conditional sentence, they will be reflected in the duration and rigor of the conditions. The general statement of principle is that the creation of the conditional sentence has not marked a shift from punitive to restorative sentencing and the current interpretation of the conditional sentence is consistent with continuing emphasis upon punitive objectives in sentencing. The conditional sentence is a sentence of imprisonment in two senses: in the absence of compelling reasons to do otherwise, every conditional sentence must include a significant restriction of liberty and the “threat” of imprisonment for breach must be real. The objectives of restorative justice are secondary in the general run of cases because they are optional while punishment is mandatory. There are four obstacles that might complicate the advancement of restorative objectives. The first is that this appears to give strength to prosecutors who would oppose conditional sentences or who would argue strenuously for a conditional sentence that includes a substantial punitive component. Second, the development of restorative objectives requires a commitment of resources for effective programs as well as for supervision of punitive features such as house arrest, curfews, and electronic monitoring. Third, there is the matter of deference. If the interpretation of conditional sentencing is sound, it follows that restorative objectives are now clearly of secondary importance. Fourth, if the incidence of breach is significant, the attraction of the conditional sentence will drop quickly among sentencing judges and with it will go the vestiges of restorative justice as an objective of conditional sentencing. It is concluded that there are real obstacles to making restorative objectives work significantly in conditional sentencing. 29 footnotes