The ineffectual rolling out of arguments in favour of the two-for-one sentencing credit continues apace (see here and here). With the latest, though, are those the swelling strings of pity I'm beginning to hear for the proposition side of this debate? Ladies, gents, Julius Melnitzer:
How short-sighted can the Conservatives be on law and order? The recent move to restrict credit for time-served while awaiting trial is bound is increase the pressure on courts and judges, already under fire for not getting cases to trial fast enough. Expect a new host of motions for dismissal based on the failure to get accused speedy trials - - - motions that will now have the additional force of the argument that prejudice to the accused has increased greatly because of the restrictions on pre-trial custody credits.
That's argument the first. As near as I can tell, it amounts to "we need to let judges give two-for-one credits so that they can shove convicted criminals out on the streets more quickly, or else they'll be tempted to get them out there even more quickly than that". Which probably says more about the attitudes of the judiciary than Mr Melnitzer would like. It's a little unclear what the argument supporting the motions would be: "Your Honour, it used to be that you were super-nice about handing out credit for jail time; now, my client's trial is taking an awfully long time to get to court - and, yeah, I know that's partly because I keep bringing motions like this one, but roll with me here - so I'm wondering if, in light of the fact that you're no longer allowed to be so super-nice about handing out credit for jail time, you could, just, you know, let him go?" Even someone as cynical about the criminal justice system as your correspondent here likes to think that there aren't many judges who would fall for that.
As for argument the third, I have little to say about it, mostly because I can make neither heads nor tails of it:
Finally, imagine that Garth Drabinsky and Myron Gottlieb didn't have the means to post bail over the 11 years they stretched out the proceedings against them. Should they be given the same sentences as someone who's done even a couple of years in custody for the same crime? And what does all that say about social justice? Anyone see a s. 15 equality argument here?
What? First, Drabinsky and Gottlieb are in jail for 11 years, then they're being given sentences of a couple of years, and that's really unfair because some other guy got a sentence, then... Section 15? I like to think I have at least a rudimentary grasp of the English language and forms of legal reasoning, but that one has me completely baffled. Reader suggestions on proper interpretation are warmly welcomed.
But argument the second is where Melnitzer's piece really shines:
You've also got to wonder how effective such legislation can be. Surely judges looking at an accused who has served an unduly long time in custody will find arrows in their quiver of sentencing discretion that will allow them to take into account the hardship of time in the local bucket. It's just that the judiciary l have to do a little more dancing in their reasons. What does that say about transparency?
The utter shamelessness of that passage is just breathtaking. Let's see if I've got the argument straight: if we eliminate two-for-one sentencing credit, judges will indulge in "a little more dancing" in order to hand out the sentences they really want to hand out. So, on Melnitzer's argument, the judges will engage in a bit of sleight of hand... and this is somehow the government's fault? Howzabout the judges just, you know, not engage in the "dancing"? More shameless, however, is the intimation that the current system is the very model of "transparency". It would be one thing if sentencing decisions were in any meaningful way clear about the amount of time to which a convicted criminal is being incarcerated, but they aren't - figuring out the actual punishment that someone is receiving is an exercise akin to the most obtuse Captain Midnight decoder ring puzzle. Instead of getting reasons which say things like "nine years, but with the two-for-one credit, and taking into account eligibility for parole, and day parole and statutory release, more like fifteen minutes, which seems about right", they just thunder "nine years!" and then the victim (and the rest of us) are reduced to stupefaction when it dawns that, in Canadian criminal justice-speak, that means "fifteen minutes". Eliminating two-for-one sentence credits isn't a magic bullet which will result in "truth in sentencing", but it's a step in the right direction. To argue that obviating sentence credits will somehow result in less transparency is just bizarre. And since two-for-one credits should stand or fall on their own merits, none of which have been made evident by any of the arguments which have been presented, we're still faced with the question of quite why they should be retained.
This wouldn't be the same Julius Melnitzer, former prominent London, Ont lawyer, who was sentenced to 9 years in prison back in the 1990s for defrauding friends and acquaintances out of millions of dollars, would it? I expect it probably is.
Melnitzer was paroled after serving only 2 1/2 years of his sentence. No surprise then, that he's such a big fan of retaining 2 for 1 sentencing, given how enthusiastic he must have been about his own experience with 3 1/2 for 1.
Looks like we have another inductee for the " No Shame Hall of Fame."
Posted by: Mike H | March 28, 2009 at 07:18 PM