In spite of legislative, judicial, and governmental initiatives, Indigenous youth continue to face over-representation in the Canadian criminal justice system. While the Government of Canada appears to be closer than ever to accepting wide scale self-governance of Indigenous peoples, there are a number of obstacles within the proposed solutions that will continue to prevent Indigenous youth from achieving sentencing equity. This thesis asks the question, to what extent can the Youth Criminal Justice Act and supporting regulations be reformed in order to effectively “rehabilitate and reintegrate” Indigenous youth and serve the Government of Canada mandate of “reconciliation;” or, considering the colonialist underpinning of Canadian legislation, to what extent do Indigenous youth require alternative solutions to establish equitable justice? In answering this question, this thesis engages the theoretical framework of Critical Race Theory to examine existing legislation, jurisprudence, programs, and institutions geared towards creating sentencing equity for Indigenous youth in Canada, ultimately proposing recommendations for a more fair criminal justice system.

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There has been controversy surrounding high-profile Canadian court cases due to stakeholders asserting that justice was not delivered in the offenders’ sentencing. Cases such as R v. Bernardo (including R. v. Homolka), R v. Pickton and R v. Li have drawn criticism from stakeholders, such as the victims’ families and the public, for perceived lax and disproportionate sentencing. I aim to make sense of and determine why this is their perception of these cases and offer a way to understand these cases’ judicial decisions. Reading these cases through the lens of philosophical punishment theories will (1) determine the underlying compatible legal theory guiding these sentences that are perceived as lax and disproportionate, (2) explain the reasoning behind these sentences, and (3) help us understand why the public and the victims’ families perceive these sentences as lax and disproportionate. In this thesis, I will argue that Canada’s criminal justice system could be understood as incorporating various punishment theories for criminal offender sentencing, such as strict retribution, utilitarianism, and paternalism as a form of rehabilitation. I will focus my research on three punishment theories that I believe have been significant in guiding the law’s application in the Canadian legal system and the modern history of Western law: Immanuel Kant’s strict retributive punishment theory, Jeremy Bentham’s utilitarian punishment theory, and Herbert Morris’ paternalistic punishment theory. I will argue that by identifying the underlying punishment theories, we can identify where the judicial decision is perceived as flawed by the public and the victims’ families and how to understand the effect of these theories in future judicial decisions. Based on my findings, I will sketch an alternative Kantian punishment theory that can be a theoretical lens through which we can evaluate proportionality in sentencing by providing a victim-centred approach to punishment. / Thesis / Master of Arts (MA) / There has been controversy surrounding high-profile Canadian court cases due to the victims’ families and the public perceiving the offenders’ sentencing as lax and disproportionate to their crimes’ severity. I aim to make sense of and determine why this is their perception of these cases and offer a way to understand these cases’ judicial decisions. Reading these cases through the lens of philosophical punishment theories will (1) determine the underlying compatible legal theory guiding these sentences that are perceived as lax and disproportionate, (2) explain the reasoning behind these sentences, and (3) help us understand why the public and the victims’ families perceive these sentences as lax and disproportionate. Based on my findings, I will sketch an alternative Kantian punishment theory that can be a theoretical lens through which we can evaluate proportionality in sentencing by providing a victim-centred approach to punishment.

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Sentencing in the Czech Republic: An Empirical Investigation Abstract Sentencing is in many respects still terra incognita. This holds true especially for other countries than common law ones and those in the Western and Northern Europe. This dissertation thus empirically studies sentencing practices in the Czech Republic using quantitative methods. It is composed of four articles focusing on various sentencing issues: Firstly, on the influence of judicial experience on sentencing using longitudinal data analyzing judges' trajectories from 2008 onward. It shows that increasing experience reduces inter-judge disparity. Secondly, on analyzing previously underappreciated measure to achieve policy change: Informal authority of the supreme institutions. In 2016 the Prosecutor General's Office and the Supreme Court organized several meetings and seminars for prosecutors and judges in order to persuade them to impose more fines. This paper illustrates that these informal tools might have been underappreciated as they are highly effective. The third paper is dedicated to studying a particular extra-legal characteristics influencing sentencing in Prague: The weather. It builds both on psychological literature showing that weather influences mood and mood often impacts behavior and decision-making and on previous US...

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State prison systems, particularly in the Southern US, have been overpopulated for decades with unlikely support for building new prisons which has led to overcrowding. Policy makers, however, have adopted mandatory minimum policies that include harsher sanctions for habitual offenders which exacerbated the problem of overcrowding, yet little is understood about how sentencing reform is associated with overpopulation. Using Clear and Schrantz conceptualization of prison population change, the purpose of this quantitative descriptive study was to understand how one prison system in a southern state was impacted over a 10-year period by the implementation of mandatory minimum sentencing requirements. Data were collected from publicly available resources from a state department of corrections and state law enforcement agencies related to crime rates, sentence terms, parole rates, and prison population for the years 1993 through 2013. These data were analyzed using descriptive statistics, including measures of central tendency and visual examination of line plots. Findings indicated that the state'€™s prison population did not change following the 2003 enactment of mandatory-minimum sentencing. Though no changes in prison population trends were observed, further testing may be considered to better understand the relationship between sentencing reform efforts and strengthened provisions to the laws regarding habitual felony offenders. The implications for positive social change stemming from this study includes recommendations to lawmakers to expand research and use the results as the basis of future decisions to either revise or eliminate mandatory sentencing policies taking into consideration crowding in state prisons.

When children face separation from their parents as a consequence of state action in the family courts, their best interests are the paramount consideration of the court and they have legal representation. Children who face separation from their mother as a consequence of sentencing proceedings in the criminal courts are neither represented nor acknowledged. The thesis analyses this differentiated treatment and explores its consequences for children, society and the state. Explanations for the differentiated treatment are tested with reference to existing literature and original empirical research. The impact on children of imprisoned mothers is investigated to determine whether or not they suffer harm. The parameters of the state duty of care towards children are explored, to see if children of defendant mothers fall outside of it, and the way sentencing judges construct and interpret their duty towards mothers and their children within the sentencing process is examined. This thesis establishes that without legal or moral justification, children of maternal defendants are treated without the concern given to children who face separation from their parents in the family courts. Children of defendant mothers suffer as a consequence of the 'secondary prisonisation', 'secondary stigmatisation' and 'confounding grief' which they experience, and the state has failed to uphold their rights under Articles 3, 12 and 20, and is in breach of its duty under Article 2 of the United Nations Convention on the Rights of the Child 1989. The guidance and mechanisms for considering their welfare exist but are not engaged with by the sentencing courts, local authorities, legislators or policy makers. This has negative consequences for children, their caregivers and wider society. The thesis concludes with consideration of the implications of these findings for the state and suggests changes to ensure equitable treatment of children of defendant mothers in England and Wales.