Judicial Attitudes to Conditional Terms of Imprisonment : Results of a National Survey

2. Results (cont'd)

2.11 Public Perceptions of Conditional Sentences of Imprisonment

Conditional sentences carry a clear danger of generating public criticism of the sentencing process. Members of the public can be impatient with the complexities of the sentencing process, and tend to be critical of an absence of truth in sentencing. The conditional term of imprisonment has been described as a paradox (e.g., Gemmell, 1996; Roberts, 1997) the nature of which may be hard for the public to grasp. Polls in this country have long shown that most people believe that sentences are too lenient. Unless the conditions are properly crafted, a conditional term of imprisonment runs the risk of appearing to be a lenient disposition, comparable in severity or impact on the offender to a term of probation. The only studies relating to this issue are a survey of the Ontario public conducted in 1997 (see Marinos and Doob, 1998) and a national survey conducted in 1999 (Sanders, 1999). Nothing is known about judicial reaction to the views of the community with respect to conditional sentencing.

How do judges react to the issue of public perception and the conditional sentence? Several questions on the survey addressed this critical issue. Questions explored public knowledge of, and support for, conditional sentences, and judges were also asked whether they considered the impact on public opinion when sentencing an offender to a conditional sentence of imprisonment.

Judges feel that the public in general do not understand conditional sentences

The first question asked respondents to state whether they thought that "the general public understands the nature of conditional sentences". As can be seen in Table 2.23, most judges (61%) thought that "only a few" members of the public understands conditional sentences. Only 3% of respondents chose the response that "most people" understood the nature of conditional sentences. Over three-quarters of the sample felt that few or no members of the public understood the new disposition. As one respondent noted on the survey: "the public have not been fully informed about the conditional sentencing process, and in that regard they look upon it with some scepticism". Judges in Ontario were more likely to be pessimistic about the likelihood of public understanding (84% said that few or no members of the public understood conditional sentence, compared to 67% in Quebec), otherwise there were few regional differences.

Table 2.23: Public Understanding of Conditional Sentences
Do you think the general public understands the nature of conditional sentences? (Q23)
Response Percent of judges giving this response
Yes, most of the public 3.1%
Yes, some of the public 14.1%
Only a few of the public 61.0%
No, none of the public 17.0%
I don’t know 4.8%
Total 100% (454)

 .but that the informed public is quite supportive.

A slightly different question probed the issue of whether members of the public would support conditional sentences if they were more aware of their nature. Respondents were asked: "Do you feel that members of the general public who are aware of the nature of conditional sentences support their use?" Here, judicial perceptions of public opinion were more positive. Even though the vast majority of judges who participated in the survey said that the public does not understand conditional sentences, slightly over half (53%) thought that most or some of those people who understood conditional sentences supported their use (see Table 2.24). One judge noted that: "I have spoken to people about the process and I have always been satisfied that when properly explained they [the public] fully understand and see the merits in it".

Table 2.24: Reaction of "Informed" Public
Do you feel the members of the general public who are aware of the nature of conditional sentences support their use (Q24)
Response Percent of judges giving this response
Yes, all who are aware 1.1%
Yes, most who are aware 24.7%
Yes, some who are aware 28.7%
Only a few who are aware 24.3%
No, none who are aware 6.9%
I don’t know 14.3%
Total 100% (449)

Judges divided on the question of whether the public can distinguish between conditional sentences and probation

It is clearly important for the sentencing system to distinguish conditional sentence orders from probation orders. There are obvious similarities between the two; both involve supervision in the community, both involve mandatory and optional conditions, and there is considerable overlap between the conditions described in section 742, and 732. Nevertheless, Parliament intended the conditional sentence to be more severe than a term of probation. If the public perceive the conditional sentence of imprisonment to be no more severe than a term of probation, criticism of the sentencing process will likely grow. For this reason, we asked judges whether the general public can be made to understand the difference between a conditional sentence and a probation order.

The sample was fairly evenly split in their responses. Over one-third (35%) responded that "only a few" or "no" members of the public could be made to understand the difference. However, a similar percentage believed that "all or most" members of the public could be made to understand the difference (Table 2.25). Once again the Ontario judges tended to have a more pessimistic view than their colleagues in other parts of the country: judges in Ontario were less likely to express the view that the public could be made to comprehend the distinction between a conditional sentence and a term of probation.

Table 2.25: Potential Effectiveness of Public Education
Do you think that the general public can be made to understand the difference between a conditional sentence and a probation order? (Q25)
Response Percent of judges giving this response
Yes, all of the public 2.5%
Yes, most of the public 33.0%
Yes, some of the public 27.9%
Only a few of the public 30.1%
No, none of the public 6.5%
Total 100% (445)

"Frequent" users of conditional sentences more likely to have a positive view of public reaction

Some interesting, statistically significant relationships emerged between responses to the public opinion questions and usage patterns involving the new disposition. First, judges who might be classified as "high users" (those who reported having imposed more than 11 orders) were more likely to believe that members of the public were capable of distinguishing between probation orders and conditional sentence orders. Thus only 20% of judges who had never imposed a conditional sentence believed that all or most of the public could distinguish between the two sanctions, whereas over 40% of the higher usage judges held this view (see Table 2.26).

Table 2.26: Public Education by Usage
Do you think the general public can be made to understand the difference between a conditional sentence and a probation order? (Q25)
Use of the conditional sentence Yes, all or most of the public Yes, some Few or none Total
None 20.5% 28.0% 52.0% 100% (25)
Low (1-10) 31.2% 27.0% 41.9% 100% (215)
Medium or high (11 times or more) 41.9% 29.1% 29.1% 100% (203)

Note: Chi-square = 11.72, df=4, p=.02

In a similar fashion, as Table 2.27 shows, judges who were "high users" in terms of the new disposition were more likely to believe that the public who were aware of conditional sentences were supportive of the sanction. This suggests that judges will be more likely to use the conditional term of imprisonment if they believe that the public are likely to be supportive.

Table 2.27: "Informed" Public Support by Usage
Do you feel the members of the general public who are aware of the nature of conditional sentences support their use? (Q24)
Use of the conditional sentence Yes, all or most Yes, some Yes, a few, or none I don’t know Total
None 15.4% 26.9% 38.5% 19.2% 100% (26)
Low (1-10) 19.7% 26.1% 37.6% 16.5% 100% (218)
Medium or high (11 times or more) 34.0% 31.5% 23.6% 10.8% 100% (203)

Note: Chi-square =20.44, df=6, p<.01 Note: One E=3.66

Clearly then, judges believe that the public need to be educated about the nature and function of conditional sentences. A policy recommendation emerging from this survey would therefore involve engaging the public and educating them with respect to the conditional term of imprisonment. There is some frustration among judges with respect to this issue; one respondent observed that:

in my jurisdiction, the Provincial Attorney General's Department has done nothing whatsoever to attempt to educate the public in this regard. The failure of our Provincial Governments to adequately explain to the public the process involved with a conditional sentencedoes little to enhance public support.

Most judges consider the impact of a conditional sentence order on public opinion

Since judges were inclined to believe that most people do not understand the new disposition, it is not surprising, perhaps, that they considered the impact that a conditional sentence order might have on public opinion. As indicated in Table 2.28, almost half the sample stated that they always or most of the time considered the impact that a conditional sentence would have. One-fifth of the sample stated that they never considered the impact of the sentence (see Table 2.28).

Table 2.28: Effect of Conditional Sentence on Public Opinion
Do you ever consider the impact that a conditional sentence order might have on public opinion? (Q27)
Response Percent of judges giving this response
Yes, all of the time 18.3%
Yes, most of the time 27.1%
Yes, some of the time 34.2%
No, never 20.4%
Total 100% (442)

Judges who had imposed a large number of conditional sentences (in excess of 10) were somewhat less likely to report taking public opinion into account. This rather paradoxical outcome may be explained by the fact that high users believed in the new conditional sentence, and were inclined to use the new sanction regardless of the impact on public opinion. Or, consideration of the response of the public inhibited some judges.

2.12 Utility of Risk Prediction Device

Finally, we end by noting the findings from a question, which probed reaction to risk prediction. The issue of risk of re-offending lies at the heart of the conditional sentencing regime. Indeed, section 742 is clear that a conditional sentence may not be imposed until and unless the court is satisfied that the presence of the offender in the community would not endanger the safety of the community. Predicting re-offending is a hazardous enterprise. One source of information relevant to risk comes from risk prediction scales. Judges responding to the survey were asked whether a statistical tool for predicting an offender's risk of re-offending would be useful. The general response was favourable to such a tool: almost half the sample (41%) responded that such a tool would be useful in all or most cases; only 15% said that it would never be useful (see Table 2.29).

Table 2.29: Utility of Risk Prediction Scale
Do you think a statistical tool for predicting an offender’s risk of reoffending would be useful for judges in assessing risk? (Q6)
Response Percent of judges giving this response
Yes, in all cases 15.3%
Yes, in most cases 25.9%
Yes, in some cases 29.7%
Yes, in a few cases 14.4%
No, never 14.6%
Total 100% (437)