IGNORANCE OF THE LAW

Critics of Judges and Their 'Lenient' Sentences Don't Understand How
Our Courts Operate. a Little Knowledge Would Go a Long Way.

Judge David Cole knows that many people, perhaps most, think he and
his colleagues are, in his words, "liberal wusses." But he wants those
people to know they are wrong -- wrong about judges being
criminal-coddlers and wrong about many other things they think they
know about the justice system. Critics, insists Judge Cole of the
Ontario Court of Justice, "have very little understanding of what goes
on in our courts on a daily basis."

A veteran of almost a decade and a half on the bench, Judge Cole's
pointed opinions have been shaped by the countless criminal cases he
has watched move from plea to sentence to a story in the morning
newspaper. Another important influence is the work of Julian Roberts,
the University of Ottawa criminologist who is one of the world's
leading experts on public opinion about justice. Mr. Roberts's
research, says Judge Cole, "clearly establishes that the more the
public knows about why the judge did what he or she did, the more they
agree with it."

But the public generally knows little about why judges make their
decisions because, Judge Cole says, the media do a lousy job of
covering criminal justice.

"Journalists by and large don't have the time to inform themselves
about the system," Judge Cole says. "How many times do you read, for
example, that 'John Smith, convicted of murder, gets 10 years.' No,
that's not true. John Smith gets a life sentence with eligibility (for
parole) after 10 years."

Reporters who specialize in criminal justice develop background
knowledge, but they are often too harried to give a full picture of a
particular case, Judge Cole says. "We don't have a single reporter (in
my courtroom) on a daily basis. Very occasionally, when there's some
sensational case or other, we'll get a reporter running out here who
is usually between other stories and who is frantically scrambling to
find out what happened."

As a result, most stories about criminal cases are simple, short
reports of who did what to whom and how much prison time they got. But
sentences are based on much more than these bare-bone facts.
Typically, the prosecution puts forward everything it can find to
support a tougher punishment while the defence does the same in favour
of leniency. Judges struggle to weigh all this competing information
and find a sentence that fits.

It also happens that a sentence that angers the public wasn't even set
by the judge. A Crown attorney may offer a light sentence to a
defendant if, for example, she knows the evidence is shaky and may not
stand up at trial. "So the judge says 'OK, you've looked into this.
You know the strengths and weaknesses of your case and you're content
with this. I will go along with you even though I think the sentence
is fairly light.' " In fact, judges are required to uphold plea
bargains unless they are so bizarre they would bring the justice
system "into disrepute" -- a very high legal bar.

But this vital background information rarely makes it into the media.
"Nine times out of 10, what will be reported is, 'drunk driver doesn't
go to jail.' "

Seeing no rationale for the sentences given to criminals, the public
naturally thinks judges have gone mad. Julian Roberts's research has
shown Canadians consistently underestimate how tough sentences really
are. Conversely, when people are given accurate information, most are
satisfied that justice is being done.

A startling example involves "conditional sentences," a controversial
form of punishment introduced in the mid-1990s as an alternative to
incarceration. Under a conditional sentence, offenders can avoid jail
as long as they obey strict conditions, such as remaining at home
outside work hours. In surveys, Mr. Roberts found that, under various
scenarios, Canadians overwhelmingly wanted criminals sentenced to jail
time, not conditional sentences. But when they were told in detail
what restrictions an offender would have to obey under a conditional
sentence, support for that option shot up. In some scenarios, just
knowing the facts caused a complete reversal in opinion.

Another example of the power of good information is the so-called
"faint-hope clause," which allows murderers serving life sentences to
apply after 15 years in prison to be made eligible for parole sooner.
Although Canadians haven't been surveyed about this particular
mechanism, it's fair to assume most oppose it because polls have shown
very large majorities want parole abolished entirely or at least
restricted so that some types of criminals -- particularly murderers
- -- can never be paroled. There's a reason why railing against the
faint-hope clause is a favourite pastime of politicians and talk-radio
hosts.

But what the critics seldom mention is that soft-touch judges don't
decide applications under the faint-hope clause. Juries of ordinary
people do. One might assume, given Canadians' hostility to paroling
murderers, that this would make the "faint-hope clause" a no-hope
clause. But faint-hope hearings involve a careful review of all the
evidence, including the details of the crime, the impact on victims'
families, and the criminal's behaviour in prison. And in more than
three-quarters of cases, juries support early parole for murderers.

Examples like these have convinced Judge Cole that providing better
information to the public about criminal justice is critical. And he
doesn't leave the responsibility for that solely with the media.
Judges "have to be clearer and simpler in what we write. We have to
try to explain ourselves in language that most people can relate to.
And we don't. I think, by the way, that judges are really beginning to
recognize that."

Still, Judge Cole accepts that some some critics will not be swayed
because they don't want to listen. Several years ago, a Conservative
backbencher in Ontario's Harris government introduced a private
member's bill to create a registry that would note every time a judge
failed to impose the maximum sentence. Although it never became law,
the bill attracted support, at least briefly, from many Conservative
heavyweights, including the man who is likely to be the next
Conservative leader, Jim Flaherty.

Judge Cole and his colleagues "wrote to this MPP and said, 'Would you
like to come and see? We're in your riding. Why don't you come and see
what goes on here on a daily basis and you can test your assumptions
about the way the world is working, or not working.' And of course we
never heard back."