Saturday, October 10, 2009
Benjamin L. Berger (University of Victoria Faculty of Law) has posted A More Lasting Comfort? The Politics of Minimum Sentences, the Rule of Law, and R. v. Ferguson (Supreme Court Law Review, Vol. 47, No. 2, 2009) on SSRN. Here is the abstract:
As a priori political judgments about what is a just punishment in all circumstances, minimum sentences pose particular and profound problems for the administration of criminal justice. Mandatory minimums are, however, politically seductive. Faced with their proliferation in Canadian penal law, Canadian courts have experimented with using the constitutional exemption as a means of addressing the excesses created by mandatory minimum sentences. This experiment was terminated in the Supreme Court of Canada’s decision in R. v. Ferguson. Although this judgment has been met with dismay in some quarters, this article argues that the decision is best read as a welcome disruption of the troubling politics of minimum sentences and sends the right message about the substantive demands that we make of our penal laws and the responsibilities of politicians in their approach to criminal justice.