CRIME & PUNISHMENT: MANDATORY MINIMUMS, THE DEATH PENALTY &

OTHER CURRENT DEBATES (LAW251H1S)

What makes punishment legitimate? Under what conditions can the state
deliberately inflict suffering upon its citizens through imprisonment or other deprivations? In
this course, we will explore the justifications for and goals of state-sanctioned punishment as
well as the constitutional limits of punishment. We will then examine the law of proportionate
punishment as reflected in the criminal sentencing regimes in Canada and the United States. We
will consider the legal remedies afforded prisoners for unconstitutional punishment, and also
discuss some of the key legal controversies surrounding proportionate punishment in Canada and
the United States today, including, e.g., mandatory minimum sentences, habitual offender laws,
juvenile sentencing, and the death penalty. We will explore why criminal punishment is meted
out disproportionately upon racialized minorities and the economically disadvantaged and
discuss whether criminal sentencing can or should be a tool of restorative justice. Finally, we
will explore what role (if any) the risk of wrongful convictions should play in determining the
parameters of legitimate punishment.

This in-depth examination of punishment and proportionality will serve as a

springboard for understanding the workings of the Canadian Charter of Rights and Freedoms
and the U.S. Bill of Rights. Although the course will focus on Canadian and U.S. materials, it
will draw on other international sources where appropriate. The course is designed for students
who plan on pursuing a litigation practice either in Canada or the United States.

Evaluation

A research paper of 6000-7000 words on a subject approved by the instructor (85%); class
participation (attendance and input into discussion and/or 1-page comment papers) (15%).

Course Material

Mandatory: Coursepack (Available only on Quercus)

Instructor Contact Information

Nader R. Hasan
Stockwoods LLP
TD North Tower, 77 King Street West, Suite 4130
Toronto, Ontario M5K 1H2
T: 416.593.7200 E: [email protected]

Office hours by appointment on Fridays, 3-5pm. Make an appointment by e-mailing Lauren

Costoff ([email protected]) and Claudia Mondonedo ([email protected]).
Topics by Week

I. Crime and Punishment: An Introduction (Week 1)

II. The Principle of Proportionality and Criminal Sentencing in Canada and the United
States (Week 2)

III. Mandatory Minimums and Three Strikes Laws (Weeks 3-4)

IV. Conditions of Confinement (Week 5-6)

V. Race, Class and the Prison Industry (Weeks 7-9)

A. Race and Systemic Discrimination in Criminal Sentencing (Week 7-8)

B. Voter Disenfranchisement Laws (Week 9)

VI. Death Penalty (Weeks 10-11)

VII. Punishment of Children and the Cognitively Impaired (Week 12)

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 Detailed Course Outline and Reading List

I. Crime & Punishment: An Introduction (Week 1)

The introductory module will examine the theoretical justification for punishment
as well as the purposes and goals of modern penal systems.

Core Readings

Furman v. Georgia, 408 U.S. 238 (1972) (Marshall, J., dissenting) (For history of
cruel and unusual punishment in Anglo-American law and a discussion of the purposes of
punishment)

R. v. Latimer, [2001] 1 S.C.R. 3 (Punishment of life imprisonment without parole

eligibility for 10 years for euthanizing disabled daughter did not constitute cruel and unusual
punishment)

Criminal Code, (R.S., 1985, c. C-46), s. 718 et seq. (“Purpose and Principles of
Sentencing”)

Recommended Readings

Michel Foucault, Discipline and Punish: The Birth of the Prison (Vintage, 1995)

Andrew von Hirsch, “Sentencing Reform: Its Goals and Prospects,” in Antony
Duff et al, eds., Penal Theory and Practice, Tradition and Innovation in Criminal Justice
(Manchester University Press, May 1996)

Barbara. A Hudson, Understanding Justice: An Introduction to Ideas,

Perspectives and Controversies in Modern Penal Theory 2d edition (Philadelphia, PA: Open
University Press, 2003)

United States Sentencing Commission Guidelines Manual, pp. 1-11 (Nov. 1998)
(For the “statutory purpose” of the Guidelines)

William J. Stuntz, “The Political Constitution of Criminal Justice,” (2006) 119

Harv. L.Rev. 780

II. The Principle of Proportionality and Criminal Sentencing in Canada and the United
States (Week 2)

The class will take a close look at the “purposes and principles” of sentencing as
enshrined in s. 718 of the Canadian Criminal Code and the analogous provisions of the United
States Sentencing Guidelines. Particular attention will be paid to the interplay between the
concept of proportionality, which is given constitutional protection in both Canada and the U.S.,

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and other goals of punishment, including rehabilitation, incapacitation, retribution, specific and
general deterrence, protection of the community and promotion of the rule of law.

This module will also provide an overview of the Canadian and U.S. sentencing
regimes. We will also examine current controversies in sentencing, including the proliferation of
mandatory minimum sentences.

A. Canadian Sentencing Regime

Core Readings

R. v. Pham, 2013 SCC 15

R. v. Latimer, [2001] 1 S.C.R. 3 (Punishment of life imprisonment without parole

eligibility for 10 years for euthanizing disabled daughter did not constitute cruel and unusual
punishment)

Criminal Code, (R.S., 1985, c. C-46), s. 718 et seq. (“Purpose and Principles of
Sentencing”)

R. v. Gardiner, [1982] 2 S.C.R. 368 (At sentencing hearing following a guilty

plea, Crown must prove aggravating facts beyond a reasonable doubt)

B. U.S. Sentencing Regime

Recommended Readings

Blakely v. Washington, 542 U.S. 296 (2004) (Sixth Amendment prohibits judicial
fact-finding resulting in an enhanced sentence if those facts have not been proven to a jury
beyond a reasonable doubt)

United States v. Booker, 543 U.S. 220 (2005) (Struck down the provision of the
federal sentencing statute that required federal district judges to impose a sentence within the
Federal Guidelines range, along with the provision that deprived federal appeals courts of the
power to review sentences imposed outside the Guidelines range)

Besser v. Walsh, No. 04-4375-pr, 2010 WL 1223194 (2d Cir. Mar. 31, 2008 (New
York’s persistent offender law is unconstitutional because it required that that a judge find
additional facts not reflected in the jury’s verdict, thereby violating the Sixth Amendment)

Carissa Byrne Hessick, Why are Only Bad Acts Good Sentencing Factors? 88
B.U. L. Rev. 1109 (2008)

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III. Mandatory Minimums and Three Strike Laws (Weeks 3-4)

Core Readings

Rummel v. Estelle, 445 U.S. 263, 288 (1980) (Life sentence for three offenses
defrauding others a total of $230 was not cruel and unusual punishment)

Ewing v. California, 538 U.S. 11 (2003) (Upholding California’s three strikes

law, under which defendant was sentenced to 25 years to life after stealing 3 golf clubs)

R. v. Smith, [1987] 1 S.C.R. 1045 (Minimum term of imprisonment provided for

by s. 5(2) of the Narcotic Control Act failed the proportionality test and infringes the guarantees
established by s. 12 of the Charter)

R. v. Nur, 2015 SCC 15 (striking down mandatory minimum for possession of

prohibited or restricted firearm)

R. v. Hills, 2023 SCC 2 (re-affirming the Nur framework).

R. v. Safarzadeh-Markhali, 2016 SCC 14 (challenge to Truth in Sentencing Act)

Recommended Readings

R. v. Nasogaluak, 2010 SCC 6 (Although in some exceptional cases a sentence

reduction outside statutory limits may be possible under s. 24(1) of the Charter as the sole
effective remedy for egregious misconduct by state agents, this was not such a case)

R. v. Boudreault, 2018 SCC 58 (mandatory victim surcharge is unconstitutional)

Harmelin v. Michigan, 501 U. S. 957 (1991) (Upholding sentence where offender

was sentenced under state law to life without parole for possessing a large quantity of cocaine)

Lockyer v. Andrade, 538 U.S. 63 (2003) (Upholding sentence of 50 years to life

for “third strike” conviction for stealing videotapes worth $153.54)

Joe Domanick, Cruel Justice: Three Strikes and the Politics of Crime in America's
Golden State

(https://www.latimes.com/archives/la-xpm-2010-aug-17-la-me-three-strikes-20100817-
story.html)

R. v. Ferguson, [2008] 1 S.C.R. 96 (Constitutional exemptions not available under

s. 24(1) of the Charter to depart below the mandatory minimum)

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 Thomas Gabor and Nicole Crutcher, Mandatory Minimum Penalties: Their
Effects On Crime, Sentencing Disparities, and Justice System Expenditures (Ottawa, ON: Dept.
of Justice, 2002)

R. v. Acheampong, 2018 ONCJ 798 (Reducing a sentence based on excessive

force by police).

IV. Conditions of Confinement (Weeks 5-6)

The law rightly places significant emphasis on the rights of the criminal accused
prior to conviction. But for many criminal defendants, the legal process has only just begun after
conviction and upon entry into the prison system. In theory, “there is no iron curtain between the
Constitution and the prisons….”1 In practice, however, the criminally convicted may not have
ready access to counsel or the courts. This module will explore the various rights and remedies
afforded prisoners to challenge unconstitutional conditions of confinement.

Core Readings

Farmer v. Brennan, 511 U.S. 825 (1994) (Prison officials may be held liable
under Eighth Amendment for denying humane conditions of confinement only if they know that
inmates face substantial risk of serious harm and disregard that risk by failing to take reasonable
measures to abate it)

Brown v. Plata, 131 S. Ct. 1910 (2011) (Overcrowding in California prisons

violate the Eighth Amendment’s cruel and unusual punishment clause)

Canadian Civil Liberties Association v. Canada (Attorney General), 2019 ONCA

243 (Constitutionality of solitary confinement)

British Columbia Civil Liberties Assn. v. Canada (Attorney General), 2019

BCCA 228 (Constitutionality of solitary confinement)

Recommended Readings

R. v. Miller, [1985] 2 S.C.R. 613 (Writ of habeas corpus is available to challenge

conditions of confinement)

R. v. Gamble, [1988] 2 S.C.R. 595 (Interplay between the writ of habeas corpus
and the Charter)

Wilkinson v. Austin, 545 U.S. 209 (2005) (Procedural safeguards available to

inmates challenging their assignment to a “supermax” prison where inmates are “deprived of
almost any environmental or sensory stimuli and of almost all human contact”)

1
Wolff v. McDonnell, 418 U.S. 539, 555-56 (1976) (per Holmes, J.).

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 Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631 (Writ of habeas
corpus was proper procedural mechanism to challenge warrant of surrender to U.S. authorities)

May v. Ferndale Institution, [2005] 3 S.C.R. 809 (Writ of habeas corpus should
be granted because Correctional Service of Canada failed to disclose the scoring matrix for the
computerized security classification rating tool, thereby unlawfully depriving the inmates of their
residual liberty)

Estelle v. Gamble, 429 U.S. 97 (1976) (Deliberate indifference to serious medical

needs of prisoners constitutes unnecessary and wanton infliction of pain proscribed by Eighth
Amendment whether the indifference is manifested by prison doctors in response to prison needs
or by prison guards in intentionally denying or delaying access to medical care or intentionally
interfering with treatment once prescribed)

Porter v. Speirs, No. 06-AS03654 (Sup. Ct. Cal.) (Consent decree binding
Sacramento County to improve the quality of Sacramento County’s juvenile detention facilities)

V. Race, Class and the Prison Industry (Weeks 7-9)

Can a criminal justice system be proportionate if punishments are meted out

disproportionately on disadvantaged members of society? What would a penal system look like
behind the Rawlsian veil of ignorance? Can criminal sentencing be used as a tool to cure social
inequality? This module will examine the interplay between race, class, poverty and
punishment. It will examine the over-representation of Indigenous and Black offenders in
Canadian prisons and African-Americans in U.S. prisons. It will also consider felon
disenfranchisement in an international comparative perspective, drawing on Canadian, U.S. and
South African jurisprudence.

A. Systemic Discrimination and Criminal Sentencing (Week 7-8)

In both Canada and the U.S., historically disadvantaged groups are over-
represented in the prison system. This module will examine the historical bias against certain
groups in criminal sentencing and the more recent attempts to rectify those wrongs through
amendments in criminal sentencing laws that focus on restorative justice.

Core Readings

R. v. Gladue, [1999] 1 S.C.R. 688 (s. 718.2(e) of the Criminal Code, in light of its
remedial and restorative purposes, instructs judges to “undertake the process of sentencing
aboriginal offenders differently”)

R. v. Ipeelee, 2012 S.C.C. 13 (Gladue principles revisited and clarified)

R. v. Sharma, 2022 SCC 39 (limits on conditional sentences upheld despite

impact on Indigenous women) R. v. Hamilton, [2004] O.J. No. 3252 (C.A.) (Systemic

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background factors can be taken into account insofar as they played a part in the commission of
the offence)

R. v. Morris, [2018] O.J. No. 4631 (S.C.J.) (Applying systemic background

factors to Black offenders).

R. v. Morris, 2021 ONCA 680 (Applying systemic background factors to Black

offenders).

R. v. Anderson, 2021 NSCA 62 (Use of Impact of Race and Culture Assessments

(IRCAs) in sentencing Black offenders).

Bruce Western and Becky Pettit, “Incarceration and Social Inequality” (Summer
2010), Daedalus

Adam Gopnik, “The Caging of America” (January 30, 2012), New Yorker

Mike Elk and Bob Sloan, “The Hidden History of ALEC and Prison Labor”
(August 1, 2011), The Nation

Booth Gunter, “Investigation, Lawsuit Expose Barbaric Conditions at For-Profit

Youth Prison” (May 3, 2011), Southern Poverty Law Center

David Shapiro, “Banking on Bondage: Private Prisons and Mass Incarceration”

(November 2011) American Civil Liberties Union

Recommended Readings

R. v. Wells, [2000] 1 S.C.R. 207 (Noting that while the objective of restorative
justice, by virtue of s. 718.2(e), applies to all offenders, the requirement to pay “particular
attention to the circumstances of aboriginal offenders” recognizes that most traditional aboriginal
conceptions of sentencing hold restorative justice to be the primary objective)

R. v. Borde (2003), 172 C.C.C. (3d) 225 (Ont. C.A.) (Permitting sentencing courts
to take into account “systemic factors” in sentencing African-Canadian offenders)

Kimbrough v. United States, 552 U.S. 85 (2007) (In cases involving conduct
related to possession, distribution, and manufacture of crack cocaine, federal judges have
discretion to impose sentences outside the range dictated by the Federal Sentencing Guidelines,
which had mandated that a drug trafficker dealing in crack cocaine is subject to the same
sentence as one who trafficks in 100 times as much powder cocaine)

Glenn C. Loury , Race, Incarceration, and American Values (The MIT Press:
2008) (excerpts)

Todd R. Clear, Imprisoning Communities: How Mass Incarceration Makes

Disadvantaged Neighborhoods Worse (Oxford University Press, USA: 2007) (excerpts)

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 Bruce Western, Punishment and Inequality in America (Russell Sage Foundation
Publications: 2007) (excerpts)

Jennifer Gonnerman, “Million-Dollar Blocks: The neighborhood costs of

America's prison boom,” The Village Voice (Nov. 9, 2008), available at,
http://www.villagevoice.com/content/printVersion/187441

James Q. Whitman, “Equality in Criminal Law: The Two Divergent Western

Roads” (2009) 1 Journal of Legal Analysis 119

Bruce P. Archibald, Sentencing and Visible Minorities: Equality and Affirmative

Action in the Criminal Justice System, 12 Dal. L.J. 377 (1989-90)

Dale E. Ives, Inequality, Crime and Sentencing: Borde, Hamilton and the
Relevance of Social Disadvantage in Canadian Sentencing Law, 30 Queen’s L.J. 114 (2004)

B. Voter Disenfranchisement Laws (Week 9)

In 1870, the Fifteenth Amendment to the U.S. Bill of Rights enfranchised

1,083,484 free Black men. By 1996, 1.4 million free Black men had been disenfranchised by
state laws that precluded ex-felons from voting. A number of modern democracies have enacted
legislation barring prisoners or ex-prisoners from voting. Constitutional challenges to these laws
have yielded mixed results. This module will review the Canadian, U.S. and international
jurisprudence on felon disenfranchisement.

Core Readings

Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519 (Section 51(e) of
the Canada Elections Act, which denied the right to vote to all prisoners serving a sentence of
two years or more, contravened ss. 3 and 15(1) of the Charter and is not demonstrably justified
under s. 1)

Richardson v. Ramirez, 418 U.S. 24 (1974) (California law disenfranchising

convicted felons who have completed their sentences and paroles does not violate the Equal
Protection Clause of the Fourteenth Amendment)

Hunter v. Underwood, 471 U.S. 222 (1985) (Striking down Section 182 of the
Alabama Constitution, which disenfranchised convicts and ex-convicts who had committed
certain felonies and misdemeanors “of moral turpitude”)

Recommended Readings

Minister of Home Affairs and Others v. National Institute for Crime Prevention
and the Reintegration of Offenders (NICRO) and Others, Case CCT 03/04 (South African
Constitutional Court striking down South Africa’s voter disenfranchisement laws)

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 Alec C. Ewald (Editor), Brandon Rottinghaus (Editor), Criminal
Disenfranchisement in an International Perspective (Cambridge University Press; 1 edition
(April 13, 2009)) (excerpts)

Laurence H. Tribe, The Disenfranchisement of Ex‑Felons: Citizenship,

Criminality, and ‘The Purity of the Ballot Box’ (1989), 102 Harv. L. Rev. 1300

VI. Death Penalty (Weeks 10-11)

The essential feature of a death sentence is that it imposes a terminal,

unchangeable, once-and-for-all judgment upon the whole life of a human being and declares that
human being forever unfit to be a part of civil society. Can the punishment of death ever be
consistent with the requirement that punishment must not be so severe as to be degrading to
human dignity? Is the “evolving standards of decency” test employed by the U.S. Supreme
Court a useful analytical tool to decide when a punishment is cruel or unusual or does human
dignity require more than an inquiry into whether the challenged punishment is acceptable to
contemporary society?

Core Readings

Gregg v. Georgia, 428 U.S. 153 (1976) (Punishment of death for crime of murder
is not unconstitutional)

Coker v. Georgia, 453 U.S. 584 (1977) (Death penalty for rape of adult woman
was grossly disproportionate and excessive punishment)

Hurst v. Florida, 577 U.S. 92 (2016) (Sixth Amendment requires a jury to find the
aggravating factors necessary for imposing the death penalty)

United States v. Burns, [2001] 1 S.C.R. 283 (Extradition to the U.S. with chance
of death penalty would violate the principles of fundamental justice protected under s. 7 of the
Charter)

S. v. Makwanyane, 1995 (3) SA 391 (South African Supreme Court declaring the
death penalty unconstitutional under the South African Constitution)

Equal Justice Initiative, The Death Penalty in Alabama: Judge Override

Recommended Readings

Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779 (Extradition of

convicted criminals to a country where they may face the death penalty was valid under the
Charter)

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 Furman v. Georgia, 408 U.S. 238 (1972) (Three justices holding that imposition
of death penalty on facts of case constituted cruel and unusual punishment; two justices
concurring, holding that the death penalty is always unconstitutional; four justices dissenting)

David R. Dow, Anatomy of an Execution (Twelve, 2010)

Albert Camus, “Reflections on the Guillotine,” in Resistance, Rebellion, and

Death: Essays (Vintage, 1995)

Bachan Singh v. State of Punjab, AIR 1980 SC 898 (Indian Supreme Court held
that the death penalty was available in “the rarest of rare cases when the alternative option is
unquestionably foreclosed”)

Gurmeet Singh v. State of Uttar Pradesh, AIR 2005 SC 3611 (Indian Supreme
Court refused to take into account a delay of a number of years, caused in this case by the
negligence of staff of the High Court of Allahabad and declined to commute petitioner’s death
sentence)

Protocol No. 6 to the Convention for the Protection of Human Rights and
Fundamental Freedoms Concerning the Abolition of the Death Penalty, Eur. T.S. No. 114

VII. Punishment of Children and the Cognitively Impaired (Week 12)

To what extent does the capacity of the offender determine the appropriateness of
a given punishment? Most rights-respecting democracies treat children and the cognitively
impaired differently for the purposes of criminal sentencing. But exceptions abound. Does the
diminished moral blameworthiness and maturity of children and their failure to appreciate the
consequences of their conduct require a bright line rule that children should never be treated as
adults for the purposes of criminal punishment?

Core Readings

R. v. D.B., [2008] 2 S.C.R. 3 (The reverse onus on the Youth Criminal Justice Act
– i.e., presumption that minors should receive adult sentences for certain crimes – violates the
principles of fundamental justice)

Roper v. Simmons, 543 U.S. 551 (2005) (Imposition of death penalty on minors is
unconstitutional)

Jones v. Mississippi, 593 U.S. ___ (2021) (Life without parole for a minor )

Laurence Steinberg & Elizabeth S. Scott, Less Guilty by Reason of Adolescence:

Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am.
Psychol. 1009, 1014 (2003)

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Recommended Readings

Brock Jones, Understanding the Implications of Sébastien’s Law

R. v. C.D., [2005] 3 S.C.R. 668 (purposes of the Youth Criminal Justice Act)

Atkins v. Virginia, 543 U.S. 551 (Execution of the mentally retarded necessarily
violates the Eighth Amendment)

Sullivan v. Florida, No. 08-7621 (U.S. Sup. Ct.) (Case on the U.S. Supreme
Court’s current docket examining the constitutionality of life without parole for juveniles)

United Nations. Convention on the Rights of the Child, Can. T.S. 1992 No. 3, art.
40(1)

United Nations. General Assembly. United Nations Standard Minimum Rules for
the Administration of Juvenile Justice, A/RES/40/33, November 29, 1985, Annex, Rule 8

Nicholas Bala, Peter J. Carrington, & Julian V. Roberts, “Evaluating the Youth
Criminal Justice Act after Five Years: A Qualified Success” (2009) 51 Can. J. of Crim. & Crim.
Justice 131

Elizabeth S. Scott & Laurence Steinberg, Rethinking Juvenile Justice (Cambridge,

MA: Harvard University Press, 2008)

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