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

2. Results (cont'd)

2.8 Nature of Conditions Imposed

The number and nature of optional conditions imposed as part of a conditional sentence order are critical to the success of the new sanction. It is only through the careful, and creative tailoring of the optional conditions that the sanction can be distinguished from a probation order and made responsive to the needs of the particular offender. Empirical data on the use of different optional conditions are not yet available. For this reason, the responses to a question about the frequency of imposition of different conditions are particularly revealing.

Treatment and no-contact orders most frequently-imposed conditions

Table 2.15 shows the optional conditions most often imposed. Treatment and no contact orders are the most frequently-cited; 88% of the sample stated that they often imposed treatment, and 85% stated that they often imposed no contact orders. Curfews and order to abstain from alcohol or drugs were also frequently imposed by this sample of judges. House arrest with electronic monitoring was very rarely used: 78% said that they never imposed this condition, 14% "rarely" and 8% "often". House arrest without electronic monitoring was somewhat more popular: 35% stated that they often imposed this condition, 28% "seldom" and 37% "never".

Table 2.15: Usage of Optional Conditions
How often do you impose each of the following optional conditions? (Q12)
Condition: Often Seldom Never Total
Alcohol/drug treatment 87.5% 11.8% 0.7% 100% (432)
Other treatment 68.5% 27.9% 3.6% 100% (391)
Restitution 61.7% 33.4% 4.8% 100% (413)
Community service work 77.3% 18.4% 4.3% 100% (418)
Curfew 70.5% 26.4% 3.1% 100% (420)
No contact 85.2% 13.3% 1.4% 100% (420)
House arrest with electronic monitoring 8.3% 13.9% 77.8%* 100% (374)
House arrest without electronic monitoring 34.8% 28.2% 37.0% 100% (376)
Abstain from alcohol 73.6% 21.9% 4.5% 100% (421)
Abstain from drugs 78.8% 18.6% 2.6% 100% (419)
Abstain from carrying a weapon 71.3% 23.0% 5.6% 100% (408)

*includes those who indicated that electronic monitoring is not available

2.9 Consequences of Violating Conditional Sentence Orders

A critical issue in the conditional sentence literature involves the consequences of breaching an order. Where a breach of conditions is formally alleged, the sentenced person may be immediately returned to custody; in some circumstances, service of the original conditional sentence order is suspended, and is only resumed when the prisoner is re-arrested. According to section 742, the court has several options in the event that a breach is proven: (a) the offender can be committed to custody to serve the balance of the term in prison; (b) the optional conditions may be altered, or (c) the court may choose to let the order continue without modification. The less likely the threat of imprisonment, the weaker the power of the conditional sentence orders. If offenders are seldom imprisoned following breach of conditions, the analogy of a "Sword of Damocles" is not very apt[3]. It is somewhat surprising that over 40% of the judges responded "don't know" when asked to estimate the proportion of cases in which the conditions of the conditional sentence order have been followed without violation. This may suggest that judges believed that a significant number of orders that had been imposed were still running at the time that the survey was conducted, or it may suggest the absence of much communication between the sentencing judge and the probation personnel who administer the orders. A similar percentage (41%) responded that conditions imposed had been followed without violation in all or most of the cases (see Table 2.16).

Table 2.16: Experience with Violation of Conditions
Considering the conditional sentences that you have imposed, in what proportion of the cases have the conditions been followed without violation? (Q15)
Response Percent of judges giving this response
In all of the cases 9.0%
In most of the cases 32.2%
In some of the cases 10.0%
In few of the cases 6.5%
In none of the cases 1.2%
Don’t know 41.2%
Total 100% (432)

Judges with experience with breach hearings report few problems[4]

If a breach of conditions is alleged, section 742 sets out a procedure by which the allegation can be heard in court. Judges were asked what proportion of offenders would have been brought back to court in the event that there "might have been a substantial violation of conditions". A large percentage (just under half, 49%) responded "don't know". Of those who did offer a response, most were inclined to the view that the offender alleged to violate his or her conditions had been brought back to court. Nevertheless, it is worthy of further research that half the judges were unaware of whether substantial allegations had been returned to court (see Table 2.17).

Table 2.17: Percentage of Cases Returned to Court
Of those cases where there might have been a substantial violation of terms of conditions, what proportion have been brought back to court? (Q16)
Response Percent of judges giving this response
All of the cases 14.4%
Most of the cases 14.6%
Some of the cases 6.5%
Few of the cases 8.6%
None of the cases 6.7%
I don't know 49.3%
Total 100% (418)

The high usage group were significantly more likely to report that violations had been brought back to court (42% vs. 18% of the low usage group). Taken together with the previous finding, these results suggest (not surprisingly perhaps) that a positive perception of, or experience with, the new disposition is associated with greater usage of the conditional sentence.

Judges report few problems with Breach hearings

In terms of breach hearings, few judges reported having experienced problems. Almost 40% had had no experience with breach hearings (Table 2.18).  Table 2.19 presents these data excluding those with no experience of those with some such experience, fewer than one in five reported “often” having experienced problems.  One third responded that they occasionally experienced problems with breach hearings.  As can be seen almost half the samples report that they had rarely experienced problems.

Table 2.18: Problems with Breach Hearings
If you've had experience with breach hearings, have you experienced any problems? (Q17)
Response Percent of judges giving this response
Often experienced problems 11.1%
Occasionally experienced problems 20.2%
Rarely experienced problems 30.4%
I have no experience with breach hearings 38.3%
Total 100% (431)

Table 2.19: Problems with Breach Hearings, excluding those with no experience
If you've had experience with breach hearings, have you experienced any problems? (Q17) Excluding those who indicated that they have had no experience
Response Percent of judges giving this response
Often experienced problems 18.0%
Occasionally experienced problems 32.7%
Rarely experienced problems 49.2%
Total 100% (266)

Most judges believe that incarceration is the appropriate response to a breach of conditions

Judges were asked whether they thought that an offender who breaches a conditional sentence order should be automatically sent to prison to serve the balance of the sentence. As Table 2.20 shows, the most frequent response option was "in most cases". A further 16% chose "in all cases". These trends suggest that judges believe the usual judicial reaction to breach should involve the incarceration of the offender. Nevertheless they strongly favour preserving sufficient judicial discretion to choose, in exceptional circumstances, some other route which does not invoke the incarceration of the offender for the balance of the original sentence.

Table 2.20: Judicial Response to Breach
Do you think an offender who breaches a conditional sentence should be automatically sent to prison to serve the balance of the sentence? (Q19)
Response Percent of judges giving this response
Yes, in all cases 16.3%
Yes, in most cases 45.3%
Yes, in some cases 22.4%
Yes, in a few cases 3.6%
No 14.1%
Total 100% (441)

An interesting pattern emerged between usage and responses to this question. As can be seen in Table 2.21, the only 12% of the high usage judges believed that an offender who

breaches should automatically be sent to prison to serve the balance of the sentence. In contrast, fully one-third of the group who had not imposed any conditional sentences held this view.

Table 2.21: Outcome of Breach by Usage
Do you think an offender who breaches a conditional sentence should be automatically sent to prison to serve the balance of the sentence? (Q19)
Use of the conditional sentence Yes in all cases Yes in most cases Yes in some or few No Total
None 33.3% 58.3% 8.3%   100% (24)
Low (1-10) 19.0% 43.3% 23.8% 13.8% 100% (210)
Medium or high (11 times or more) 11.7% 42.0% 30.2% 16.1% 100% (205)

Note: Chi-square =17.84, df=6, p=.01 Note: Two E’s<5, Minimum=3.39

2.10 Effects of Conditional Sentences of Imprisonment

The conditional sentence was introduced in 1996 as part of a general sentencing reform Bill (C-41). The specific goal of section 742 was to reduce, in a principled way, the number of provincial[5] admissions to custody across the country. It is probably too early in the new sentencing regime to come too definitive conclusions about the effect of section 742[6]. Nevertheless, judges were asked a series of questions about their perceptions of the effects of the conditional sentence. Three questions were asked about the effects of the new sanction.

Most judges believe that the conditional sentence has reduced the number of admissions to custody

Fully three-quarters of the sample were of the view that conditional sentences have reduced the number of admissions to custody in their respective courts. Twelve percent felt that there had been no reduction as a result of the introduction of the new sentence, and 12% had no opinion. It is clear then, that substantial numbers of sentencing judges believe that the new sanction has been successful in achieving its principal goal (see Table 2.22).

Table 2.22: Effectiveness of Conditional sentencing in reducing incarceration rates
In your opinion, have conditional sentences reduced the number of offenders sent to custody in your court? (Q20)
Response Percent of judges giving this response
Definitely yes 38.7%
Probably yes 36.4%
Probably not 10.2%
Definitely not 2.9%
I don't know 11.8%
Total 100% (450)

Considerable regional variation emerged with respect to this question. The percentage of judges who responded that conditional sentences had "definitely" reduced the number of offenders sent to custody ranged from a low of 3% in the NorthWest Territories to 50% in Ontario[7]. Over one-third of the respondents from the Prairie provinces held this view.


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