Fitness to be sentenced: a historical, comparative and practical review

A Canadian judicial decision recently held that a person convicted of a criminal offence who suffered a substantial deterioration in mental condition since the trial could be found unfit to be sentenced. The court based its conclusion on both historical arguments and the Canadian Charter of Rights and Freedoms. There are compelling justifications for recognizing this concept. The paper looks at the history of fitness and how the sentencing phase became disconnected from claims of unfitness in the late 19th century. It then considers theoretical justifications based on fairness, viewing sentencing as a moral discourse, and the effect of the Canadian Charter of Rights and Freedoms. Because of the number of practical questions that need to be addressed before implementing a concept of unfitness at the sentencing stage, the paper looks at some common law jurisdictions for guidance: Australia, New Zealand, and the American states of New York, Illinois, Connecticut, and Ohio. From these comparisons comes the idea of a "provisional cap". That is, the recognition of unfitness at the sentencing stage should be followed by a form of sentencing that takes into account the gravity of the offence, the prosecutor's position, any relevant aggravating or mitigating factors that can be adduced, and then results in a "provisional" sentence, whether custodial or community-based, which stays in effect until the offender becomes fit. The paper ends with a model that incorporates this approach while providing both that offenders will be confined, if necessary, in hospitals and not prisons, and also that the dispositions will be reviewed annually to ensure that the least restrictive and least onerous sanctions are imposed.     

Program in search of a policy: The chrysler loan guarantee

In 1979, the U.S. government responded to the threat that Chrysler might close its doors with a program that had almost no U.S. precedents. The policy that lay behind the program was obscure at the time and remains so. A variant of the traditional argument for the protection of infant industries offers the glimmering of a rationalization. But defining a general policy in such cases remains a task for the future.     

THE FORGOTTEN ROYAL COMMISSION: PUBLIC SERVICE REFORM IN WESTERN AUSTRALIA

The publication Public Service Inquiries in Australia edited by R.F.I Smith and Patrick Weller (1978) concentrated on the wave of inquiries that swept Australia in the 1970s with most attention being given to the Royal Commission on Australian Government Administration (RCAGA). While the focus of the book was on contemporary developments, Roger Wettenhall's chapter 2 outlined "A Brief History of Public Service Inquiries" so as "to set the present generation of inquiries more firmly in a historical context" (1978, p.15).