Les Misérables on sentencing : Valjean, Fantine, Javert and the Bishop debate the principles

100 Pages·2007·0.48 MB·English

by  Gilles Renaud

LES MISÉRABLES ON
SENTENCING:

Valjean, Fantine, Javert and the
Bishop Debate the Principles

Mr. Justice Gilles Renaud
Ontario Court of Justice

Sandstone Academic Press
Level 20, Casselden Place
2 Lonsdale Street
Melbourne
Australia
<www.sandstonepress.net>

July 2007

ISBN: 978-0-9757839-6-2
Preface

Victor Hugo’s immortal novel Les Misérables is regarded
universally as one of the greatest indictments of injustice
ever drawn. Indeed, the main character Jean Valjean
represents the best known example of an offender who
has been punished unfairly and without regard to the
mitigating circumstances that led to his crime, that of
stealing bread with which to feed his family. The other
characters are also closely associated with different
elements of injustice: Fantine, who is led to prostitution
and social degradation when she loses her employment;
Javert, the police inspector, implacable and without mercy;
and Bishop Welcome, the fictional embodiment of mercy
and of forgiveness for wrongdoing. Brought to life as the
main speakers of a fictional sentencing conference, these
four characters explore contemporary sentencing
principles by examining their fictional lives against the
backdrop of modern views on punishment and policing.
The resulting debates succeed in pointing the way to a
number of much-needed developments in the law of
sentencing and punishment.
Dedication

Once again, I have the pleasure of dedicating a book to my
loving wife Sharon and to our children and family. In so doing,
I wish to underscore that without their love, support and
encouragement, I would not have had the energy or the peace of
mind to devote myself to the tasks of research, writing and
revision. On this occasion, however, I have the additional joy of
dedicating this text to my grandson Landon, with the hope that
his generation will succeed in eliminating the forms of social
injustice that are condemned masterfully by Victor Hugo in his
epic novel, Les Misérables.
Foreword

I consider it an honour to write a foreword to this volume. It
takes a most refreshing and unique approach to exploring the
purposes of sentencing. This volume unfolds the difficult issues
confronting sentencing courts on a daily basis in a way that
makes the most complex theories accessible to the reader.
Teaching the purposes and principles is no easy task and is
made more difficult by the fact that people who teach sentencing
courses (like me) are scholars, rather than practitioners. The
weakness of sentencing scholars is that we never actually
sentence an offender. In fact, the world of sentencing is
generally divided into practitioners (the judiciary) or scholars.
Judge Renaud is an exception to this rule. In addition to being a
most respected member of the judiciary he is also a fine
sentencing scholar. His latest volume makes a most welcome
and important contribution to the sentencing literature that I
would recommend to anyone with an interest in justice or
literature.

Julian Roberts
Faculty of Law
University of Oxford
June 14, 2007
CONTENTS

1 Introduction 1

2 Fantine’s lecture: The objective gravity of offences -
How important is personal well being in the eyes of
legislators? 7

3 The Bishop’s lecture: Anyone may undergo
life-transforming evolutions for the better, or the worse 11

4 The Bishop’s lecture: Sentencing and evaluating
the offender’s community 18

5 Fantine’s topic: The law of unintended consequences
operates in the sentencing sphere 22

6 Inspector Javert’s topics: The lack of reliability of
certain collateral inquiries conducted by probation officers
at the direction of the Court and “Sentencing Robin Hood!” 26

7 Javert’s lecture: The pains of imprisonment and the future
of prisons – There must be enlightened penology 30

8 Valjean’s lecture: Sentencing and social deprivation –
It is just to award leniency to offenders who have known
a sad life? 42

9 Valjean’s lecture: The gradation of punishment 63

10 The Bishop’s topics: Justice in punishment –
Love the sinner, hate the sin! 70

11 Fantine’s topic: Respect for non-human animals 82

12 Fantine’s lecture: Punishing prostitution, punishing victims? 85

13 The Bishop’s lecture: Re-admitting individuals to the embrace
of the community as a means of ensuring rehabilitation 88

Justice Gilles Renaud Les Misérables on Sentencing
Chapter 1

INTRODUCTION

At the outset, I wish to confront directly the question that the reader is
pondering: whether there is any profit or purpose in examining the lives of
four fictitious but eternal and haunting characters drawn from a novel
published in 1862 with a view of reforming current sentencing principles
and practices in the common law world? Admittedly, Victor Hugo’s Les
Misérables, from which these lives are drawn, has been described as the
greatest ‘roman social’ to grace our civilization. However, such merit alone
would not be the justification for its selection as the basis of the indictment
that is advanced herein of existing sentencing law. Shakespeare’s masterful
plays or the sublime works of Dostoevsky, Zola, Dickens, Balzac and other
timeless writings might have been selected. The selection of this novel is
based on the opening words of the Preface which make plain the most
essential and signal averments that any accusation to be levied against
contemporary criminal legislation and jurisprudence must include:

So long as there shall exist, by virtue of law and custom, decrees of
damnation pronounced by society, artificially creating hells amid the
civilization of earth, and adding the element of human fate to divine destiny;
so long as the three great problems of the century - the degradation of man
through pauperism, the corruption of woman through hunger, the crippling
of children through lack of light - are unsolved; so long as social asphyxia is
possible in any part of the world; - in other words, and with a still wider
significance, so long as ignorance and poverty exist on earth, books of the
nature of Les Misérables cannot fail to be of use. [Emphasis supplied]

Indeed, as underlined immediately above, and as will be illustrated at length
throughout this text, the failings of sentencing law are grounded in both law
and custom: on the one hand, the legislative mandates given to sentencing
courts often fail to advance the true course of justice by elevating proprietary
or other interests above those of humanity and, on the other, the manner in
which the law is applied, be it statutory or common, often fails to advance
the ultimate justice goals of promoting equality.

In essence, therefore, the objective pursued in this book is to discuss
critically the major philosophical and practical flaws of present-day
Justice Gilles Renaud Les Misérables on Sentencing
sentencing principles and procedures, as mandated by legislation and by
custom, by means of a thematic analysis of four of the major characters of
Hugo’s everlasting literary legacy to jurists the world over.

The author’s goal thus having been stated, it will now be of assistance to
describe the pedagogical method selected to best achieve this goal. The
reader is invited to participate in an unprecedented educational conference,
held at Deakin Law School, hosted by the publishers of the International
Journal of Punishment and Sentencing, to which are invited Jean Valjean,
Fantine, Javert and Bishop ‘Welcome’ as guest lecturers. Each in turn, and
at times together, will address a plenary session of criminologists, lawyers,
judges, probation officers, politicians and others vitally interested in the
reform of sentencing law. Drawing upon their lives, as penned by Hugo, and
upon a surprisingly well developed knowledge of academic writings, they
will debate the merits of current penology as defined in the widest sense, and
in so doing, will confront contemporary views on themes such as the
mitigation arising from social deprivation, the merits of criminalising
prostitution, the need to maintain prisons while radically enhancing the
methods of re-integrating former detainees into the community, and the
scope to be accorded rehabilitation in selecting a fit and fair sanction, among
other issues.

To orient the reader as fully as possible, the discussion is divided into a
number of headings, disguised as fictional lectures presented in the course of
various plenary and group sessions. In addition, bold rubrics will be inserted
as required throughout the text to permit ease of reference respecting precise
topics as required.

It will also be of assistance to point out that Victor Hugo possessed a wide
understanding of contemporary criminological writings, if I may refer to that
more modern expression, and his writings, as were those of Emile Zola,
were seen as a vehicle by which to attack those notions of justice he
deplored, and to espouse the theories of the leading thinkers he supported.
By way of limited example, on the issue of capital punishment, noteworthy
is the following passage drawn from Volume 1, Book 1, Chapter IV. It
provides a memorable example of a priest providing comfort and succor to a
condemned man: “As for the Bishop, it was a shock to him to have beheld
the guillotine, and it was a long time before he recovered from it.” Further,
note these comments:

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Justice Gilles Renaud Les Misérables on Sentencing
In fact, when the scaffold is there, all erected and prepared, it has something
about it which produces hallucination. One may feel a certain indifference to
the death penalty, one may refrain from pronouncing upon it, from saying
yes or no, so long as one has not seen a guillotine with one's own eyes: but if
one encounters one of them, the shock is violent; one is forced to decide, and
to take part for or against. Some admire it, like de Maistre; others execrate
it, like Beccaria. The guillotine is the concretion of the law; it is called
vindicte; it is not neutral, and it does not permit you to remain neutral. He
who sees it shivers with the most mysterious of shivers. All social problems
erect their interrogation point around this chopping-knife. The scaffold is a
vision. The scaffold is not a piece of carpentry; the scaffold is not a machine;
the scaffold is not an inert bit of mechanism constructed of wood, iron and
cords. [Emphasis added]

It will also not be without purpose, in this introductory section, to point to
the fact that great jurists and great judgments have been buttressed upon
literary passages and figures. Is it not telling that of all the images that could
have been selected to mark his disdain for one method of statutory
construction, Lord Atkin chose to make reference to the rotund and fallen
fairytale figure of Humpty Dumpty? Indeed, in Liversidge v. Sir John
Anderson (1942), A.C. 206, at pages 244-245, quoting from Lewis Carroll’s
Through the Looking Glass, c. vi, His Lordship remarked, “I know of only
one authority which might justify the suggested method of construction:
‘When I use a word’, Humpty Dumpty said in rather a scornful tone, ‘it
means just what I choose it to mean, neither more nor less…”1

In support of the author’s contention that there is no greater source for
interesting and evocative debates than the world of the fiction writer, I have
elected to track the language of no less an authority than Dean Wigmore:

1 One may refer as well to the House of Lords judgment of Investors v. West
Bromwich, [1997] H.L.J. No. 27, at paragraph 57 and to the Australian High Court
decision of Stevens v. Brodribb et al. (1986), 160 C.L.R. 16, at paragraph 4, to the
Australian Federal Court at paragraph 7 of Smoker v. Pharmacy (1994), 53 F.C.R. 287,
36 A.L.D. 1. Consider as well “Literature in Australian Judicial Reasoning” by the Hon.
Justice Michael Kirby in (October 2001), 75 Aust. L.J. 602-614. Those readers who are
fond of Alice in Wonderland may consult with profit “A Lawyer’s ‘Alice’”, by Glanville
L. Williams in (1945-47) 9 Cambridge L.J. 171-184. See also Dennis R. Klinck, “This
Other Eden: Lord Denning’s Pastoral Vision”, (1994) 14 Oxford J. of Legal Studies 25-
55, at page 27

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Justice Gilles Renaud Les Misérables on Sentencing
“The lawyer must know human nature. He [or she] must deal
understandingly with its types and motives. These he cannot all find close
around… For this learning he [or she] must go to fiction which is the gallery
of life’s portraits.”2 See also W.H. Hitchler: “The Lawyers must know
human nature. [They] must deal with types. [They] cannot find all them
around… Life is not long enough. The range of [their] acquaintances is not
broad enough. For this learning, they must go to fiction…”3

Of course, caution is required as fiction writers may well be wrong both on
legal topics and socio-psychological ones as well, as illustrated by the
following quotation: “The poor fictionist very frequently finds himself to
have been wrong in his description of things in general, and is told so,
roughly by the critics, and tenderly by the friends of his bosom.”4

On this subject, Professor Thomas Niemeyer has written: “… Shakespeare
always held a mirror before nature and mankind”.5 In other words, the
advocate ought not to avoid the opportunity to examine the image of society,
or at least how society may be said to view itself, by analyzing not only the
classic story lines known by the mass of humanity, but the major elements of
popular culture including books, and cinema.6 It is noteworthy that Professor
Jeremy M. Miller has argued in his essay “The Law as Personal Integrity:
Sir Gawain and the Green Knight”,7 that “The whole machinery of law
education is the process of reduction, of de-humanization, of amputation of
feeling, and of exaltation of the trivial over the meaningful.” In addition, we
must recall that “All law cases are tragedies: Sin, suffering, humiliation,
loss, or ruin.”8 To the same effect, Thomas Morawetz has remarked, “Yet
another way of pursuing ‘law and literature’ is as a historian. One must
examine the ways in which literature, in reflecting and shaping public
opinion, has affected law. For example, anyone would profit from an

2 See “A List of One Hundred Legal Novel” (1922), 17 III. L. Rev. 26, at page 31.
3 “The Reading of Lawyers” in (1928) 33 Dick. L. Rev. 1-13, at pp. 12-13.
4 See Phineas Finn, by Anthony Trollope [Oxford University Press: London, 1973],
at Chapter 29, page 325.
5 Refer to “The Judgment Against Shylock”, (1915-16) 14 Mich. L. Rev. 20-36, at
page 22.
6 Refer to Gilles Renaud, “Shakespeare’s Instruction for the Advocate: An
Overview”, June 1999, 21 Advocates’ Q. 457-464, and “Shakespeare and the art of
judging”, (Spring 1999) 23 Prov. Judges J. 29-33.
7 (1995) 26 U. Western L.A. L. Rev. 209-211, at page 209.
8 Ibid., at page 210.
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