Friday, October 17, 2008

Confusing Justice With Revenge

I'm sympathetic to the family of Tim McLean (not to mention everybody else that was on that bus to Winnipeg). There's no question that their son was murdered in a horrifying and brutal act that we still do not really understand.

However, in calling for "stiffer sentences", they are grossly misunderstanding something.

Carol deDelley, Mr. McLean's mother, has said that she's concerned the man charged in her son's death might eventually be released if he is found not criminally responsible by the courts.

She wants the federal government to amend the law so that no one gets off lightly because of mental illness.


The odds of Tim McLean's murderer ever being released from psychiatric care is between slim, nil and none if his found "not criminally responsible".

Law professor Sanjeev Anand said defence lawyers don't often argue criminal responsibility because the person stands to be detained indefinitely as opposed to being jailed for a limited sentence.

Even if someone is convicted of murder, Mr. Anand said they have a chance of parole.

“I understand the family's concern but if this individual poses a danger to the public, he'll be detained,” said Mr. Anand, who teaches at the University of Alberta.

“The restrictions on his liberty will be just as great.”


In short, if the accused in this case is found to be 'not criminally responsible', they face a much more ambiguous sentencing status - namely indefinite detention in a locked psychiatric facility.

We should recognize that no plea has been entered yet in this case, nor has any evidence been heard in a court.

Superficially, the description of events that has been presented in the media certainly sounds consistent with a psychotic episode - and may be an indicator of a more serious mental illness that has been progressing quietly for years.

The finding that he is 'fit to stand trial' doesn't tell us a lot about his psychiatric status at the time of the act - at best it indicates that the individual is able to understand the proceedings coherently. If he has a psychotic episode during the course of the trial that could dramatically change the course of proceedings - leading to an indefinite incarceration, with the trial suspended indefinitely as well.

Recent pleas for harsher laws in this case I presume to have more to do with the family's grieving for a lost son, and are not rooted in a clear understanding of either the situation or the current state of the laws involved.

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