David Butt is a Toronto-based criminal lawyer.
When a judge passes sentence on a convicted criminal she is composing the social poetry of grief and redemption: Trying to reconcile, through the language of incarceration, a vortex of conflicting emotions and needs at once deeply personal, and shared by the community. As every poet who has ever struggled with the meagre tools of language to reconcile the conflicting truths of the human condition will tell you, it is a heart-wrenchingly difficult task.
However, acknowledging the difficulty of imposing a "just" sentence does not mean giving judges a free pass on criticism for the sentences they impose. Which brings us to Oscar Pistorius' five-year prison term for killing Reeva Steenkamp. Each judge speaks first to their own community, but in the Canadian context, five years for what Mr. Pistorius did would be wrong.
Judges passing sentence can be agents of positive change. They can identify and expose broader social dysfunction at work in the individual crimes before them, and denounce both the crimes and the broader social dysfunction. But the denunciation will fall flat if the penalty lacks heft. That is what happened here. Five years may be an appropriate sentence for an unintended killing in a bar fight between a couple of belligerent drunks. Five years does not begin to capture the moral opprobrium of a lethal combination of rage, abuse of power and misuse of firearms that would lead a man to shoot through a bathroom door without caring who was cowering behind it.
Sentencing is complicated - it involves trying to assign a numerical value to things like victims' grief and offenders' remorse that are immeasurable. But we expect those we anoint as our poets of grief and redemption to be accomplished at their craft.
As humans we possess an apparently limitless capacity for discerning moral nuance everywhere. So even taking a human life can vary from noble (heroic battlefield exploits) to justifiable (self-defence), to reprehensible. Where on that moral spectrum does Mr. Pistorius' crime sit? It wallows in the cesspool somewhere towards the bottom end. Not because of the grief we share for the Steenkamps' loss, but because of the choices Mr. Pistorius made.
In Canada, Mr. Pistorius would likely be a labelled a murder and face life in prison. Why? Because here you are guilty of murder if you cause injury that is likely to be fatal, and are reckless as to whether death follows or not. Shooting at someone multiple times through a locked bathroom door in your own home is likely to be fatal. It is also extremely reckless. So it is murder and would be punished as such here.
The task of fitting the punishment to the crime also requires us to pull back from the immediate act of the killing itself and assess the bigger picture. Here again, the bigger picture makes Mr. Pistorius' crime worth more than five years. Because the bigger picture is one of rage, empathy deficits, and abuse of power, all made far more dangerous by an ominous attraction to firearms. These themes are sadly far too familiar to those on the front lines of the fight against domestic abuse.
Reeva Steenkamp's tragic killing therefore takes its place in a broader social narrative of domestic violence. And when any crime is more than an isolated act, and is part of a broader social problem, the need to denounce it becomes more powerful, to send a message to the community at large.
An important consideration for any judge passing sentence are what lawyers call precedents. How have similar cases been treated by other judges in the past? Fairness to accused persons demands that like cases be treated alike; if not, justice can become arbitrary. So attention to precedents is crucial.
But excessive attention to precedent is a recipe for stagnation in the law. We cannot move forward in addressing emerging or persistent social problems if we limit ourselves to responses found in the past. That's like trying to drive while looking only in the rear-view mirror. So the accomplished judge will acknowledge the force of precedent, but will at the same time always seek to do better. Precedents cannot block the path to the right answer. They must be sources of wisdom that exert influence only to the extent they continue to embody current social realities.
For crimes that involve the broader dynamics of domestic abuse, we must be particularly leery of precedents. Because we have a sad legal and social history of minimizing domestic violence and the havoc it wreaks: a troubling slumber from which we are all too slowly waking up.
For all these reasons, five years for the killing of Reeva Steenkamp is poor poetry.