The Sentencing of Martha Stewart: Why the ‘Domestic Diva’ Would Not Go to Jail in Canada

This article was co-authored by Margaret Bojanowska and Steven Skurka and originally appeared in the National Association of Criminal Defense Lawyers August 2004 edition of The Champion magazine.

National Association of Criminal Defense Lawyers August 2004 edition of The Champion magazine

The Sentencing of Martha Stewart: Why the ‘Domestic Diva’ Would Not Go to Jail in Canada

By Steven Skurka, Margaret Bojanowska

Sentencing

In a year marked by bad days for Martha Stewart, July 17th was the cruelest day of all. Subsequent to being found guilty by a jury on charges of conspiracy, obstruction of justice and two counts of making false statements earlier this year, the ‘domestic diva’ faced U.S. District Judge Miriam Cederbaum, who mete out Stewart’s punishment. Her sentence included a five-month prison sentence.

In late May, Stewart made a bid to lighten her jail term by offering to perform community service in exchange. Martha contacted Maria Otero, president of the Women’s Venture Fund, a non-profit organization based in New York, to develop a plan. She offered to perform 1,000 community hours, 20 per week, teaching poor women how to start their own businesses. Otero wrote a three page letter to Judge Miriam Cederbaum for consideration at the sentencing, detailing how Stewart’s know-how could benefit underprivileged women. 11

And so it won’t be for a lack of trying that Stewart will fall victim to the federal sentencing guidelines that obligate judges to impose minimum mandatory sentences. Rather than investing sage judges with discretion, they are confined to counting features of the case on an abacus to fashion a calibrated sentence.

Stewart’s destination had been clear since the jury returned with resounding guilty verdicts — a minimum security federal prison camp for women. The trial judge has little or no discretion in the matter of sentencing; even if the judge wishes to do otherwise, she does not have a choice but to send poor Martha to jail. The only real question that remains is the range of sentence applicable under the guidelines.

Judicial Disapproval of Mandatory Minimums

Judges across the United States have long decried the mandatory minimum sentence laws, which many members of the bench perceive as the handcuffing of the judiciary and the removal of sentencing discretion. Not surprisingly, disaster is often the result. One Connecticut judge, forced by the guidelines to send a 20 year old to prison for a 10 year term for selling crack cocaine, commented in resentment:

The sentence is one of the unfairest I have ever had to impose. I don’t excuse your conduct. You deserve to go to jail. But 10 years is absolutely outrageous and I resent the fact that Congress has forced me to do this.

Judge Robert J. McNichols of the U.S. District Court for the Eastern District of Washington made a strong statement opposing the five-year sentence he was forced to impose on a marijuana user. McNichols said that despite his being a senior district court judge who had been on the bench for 25 years, the U.S. Congress deemed him unfit to determine the appropriate sentence.

Even the Chief Justice of the Supreme Court, William Rehnquist, expressed his disapproval saying “…mandatory minimums impose unduly harsh punishment for first-time offenders and have led to an inordinate increase in the prison population.”3

Costs of Over Imprisonment

In large part since the introduction of sentencing guidelines and other ‘get tough on crime’ legislation, the inmate population in the United States has experienced a growth over the past two decades. The disproportionate rise in the number of inmates serving sentences for drug related offences reflects a decision by the public and politicians to get tough with the war on drugs, sentencing more offenders to incarceration.

Recently released U.S. Department of Justice statistics show that the number of state and federal prison inmates jumped to 1.3 million in 2001 from 488,000 in 1985. The U.S. prison rate which held steady for 50 years at 110 per 100,000 residents skyrocketed between 1980 and 1990 to 450 per 100,000 residents.

According to the Bureau of Justice Statistics, spending on jails and prisons has similarly risen in the U.S. to $57 billion in 2001 up spectacularly from $9.6 billion in 1982.

In 1994, President Clinton approved another get tough on crime measure by signing the Violent Crime Control and Law Enforcement Act, more commonly known as the ‘three-strikes’ law. The Act provides a mandatory life-imprisonment scheme for those convicted of their of a third violent felony. ‘Three strikes’ is a generic term that can accommodate any number of statutory variations. Between 1993 and 1995, twenty four states enacted similar ‘three strikes’ statutes, which generally require long prison terms for criminals with three convictions for specified offences.

One is left to wonder whether the drafters of this legislations considered the following case. A California man with prior felony convictions was sentenced 25 years to life for stealing a slice of pizza. His prior convictions included robbery, attempted robbery, drug possession, and unauthorized use of a motor vehicle. The accused faced the same jail term had he raped a woman, molested a child, or committed a car-jacking.6

Another radical example of this law’s application can be found in Rummel 445 U.S. 263 (1980) where the defendant defrauded a credit card to obtain $80 worth of goods and services in 1964, forged a cheque for $28.36 in 1969, and obtained $120.75 by false pretences in 1973. These non-violent and relatively trivial offences spanning over a period of almost ten years resulted in a sentence of life imprisonment.

Three strikes laws invite and validate disproportionalities between the offence committed and the sentence imposed. Sentences such as these are contributing to the significant increase in the number of incarcerated persons across the U.S. and the rising administration costs of courts and prisons.

Canadian Sentencing Trends

An opposite trend to that seen in the United States has been developing in Canada since the mid 1990s. Changes implemented to the Criminal Code reflect a desired shift away from the overuse of incarceration as a method of punishment save for cases where it is deemed absolutely necessary. Although not unknown, minimum prison terms are not common in Canada. In only the vary rare case such as murder, firearm offences, and repeat impaired driving are minimum punishments a feature of the Criminal Code provisions.

According to Statistics Canada, in the mid 1990s Canada’s rate of incarceration stood at 143 per 100,000 of population. Despite being significantly lower than the U.S. rate, Canada was still in the midst of the top three incarcerators of the Western world. 1996 Brought sentencing amendments which changed the range of available penal sanctions to remedy Canada’s over reliance on incarceration. The principles and purposes of sentencing which follow were introduced.

Principles and Purposes of Sentencing

The principle of proportionality is designated the fundamental principle of sentencing. Section 718.1 of the Criminal Code7 provides that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” Punishments meted out must be proportionate both to the crime as well as to the blameworthiness of the offender. Judges are given a significant amount of discretion in determining the appropriate and just sentence for an offender.

Proportionality is a retributive concept which focuses on an offender’s past conduct as opposed to the effects of punishment on the offender or others through deterrence or rehabilitation. Proportionality is intended to restrain punishment by ensuring that offenders do not receive unwarranted punishment.

The Supreme Court of Canada has cited with approval a member of the Court’s pronouncement. In Reference Re. S. 94(2) of the Motor Vehicle Act (B.C.) (1985) Justice Wilson voiced;

It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a ‘fit’ sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender ‘deserved’ the punishment he received and feel a confidence in the fairness and rationality of the system.

The fundamental purpose of sentencing enumerated in section 718 “is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions”. Discretion is further built into the sentencing regime through the list of objectives to be considered in determining a fit sentence. A sentencing judge must be guided in his or her exercise of discretion by denunciation, general and specific deterrence, incapacitation and separation from society, as well as rehabilitation, providing reparation for harm done and promotion of a sense of responsibility.

Judges are instructed to consider “all available sanctions other than imprisonment that are reasonable in the circumstances” for all offenders. In enacting this section, Parliament has mandated that expanded use is to be made of restorative justice principles in sentencing because of the general failure of incarceration to rehabilitate offenders and reintegrate them into society.

Additional sentencing principles were enumerated under S. 718.2. Sentences should be increased or reduced to account for aggravating or mitigating principles arising from circumstances particular to a case. Courts should strive to maintain a similarity in sentences for like offences committed by comparable offenders. Finally, the principle of totality must be considered to prevent unjustly harsh or long sentences caused by the cumulative effect of consecutive sentences.

The Supreme Court of Canada had its first occasion to construe and apply S. 718.2(e) in the seminal decision R. v. Gladue [1999], 133 C.C.C. (3d) 385 (S.C.C.). S. 718.2(e) reads:
all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

This section was likely designed to encourage sentencing judges to experiment to some degree with alternatives to incarceration while being sensitive to principles of restorative justice.

Sentencing judges are required by s. 718. 2(e) to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of aboriginal offenders who constitute an over represented portion of prison populations. As a remedial provision it is to be given a fair, large, and liberal construction and interpretation. As a general principle imprisonment should be the penal sanction of last resort where no other sanction or combination of sanctions is appropriate to the offence and offender.

Allan Rock, Minister of Justice at the time of the sentencing amendments, made the following statement:

Jails and prisons will be there for those who need them, for those who should be punished in that way or separated from society…This bill creates an environment which encourages community sanctions and the rehabilitation of offenders together with reparation to victims and promoting in criminals a sense of accountability for what they have done. It is not by being more harsh that we will achieve more effective criminal justice. We must use our scarce resources wisely.8

The new frontier of sentencing principles in Canada must be understood as a legislative reaction to the overuse of prison as a sentence. Particular attention is already being directed by the courts to the overrepresentation of African-Canadians and aboriginal offenders in Canadian jails and penitentiaries.

The important case of R. v. Borde (2003), 172 C.C.C. (3d) 225 from the Ontario Court of Appeal reviewed the appropriateness of a seven-year and nine-month penitentiary sentence in the case of a nineteen year old black offender. The Court held that the trial judge erred in focusing exclusively on the seriousness of the offences, with little regard for the accused’s youth. A first penitentiary sentence should rarely be determined solely by the objectives of denunciation and general deterrence. Where an offender had not previously been to a penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives.

Further, Justice Rosenberg held for the court, that race can constitute a factor to be taken into account by a judge at the time of sentencing in deciding a just and proportional punishment. He stated that “…the background and systemic factors facing African-Canadians, where they are shown to have played a part in the offence, might be taken into account when imposing sentence.”

Conditional Sentence

A further aspect to the sentencing amendments was the introduction of the conditional sentence of imprisonment, a form of house arrest. This sanction is available to a class of non-dangerous offenders who, prior to the introduction of this new regime, would have been sentenced to a term of incarceration of less than two years for offences with no minimum term of imprisonment.

In the words of Supreme Court of Canada judges Cory and Iacobucci JJ , “the availability of the conditional sentence of imprisonment, in particular, alters the sentencing landscape in a manner which gives an entirely new meaning to the principle that imprisonment should be resorted to only where no other sentencing option is reasonable in the circumstances. The creation of the conditional sentence suggests, on its face, a desire to lessen the use of incarceration.”

Offenders who meet the criteria of s. 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. These offenders’ liberty will be constrained by conditions to be attached to the sentence. In the event of a breach of conditions, a judge may order the offender to serve the remainder of the sentence in custody. Parliament intended there to be a real threat of incarceration in order to increase compliance with the conditions of the sentence.

In Proulx [2000], 140 C.C.C. (3d) 449 (SCC), the Supreme Court of Canada interpreted the conditional sentence provisions and found that:

Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender.

Conditional sentences are also a punitive sanction capable of achieving deterrence and denunciation. The constant threat of incarceration helps to ensure that the offender complies with the conditions imposed by the court.
Offences with minimum terms of imprisonment are the only statutory exclusions from the conditional sentencing regime. A prerequisite to the conditional sentence is a determination that the offender would not endanger the safety of the community.

The Court in Proulx approved the use of conditional sentences, recognizing that “Prison had been characterized as a finishing school for criminals and as ill-preparing them for reintegration into society.”

Effect of Sentencing Amendments

According to Statistics Canada, the rate of incarceration has steadily been decreasing. In 2001 the rate had fallen to 133 incarcerated per 100,000 of population. Another significant effect was registered in the rate of crime. In 2002, Canada posted its lowest crime rate in almost 25 years. Though the use of incarceration is slowly declining, replaced by increasing numbers of defendants subject to the conditional sentence, the safety of Canadian communities has not been compromised.

“In recent years, many of our communities have become safer places to live, with fewer violent crimes such as homicides, assaults and robberies.” (Violent Crime Report, Statistics Canada)

What Legal Fate Would Await Martha Stewart in Canada?

As a starting point, Martha Stewart would not have faced rigid sentencing guidelines which require her to be sent to prison. A wide spectrum of alternatives to a jail sentence would be available to the judge conducting her sentencing hearing.

The sentencing judge would be required to consider a myriad of factors to ensure that the sentence was reflective of the fundamental principle of proportionality. In light of Stewart’s fall from grace, lack of criminal record, non-violent nature of the offence, and the crushing blow to Stewart’s empire as a result of being tried in the public eye, a judge would likely be sympathetic to Stewart. Her likelihood of re-offending is extremely low and the objectives of denunciation and general deterrence should not be the focus of her sentence.

Martha Stewart could confidently stride into a Canadian courtroom with an expectation that she would not be confronting a prison sentence. Her tremendous resources and skills would likely be harnessed into a community service order as part of her probationary period of supervision, such as her proposed community service at the Women’s Venture Fund. A kitchen program for the homeless would be appropriate as well given that the homemaker turned mogul served muffins and coffee at the New York stock exchange in 1999, after being named to the exchange’s board of directors. The view of Martha Stewart serving soup on a blustery Canadian winter morning would probably be the best recipe for her rehabilitation. And that would be a good thing.

Notes

1. Law Center, Report: Stewart seeks shorter jail term: offers community service as an exchange, May 31, 2004
2. Stewart, Julie, Sentencing in the States: The Good, the Bad, and the Ugly, (2001) 39 Osgoode Hall L.J. para 8.
3. Dobbin, Muriel, Judges Decry Mandatory Minimum Sentences (June 6, 1999) Pittsburgh Post-Gazette
4. Ibid.
5. Cameron, Jamie, The Death Penalty, Mandatory Prison Sentences, and the Eighth Amendment’s Rule Against Cruel and Unusual Punishment, (2001) 39 Osgoode Hall L.J. para 7-8
6. Ibid, para 9
7. Criminal Code of Canada, R.S.C. 1985, c. C-46 [hereinafter Criminal Code]
8. House of Commons Debates, vol. IV, 1st sess., 35th Parl., at 5871 and 5873

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