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Tough on crime, weak on evidence

One of Canada’s top defence lawyers picks apart the government’s case for more prisons and longer sentences

By Edward L. Greenspan

When it comes to crime and crime policy, there are basically two schools of thought. There is the law-and-order school. It says: get tough on crime, clamp down, stop coddling criminals and give the police more authority and more artillery. Stiffen the penalties. Tighten up the prisons. Streamline the system so we can put more prisoners behind bars — faster — and keep them there longer. Make it painful.

Then there are the humanitarians. The humanitarians say crime is a social problem that can be solved by addressing its underlying causes. Resources should be spent on creating employment opportunities, providing human services, reducing poverty, offering educational opportunities and lessening cultural deprivation, oppression and exploitation — in other words, giving offenders an opportunity to reform. Take the money that is spent on jailing drug offenders, and instead fund drug diversion programs and harm-reduction programs. Create alternatives to incarceration.

A 2010 Angus Reid poll suggested most Canadians belong to the law-and-order crowd. The survey found that 62 percent of respondents favoured the death penalty, up from 48 percent five years earlier. Sixty-five percent believed that mandatory minimum sentences send a tough message to criminals. Sixty-two percent believed that long prison sentences are the best way to reduce crime. Overall, the findings suggested that judges are too lenient for most Canadians. Maybe a toughened criminal justice system is what Canadians want.

The problem is, we’ve known for a long time that findings like this are skewed. In 1983, Prof. Anthony Doob of the University of Toronto’s Centre for Criminology did an exceptionally important empirical study. He gave a control group the newspaper stories, television clips and radio spots that reported on the sentencing of a particular individual. The vast majority of the polling group thought the judge’s sentence was too lenient. Then he gave the same control group everything the trial judge had access to before sentencing — the pre-sentence report, the psychiatric report, character letters, the lawyer’s submissions. The vast majority of the polling group thought the judge’s sentence was too harsh. In other words, when the public is well informed, attitudes toward punitive sentencing change dramatically.

As they should. All serious empirical research in Canada and Europe over the last 30 years shows beyond a doubt that longer sentences do not deter offenders. Instead, researchers have found that the certainty of punishment is a greater deterrent than the severity of punishment. In other words, increasing the likelihood of conviction is more likely to bring about reductions in crime than tougher sentencing. This makes sense. Nobody who commits a crime thinks they’ll get caught. So, if you’re not going to get caught, the sentence doesn’t matter.

Yet those in the law-and-order crowd continue to beat their drums. In 2002, statistics confirmed that the crime rate in Canada’s biggest city was declining. Toronto’s police chief at the time, Julian Fantino, warned against complacency. “Torontonians are being lulled into a false sense of security,” Fantino said. “It bothers the hell out of me.” The crime rate was plunging — and the police chief was upset. He would have been the first to trot out the statistics if crime rates were going up. Yet he had the gall to suggest that homicide rates, in particular, only appeared to be lower because doctors and paramedics were getting better at their jobs and saving more lives.

You’d think the police chief would be the first to say, “Great, the city is safer.” He could even take some credit for it. But no. Fantino wanted helicopters for his police force, and vast amounts of money to deal with “crime.” He wanted power. He couldn’t get it if crime was down. He had to keep the fear level high. So Fantino ranted on: “It’s almost as if we have developed a tolerance for crime; that we should be happy that fewer people were murdered last year than the year before.”

Of course we should be happy. Of course things were clearly better.

Fantino is now a cabinet minister in Stephen Harper’s government. His cabinet colleagues share his tendency to distort reality and spread fear to justify a hard line on crime. We live in a time when the crime rate, especially the rate of violent crime, is in steep decline. Murder in Toronto is at a 25-year low. Logic dictates that the get-tough crowd should ease up a bit. But not this government. Prior to leaving politics before the last election, then Treasury Board president Stockwell Day raised the level of distortion to new heights. Don’t be fooled by crime statistics, Day said. “Unreported crime” is rising dramatically.

This government is going to build thousands of new jail cells. The question is for whom — those unreported criminals? Faced with a crime rate that is ever decreasing, the current minister of justice, Rob Nicholson, now says, “We don’t govern on the basis of statistics. If we see a need to better protect children or send a message to drug dealers, that’s the basis upon which we’re proceeding.” By this damn-the-statistics logic, when the crime rate dramatically falls, there will be an incredible number of empty penitentiaries throughout Canada. What then? Turn them into motels?

We spend $85,000 per person to keep somebody in a provincial jail for one year. To house one woman in a federal penitentiary, $345,000. To house a man in maximum security, $224,000. A man in medium security, $141,000. Minimum security, $140,000. It costs us $40,000 a year for every person on parole. When you increase expenditures for punishment, you’d think you’d want to make sure it’s an effective way to reduce the total amount of crime. One thing this government does not appear to care about is developing policy that will do that.  

Take mandatory minimum sentences, for example. This government loves them, and has created a whole new set of them. Society will be safer, it says. Never mind that the Americans, who had gone that route, have now come to understand how wrong such sentences are. The U.S. Sentencing Commission did a survey last year. Sixty-five percent of the federal trial court judges surveyed said mandatory minimums were too high; none found them too low. Such a survey in Canada, I believe, would produce the same result. Judges don’t like them. Mandatory sentencing schemes deprive judges of their inherent authority to fashion sentences that fit the offender and the offence, and to do so publicly in a courtroom.

Under the new system, more discretion transfers to prosecutors, who can coerce guilty pleas from defendants behind closed doors and reduce the number of cases that go to trial. “You plead and we won’t use the section requiring mandatory minimums” — that’s what it has become.

And so everyone begins to act on the assumption that the case is going to end with a plea. When you have that attitude, you penalize people who have the nerve to go to trial. I believe the prosecutors have grown more powerful than judges. They now have the ultimate power to shape the outcome of a criminal proceeding. For those cases that do go to trial, mandatory minimums statutorily compel judges to give up on people. How can they balance punishment and rehabilitation in the face of such a system?

Mandatory sentences waste lives, families and scarce public resources. They warehouse non-violent drug offenders without reducing drug addiction or the problems associated with drug use. More than two decades of experience in the United States have proven that the money it costs to incarcerate drug offenders would be better used to fund drug treatment and harm-reduction programs, alternatives to incarceration, employment opportunities and human services.

So what has our government done? Impose a mandatory minimum penalty of six months for growing as few as six plants of marijuana. Six plants on your windowsill and you get a minimum of six months in jail. Five plants — no minimum; four plants — no minimum; six plants — six months.

Let’s look at another example: pre-trial custody. On any given day, we have more people in pre-trial custody than we have people actually serving sentences. The ratio is roughly 60 to 40. Thirty years ago, the ratio was 40 to 60. And prisoners being held before trial are often incarcerated in worse conditions than prisoners serving sentences. Constitutional guarantees of presumed innocence and reasonable bail seem increasingly illusory, especially if you’re one of the high number of Aboriginal juveniles awaiting trial in Canadian jails.

The federal government says the 2002 Youth Criminal Justice Act is broken, dysfunctional, yet it provides absolutely no explanation of what this means. But we do know the government plans to reformulate the act so that it emphasizes the protection of society rather than the care and rehabilitation of the offender, and directs crown prosecutors to consider seeking adult sentences for young people convicted of violent crime.

Blurring the distinction between adult and young offenders defies the experience of numerous jurisdictions in the United States which have concluded that youth differ significantly from adults in their capacity to make sound decisions, and also benefit more from systems focused on treatment rather than incarceration. It has become generally acknowledged in the States that the juvenile justice system is better equipped to rehabilitate many, if not most, youthful offenders, in large part because of the greater availability of social services.

The U.S. Supreme Court has recognized that even in cases of murder, defendants under 18 are different from adults, and the courts should treat them that way in sentencing. Sending juveniles to adult prisons only turns them into toughened adult criminals.

Our current government is obsessed with building a tough-on-crime legacy despite all the evidence of how unnecessary and counterproductive such policies are. It tosses around the term “safer streets” like it is going out of style, ignoring logic, experience and intelligent, informed argument. I have no problem with being tough on crime. But we should commit ourselves to being smart on crime. It’s immoral to wrap crime legislation in the cloak of public safety to play on people’s fear of crime. And it’s immoral to distort the truth about crime to make people afraid of it.

Lewis Lawes was the warden of Sing Sing prison in New York State from 1920 to 1941. He started as a serious law-and-order guy — all for the death penalty. He retired a humanitarian, against the death penalty, a strong believer in rehabilitation as the goal of the penal system. He created rehabilitation schemes that ranged far beyond traditional education and work programs: care and maintenance of an aviary and a greenhouse; a near professional-level football team; and a Sunday night lecture series that featured eminent personalities from the arts, sports and religion.

Here is what he said in his memoir, 20,000 Years in Sing Sing: “If prison were an effective method of handling crime, there might be an excuse for it. But we know that it is not. With the advent of long prison terms, crime has increased; it is still increasing.

“An arid, desert patch cannot be transformed into a fertile, fruitful garden by a spasmodic spraying of its surface. It requires irrigation; a constant, unending supply of water, often drawn from great distances, that will seep into the earth and bring fecundity where, theretofore, was only sterility.

“Except for a small minority of ‘lifers,’ all 400,000 prisoners currently in our correctional system will at some point be discharged to resume their places in society. If they and their successors go forth ‘no worse than they came in,’ but no better, there is no point or purpose in our elaborate new programs for reducing crime. The evidence is, however, that they will be worse. To build ‘bigger and better prisons’ is to aggravate the problem: the greater our prison populations, the more difficult the task of absorption will be.”

In 2009, the prime minister’s former chief of staff, Ian Brodie, admitted at a conference in Montreal what many people already suspected — that the Harper government’s criminal justice policy had become cynically political and morally bankrupt. Brodie described how the government’s proposed crime policies had been attacked by experts on the basis of evidence. He said the criticism actually strengthened the government’s hand, because sociologists, criminologists and criminal lawyers are held in lower regard than politicians. “Politically, it helped us tremendously to be attacked by this coalition. So we never really had to engage in the question of what the evidence actually shows about various approaches to crime.”

So the government can get away with making crime policy that is dangerous, nonsensical and counterintuitive because no one but disreputable people like me, who are biased and unworthy, have criticized it.

Let me name some important leaders of this great country: John A. Macdonald, the first prime minister of Canada; John Diefenbaker, a former prime minister; Roy McMurtry, the former chief justice and attorney general of Ontario; Antonio Lamer, the former chief justice of Canada; Dalton McGuinty, the current premier of Ontario; and Frank McKenna, the former premier of New Brunswick. All of these people were criminal lawyers.

Together, the Truth in Sentencing Act, the Serious Time for the Most Serious Crime Act, the Eliminating Pardons for Serious Crimes Act, and other acts packaged with provocative titles will see the cost of our criminal justice system rise by tens of billions of dollars over the next 15 years. By then, the values and assumptions that underlie this legislation will have been proven wrong by the social and fiscal costs they incur. We will have to admit that tragic mistakes were made, and that our generation made them. It will be impossible to unravel and undo this government’s mistakes. What a pity. What a waste. 



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