Failing Grades for Canadian Prisons

From today's Ottawa Citizen

Failing Grades for Canadian Prisons
By James Morton

Last week, the House passed Bill C-15. As a result, Canadian law will soon dictate mandatory prison sentences for serious drug offenders, particularly drug traffickers and anyone manipulating young Canadians to commit drug crimes.

Let’s take a closer look. At present, Canada has one of the highest rates of incarceration in the Western world. Also, our aboriginal population is grossly overrepresented in jail; in provincial institutions, aboriginals – who represent approximately four per cent of Canada’s population – make up about a quarter of all inmates. Bill C-15 will soon cause a significant increase in inmates, as flexibility in sentencing makes way to mandatory prison terms. If prisons worked, these facts might not be so troubling, but our prisons, as present constituted, do not produce the effect intended.

Using them to reduce drug crimes seems especially wrong-headed. Prisoners often become addicted to narcotics while in prison. That sounds preposterous, but it’s true. The place we send society’s most dangerous elements for rehabilitation is full of illegal drugs. Over ten per cent of Canadian prisoners tested positive in random drug tests, and that figure is probably low, because many prisoners refused to be tested, presumably knowing they’d fail. Prisons can only rehabilitate their inmates if they are free from crime and places for reflection and retraining. Unfortunately, Canada’s prisons are crime ridden, dirty, degrading and dangerous. They act more as a school for crime than a place of rehabilitation.

In fact, the most recent Federal Government study showed that incarceration was associated with a slight increase in recidivism; in the blunt words of the report: “Prisons and intermediate sanctions should not be used with the expectation of reducing criminal behaviour”. The concept of using prisons for rehabilitation is relatively modern.

Historically, prisons were intended as places to hold accused only briefly, pending trial or punishment; St. Paul’s time in prison, some 2,000 years ago, was as someone awaiting trial. The concept of redemption through a restriction on liberty was alien to the pre-modern world. The concept of rehabilitation appears with the creation of the modern penal system, of which it was a driving force.

The first Penitentiary Act, written in 1779, began by speaking of “deterring others from the commission of … crimes [and] of reforming individuals and inuring them to habits of industry.” In theory, the concept of deterrence and reformation through incarceration remains the justification for prisons to this day. Unfortunately, the practice of prisons is vastly different. In theory, criminals separated from society and bad influences will reflect on their errors and, with time and training, move on to become productive citizens.

The concept of quiet solitude combined with productive labour is well suited for spiritual and moral rebirth. In such circumstances prisoners might indeed well be rehabilitated. Prisoners might spend time reflecting on their actions and see that they should best avoid their former errors. In practice, however, prison life is a struggle to survive, allowing little room for reflection. While some prisons, especially those holding inmates for extended periods, have adequate training and counselling resources, no Canadian prisons isolate prisoners from the bad influence of other prisoners. Fraudsters, robbers, thugs and the mentally unhinged (at least 15 per cent of the prison population) mingle in circumstances of almost limitless intercourse.

Add widely available narcotics to the mix and it’s hardly surprising that few reform.

What’s more, many prisons are grossly overcrowded and under- resourced. Tiny cells designed for one inmate hold three, often for more than 12 hours a day. Violence is commonplace, made worse by overcrowding and drugs. Ill health, including widespread tuberculosis, is a daily fact of life. It defies common sense to think anyone will come out of such conditions an improved person.

Our system fails in large part because it is not rational. It is possible to make prisons that are free from drugs and where prisoners are treated for ill health and protected from assault. The failure to effect these reforms makes a mockery of Canada’s penal system.

Prison reform, treating prisoners as human, does not mean they should be mollycoddled. Punishment is a legitimate part of incarnation. But prison reform must mean that prisons be designed to allow for improvement through incarceration. If we continue to incarcerate people, and we do in large numbers, there must be at least a prospect of the incarceration doing some good. Prisons can work, but only if they are what they are supposed to be—quiet, orderly places where the inmate can reflect on the misdeeds of the past and find the resolve to change for the future.

James C. Morton is a lawyer at Steinberg Morton Hope & Israel in Toronto and Adjunct Professor at Osgoode Hall Law School, York University.