“Reason over passion”

Fiorello Laguardia, the mayor of New York in the 1930’s and 40’s said "There is no Democratic or Republican way of cleaning the streets". Laguardia made a profound point in a simple way. Some things are not political. There is a right and wrong way to keep streets clean; it has nothing to do with politics. In the same way, the proper approach to criminal justice ought not to be based on politics but rather on what works.

Unfortunately, rather than turning to evidence and asking “what works” many recent changes to our criminal justice system are based on scoring political points. Punishment for the sake of punishment is pointless. Many years ago Pierre Trudeau called for “reason over passion” and he was right. Being “tough on crime” may appeal to some but it accomplished nothing and bears significant costs. Prison is sometime appropriate, as surgery is sometimes appropriate for disease, but a good doctor does not employ surgery for a head cold.

Michael Ignatieff, who worked with a prison ministry, told me that “I've never been in a prison that didn't leave people worse”. I can say the same thing; prisons as they exist today seldom reform. That does not mean prison has no role to play in the justice system. Someone in prison is (generally) not committing crimes outside of jail (they may well be committing crimes inside jail but that's another story). Deterrence and rehabilitation seem to be qualified failures -- in fact, increasing the use of jail seems to increase crime and makes re offending more common.

In 1999, researchers at the University of New Brunswick examined 50 studies on recidivism that covered more than 300,000 offenders. Considering other factors—such as an inmate's criminal background and age—they found that the longer someone spent in jail, the more likely they were to commit another crime when they got out. The researchers found the impact was most significant for low-risk offenders—suggesting prison may indeed be a "school of crime" that makes people worse, not better.

Indeed since the federal government spends only two percent of its prison budget on offender treatment programs it is hardly surprising that rehabilitation seldom occurs.

A story out of Nova Scotia suggests the attitude of the current administration is to make prison as awful as possible to discourage offenders. As reported, Correctional Service Canada cancelled a unique dog training program at the women's prison in Truro. The Pawsitive Directions Canine Program at the federal Nova Institute for Women had jailed women caring for and teaching obedience to shelter dogs who were eventually paired with disabled clients. The program was a way of training women inmates, building skills and self-esteem, while helping the disabled. As a rehabilitation program Pawsitive Directions made eminent sense; but if prison is to be punishment without rehabilitation it was an unnecessary frill.

The trouble is that trying to deter crime through fear of punishment is misguided. The concept of the criminal as rational actor is wrong (except perhaps for white collar criminals, drug dealers and some impaired drivers). Mental illness is widespread through the criminal system. Drug abuse and psychiatric disorders are such common precursors of crime as to make the concept of the typical criminal as rational actor deterred by punishment absurd.

Crime is largely a reflection of underlying social failings. A recent judgment from Sudbury pointed out the problem:

Poverty is the first fuel that drives crime. It becomes mixed in with the destabilization of families, widespread substance abuse, child abuse, sexual abuse and domestic violence. If you review the pre-sentence reports before Canadian judges in relation to serious crime, you will see this constellation of socio-economic factors that go to the root causes of crime. Most of today's serious criminals were once victims. They patterned their behaviour after the societal forces that shaped them.

As a whole Canada is safe from crime. Violent crime has been generally dropping for years, and was lower in 2007 than at any time in two decades. Similarly property crimes are down - the recent rate is more than 40 per cent below a peak in 1991. The most common criminal charge - about 24 per cent of the criminal court traffic – is for breach of court orders and probation conditions. Those are followed by impaired driving (8.9 per cent); common assault (7.9 per cent); and theft (7.5 per cent). One crime is too many but overall Canada is safer than ever.

There are communities that are in trouble and to address crime we need to address the problems in those communities. First Nations constitute about 3% of the general population but 17% of prisoners in the federal system. This gross over representation is a reflection of deeper problems with the First Nations communities. About one in two hundred non-aboriginal children are cared for by the state compared to the staggering figure of one in ten First Nations children. And yet, First Nation child welfare agencies receive about a fifth less funding than provincial agencies. Poverty and addiction are rampant in First Nations and aboriginal children are far more likely to experience neglect as non-aboriginal children. They need more services but receive less. Fixing the criminal problem in First Nations does not require more jails – it requires social programs that focus on systemic community issues.

Similarly, mental health issues underlie many crimes. Eleven per cent of the federal prison population today were certified as mental patients at the time of incarceration. Spend a day in any criminal court in Canada and the prevalence of mental illness, diagnosed or otherwise, is obvious. The mentally unstable do not respond well to prison and are seldom deterred by the prospect of incarceration.

Prison, regardless of its efficacy, is not cheap. The average annual cost of keeping a federal inmate behind bars last year was $93,030. There are currently 13,581 inmates costing more than $1 billion. American states, such as California, that rely on lengthy mandatory sentences have found crime is not reduced but the state is rendered insolvent. Money spent on jails is money not spent on hospital or schools or roads.

So what is to be done?

First, we have to realize that real crime control requires a social safety net. Children raised in poverty, communities that are alienated from broader society, and untreated mentally unstable individuals all contribute to crime. Such a safety net may seem costly but, in the long run, it will save money by limiting prison costs and creating productive citizens.

Second, we need to study what actually works. Does increasing prison terms actually cut crime? My own experience suggests that prison does deter white collar criminals, some drug dealers and some impaired drivers. Drug addicts and the mentally unstable are not deterred. Can prison actually rehabilitate? Some American research suggests faith based counseling can rehabilitate; but it also leads, sometimes, to a risk of radicalization.

Finally, we should consider what is and what is not criminal. It makes sense to criminalize the sale of addictive poisons. But why are cigarettes legal while a little less than 50,000 Canadians a year are criminally charged with possession of marihuana?
These points are practical. To limit crime in Canada we need to consider what works and not what sounds good in the media. “Reason over passion” is a motto we should apply to Canada’s criminal justice system.