Liberals’ ‘Tough on crime’ stance needs scrutiny – Opinion/Comment – Liberals’ ‘Tough on crime’ stance needs scrutiny: Increasing jail time may have political appeal but it accomplishes little. To limit crime, Liberals need to consider what works, not what sounds good
Published On Sun Jan 03 2010.   James Morton

Fiorello La Guardia, the mayor of New York in the 1930s and ’40s, said, “There is no Democratic or Republican way of cleaning the streets.” La Guardia made a profound point in a simple way. Some things are not political. There is a right and a wrong way to keep streets clean; the same can be said for criminal justice.

Unfortunately, rather than asking what works, many recent changes to our criminal justice system are based on scoring political points. Pierre Trudeau called for “reason over passion” and he was right. Being “tough on crime” may have political appeal but it accomplishes little and bears significant costs. Prison is sometimes appropriate, as surgery is sometimes appropriate for disease, but a good doctor does not employ surgery for a head cold.

That does not mean prison has no role to play in the justice system. Someone in prison is not committing crimes outside of jail. That said, deterrence and rehabilitation seem to be qualified failures – in fact, increasing the use of jail seems to increase crime and makes reoffending more common.

In 1999, researchers at the University of New Brunswick examined 50 studies on recidivism that covered more than 300,000 offenders. 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 be a “school of crime” that makes people worse, not better.

The trouble is that trying to deter crime through fear does not work. The concept of the criminal as rational actor is wrong. 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 who is 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 …”

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. 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 per cent of the general population but 17 per cent of prisoners in the federal system. This gross overrepresentation is a reflection of deeper problems within First Nations communities. About one in 200 non-aboriginal children are cared for by the state compared to one in 10 First Nations children. And yet, First Nations 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 than non-aboriginal children. 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 health patients at the time of incarceration. Spend a day in any criminal court in Canada and the prevalence of mental illness 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 hospitals 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 counselling 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 marijuana?

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.

I am a proud Liberal in the tradition of Laurier, Pearson and Trudeau. We can present a consistent and principled alternative to the Conservatives. We cannot be true to our principles and merely repeat platitudes about being “tough on crime.” Canada deserves better and we can, and must, do better.

James Morton is the Deputy Chair of the Council of Presidents of the Liberal Party of Canada, past president of the Ontario Bar Association, adjunct faculty at Osgoode Hall Law School and a lawyer with Steinberg Morton Hope & Israel LLP.

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