Tough-on-crime politicians should focus on prevention

TheGlobeandMail.com – Web-exclusive commentary – Tough-on-crime politicians should focus on prevention: Tougher sentences alone will not make our communities safer
May. 25, 2009.   Frank Addario

We are in the midst another law and order season. In the past five years, Canadians have witnessed a flurry of legislation to attack every perceived weakness in our much-maligned justice system. Bail has been tightened, police have been given new powers to invade privacy, the state has increased its stake in criminal forfeiture laws, and the government wants to fingerprint suspects before they are even charged. Time-tested principles of fairness and restraint in the criminal law have been discarded in favour of wider police and prosecution powers. Anxious politicians trip over each other to prove they are tough on crime even as the overall crime rate drops.

On May 25, a parliamentary committee will examine Bill C-25, the law that will limit a judge’s discretion in punishing criminal offenders. By all accounts it will attract wide support among MPs. Many observers, the Globe and Mail included, have cheered this development. As Canadians watch the debate about a minor amendment to sentencing powers, it’s useful to ask some basic questions about our approach to crime and punishment. Can law-abiding taxpayers expect safer streets from these new laws? Do tougher sentences really reduce crime? Are there places where eliminating the causes of crime has worked? Although such questions should logically be part of the debate before new laws are passed, they rarely get asked.

If the goal of elected officials is to make our communities safer, you might think they would dedicate their energy to uncovering the complex petri dish that breeds criminality. It seems obvious that preventing the problem would be preferable to cleaning up the mess it creates. But, incuriosity and criminal law policy go together like Frick and Frack. For example, several years ago two economists wrote a paper that linked the precipitous drop in U.S. crime in the 1990s to a 1973 U.S. Supreme Court decision legalizing abortion. Their theory was that the reduction of unwanted children by single teen mothers reduced the number of children raised in chaotic, impoverished circumstances – a strong predictor of future criminal behaviour. Anti-abortion activists and tough-on-crime zealots quickly squelched the follow-up investigation that might have yielded important insights about the link between crime and social conditions.

Canadian opinion leaders have shown a similar disinterest in the causes of crime. Eruptions of high-profile urban violence typically have citizens asking: “Can’t they do something about this?” That simple question turns ordinary politicians into fabulists. The debate over Bill C-25 is a good illustration of why politics and criminal law policy are a poor combination.

The attorneys-general for British Columbia and Ontario have for three years begged the federal government to restrict a judge’s power to give defendants enhanced credit for lengthy pre-trial delays before sentence. Both know that the so-called “dead time“ discount is never given to a prisoner who deliberately delays his sentencing. Both know that implacable sentencing laws will not solve the gun problems plaguing our communities. Both know about the negative collateral consequences of imprisonment. Yet they have insisted that the federal government eliminate the discretion in order to make us safer.

If it’s so obvious why this will work, it ought to be easy to explain to the rest of us. I have challenged Bill C-25’s proponents to explain how eliminating judicial discretion will make Canadians safer. I haven’t heard back. They might be suffering from exhaustion by press conference.

While you are thinking about that, think about this. Is repression, under its various packaged names like “truth in sentencing” or “tackling violent crime,” just an expensive diversion? Our American neighbours have endured a 25-year experiment with severe punishment and “mandatory minimum” sentences in the so-called war on drugs. This has created the highest incarceration rate in the world – in a liberal democracy no less – but it hasn’t made a dent in the market for illegal drugs. In contrast, there is evidence that a dollar spent on community programs aimed at drug abuse prevention is eight times more effective than the same money aimed at incarceration. Tough-minded conservatives have abandoned the lock-‘em up strategy as an expensive waste of public money. Many state and federal lawmakers are now exploring less simplistic and more rational ways to protect American communities.

With such compelling empirical evidence at hand, Canadian politicians should be searching for fresh ideas. Yet scarcely a session of Parliament passes without proposals to criminalize something new or create a mandatory minimum sentence for an old crime. Tough talk on crime is like crack for demagogues. It’s time to break the habit.

Frank Addario is president of the Criminal Lawyers Association.

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