No need for Tories’ ‘Throw Away the Key Act’

Posted on March 5, 2015 in Child & Family Debates – Full Comment
March 4, 2015.   Andrew Coyne

On past form, the Conservatives’ latest piece of tough-on-crime legislation will come with some sort of folksy name attached, of a kind suitable for use in Tory ad campaigns. The Life Means Life Act, perhaps? The Throw Away the Key Act? The Hanging’s Too Good For Them (And What If It Wasn’t) Act?

The legislation, to be introduced in Parliament next week — Wednesday’s announcement, as usual, took place hundreds of miles away — would raise the maximum penalty in Canadian law from the current 25 years without eligibility for parole to a sentence that is often referred to as “life” but is in fact rather closer to “death.”

Prisoners convicted of particularly “heinous” crimes — for example, murders involving sexual assault, or kidnapping, or the killing of police officers or prison guards, or terrorism (high treason is also on the list) — would be obliged to serve, as a government background document put it, “the rest of their natural lives” in prison, with no possibility of parole, ever. They would be kept locked up until their bodies were actually discovered in their cells.

There would be one, grudging exception. After 35 years, prisoners could apply, not for parole, but for “exceptional release,” and not to some do-gooding parole board, but directly to the Minister of Public Safety. This is intended to allay, as the background paper puts it, “legitimate constitutional concerns,” what might be called the Keeping The Supreme Court Off Our Backs provision. So life would not quite mean life. It would mean life or the readiness of an elected politician to personally authorize the release of one of Canada’s “most heinous criminals.”

If there were any likelihood of that you may be sure the Conservatives would not have included it in the legislation. Indeed, one imagines party strategists rubbing their hands in anticipation of the fate that awaits the politician that opposes it. If the experience of the Anti-Terrorism Act is any guide, the Liberals will announce they will vote for it but change it after they have been elected, while the NDP, though voting against it, will promise to amend rather than repeal it.

According to the government, the measure is needed “to keep Canadian families and their communities safe” from “heinous” (that word again: has it ever been used except in front of “crimes” or “criminals”?) criminals, those “whose actions mean we cannot risk permitting them on the streets.” The suggestion is that Canada’s streets are menaced by a wave of elderly jailbirds, released on parole after a scant 25 years in the slammer.

This is — does it even need saying? — nonsense. Not every prisoner is paroled after 25 years: only those judged at low risk of re-offending. Those designated as “dangerous offenders” can already be kept locked up for life. Parole, further, does not mean prisoners are simply set loose in the community, or released unconditionally: rather they remain, as a backgrounder by the Parole Board of Canada explains, “subject to the conditions of parole and the supervision of a … parole officer.” For how long? “For the rest of their lives.”

What sort of risk do they represent? According to figures from Correctional Service Canada, of 658 “murder offenders” released on parole between January 1975 and March 1990, just five — an average of one every three years — were convicted of a second murder. None of the five had originally been convicted of what was then called capital murder, the equivalent of the Harper government’s “heinous” crimes.

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It is difficult, indeed, to see what is accomplished by extending their sentences from 25 years to life, or death, or infinity, or whatever the next Tory bill calls it. Beyond simple incapacitation — removing the offender from the community — punishment is generally considered to have three potential purposes: deterrence, rehabilitation and retribution. But if 25 years is not enough to deter someone from committing a “heinous” murder, it’s hard to see why 35 years would, and in any case the average murderer doesn’t think he’s going to get caught — to the extent he even thinks that far ahead.

Rehabilitation, obviously, is no part of the Tory plan. Which is problematic if, say, you are a prison guard in a maximum security pen. Whatever protection they may be afforded by inclusion among the select list of potential victims of Murder Most Heinous, they will henceforth have to deal with prisoners who, with no chance of parole ever, have no real incentive for good behaviour — or if you like, no penalty for bad behaviour. (“What are you going to do? Lock me up for the rest of my life, again?”) So maybe call it the Kill A Screw For Free Act.

That leaves yes, retribution. Without a doubt — which is to say, I sincerely hope — the prisoners this law is aimed at will be limited to those guilty of the most horrible crimes, the worst we can imagine. But no amount of punishment will bring their victims back to life — nor can it even provide a satisfactory measure of retribution.

This was true even in the days of the death penalty. Those inclined to cry “an eye for an eye” never really meant it: if they did, they wouldn’t have just demanded the prisoner be put to death. Rather, they’d insist he be subject to exactly the same excruciating fate as his victim, to be raped, or tortured, or what not for hours on end, at public expense.

But there are things a civilized society doesn’t do, and locking up people forever, regardless of any risk they represent, surely counts as one of them.

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