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When Canadian courts sentence someone to prison, the main question is the length of the sentence. That focus only on time to be served does not take into account the very different ways that prison can be experienced or can affect people, argues Queen’s University Law professor Lisa Kerr. “Judges grapple with sentence severity in a vacuum; even defence counsel rarely argue that prospective issues should be brought to bear on the sentencing task.”
In failing to consider what prison will actually be like for a person being sentenced, courts also fail to consider whether the sentence will actually contribute to the various goals of sentencing outlined in Canada’s criminal code, which include deterrence, rehabilitation, and public safety. As Kerr points out, “sentencing courts across North America do not consider … the administration or quality of the prison system at the time they impose custodial sanctions”. In other words, prison is seen as prison no matter where you go. All that matters is the length of the sentence with crimes seen as worse (although there is no objective or even commonly agreed basis for arriving at this evaluation) receiving longer sentences. However, as Kerr also notes, in practice the length of a sentence is also shaped by “convention, politics and expediency”. High profile crimes lead to demands for harsher punishments regardless of the effect of those punishments.
Prison conditions vary greatly
But this is highly misleading. Jails and prisons in Canada vary enormously in regard to the experience of prisoners. Many provincial jails serve anyone sentenced to less than two years – and thus the vast majority of people who spend time in jail. It is well known that conditions in provincial jails are often very poor. They can be severely overcrowded . They tend to operate as maximum security institutions even though almost all the prisoners in them have committed relatively minor crimes. They provide little or nothing in the way of work, therapy, education or rehabilitation. The staff is often not well trained. Medical and mental health care are both limited. Visits from or communication with family and friends are often very limited. Under these conditions, those locked up may feel like they are the victims. Such conditions are clearly not related to the goals of taking responsibility for one’s actions or of taking steps to live a better life in future.
Security levels matter
Federal prisons have three different security levels. About 20% of prisoners are in maximum security, about 60% in medium, and about 20% in minimum. Prisoners can and do move from one security level to another depending on their behaviour.
The different security levels are presumably intended to reflect differing levels of danger or escape risk posed by prisoners. But they have very different consequences for what prisoners experience. In minimum security prisoners are generally free to move about and participate in a range of activities while in higher security prisoners spend much more time locked in small cells with nothing to do. In higher security many prisoners are afraid all the time while in minimum security this kind of anxiety is generally absent. So the most difficult or dangerous people are in the worst conditions, surrounded by others who are also difficult, with little opportunity to do anything to improve themselves.
The differences in conditions in prisons are relevant to members of the public, as can be seen in the recent outcry over the transfer of Terry McClintic to a healing lodge. For many people, the severity of punishment is directly relevant even though it plays no part in how courts to sentencing.
The impact of prison depends not only on conditions in a particular prison but also on the resources that a prisoner has to cope with the situation. Those with more education, or without mental illness, or with family supports, or with money to buy what they need will find the experience less traumatic. People who have cycled through prison repeatedly may find little impact. Some may even feel they are better off locked up than, say, being homeless on the outside.
Kerr concludes that “To facilitate moral agency, prison life should closely resemble ordinary life in civil society” because this is what is mostly likely to bring about the results we want. She also proposes that “we need evidence-based forms of punishment; we need penal methods that could actually work so as to generate a productive sense of responsibility within offenders, without triggering defence mechanisms”.
Source: Lisa Kerr, 2019. How the Prison is a Black Box in Punishment Theory. University of Toronto Law Journal, 69. †