Post #246
970 words; 4 minutes to read
Our criminal justice system rests on the belief that bad deeds merit punishment – and the assumption, stated in the criminal code, that punishment will deter future wrong doing. However as UBC law professor Debra Parkes points out in a 2018 article, neither of these assumptions is supported by research yet a focus on punishment is still fundamental to criminal justice.
There was a period when this was somewhat different. For some decades, Parkes suggests,
Canadian criminal justice policy was grounded in four pillars that enjoyed support across party lines. These pillars were that social conditions matter; that harsh punishments do not reduce crime; that the development of criminal justice policies should be informed by expert knowledge; and that changes in the criminal law should address real problems.
Focus on punishment
Yet in recent years, despite the growing evidence otherwise, a renewed focus on punishment has dominated policy.
A classic case in point is the persistence in appealing to the principle of deterrence in sentencing, despite decades of research showing that sentence severity generally does not influence decisions to commit crime or not. Another example is the disconnect between what we know about the lack of oversight and accountability of imprisonment and numerous instances of lawlessness in Canadian prisons; and assumptions about prisons as safe places for rehabilitation and personal transformation.
Numerous reports have documented abuses, illegality, and a lack of meaningful oversight of imprisonment in Canada, but sentencing generally proceeds without consideration of these facts — what conditions the individual will likely experience in federal or provincial prisons — and on the shaky assumption that rehabilitation is a realistic expectation in most cases. There is a chasm between what we know about punishment and what we do, in the same way as there is a deep disconnect between what we know about human motivation, choice, constraint, and the assumptions we make about fault in substantive criminal law.
… the evidence is clear: Canadian criminal law does not deliver on many of its promises and its impact is not distributed evenly across society.
Evidence says otherwise
If we paid attention to the evidence, we would realize the extent to which we overuse criminal law to address social problems, at great human and fiscal cost. We persist in pursuing punishment over more productive ways of dealing with harm and anti-social behaviour. We ignore the social determinants of crime. And we have become complacent about the deep inequalities throughout the criminal justice system. These conditions cry out for fundamental reform of our criminal law.
As one important instance, Indigenous People are at once, over-policed, over-incarcerated, and under-protected by Canadian law.
Another example is mandatory minimum sentences, many of which have been struck down by Canadian courts.
Mandatory minimum sentences appeal in a simplistic way to public calls for safety and accountability for crime. However, they contribute to the mass incarceration of Indigenous people, do not deter crime, and are extremely costly in human and fiscal terms. In pursuit of their underlying purpose — to remove discretion from judges perceived to be overly lenient in sentencing — these sentences transfer discretion to the unreviewable charging decisions of prosecutors.
McLaughlin rulings
Much of Parkes’ article examines rulings by former Chief Justice Beverly McLaughlin who was prepared to call into question the orthodoxies of sentencing.
She is, at times, refreshingly blunt in her rejection of unsupported assertions by government of the benefits of punitive laws… noted that “[d]oubts concerning the effectiveness of incarceration as a deterrent have been longstanding”,
One of these important decisions was Sauvé, the case that restored voting rights to prisoners.
Sauvé imposed a significant limit on popular punitiveness in Canada. The decision made clear that prisoners — or citizen lawbreakers, to use the Court’s terminology — “do not hold attenuated, weaker versions of the rights enjoyed by other Canadians” and are “unequivocally full rights holders under the Charter”.
Two decisions about ten years ago around around mandatory minimums – Nur and Loyd – take a similar view.
Mandatory minimum sentences appeal in a simplistic way to public calls for safety and accountability for crime. However, they contribute to the mass incarceration of Indigenous people, do not deter crime, and are extremely costly in human and fiscal terms.
However the Court concluded that the real question is simply whether it is reasonably foreseeable that the mandatory minimum sentence will impose sentences that are grossly disproportionate to some peoples’ situations, resulting in a violation of s. 12.
In this and later cases the Court concluded that mandatory minimums failed the Charter test.
Court decisions lack effect
While some critics content that judges and courts exercise too much power, the reality is that many Court decisions on punishment have not reshaped the way the system works.
Despite the evidence, The political process has utterly failed to rein in punishment.’ Supreme Court rulings on prisoners’ rights are regularly violated, many mandatory minimum sentences remain in force, and bail has remained far too restrictive.
Parkes cites as another example the minimum sentences around first and second degree murder convictions. Under this mandatory sentencing regime, which is harsh by international standards, Canadians sentenced for murder are spending many more years in prison today than they did at the time capital punishment was abolished in 1976. Nearly one quarter of people under federal correctional supervision are lifers. The impact of these sentencing provisions is gendered and racialized, as it is for other mandatory sentences.
As Parkes points out, these and other punishments are much harsher in Canada than in most other countries. In the EU only 11 of 42 countries have mandatory life sentences for murder.
In this as in other instances, politics has dictated harsh sentences despite the strong support in research evidence and in the Canadian experience for a different approach. Punishments appears to make an effective political slogan even if its real effects are mostly counterproductive.
Back