RSS FeedRestraint, Mr. Harper
While cramming a treatise for my last 1L exam, I came across a quote from the Law Reform Commission of Canada. The report titled Our Criminal Law was released in 1976, but it is just as relevant today:
But criminal law is not the only means of bolstering values. Nor is it necessarily always the best means. The fact is, criminal law is a blunt and costly instrument – blunt because it cannot have the human sensitivity of institutions like the family, the school, the church or the community, and costly since it imposes suffering, loss of liberty, and great expense.
So criminal law must be an instrument of last resort. It must be used as little as possible. The message must not be diluted by overkill – too many laws and offences and charges and prison sentences. Society’s ultimate weapon must stay sheathed as long as possible. The watchword is restraint – restraint applying to the scope of the criminal law, to the meaning of criminal guilt, to the use of the criminal trial and to the criminal sentence.
In a time of economic restraint, Prime Minister Harper is planning to increase Corrections Canada’s budget by 27%. While criminologists disagree about what causes crime, nearly all agree that incarceration DOES NOT REDUCE crime. And crime rates have been steadily falling for decades, so it stands to reason that whatever we’ve been doing is working.
Tom Flanagan justifies tough on crime by comparing 2010 to the 1960s, when crime rates were lower. Would that be the same 1960s when a woman could be legally raped by her husband? When the crime of sexual assault didn’t exist? Of course not, because Mr. Flanagan is looking at the world through the rose-coloured glasses of nostalgia. Those days won’t exist again because they never existed. Even if they could exist, tough on crime is simply not the route there.
Canada’s prison population is composed of a disturbingly disproportionate number of Aboriginal persons, as well as the formerly unemployed, the uneducated, the addicted, the poor. They are at the receiving end of the state’s most terrible weapon against its people. While society will reap no gain, marginalized groups will bear the hugest cost from the politicization of justice reform.
Parliament must not allow Mr. Harper’s tough on crime bills to pass. The opposition Liberals have a duty to refuse this wrongful policy. Political pandering must not trump the best interests of the country. The watchword is restraint.
Government Ignores “Tough on Crime” Statistics
A great article just came off the Canadian Press wire. The upshot is that the Canadian government is ignoring the results of social science studies about crime and punishment. Here are some quoteable quotes:
Federal spending estimates indicate capital expenditures on prisons in Canada will increase by more than 40 per cent in 2010-11 to $329.4 million from $230.8 million this year, although the Conservative government has refused to publicly detail the costs of its criminal justice agenda.
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“The great appeal of mandatory minimum sentences is that they give politicians the appearance of doing something, of being seen to be doing something,” Craig Jones, the executive director of the John Howard Society of Canada, said in a recent interview. “You must never underestimate the need for politicians to be seen to be doing something — even if, in some cases, it’s the wrong thing.”
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In a 2008 speech, Harper flatly denounced research-based justice policies, accusing the pedlars of such policies of trying to “pacify Canadians with statistics.” “Your personal experiences and impressions are wrong, they say; crime is really not a problem. These apologists remind me of the scene from the Wizard of Oz when the wizard says, ‘Pay no attention to that man behind the curtain.”
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More recently, Harper’s former chief of staff Ian Brodie told a McGill University forum last spring that informed criticism of the government’s justice agenda is a political gift: “It helped us tremendously to be attacked by this coalition of university types.”
The Politicization of Justice Reform
This afternoon, Julian Falconer gave a talk at the Empire Club of Canada titled “The Politics of Punishment: Depoliticizing Justice Reform.” He focused primarily on the Harper government’s “tough on crime” agenda, and made some most interesting observations.
Canada spends $3.5 billion per year on crime. It costs $108,000 per year to incarcerate one inmate. Stephen Harper is proposing $5 billion in “tough on crime” spending, with none of the increase earmarked for crime prevention.
There is a systemic dilemma: in politics, proponents of judicial reform are forcibly grouped into one of two camps; Falconer referred to this division as “hug-a-thug vs. Law and Order.” If a politician questions the “tough on crime” approach, they are instantly categorized as weak, as someone who would embrace the criminal threatening your family.
Falconer compared Harper’s agenda to similar “tough on crime” agendas implemented decades ago in both California and New York State (largely part of the War on Drugs). Incarceration rates were dramatically increased, and today California houses 170,000 prisoners.
The American experiment has failed. While incarceration rates increased dramatically in the US compared to Canada, the crime rates of both countries remained similar. The US now has a financially unsustainable prison population, and nothing to show for it. Arnold Schwarzenegger has abandoned the “tough on crime” approach in favour of funding schools.
Studies have shown that incarceration raises an individual’s disposition toward crime. Incarceration disproportionately affects native communities, the poor, the mentally ill, and other disadvantaged groups. Yet instead of seeking to remedy the causes of crime, instead of seeking to ameliorate the conditions of these groups, we have the newly-minted Senator Bob Runciman crowing,
This despite the fact that crime rates have been dropping for years. This despite empirical evidence that tough-on-crime has failed in the US. The politicization of dialogue creates the false illusion of irreconcilable extremes. The reality should not be “hug-a-thug vs. Law and Order” – there is a solution that rests without the extremes.
The Case of Derek Twyman: A Punishment of Unusual Cruelty
From time to time we read or hear about sentences for startling amounts of time to be served by those convicted of serious crimes south of the border. Hundreds of years in prison or multiple life sentences are examples of some of the extreme punishments ordered by U.S. judges in cases where society is expected to agree that the crime committed is simply so heinous that the offender should never be free again.
Could burglary be such a crime?
Derek Twyman was 14-years-old when he and his family moved from the province of Ontario to the state of North Carolina. His father, Donald, had plans to start a furniture business there, and the family was going to build a future for themselves in the south. Unfortunately, shortly after moving to the U.S., Derek fell in with the wrong crowd and got caught up in a lifestyle that included a tendency to participate in acts of juvenile delinquency.
In 1989 he was on parole when he was picked up by the police in connection with a series of break-and-enters of homes belonging to affluent residents in North Carolina. Derek plead guilty to the offences he was accused of, but was shown little mercy by Judge Thomas W. Ross, who sentenced him to four consecutive 40-year sentences in prison – an astonishing total of 160 years behind bars for non-violent property offences. His projected release date is the year 2055, when he will be approximately 90-years-old.
The law that provided for such an excessive sentence was the misnamed Fair Sentencing Act, which was replaced in 1994 by the Structured Sentencing Act in an attempt to restore credibility and appropriateness to sentencing. Under the new law, someone who is facing the same groups of charges that Derek did in 1989 would only serve a maximum of 7 ½ years upon conviction, as opposed to the unthinkable century and a half given to Derek.
Putting aside for a moment the well-founded allegations that the original sentence constitutes cruel and unusual punishment, many would think that the new law would at least apply retroactively in order to halt the continuation of unjust sentences set down under the old law. Unfortunately, the Structured Sentencing Act does not apply to offences committed before October 1994, undeterred by the fact that a comparison between the old and new legislation clearly depicts a gross disproportionality between the sentences that raises serious constitutional concerns.
And given that Canada is the only country to which Derek holds citizenship, where might the political forces of Ottawa enter into this mess? Nowhere it seems. Despite Canada being a signatory to the International Prisoner Transfer Program with the U.S., Derek says that to date the Canadian government has not yet attempted to help him in any way, instead choosing to ignore such inhumane treatment of a Canadian citizen imprisoned abroad. If one looks to the requirements a prisoner must meet in order to be considered for a transfer, he is a perfect candidate with the exception of one thing: restitution.
The presiding judge who sentenced Derek to prison also ordered that he pay over $60,000 in restitution to the affluent residents whose homes he was convicted of burglarizing, even though insurance policies likely covered most (if not all) of the losses. The restitution order states that this amount must be paid before Derek can even be considered for deportation to Canada. Apparently it wasn’t considered at sentencing that the convicted person going to prison for 160 years eliminates any realistic possibility of the restitution ever being paid.
Nor did it appear to dawn on the court that by the time Derek is eligible for his next parole review (on merely the second of the four 40-year sentences) the total cost of incarcerating him will be approximately $675,000. In the unlikely event that the intended recipients of the restitution were not covered by insurance, and actually needed it as compensation, the potential fulfillment of that opportunity was most definitely quashed in the most ironic of ways.
Even through the desperate arguments that the prison sentence and accompanying restitution were attempts at promoting deterrence, this entire fiasco reeks of a typical “tough on crime” attitude gone terribly wrong. Word of this travesty is spreading, but at the present time Derek’s liberty is the price being paid for the complete and ignominious failure that was the Fair Sentencing Act.
Derek hasn’t lost hope though. Having now spent over 19 years behind bars for this crime, he still manages to keep his spirit up and remains confident that people will take notice of this injustice. No human being should have to endure the kind of wrongful treatment that he has been subjected to. Now is the time for all of us to add our voices to the growing call for Derek Twyman’s long overdue release.
To help Derek gain the justice and freedom he deserves, please take a moment to sign this online petition:
www.petitiononline.com/dtwyman
