Are We Really Soft on Crime?
The federal Department of Justice boasts Canada's biggest concentration of legal brainpower. Of its roughly 4,300 employees, about half are lawyers, and its policy branch alone employs about 200 bureaucrats. Not surprisingly, the department has a long history of producing sophisticated policy papers and commissioning probing research on CRIME and punishment. So as the CONSERVATIVE government continues this fall to roll out its long series of tough-on-crime initiatives built around mandatory minimum penalties for a raft of offences - from gun crime to big-time fraud - it would be reasonable to expect a thick stack of Justice studies explaining why dictating longer prison terms is the way to go.
But Justice Minister Rob Nicholson doesn't offer up any departmental research at all to support the Tories' major law-and-order thrust. Nor does Nicholson rely on reports by independent experts to buttress his case for telling judges how long they must lock up criminals for a slew of offences. Instead, in response to requests from Maclean's for any analysis or data justifying the new minimum sentences, his office produced a 1,000-word memo explaining the policy. It candidly admits that research doesn't offer persuasive evidence that mandatory minimum penalties, called MMPs for short, reduce crime. "In our opinion," it says, "the studies are inconclusive particularly with respect to the main debate: do MMPs deter crime?"
If they can't be shown to act as a deterrent, why put MMPs at the core of the government's high-profile anti-crime push? Nicholson offers a list of seven other reasons. Some are rarely, if ever, mentioned in the government's relentless tough-on-crime messaging, like the goal of ensuring that criminals "spend a minimum amount of time in custody to receive the treatment and rehabilitation they need." The memo also cites the aim of keeping criminals behind bars long enough to disrupt their gangs. But the top reasons on Nicholson's list have to do, not with actually fighting crime, but with assuaging the anger of law-abiding citizens who believe the system coddles the bad guys.
The top item on Nicholson's seven-point list: "ensure victims feel that justice has been rendered." And the second: "ensure that the amount of time served is proportional to the gravity of the offence." It's these linked objectives that clearly stand at the centre of the government's MMP policy. They combine into an undeniably powerful argument: if judges refuse to hand down sentences that fit the crime, then victims will feel doubly victimized and society understandably outraged, leaving the government little choice but to legislate longer prison time.
This seemingly irrefutable line of reasoning, however, rests on the premise that the government knows sentences now being handed down by the courts are too light. In fact, they often haven't bothered to collect that information. Nicholson's office and his departmental officials admit they have not compiled statistics on typical sentences in convictions for most of the crimes they've targeted for MMPs. And it's not always clear the new minimum terms will be any tougher than the sentences often imposed up to now. For instance, the government announced last month, with much fanfare, that fraudsters who net more than $1 million will face at least two years in prison under a new MPP. According to some experts, that's low. Vancouver lawyer Eric Gottardi, who chairs the CANADIAN BAR ASSOCIATION's criminal law subsection in his city, says that when a white-collar criminal in an authority position is convicted of major fraud, the "quite settled" pattern is for the judge to hand down "a sentence in the range of three to five years in prison." And the penalties can be much tougher in extreme cases, like the crooked financial adviser convicted in a recent high-profile Montréal case, Vincent Lacroix, who was sentenced to 13 years.
Statistics on gun crime are particularly murky, since firearms offences often occur in combination with other crimes, like drug dealing or robbery. The government's Tackling Violent Crime Act dictates at least a five-year sentence on the first offence and seven years on subsequent convictions for using a gun in the most serious crimes, like attempted murder or hostage-taking. But will that really translate into significantly stiffer penalties? For 2005-06, the latest Statistics Canada figures available, the average prison term for all firearm-related violent crimes - including many offences less serious than the ones targeted by the new mandatory minimums - was just over four years, about double the typical sentence for the same crimes committed without a gun.
The government's refusal to present detailed evidence of soft sentences to justify imposing minimums makes this a debate more about impressions than facts. That frustrates criminologists who argue that the research, by and large, doesn't show much measurable benefit from MMPs. Simon Fraser University criminologist Neil Boyd says mandatory minimums might be justified, but only if they were more narrowly targeted. Rather than the government's proposed two-year minimum for anyone convicted of growing 500 or more marijuana plants, he suggests "smart and focused" tougher sentencing only for those who use guns, set spring-traps or endanger children in running a grow op. Boyd slams the broad application of MMPs by the Tories as "not tough on crime, but stupid on crime."
That's exactly the sort of exasperated expert reaction Conservative strategists welcome. Ian Brodie, the former university political science professor who served as Prime Minister Stephen Harper's chief of staff from 2006 to 2008, explained why in an unusually candid talk on Conservative strategy last spring at McGill University in Montreal. "Every time we proposed amendments to the Criminal Code, sociologists, criminologists, defence lawyers and Liberals attacked us for proposing measures that the evidence apparently showed did not work," Brodie said. "That was a good thing for us politically, in that sociologists, criminologists and defence lawyers were and are all held in lower repute than Conservative politicians by the voting public. Politically it helped us tremendously to be attacked by this coalition of university types."
The popularity of any policy sold as a crackdown on crime is a given around Parliament Hill. As a result, Liberals show little interest in pushing back against the Conservatives' law-and-order agenda. Some NDP MPs, including Libby Davies and Megan Leslie, have been more willing to challenge Nicholson. When he appeared before the House justice committee last spring, Davies repeatedly pressed him for evidence that MMPs work. He didn't offer any. "We have the mandate of the Canadian people," Nicholson answered, "and they have told us that this is what they want to see us move on."
The policy extends beyond mandatory minimums to other measures aimed at locking up criminals for longer. Public Safety Minister Peter Van Loan, Nicholson's partner in combatting crime, recently announced a range of measures to make it harder for prisoners to get parole. Under a program introduced in 1992, non-violent, first-time offenders often qualified for parole after serving only one-sixth of their sentence. Van Loan is ending that practice, along with the routine granting of full parole when prisoners have served one-third of their time. He estimates the move to make it harder to qualify for parole will cost $60 million a year to pay for keeping non-violent criminals behind bars longer.
Like mandatory minimums, the tougher parole rules play on the public fear that criminals will return to crime soon after they're let out. It happens, of course, and sometimes with tragic and highly publicized results. But statistics suggest only a tiny minority of offenders commit new crimes while on parole. Correctional Services Canada, part of Van Loan's department, says 1.3 per cent of federal offenders were charged with another violent offence while they were out in the community under some form of supervision in 2006-'07. After serving their entire sentence, about six per cent of violent offenders are convicted of another violent crime within two years, just under 10 per cent within five years. About the same proportion of non-violent offenders - one released prisoner in 10 - are convicted for another non-violent crime within five years.
Dry data of this sort doesn't make it into speeches by Nicholson and Van Loan. It's only fodder for discussion among those "university types" disdained by a government that asserts, when it comes to crime, a higher "mandate of the Canadian people." A more thoughtful debate might include a discussion about how to identify that minority of convicted criminals most likely to reoffend, rather than lengthening time behind bars for broad categories of prisoners. It might seek to first establish a clear understanding of what sorts of sentences judges are actually handing down, before prescribing mandatory minimums as an all-purpose solution. As it stands, Canadians are hearing plenty of the tough-on-crime rhetoric they clearly crave, but not much about evidence-based policy thinking to back it up.
Maclean's November 16, 2009