Legal Research

If I Had $1.8 Billion Dollars?

By Edward Prutschi

$1.8 billions dollars. That?s what the Truth in Sentencing plank of the Federal government?s ?get-tough-on-crime? policy will cost in new prison construction alone over the next five years. We?re not even talking about what it will cost to hire the additional correctional service employees to staff these new prisons. Keep in mind as well that Truth in Sentencing ? which eliminates the long-standing two-for-one credit on pre-trial custody ? is just one of the many new so-called anti-crime initiatives either already in force or soon to be in force courtesy of the Tory law-and-order agenda.

As a defence lawyer writing on this topic, many people will understandably roll their eyes and accuse me of getting rich off the back of Canada?s perceived ?soft-on-crime? history (an accusation I will most assuredly plead ?not guilty? to). To those people I ask you to indulge me for just a few moments. Yes, I make a living defending people accused of crimes. I also happen to be a citizen and resident of the same communities you all live in. I own a home I don?t want to be broken in to. I drive a car I?d prefer never get stolen. I want my wife to be able to walk through the park alone at night without being sexually assaulted. I pray my children never meet a paedophile. In short, I want to eliminate crime as much as you do. If crime were to be miraculously banished into obscurity tomorrow, I suspect none of you would begrudge me my employment insurance benefits and I would happily transition to a life of blogging, or travel writing. Maybe I?d even teach.

Now, with that out of the way, let?s address the issue at hand. If I had $1.8B to spend on fighting crime, would I be best served by using that money to keep criminals in jail longer? To answer this question in an intelligent and honest way, one needs to be equally intelligent and honest about the nature of deterrence. We put people in jail for a number of reasons. One perfectly valid reason is punitive. We want to punish those who have broken society?s social contract. It makes us feel good to see a bad guy get his due. Admittedly though, beyond satisfying our inherent desire for retribution, jailing people because it makes us feel good is the least utilitarian justification for incarceration. 

From a policy perspective, deterrence is a much stronger peg upon which to hang our custodial hats. We throw people in jail to convince the incarcerated individual to shape up, and to send a message to his friends on the outside that if they break the law as he did, they too will be sent to jail ? specific and general deterrence respectively. Once we start analyzing legislative reforms like Truth in Sentencing, and increases to mandatory minimums, through the lens of our deterrence objective, the misdirection of our government?s crime bills becomes readily apparent. Virtually every comparative sentencing study in existence has told us that incarceration does a terrible job of deterring anybody. America, with one of the highest incarceration rates on the planet, has to yet to reap the crime-free panacea that should surely have resulted from their decades of get-tough-on-crime legislation. In fact, there are many reasons to believe that lengthening prison sentences actually makes society less safe in the long run by creating custodial breeding zones in which criminals network and reinforce their anti-social tendencies only to be released into society more dangerous than they were when they went in. But you don?t need to be a social scientist to reach this conclusion ? you just need to think like a criminal.

Let?s assume for the moment that I?ve hit my breaking point. Legal Aid in Ontario is never going to pay me enough money to send my kids to that fancy summer camp they?ve been eyeing so I start rationally weighing the possibility of knocking over the liquor store near my law chambers. I?m pretty familiar with the various laws I?d be breaking and I figure with a good lawyer (like one of my partners) representing me, I?ll get no more than two years in jail if I get busted. Subtract from that double time for the days I spend in jail waiting for my trial and then knock a further third off my time for statutory release on Canada?s purportedly lax parole provisions and, bingo! I?m out in under a year. Fantastic. Point me to the nearest LCBO.

But wait! Thanks to the Truth in Sentencing amendments and changes to bail and parole provisions, now all of a sudden I?m going to do twice as much hard time! Better put aside my dreams of becoming a hardcore criminal and get back to docketing.

The example I have just presented is deliberately absurd. Yet it is precisely the type of calculus that our current crime reforms expect criminals to make. Deterrence isn?t failing because our sentences aren?t long enough. Deterrence is failing because nobody thinks they are going to get caught. If a potential criminal honestly believed that he would be caught committing a crime, whether the sentence for that crime was 2 years 4, years or 15 years would matter a lot less than the simple fact that he was going to get caught.

I?m going to assume that many of my readers have little to no experience planning a robbery so let?s focus this discussion on an offence we can more readily comprehend in order to sharpen our discussion on influencing criminal behaviour. Speeding. We all do it. Many of us do it all the time. Most of us have been caught and ticketed at one point or another. Yet, we still speed. Why? Because we know that if we speed every single day for 365 days per year, we might get caught once every 2-3 years. If the mandatory minimum fine for doing 20kph over the limit was raised to $1000 ? or even to 30 days in jail ? would we speed less? Maybe a little bit. What if you knew that every time you broke the speed limit by 20kph there was a 50/50 chance you?d get dinged with a $25 ticket? Or even a scant 10% chance of getting caught? Now that would cure even my lead foot.

Why do we assume that criminals are any more or less rational in deciding to engage in serious criminal activity? Granted, there are the truly psychopathic and the mentally ill who will continue to commit crimes even if they get caught 100% of the time but this tiny minority is the outlier of our prison population. If you surveyed Canada?s jails from coast to coast you?d be hard pressed to find even a handful of inmates who would admit to you that they expected to get caught when they committed their crimes. Rational criminals don?t both calculating the length of their potential prison terms as they (correctly) perceive the probability of being caught and made to serve a term of any length as being infinitesimally small.

Let?s apply my speeding example to a common but far more serious criminal offence ? impaired driving. Ontario has one of the most draconian penalty provisions for impaired driving anywhere in the world and our law-makers show no signs of reversing that trend. Why would anyone risk a criminal conviction, loss of their licence for 12 months, and a minimum $1000 fine to drive home drunk? Because ? they don?t think it?s much of a risk at all. In fact, they?ve probably done it dozens of times before and never been caught. Take that same average drinker and convince him or her that they have a 25% chance of being arrested if they drive home drunk and the penalty becomes almost irrelevant to their calculus because, no matter what the penalty is, it?s not worth it.

So, what would I do with $1.8B in Federal dollars to truly make our communities safer? Set up funds to allow Provinces and municipalities to hire police officers to better enforce the laws we already have. You don?t need to enact new mandatory minimums or keep offenders in jail for a few extra months ? all you have to do is convince them that they?re going to get caught in the first place.

Full post as published by Slaw.ca on September 24, 2010 (boomark / email).