Great article by Conrad Black from the National Post, March 11, 2011
A friendly acquaintance recently was moved to publish a reply to a National Post column I wrote about crime and punishment several weeks ago. He showed me a draft of his article, which led to a sharpish and entertaining, but not very enlightening, exchange, as he defended the Conservative government’s Roadmap to Strengthening Public Safety, a collection of harsh policies that I had attacked in this space as “bad, unjust and expensive.”
His draft -which, though argued in good faith, misconstrued my opinions on the subject -persuaded me that I owe readers greater clarity regarding what I object to in current government policy, and what reforms I suggest.
My greatest objections to the so-called roadmap are that it proposes to tighten the regime governing visits to prisons, and would narrow the discretion available to judges in order to make prison sentences automatically longer. I further object to the over-use of imprisonment, having been confined to a prison in the United States for 29 months, as inappropriate for many of the criminals who are sentenced to it (quite apart from the very many in the United States, and significant number in Canada, who are not actually criminals, yet have been convicted nonetheless after being bulldozed by the unequal correlation of forces in favour of prosecutors).
I believe in the exercise of liberty by apparently responsible people up to the limit that their exercise of liberty does not compromise the right of others to the same liberty. In a statutory framework, such a principle argues that judges must have reasonable discretion to assess guilt and balance punishment with the desire to encourage, where practical, the swiftest possible successful return to normal life of convicted people who are judged to be a threat neither to society nor the physical safety of anyone.
In the case of all but the most dangerous, repulsive and sociopathic criminal acts, places of detention should aspire, if they are not just transitory holding tanks, to be repair shops and not garbage dumps. Accused people must genuinely be presumed to be innocent, and convicted people who have served their sentences must genuinely be presumed to have paid for their misconduct.
I oppose the death penalty, because mistakes inevitably will be made, and because the spectacle of the state ceremoniously taking a life is barbarous and disgusting, and demeans everyone in the society that approves the practice. I am no hemophiliac bleeding heart, but nor am I one of the “hang ’em, jail ’em, flog ’em” set. The roadmap takes no account of the special circumstances of First Nations people, who would be its chief victims, nor of the steady decline in most categories of crime as the population ages and law enforcement techniques become more sophisticated.
It should never be the objective of the state to shatter the family and personal life of prisoners. Even those thought to be probably incorrigible are entitled to the retention of some connection to people not similarly situated who want to see them; and it is indisputable that normal family, romantic and friendly relations with law-abiding people are a stabilizing influence on people. I well know this from my own experience and observations as a prisoner; and there is absolutely no excuse, apart from primal vindictiveness, to apply the restraints on prison visitors proposed by the roadmap.
The proposal to have glass barriers between visitors and inmates at all times, in particular, is sadistic and dehumanizing. And the excuse given -to eliminate smuggling of contraband -can be accomplished in other ways. Ninety percent of such traffic is conducted by suborned correctional officers anyway.
The roadmap’s ambition to take sentencing latitude away from judges (which already has been partly enacted) is a usurpation by the legislators of the judicial function. The judge administers the evidence and monitors the case and knows the facts.
Of course, the intelligence and fair-mindedness of judges vary widely, and some are hopelessly miscast (I know something about that, too, in both the United States and Canada). But they are virtually all better qualified to try a case and bring down a sentence than uninvolved legislators shooting arbitrarily from the hip before the fact.
Legislators may establish a range of sentencing that faithfully reflects an enlightened public level of concern at certain offenses, and these fluctuate over time. But it is not the role of the legislator to impose an iron-clad prejudgment of penalty of every convicted person, regardless of the detailed facts and of considerations of tempering justice with mercy.
The underlying suspicion of Stephen Harper’s government -which is that the bench is infested with softies and that it is right to punish crimes more severely than they have been in the past -is a reactionary and brutish reflex that is presumably aimed at a political constituency unlikely to stray into the arms of this government’s opponents anyway. Hand-cuffing the judges merely makes justice more unlikely. And simply raising the sentences for everyone, which is essentially what is recommended, is not justified by the recidivism rates in many categories of offence. It also would legitimize the repugnant concept that criminal penalties should exceed that which is necessary to expiate the past and discourage a return to crime.
I recommend many further reforms that diverge radically from the spirit of the government’s roadmap, and there is not space here to explore them all adequately. But I will summarize some of them.
Ontario Justice Marc Rosenberg’s recent criticism of the plea-bargain system (made in the context of a Toronto man induced to make a dubious confession) is absolutely correct. People are entitled to a day in court, and the plea bargain is based on intimidation.
The act of determining whether there is sufficient evidence to charge must, as in Germany, be put in independent hands that are distinct from the police and prosecutors. There should not be more ex-prosecutors than ex-defence counsel on the bench; the legalaid system should provide legicare for those who need it; poverty should not deprive people of their right to trial, any more than of their right to medical care. And a day in court should be a trial, not a rubber stamp of an extorted plea that shafts the accused and reduces the judge to the status of clerk. These changes would cost much less than the government’s proposed orgy of prison-building, and the public would be better served by them.
Prison should not be a place of languishing; its purpose should be punishment, reparable stigmatization other than for extreme offenders, and largely regimented time to be spent in activity sensibly designed to make the returning prisoner less likely to reoffend. This would include therapy, skills training and reorientation. It should be authoritarian enough to incite non-return, but not so heavyhanded that it over-penalizes and breaks the will of inmates to resume life with a promising likelihood of success.
I believe that many sentences would be better finished, or even entirely served, in pro bono outside work, whereby bonded employers would monitor performance, and the length of this form of service would depend on performance.
Obviously, such a program would have to be very carefully introduced, applied and administered, but prisons are more inflexible and nasty environments than is appropriate for many offenders. The idea of making them nastier and less remitting is uncivilized and unsuitable to this principled but generous country.