Prime Time Crime
(Published in the Similkameen Spotlight week of Nov. 1, 2004)
Deterrence Is So Un-Canadian
By
John Martin
There has been considerable controversy lately with respect to the Canadian justice system’s move away from custody and toward community supervision for offenders; including violent ones.
Many of the justifications for this shift are credible and sound. First, the cost of custody is financially exorbitant. There is a lack of evidence that incarceration changes offenders for the better. And there is also the issue of humanity and the position that incarceration constitutes state sanctioned cruelty. Although, if you visited a typical Canadian prison the only evidence of cruelty would be the cruel fact that inmates live better than many war veterans and senior citizens.
But the most cited argument on behalf of turning away from incarceration is the case that prison doesn’t deter. Indeed, the typical inmate has been incarcerated a number of times in the past and has probably been committing offences for many years. Punishment has done nothing to deter him and with each subsequent sentence, the effects of punishment became even less significant.
The threat of imprisonment may deter most of us from doing something stupid, but the people we should be most worried about, the repeat offender, have little concern over what the courts might or might not do. They’re used to it and laugh it off. A short stint in jail is just part of the cost of doing business and an opportunity to track down old friends. Or hold a family reunion.
But this shouldn’t be taken to mean that punishment doesn’t deter. What it means, is that Canada’s approach to punishment doesn’t deter.
The 17th century Italian philosopher, Cesare Becarria, wrote extensively about crime and punishment and concluded that in order to deter, punishment must be founded on, and embrace, specific characteristics.
He noted that punishment must be severe. Not overly severe, but severe enough to outweigh the potential benefits of crime. Fining someone a thousand dollars for growing a quarter-million dollars worth of marijuana is probably not a sufficient deterrent.
Punishment, according to Becarria, must also be certain. If a person gets convicted they will always receive the stated penalty. In Canada, we give judges enormous discretion which runs counter to the concept of certainty. A person might get a jail term for a particular offence. But they might also get probation and community service. Or, they might get a discharge and walk away without so much as a criminal record. In fact, most first time offenders aren’t even prosecuted. The imposition of a specific punishment in this country is far from certain.
Becarria also notes that punishment should be carried out swiftly. This maximizes the psychological impact of “do the crime – do the time”. The concept of “cause and effect” can only be realized if punishment follows the criminal act as soon as practically and legally possible. Again, the Canadian system is so slow that it may be several years between the commission of a crime and the serving of the actual sentence. And in the meantime, the offender may have committed numerous other offences.
Unlike Canada, some jurisdictions have realized the error of their ways and are re-examining Becarria’s concepts and reforming their justice systems accordingly. In Washington State for example, judges simply refer to a sentencing grid once someone has pled guilty or been convicted. The punishment for a particular crime is virtually pre-established and the judge has very little wiggle room. And so long as the sentence falls within this legislated range (for example; 18-22 months), there is no option for appeal.
Consequently, the sentence is not based on how convincing a sad story the defendant can put together about his childhood. But rather, the sentence is an assessment of the seriousness of the actual crime. Everyone essentially receives the same sentence and because sentence appeals are not allowed, the punishment is carried out in a timely manner.
It’s not that punishment doesn’t deter. It’s the Liberal Canadian style of punishment that is a failure. Mind you, what Liberal policies haven’t failed miserably?
John Martin is a Criminologist at the University College of the Fraser Valley and can be contacted at John.Martin@ucfv.ca