Getting Tougher on Getting Tough

In Part One of “Getting Tough”, I focused mainly on the negative consequences “Tough on Crime” policies have had in the past and the odds that we will see similar consequences here in Canada once the crime bill recently passed by our Conservative government come into effect. This week, I’m going to be looking at the arguments underpinning the Tough on Crime train of thought in general. I touched briefly on the perceived value of focusing on victims’ rights, and I will be coming back to expand on that a little, but in addition I’ll take a look at things like “three strikes” and retributive justice theory more generally. There are a lot of people out there who are really on board with this idea, but I have my doubts that they’ve ever taken the time to sit down and take the whole thing apart to see what parts are solid or not (spoiler: there are way more parts that are not), and I think it is a good idea to be prepared to address these well-intentioned people in open and honest terms, rather than dismissing them as bigots or ignorant brutes, because they usually aren’t either one.

Walking over some previously covered ground, the appeal to victims’ rights is one that holds a considerable amount of emotional cache, and is very compelling to many people. The idea is that when we exact larger punishments and penalties from offenders, there is a ledger of harm that is balanced out by an unseen bookkeeper, giving victims of crime a better credit to their account. While emotionally appealing in a, “You’ve hurt me, now I want to see you hurt at least the same amount to make up for it,” kind of way, when you look at the reality of things, it doesn’t track very well to the real world. What is the conversion rate between prison time and physical or emotional harm? How much time in prison balances out against punching someone in the face? What cash value for a fine ought to be assessed against a rapist? Do we really want to say that life experiences and cash are fungible, that we can trade harm for harm like some kind of karmic trading floor? When stated in these terms, the flaw in the “victims’ rights” argument starts to become clear, but to bring the point home, how much cash would you require in exchange for your child’s life? Let’s say someone has murdered your child; what financial penalty would you say balances the books on your son or daughter’s life? Name whatever figure you’d like, there is no sum of money, and no length of time that will fill the ragged gap in a parent’s heart that kind of thing tears out. Trying to apply accountancy to that kind of question is like trying to use a screwdriver to cut a piece of wood; it may be able to get the board cut eventually, but anyone with sense knows it’s the wrong tool for the job at hand. For far too many crimes, there can be no direct correlation between the offence and the punishment laid down by the justice system, and trying to sell citizens on the concept of victims’ rights is misguided good intentions at best, disingenuous pandering at worst.

In connection to the matter of mandatory sentencing touched on in my previous post, what is commonly referred to as the Three Strikes Rule in the US or the Dangerous Offender designation in Canada, the UK and Wales can be seen as a point of contention. In states with a Three Strikes rule, anyone convicted of three felony offences is given a life sentence, regardless of the severity of the crimes committed in some cases; people have been given 25 years to life sentences for crimes as minor as having a couple of pockets full of cookies after a failed burglary attempt, on the basis that it was the offender’s “third strike”. As in the more general case of mandatory sentencing, the application of the three strikes rule ties the hands of judges and prevents them from doing the job they were put on the bench to perform. We have judges in our courts so that they can, for lack of a better way to say it, judge; these are people who have spent years, decades, in the legal system and it is the experience they gain in that process that is valuable on the bench when determining guilt or innocence, and when deciding what the appropriate punishment for a given crime ought to be in that particular case. Legislation can give guidelines for punishments, but there is no way for legislators to assess what would be a fair punishment for all crimes in all cases, but this is precisely the position minimum sentencing puts them in. Blanket pronouncements are not a good tool for criminal justice systems, for what I think are fairly obvious reasons, but what may be obvious to me could be obscure to others, so I’d better show my work.

Given Case A, wherein the offender has been found guilty of drunk driving, but makes an honest and convincing case that he had been unaware that the beverages he’d been drinking contained alcohol, ought we demand the same punishment as we do in Case B, where the offender knew full well that he was drinking alcoholic beverages, and still chose to drive while he was aware that he was definitely over the legal limit? A mandatory sentencing outline would apply the same penalty in both cases, but would anyone call this justice? One man was unaware of his rising blood alcohol level, and did not realize he was impaired when he drove his car, the other knew he was drunk but didn’t care; who would judge the two acts as deserving of the same punishment? Ignorance of the law is not an excuse, but shouldn’t it be a mitigating factor when deciding on how severely we want someone to be punished? This is just presented for the contrast, of course there are going to be cases that fall all over the spectrum of ill intent, negligence, or accident, but that is exactly the point; treating all crimes as equivalent the way minimum sentencing does results in an inevitable justice gap when put into practice.

While it is being expanded in some ways I personally disagree with, the Dangerous Offender designation stands in contrast to the Three Strikes Rule in that it is applied after the fact, by a parole committee who are evaluating a prisoner’s relative threat level to the community. It is not applied as a blanket covering all offenders who have committed a prescribed number of crimes (yet), it is a discerning process that looks at context, the prisoner’s personal history, and makes a determination based entirely on the particular person. If someone genuinely represents an unacceptable risk to the community, it is not unreasonable or unjust to continue holding them indefinitely; that is prudence, not vindictiveness. The reality is that there are people in our prison system who are simply not safe to have out on the streets; they objectively present a high risk of harm to society, and keeping them separated from the rest of us is kind of the whole point of prison in the first place. Jails are for holding people away from the community when they have done something that indicates they are incapable of co-existing peacefully and lawfully with others; it isn’t about ensuring victims’ rights are accounted for properly to the penny, it’s about reducing the number of victims in general.

One of the biggest flaws in retributive justice theory, as stated in the previous post, is that it is incapable of dealing with “victimless” crimes like drug use and prostitution, because there is no individual injured party to gain retribution for, no harm to visit upon the offender in return for the harm they’ve done someone else. At best, these can only be accounted for in some kind of “crime against society” sort of way that makes the entire community into the injured party seeking a reckoning, but this can only be done by viewing society as a unified agent with a common interest in outlawing the act under consideration. By recognizing the simple fact that the offender is almost always a member of that supposedly unified agent, the argument begins to unravel almost immediately, and falls apart completely in cases like cannabis use, where in fact most of the community favours decriminalization. While decriminalizing pot isn’t something I oppose, the many people out there who subscribe to a retributive justice model face an impossible challenge in hanging on to both their theory of justice and their desire to keep pot and prostitution illegal. There is as much justification (or more) for making alcohol and cholesterol illegal when you zoom the concept of “victim” out so broadly that moral offence comes to be seen as a legitimate harm that merits retribution.

Finally, there is the second justification for “Getting Tough on Crime”, that it serves as a deterrent to potential criminals and reduces the number of crimes committed out of fear of stiffer punishments. As illustrated previously, this is simply not borne out in the actual data. States with harsher punishments do not have lower crime rates, the opposite is true almost universally; whatever reason you want to give for this, the fact remains that cranking up punishments absolutely does not reduce crime rates. Personally, I think it’s a combination of crime rarely being the result of careful, rational deliberation weighing out the pros and cons of various courses of action, and the effects of packing more and more criminals into “Con College” for longer and longer terms. When you stop and think about what must be going on in the heads of people committing crimes, how many of us picture a calm, reasoned inner monologue going over the outcomes of a set of considered options? Does anyone really think that a rapist gives any consideration to the potential negative consequences of his actions? Or maybe that a heroin addict is considering the length of prison terms she faces in the event she’s caught in possession of narcotics? Can anyone seriously present these as likely scenarios? Of course not, criminals are, by and large, the result of poor impulse control and a narcissistic inability to picture anything bad ever happening as a result of one’s actions. Deterrence only works in cases where you’re dealing with rational people choosing their course of actions based on good reasoning, and this simply does not describe the real world we live in. The result of longer prison terms is that you extend the time small-time criminals (who may have been rehabilitated through community outreach programs) spend among hardened career criminals and learning how to commit more serious crimes. The 18-year-old thrown in jail for three years on a minimum sentence for pot possession under some circumstances comes out a very different person, and our current prison systems very rarely change people for the good. What your mandatory minimum sentence has done is turn a kid (let’s be honest, 18-year-olds are mostly still kids, we just decided to draw an arbitrary line and have stuck with it) into a victim looking to pass on the hurt he experienced while he was in prison. Or do you think forced sodomy is good for a young person’s character?

In the end, there really is no solid argument to be made for policies like what we’ve seen in the Three Strike states or in Harper’s newly passed crime bill. These are not laws that protect the community, they do not balance the books on victims’ rights, and they result in heavy negative consequences for everyone who doesn’t own a prison. All that will ever come of “Tough on Crime” policy is a self-sustaining cycle of victimization and an ever-increasing prison population; I don’t know about you, but this is not something I’m interested in seeing implemented in my community, and we need to voice our opposition to this wrong-headed movement in our governments. It is nothing but pandering to the worst instincts of humanity: a desire for vengeance when we feel we’ve been wronged, prejudicial attitudes against the “other”, and a misguided and outdated notion that sparing the rod spoils the child. Basing our legal system on this foundation is the surest way I can think of to separate the concepts of “Legal System” and “Justice System” completely.


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