I would like to thank the organizers for the invitation to provide the 2011 Alberta Law Review Lecture. I am always happy to be back in Edmonton and it is indeed a pleasure to be with you tonight. I am honoured to follow so many noteworthy speakers to this podium.
As I begin my remarks, I will be posing a number of what might appear to be rhetorical questions. Criminal justice is one of those rare fields of endeavour where the use of loaded language collides directly with policy-making. Rhetoric cannot be avoided.
And so let me begin by posing a few provocations:
- Are revenge and retribution valid public policies?
- Is punishment more desirable than rehabilitation?
- What does it really mean to be “soft” or “tough” on crime?
- Are compassion and forgiveness really the enemies of Justice?
- At a time of falling crime rates, how many of our citizens do we want or need to send to prison in order to feel safe?
In an address to Parliament 100 years ago, a young Winston Churchill famously observed that “… the mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country.” As Churchill would remind us today, our jails and penitentiaries reflect the kind of society we are, the collective values we embrace and cherish. How we regard and treat prisoners is still one of the “unfailing tests” of our commitment to human dignity and decency.
The Corrections and Conditional Release Act, the statute governing federal corrections, expresses these values as follows: “offenders retain the rights and privileges of all members of society, except those rights and privileges that are necessarily restricted as a consequence of the sentence.” Notice that even while deprived of liberty, an incarcerated individual is still considered a citizen – the Rule of Law does not end at the prison gate. A prison sentence is to be administered within, not outside, the boundaries of law.
The same CCRA grants legislated authority to my office – the Office of the Correctional Investigator. The Office had been in existence since 1973, but did not have a statutory mandate until 1992. As Correctional Investigator, I serve as an Ombudsman to federal offenders and report to Parliament on the issues they face. Essentially, my office exists to help ensure federal correctional practice operates in compliance with the law and is respectful of human rights obligations.
Since its creation, the Office of the Correctional Investigator has been an important part of safeguarding both the rights of offenders and in making Canada a safer place. Public safety is enhanced by ensuring that offenders are treated fairly, provided the necessary assistance to address the factors associated with their criminality and reintegrated into society in a timely and supported manner.
I spend my workdays trying to make Canadian prisons as good and useful as they can be; but make no mistake: I am no fan of imprisonment. Prison is a simple response to a complex problem, and is too expensive and too often ineffective to be used indiscriminately.
Prison populations don’t necessarily include the worst of us, but certainly include the impoverished, the poorly-educated, the mentally ill and the addicted. In fact, a walk through a Canadian penitentiary reveals that current criminal justice policy captures a disproportionate number of the most marginalized within our communities.
I believe that lower, not higher incarceration rates are a measure of a mature, balanced and safe society. I would argue that high rates of imprisonment have little to do with high crime rates, and more to do with the abandonment of the hard work it takes to build healthy communities.
The reach of the penal state is vast and the culture of imprisonment casts a wide shadow.
There are currently over 3 million Canadian adults with a criminal record. Today, there are over 14,000 prisoners in federal custody, another 25,000 in provincial jails, 8500 on parole and thousands more sentenced to probation, community service or house arrest.
The federal correctional system alone consists of 57 sites spread across the entire country employing nearly 17,000 people who use a network of more than 16,000 computers to do their work. A large, sophisticated and technologically advanced system to administer court-ordered punishment. And it is growing. The Public Accounts recently tabled by the government reveal a 21% budget increase for the Correctional service of Canada.
Punishment happens when the cell door closes. The separation from community, the deprivation of liberty, and the austerity inherent to the conditions of confinement found in a federal penitentiary guarantee that.
None of our criminal sanctions, including the most severe, involve the abandonment of humanity or the degradation of human dignity. Offenders are to receive care, as well as safe and humane custody and control. We send people to penitentiaries operated as correctional centres . It is within these centres that the orders of the court are carried out. And, according to law, carried out in the least restrictive manner consistent with public safety. No more intervention then necessary is the legal requirement. In Canada, offenders are sent to prison as punishment, not for punishment.
These principles – the notion of retained rights, the obligation to consider the least restrictive measure to ensure public safety, respect for the rule of law, consideration of human dignity and the capacity of an individual offender to reform – define our criminal justice system … or at least they should. Public trust and confidence in the administration of justice depends upon these principles.
But what happens when there is an erosion of these principles in the correctional setting, when the “least restrictive” measure consistently looks like anything but? What happens when use of force is less and less guided by this standard? When pepper spray becomes a tool of first resort, and excessive displays of force are common place? When charging and displaying of a firearm is no longer considered a reportable use of force? When warning shots are fired as an intimidation tactic? When more and more offenders serve their sentences in segregation and at higher security levels?
These are not rhetorical questions. These things are happening now, and the principle of the least restrictive measure, referred to throughout the Criminal Code and the Corrections and Conditional Release Act , is about to be replaced. Bill C-39 , has passed second reading and has been referred to committee for study. It replaces “least restrictive” with the words “necessary and proportionate”. This is part of what has been referred to as the “tough on crime agenda”.
We have all heard about this agenda. It comes with its own language and bumper stickers: adult time for adult crime, don’t hug a thug, prisons become Club Fed, moderates become bleeding hearts, and opinion leaders talk of taking back the streets and caution that you shouldn’t do the crime if you can’t do the time. Of most concern to me, there seems to be no one speaking on behalf of the criminal justice system as part of this agenda. There is even a political fear of questioning the get tough rhetoric, lest you be labelled soft on crime.
Let’s explore that for a moment. What does it mean to be soft on crime? What would that look like? In my nearly three decades of criminal justice work, I have never come across anyone who promotes crime. I have never met anyone who wants people to get away with murder, or get a off on a technicality, or walk away scot-free. Yet, anyone who raises questions about the assumptions behind and the gaps within criminal justice policy is labelled as soft, and singled out as an enemy of public order.
Writing in his 1978 book A Just Measure of Pain , Michael Ignatieff said, “Despite the fact that the modern state has appropriated to itself a degree of power that would have thoroughly terrified our 18 th century ancestors, public discussion about social control in Western society conveys the impression of a state barely able to hold the line against criminality and terrorism.” He could have written those words today.
Before we go further, it is appropriate to consider a few additional facts about Canadian incarceration and crime rates. Statistics Canada confirms that police-reported crime in Canada continues to decline in both severity and volume, extending the general decrease seen over the past decade. The Crime Severity Index, a measure of serious crime, is almost 25% lower today than in 1999. The crime rate is 17% lower than a decade ago. Most violent crimes declined last year, including homicide, serious assaults, sexual assaults and robbery.
The national murder rate has not been this low since 1968. This is a significant statistic because a country’s murder rate can be used as a barometer of the general level violence in society. And there is also little evidence that our judicial system has somehow or miraculously gone “soft.” In the last decade, jail time for violent crimes like murder, attempted murder and major assaults has stayed more or less the same or gone up.
But who needs facts when we have opinions? Who needs evidence when we simply want to believe that crime is up?
Law and order is a handy political football, waiting to be tossed into public debate whenever an attention diverting “wedge” issue is needed. All political parties have played in this game. And members of the public applaud and cheer because the simple get tough solutions appeal to them. But why?
Why is it that while crime is down, rhetoric is up?
We know that public perceptions of crime and safety are mediated through a number of filters, not all of them accurate or reliable, or necessarily even based in reality. They are, after all, perceptions. The majority of Canadians get their information about crime and the criminal justice system from television, newspapers, and increasingly, YouTube and the Internet. The problem with these information sources is that they tend to sensationalize and over-represent violent crime, which in turn can lead to distorted perceptions about the frequency and nature of crime.
In his 2008 book titled Risk , Dan Gardner wrote “Politicians, newspapers, the evening news, novels, movies: They are all portraying the fantastically rare as typical, while what is truly typical goes all but unmentioned. And that’s true ...of all crime.”
Curiously, public polling suggests that crime barely registers as a “top-of-mind” issue for most Canadians. Jobs, the economy, health care and the environment consistently lead polls as issues of concern. For instance, when asked last January which issue the government should focus on most, only one per cent of Canadians answered crime.
This mismatch between perception and reality is not just a Canadian phenomenon. American Criminologist Susan Sun Beale reports that in the US, where one out of every 100 residents are in prison or jail, 74% of respondents to a recent survey said “Courts are not tough enough”.
Speaking of the States, they seem to be moving away from what many now consider being a failed experiment. The incarceration rate flowing from the “war on drugs” is unsustainable and has proven to hurt the very communities the laws were designed to protect.
In 2009, the state of California was ordered by the U.S. District Court to reduce it prison population of over 156,000 to 137% of design capacity. You heard me right – to reduce it numbers from the dangerous level of nearly 200% of capacity to only 137%. The expensive overuse of incarceration, driven by mandatory minimum penalties associated with the “war on drugs” and “three strikes” legislation was bankrupting the State and leading to numerous lawsuits against the government. It was estimated that on average, one inmate per month was dying inside a California prison for no other reason than the inability of that system to provide adequate health care. In fact, it was the conclusion that overcrowding was the primary cause of inadequate mental and physical health care that lead to the court order.
While our neighbours to the south were locking people up in record numbers, some U.S. observers pointed to Canada as a model to emulate. Of note, many of those senior academics and practitioners are now saying “Didn’t you learn from our mistakes?” These American experts look at our recent and proposed legislative changes dealing with mandatory minimum sentences, credit for pre-trail custody, elimination of statutory release and restrictions on parole and lament that Canada is moving in the wrong direction.
The language of law and order works at an emotional level. It forces you to take sides. It uses excess to create false dichotomies – you are for or against crime – you either support victims or you don’t – you believe justice, safety and punishment are all the same thing. It is a dialogue of extremes.
As a reasonable person, I support the notion of holding people accountable for their actions and decisions, especially when they result in harm to others. But how we talk about law and order is often contrary to the principles upon which our criminal justice system is built. Somehow, we have lost sight that in our system, crimes are public, not private wrongs and the state only has the legitimacy to punish to maintain social order, not to provide private revenge.
The prevailing view from Main Street seems to be that the system is broken and offenders are having an easy time of it. From this perspective, prison does not appear to be harsh enough. Sentences are not long enough. The time does not seem to fit the crime. There is a sense of moral outrage and frustration with the perceived inability of the system to deliver Justice. Meaner, tougher, harsher, longer seems to be the order of the day. But does this perspective reflect reality, and if realized, would we be better off?
As I stated in my latest Annual Report, the environment inside our federal prisons is increasingly harsh, tense, volatile and stressed. As evidence, we see rising rates of use of force incidents, including the use of inflammatory and chemical agents, increased reliance on physical restraints and segregation and the pointing of firearms as a control measure. These operational realities are testing our idea of what constitutes good correctional practice.
It is important to be reminded of the fact that Canada already has one of the highest incarceration rates in the Western world. And, as I have reported elsewhere, our jails and penitentiaries are fast becoming the new asylums of the 21 st century. As a society, we are criminalizing and warehousing the mentally ill in alarming numbers.
This brings me to a comment made by Andrew Coyle, a former prison Governor in the UK, and founding Director of the International Centre for Prison Studies at King's College in London . Coyle has asserted the following: “The number of people in prison in any country is a matter of social and political choice . It is not a matter of crime; it is not a matter of crime rates; it is actually a matter of the public and government making a choice.
In a matter of speaking, according to Coyle, a country’s incarceration rate is the sum of the answer to the question: “How many of your citizens do you wish to send to prison?’” Coyle backs this assertion by referencing the fact that those who commit the most serious offences in society – murder, rape, physical and sexual violence – are sent to prison, sometimes for very lengthy periods. But, as he suggests, that is not where the difference in incarceration rates from one country to another is derived – the difference comes from the way society chooses to consequence those living at its margins – the poor, the vulnerable, the mentally ill, the distressed, and the deprived.
Being criminal is not intrinsic to the people caught within poorly functioning social structures, just as being innocent is not intrinsic to those living outside of those structures.
Deficits in the acquisition of cognitive skills, lack of self-respect, low achievement, family instability, poor attachment to community and limited participation in the work force are all linked to capture by the criminal justice system.
When considering policy options, we have had choices to make and we have chosen to be more punitive.
We have made choices that create criminogenic conditions (think of our drug policies), so why are we surprised when criminals emerge?
The effects of imprisonment on the life chances of the convicted are profound. A stigma is created and this stigma has social consequences that often lead to inescapable disenfranchisement.
In addition, one cannot fully appreciate the cost of imprisonment without calculating the enormous cost imposed upon not just those on the inside, but also on their families and communities.
We know that some populations are more at risk of coming into conflict with the law than are others. Propinquity to the police and other officials such as parole officers means more surveillance, more technical violations and more charges. We also know that one of the best predictors of future legal conflict is previous legal conflict.
A disturbing illustration of the selective nature of our criminal justice system is its impact on Aboriginal Canadians.
Across Canada, Aboriginal people are incarcerated at a rate which is nine times the national average. One in five new admissions to federal corrections today is a person of Aboriginal descent. One in three federally sentenced women is Aboriginal. In the Prairies, typically 80% of all those in some type of custody are Aboriginal.
You might be interested to know that when I checked last month, Saskatchewan Penitentiary, a multi-level federal penitentiary in Prince Albert, held a total of 668 inmates, of whom 433 or 65% were of Aboriginal descent. This week, the count at Edmonton Institution is 289, of which 142 are Aboriginal.
Compared with non-Aboriginal offenders, Aboriginal Canadians occupying a federal cell tend to be:
- over-represented at higher security levels
- regarded as being a higher release risk and having lower reintegration potential
Built for a different generation and profile of inmates, Canada’s federal penitentiaries are struggling to deliver the culturally appropriate programs and services needed to address these realities.
Aboriginal offenders tend to be released later in their sentences and more frequently returned to prison for violations of their conditions of release. In fact, when compared to non-Aboriginal offenders, they fare worse on nearly every correctional outcome measure.
Correctional authorities are dealing with some very complex inmate profiles, including histories of gang membership, substance abuse and chronic physical and mental illness. The offender population is greying, just like the rest of our society. The older offender population, those aged 50 years and above, has increased by 50% in the last decade alone. HIV infection rates are 7 to 10 times higher than in the general population while the rate of Hepatitis C infection is 30 times higher.
Approximately 8 in 10 new admissions to custody have a history of addiction, and approximately 30% have a mental health concern requiring attention.
These are all significant challenges. But they are not an excuse to do the wrong thing. The administration of justice and the Rule of Law must go hand in hand. To be legitimate, correctional authorities must operate lawfully.
When Madam Justice Arbour wrote in 1996 following her examination of events at the Prison for Women in Kingston that “ rules were everywhere but everywhere the Rule of Law was absent”, she was making a very profound observation, one which still resonates today.Justice Arbour saw the events at the Prison for Women not simply as an example of an individual deviation from policy, but rather as a systemic failure of a culture to follow the law.
Fifteen years ago, the Arbour Report raised serious questions about both the willingness and the ability of the Correctional Service to act lawfully.
These same questions are back in focus today as we try to understand the death of young Ashley Smith, who at 19 years of age died in a segregation cell while correctional staff looked on.
Offenders continue to die behind bars, sometimes in less than dignified ways. Suicide rates in federal penitentiaries are 3 times higher than the general population. For every completed act of suicide, there are approximately 20 attempts. As the work my Office has completed in regard to deaths in custody confirms, some deaths, like that of Ashley Smith, are preventable. Rates of self-injury in prisons – slashing, head-banging, ligature use – are also on the rise.
It is troubling that record numbers of inmates are being held to their statutory or warrant expiry dates, often because they cannot access the correctional and treatment programs they require to be supported for parole. Statutory Release – at the two-thirds point of an offender’s sentence – has become the number one form of access to the community. It was not supposed to be this way.
Keeping more and more inmates in ever more crowded and austere conditions, holding them for longer periods of time and releasing them in greater numbers without the benefit of effective interventions and programmes is not good or effective corrections. On public safety grounds, such practices are known to be counter-productive.
We know the vast majority of offenders are one day released back to society and it is therefore beneficial for us all if they return to their communities after having the opportunity to address the issues that brought them into conflict with the law in the first place. It is necessary that we operate a system that responds to offender needs, not just holds them for a set period of time.
No nation has ever built its way to safer streets. Prison construction ultimately reflects failure – failure in economic, social and educational policies, failure to treat illness, failure to create reasonable laws, failure to have meaningful alternatives to incarceration.
The government estimates the total cost of expanding the federal prison system over the next five years to accommodate anticipated growth will be $2 billion. The Parliamentary Budget Office estimates $5 billion. Whatever the exact amount, the budget for federal corrections can be expected to at least double in the next five years as the full slate of criminal justice and sentencing reforms comes into effect. We need to think clearly about whether the policy driving these costs offers us the best return on investment.
It is far from clear that we need to be harder, leaner or harsher in our treatment of prisoners. We are not necessarily rendered safer by the imposition of longer sentences or more austere and depriving conditions of confinement. Extending the use of incarceration to deal with some of our more complex and intractable social problems is an inappropriate and inefficient use of public resources.
Early on in my studies of criminology, I came across the humorously insightful observation that law enforcement was not a game of cops and robbers in which the citizens played the trees. Likewise, it is equally true that corrections is also not a game in which the public plays no part. Corrections is a trust – a covenant between the keepers and the kept on behalf of the rest of us. It is a contract that says in a society based upon the Rule of Law, transgressors will receive a consequence that is just, proportionate and fairly and impartially administered. We are all implicated in determining who goes to prison, for what kind of offences and for how long. We need to approach the question of how many of our citizens we wish to put behind bars with clear, deliberate and rational thought. We need to do justice as we respond to crime.