Tougher Laws = More Justice … Or Do They?

So, yesterday, a police officer in Ontario was killed.  Inevitably, we get cries of “this could have been prevented”, largely on the basis that one of the accused in the murder was out on bail awaiting trial for a series of charges.  

There’s a problem here:  the claim that this could have been prevented implies that the accused should have been in prison already. Yet, it’s relatively rare for a bench warrant to trigger a manhunt unless the charges are such that the accused is assumed to be a danger to the public - which most accused aren’t.  The police generally seem to sit back and wait for the person to turn up either of their own volition, or in a more mundane incident like a traffic stop. 

However, I’m not here to blame the police for not being aggressive in enforcing the bench warrant.  Just enforcing those could chew up a lot of resources that regional police forces probably don’t have. 

So what are the likely alternatives?  

Do Away With Bail? 

Doing away with bail - even in situations where the accused has convictions for similar charges in their past - could be enormously problematic. First, it violates the fundamental presumption of our legal system that the accused is innocent.  You are effectively “pre-punishing” someone by keeping them in remand in advance of any trial.  Generally we have sought not to do so because that detention is really for the “worst of the worst” cases. (Serial killers, extremely violent offenders, etc.)

Also, doing away with bail would have multiple knock-on effects in our justice system.  It would drive up the costs associated with Remand detention.  Keeping someone in remand is expensive, and taxpayers generally are going to be antsy about those costs. 

Given the often lengthy amount of time to get to trial, the time served could easily exceed any prison sentence that would be handed down.  That would almost inevitably result in a lot of people being released “for time already served” the day sentences are handed down. Not only does this miss the point of a justice system entirely, but it renders any notion of “punishment” academic at best. It also likely as not is going to turn the remand facilities into “criminal colleges”, whose graduates will go on to commit more crimes. (Remand is already bad enough for that effect due to a lack of rehabilitative programming)

Shorten The Time To Trial

Getting a criminal case to trial has been a problem for years now. To some extent, this is a matter of resourcing the justice system better.  The courts have also ruled that there is in fact a window of time that is allowable for a case coming to trial, after which the rights of the accused are deemed to have been violated. 

While improving the throughput of the courts is certainly a laudable objective, it’s not going to solve the problem of an accused offender going on to commit other offences while awaiting trial.  

Make Punishments Harsher? 

We could enact laws that impose ever harsher sentences, but to me that’s a failed experiment in 19th Century thinking. The argument that “harsher sentences are a deterrent” is simply false when you are looking at crime and punishment.  There is a validity to there being a significant penalty associated with criminal acts.  I’m good with that. We should never make the assumption that a particular punishment is in any way a deterrent to a criminal. 

In general doing so assumes that the prospective criminal is even thinking about the potential consequences of their actions at the time of committing (or even planning) an offence.  If that were the case, then there are entire countries where crime should be all but non-existent, and yet those countries continue to have the same, or worse, problems with crime.  

To be clear, I don't think there is a singular solution to the problem at hand.  We already know that our prison systems are overburdened, and vastly under-resourced when it comes to inmates and programming to help inmates become productive members of society post-sentence.  Far too much emphasis has been placed on punishment, not enough on rehabilitation, with the result that prisons in some ways become "Universities for Crime", and parolees their graduates. 

There is a need for society to address issues like systemic oppression, poverty, etc in an effort to reduce the long term negative consequences of those issues that so often lead to people committing offences.  

On the other side of the coin, while punishment needs to be punishment, we also have to look at how we prepare prisoners to function in the real world. Simply kicking them out at the end of their sentences with little or no supports is practically begging for them to return to the life of crime they knew before. That means making skills training, psychological supports, and safe housing available. 

In terms of prison structure and management, I think we should take a much closer look at the approaches used in countries like Sweden and Norway - with the caveat that those approaches will need to be adapted carefully for the kind of cultural mosaic that exists in Canada. Simply trying to pivot to it will fail. 

I think some of the ideas around the aboriginal concepts of restorative justice warrant further exploration, as do more flexible approaches to managing justice in ways that are culturally sensitive for the variety of cultural groups that live here today. 

None of this is easy, and all of it costs money. We need to stop acting like there are simple solutions to matters of crime and punishment. There aren't, and there never will be.