When Prime Minister Harper introduced his National Anti-Drug Strategy (NADS) in October 2007, drug policy experts braced for the worst. The NADS promised to put good electoral politics ahead of good policy through the reinvigoration of punitiveness, one of many imports from the American criminal justice model which the Conservatives have incorporated into their politics.

The NADS essentially proclaims that drugs cause crime, that crime is bad and that therefore government needs to do something about drugs. The Prime Minster signalled unambiguously that his government would not permit a vision for drug control to be clouded by complexities arising from patterns of use, the failure of existing policy, human rights, the concurrence of drug abuse with mental illness and homelessness or other such distractions. The NADS was designed to harmonize with the government’s chest-pounding on crime and social disorder generally and to signal to true believers – in Canada and Washington – that the “new government” was “getting tough.” Drug prohibition – including the whole testosterone-fuelled “tough on crime” swagger so beloved by Conservatives – has the virtue of making elected officials appear to be “doing something” to address the violence that black markets invariably produce. “Cracking down” creates the appearance of muscularity for governments that seem otherwise hapless in the face of social trends they neither understand nor seem to be able to control.

The new punitiveness was coupled with deemphasis of the public health piece that had dominated Ottawa’s approach to drugs under Brian Mulroney and Jean Chrétien. Previous Canadian governments had essentially decided that they could not – given the centrality of Canada-U.S. relations – substantially depart from a drug control strategy to which successive U.S. administrations were zealously committed, despite its obvious failure to deliver on its key objectives. So to blunt the harshest consequences of a full-blown American-style “war on drugs,” they had recast Canada’s drug control strategy by locating it, in effect, between law enforcement and public health until serious reform prospects opened up.

Governments had good evidence and arguments for rethinking prohibition. In its 1999 study Marijuana and Medicine: Assessing the Science Base, the U.S. Institute of Medicine concluded that “cannabinoids likely have a natural role in pain modulation, control of movement, and memory” and that more research was warranted into the medicinal potential of cannabinoid-based drugs.1

In September 2002, the Senate Special Committee on Illegal Drugs, chaired by Conservative Senator Claude Nolin, released a substantial study of Canada’s drug control experience and policy concluding that prohibition of cannabis – approximately 75 per cent of the entire illicit drug trade – not only did not reduce demand but in fact made everything about drug use worse, and that far-reaching legislative changes could bring about a rational drug control policy that produced fewer harmful consequences for users, families and communities.2

Four months later the Special Committee on Non-Medical Use of Drugs, chaired by Liberal MP Paddy Torsney, released its report calling for a strategy tilted away from a focus on enforcement toward prevention, education, harm reduction and research.3 The Senate and Commons reports essentially vindicated the 1972 conclusion of the Commission of Inquiry into the Non-Medical Use of Drugs, chaired by Gerald Le Dain, that drug prohibition was more harmful than could be justified given that it could not produce the decline in drug use that its defenders repeatedly promised. On the basis of science, compassion, experience and logic the path toward drug law reform was clearly laid out by early 2003.

But the Harper Conservatives were not interested in science, compassion, experience or logic where drugs were concerned. Within weeks of coming to power, Public Safety Minister Stockwell Day killed a safe tattooing strategy which the previous government had asked the Public Health Agency to conduct, which an evaluation suggested showed promise for reducing the spread of HIV and hepatitis C between prisoners, and which a majority of prison staff believed would make institutions safer.4

This hostility toward unwelcome science has continued most persistently with regard to Insite, Vancouver’s safe injection facility. When the peer-reviewed evidence, published in places like The Lancet,5did not comport with the government’s preferences, the government paid the RCMP to prepare a report denouncing harm reduction and endorsing a strategy that, in purpose and effect, would roll back the clock on compassionate and effective drug control policy and practice. “A Critique of Canada’s INSITE Injection Site and its Parent Philosophy” replicates a tactic employed by the Bush administration toward scientific conclusions it did not like: create what appears to be a dispute among experts and then claim that the science is inconclusive.6

The spin surrounding the rollout of the National Anti-Drug Strategy criticized the near-relaxation of marijuana laws under Chrétien and Paul Martin, and Harper took a shot at the Beatles’ alleged endorsement of consciousness-altering drug use and the “do your own thing” ethic of the 1960s. The PM’s October 2007 announcement in Winnipeg echoed all the old canards dating from Richard Nixon’s first “war on drugs” in 1969, updated with some familiar mythology from the “just say no” Reagan-Bush era. One particular couplet from the Prime Minister’s NADS announcement smartly encapsulates the incongruity between good crime politics and good drug control policy:

If drugs do get hold of you – there’s help to get you off them. And if you sell or produce drugs – you’ll pay with jail time.

Whoever wrote this text, or designed a strategy on this premise, either does not understand the nature of drug addiction under conditions of prohibition or simply chose to disregard the public health and addiction science relevant to drug use and abuse. Anyone who actually studies how drug use and trafficking operate will immediately reply that the vast majority of low-level drug traffickers sell drugs to support their own habits –the “big fish” are well insulated behind layers of middlemen and are seldom apprehended. At the street level, traffickers and users are the same people: they are the low-hanging fruit on which the American prison empire has been built.7 The NADS promises to both help and punish the same people at the same time – an unambiguous signal to the expert community that research on effective drug demand reduction would not be permitted to contaminate the government’s approach.

Lest there be any residual confusion, the NADS omitted reference to “harm reduction” and “needle exchange,” two concepts endorsed by every major scientific and expert body from the World Health Organization to the Canadian Medical Association. To the extent that the NADS is simplistic and ill-informed, it constitutes two steps backward where good policy is concerned. To the extent that prohibition appeals to true believers, however, it is good electoral politics. Coupled with the advent of mandatory minimum sentences for “serious drug crimes” – which American evidence suggests will sweep up Aboriginal and inner-city youth – Canada now has a drug strategy that amounts to a decaffeinated version of the U.S. war on drugs. Meanwhile, as the 2008 UN World Drug Report8reveals, the long-term trend in street prices for both heroin and cocaine continues its downward slide – precisely the opposite of what prohibition promises.

New voices

In 2009 there have been an increasing number of voices calling for a shift in drug policy. In January the Latin American Commission on Drugs and Democracy admitted that “acknowledging the failure of current policies and their consequences is the inescapable prerequisite for the discussion of a new paradigm leading to safer, more efficient and humane drug policies.” Two months later the Economist concluded that “prohibition has failed; legalisation is the least bad solution.” In April, a white paper by Glenn Greenwald published by the Cato Institute, a Washington-based libertarian think tank, drew attention to Portugal’s decriminalization of all drug possession and use – a move that had gone largely unnoticed in the mainstream press since it was undertaken in 2001.9

In May, Mexico’s former President Vicente Fox told CNN that “it’s time to open the debate over legalizing drugs.” On August 25, Argentina’s Supreme Court decriminalized the small-scale use of marijuana, opening the way for a shift in the country’s drug-fighting policies to focus on traffickers instead of users. Colombia and Mexico have already decriminalized the possession of small amounts of drugs.10 Brazil and Ecuador are looking at an initiative to legalize some drug use.

Even in the United States, the Democratic Senator from Virginia, Jim Webb, is sponsoring a reexamination of drug and sentencing policy – they are inextricably linked – and asking some long overdue questions concerning hyperincarceration of minorities and the policy costs and consequences of mandatory minimum sentences.11 President Obama’s drug czar, former Seattle Police Chief Gil Kerlikowske, has called for an end to the language of “war on drugs.” And this past summer, in a move that rocked the drug policy establishment, New York State repealed its Rockefeller Drug Laws, considered the most punitive, expensive and ineffective in the democratic world.

At another level, however, little has changed. Thecurrent World Drug Report calls on member nations to say “no to crime” as well as “no to drugs” and argues that “termination of would be an epic mistake.”12 In March, the United Nations Commission on Narcotic Drugs meeting in Vienna issued a “political declaration” which, at the urging of the American delegation, excluded the phrase harm reduction – resulting in 26 countries demanding explicit support for harm reduction in a footnote. In Ottawa our government introduced mandatory minimum sentences for “serious drug crimes” as part of a plan to grow Canada’s rate of incarceration, and continues to roll out its National Anti-Drug Strategy.

The singular status of drug prohibition as public policy

Since its Canadian debut in the Opium Act of 1908, drug prohibition has been the classic policy zombie – dead as an idea but still walking around because it is useful to certain interests. It finds no support outside of the interests that benefit directly from it: law enforcement agencies and drug traffickers. Various Canadian governments of different partisan stripes have committed themselves with more or less enthusiasm to it, while acknowledging sotto voce that demand reduction was the only enduring way to reduce drug abuse. Canada is a signatory to the 1971 United Nations Single Convention on Psychotropic Substances – which, among other insults to common sense, presumes that all drug use is per se abuse – so Canadian officials have played along with the international consensus, largely dictated out of Washington.

What is most vexing, from the standpoint of one who has studied this issue for the past 20 years, is that drug prohibition cannot deliver on its objectives, yet no evidence of constant failure seems to damage its appeal to policymakers. It remains resistant to reform or revision because its defenders can answer every criticism with some version of “if prohibition does not produce the results we want, it’s because of our collective unwillingness to do what is necessary to make it work.”

Prohibition is supposed to function by driving up prices to end users so that these users, being rational economic actors, will make alternative choices which better maximize their personal utility. Not only will prices rise as a consequence of restricted supply, but criminal stigmatization will also create a disincentive for rational actors to purchase drugs, since rational actors can be expected to avoid something that will harm their short- and long-term interests with regard to international travel, employment, education, access to the professions and other desirable eventualities.The logical conclusion is that there exists a quantum of pain which, if consistently and vigorously applied, will deter even the most hardcore drug addict because it’s not rational to subject oneself to the prospect of harsh punishment and diminished future prospects as a consequence of criminal apprehension.

However, as was true of alcohol prohibition, the theory on which drug prohibition rests turns out to be defective. The flaw in prohibition theory is, first, that no authority or combination of authorities can adequately control all possible sources of supply and, second, that end users don’t behave as rational actor theory predicts. What has happened in practice is precisely what happened during alcohol prohibition: the rise of a rapacious international criminal class so flush with cash that they are able to pay off or eliminate all who stand in their way, including police officials, heads of state and senior military leaders.13

In practice, artificially raising prices through restricting supply has the effect of attracting more market participants since, though risky, profits to suppliers can be expected to be higher too. On the demand side, drug users, even desperately impoverished ones, will do whatever it takes to acquire drugs at whatever price is demanded – and they will do so even from inside a prison in which they are already serving a harsh sentence. No quantum of punishment permissible under democratic principles and a Charter of Rights and Freedoms seems adequate to deter or dissuade.

What also happens in practice is what is currently unfolding in northern Mexico: open war between the trafficking gangs seeking to protect their supply routes into the United States and the Mexican police and army whose ranks and reputation have been savaged by targeted assassinations, bribery and scandal.14 In practice, prohibition increases the level of violence between competing traffickers and enforcement agencies as traffickers fight it out with one another over who will control the market. Writing in the American Law and Economics Review, Harvard’s Jeffrey Miron documented a positive correlation between the intensity of prohibition enforcement and the use of violence. Miron calculated that, as of 1999, the U.S. homicide rate was “25%-75% higher than it would be in the absence of drug prohibition.”15 Furthermore, as police pressure on drug traffickers increases, the drug economy evolves according to “survival of the fittest” principles, stimulating traffickers to innovate at a rapid pace in order to survive. Sanho Tree has written of South America’s recent history,

By escalating the drug war, the kinds of people the police typically capture are the ones who are dumb enough to get caught. Thus, law enforcement tends to apprehend the most inept and least efficient traffickers. Conversely, the kinds of people law enforcement tends to miss are the most cunning, innovative and efficient traffickers.16

The big cartels associated with Medellín and Cali have been smashed, but there are now so many smaller gangs and organizations that the police have neither the resources to combat them nor the personnel to penetrate them. Cocaine is more available today – at better purity and a lower price to end users – than it was during the heyday of the narco-cartels.

“But,” prohibition’s defenders reply, “prohibition is the morally correct policy because drugs destroy lives, devastate families and ruin communities.” This is at least half true – drugs do wreak havoc on some people, families and communities – but it is not at all clear what the effect on these same individuals, families and communities would be were drugs not prohibited. In other words, it may be that prohibition itself is the greater evil.

Editorializing on the war on drugs, Milton Friedman asked, “Can , however high-minded, be moral if it leads to widespread corruption, imprisons so many, has so racist an effect, destroys our inner cities, wreaks havoc on misguided and vulnerable individuals and brings death and destruction to foreign countries?”17 Friedman was far from alone in this sentiment, though it is too rarely expressed by people within the drug prohibition machinery. As Britain’s former drug czar, Julian Critchley, put it, “I think what was truly depressing about my time in Anti-Drug Coordination Unit was that the overwhelming majority of professionals I met, including those from the police, the health service, the government and voluntary sectors, held the same view: the illegality of drugs causes far more problems for society and the individual than it solves.”18

The last defence of drug prohibition runs something like this: “If we legalize or decriminalize, prices will fall and rates of use will skyrocket and we’ll have a public health catastrophe on our hands.” No evidence is offered for this assertion – and, as the experience of Portugal illustrates, it may not be true.

Portugal: Drug decriminalization in practice

“We all know that. We’re all reading the Portugal paper,” a member of Parliament told me in the opposition lounge this past April. The “Portugal paper” is Glenn Greenwald’s study for the Cato Institute that examines the consequences of Portugal’s eight years of drug decriminalization (not legalization). Cato has long stood against drug prohibition because prohibition offends against principles of personal liberty, licenses police intrusion into the domain of personal choice and violates the constitutional separation of powers in the United States.

What Portugal did was decriminalize the possession – though not the trafficking – of all drugs from cannabis to cocaine, turning previously criminal offences into civil and administrative violations. Portugal took this step because all the relevant indicators that concern police, drug policy and public health officials were spiralling out of control during the 1990s – and the more they criminalized, arrested, prosecuted, incarcerated and punished, the more severe Portugal’s drug problem became.

Policymakers were desperate enough to strike a commission to examine what was failing and why. But rather than assemble the usual gang of reliable partisans, the commission was charged with examining the country’s drug crisis and potential responses through the lens of public health science and evidence. In 1998, the commission concluded that the principal barrier to effective treatment was criminalization of drug use and the resources it consumed – resources that could be more efficiently targeted at prevention, education, treatment and rehabilitation.

According to Greenwald, the commission’s recommendations were intended to

redirect the focus to primary prevention; extend and improve the quality and response capacity of health care networks so as to ensure access to treatment for all drug addicts who seek treatment; and, guarantee the necessary mechanisms to allow the enforcement by competent bodies of measures such as voluntary treatment of drug addicts as an alternative to prison sentences.19

Legalization was not viable given Portugal’s international commitments, but decriminalization – of an amount not greater than a typical user would consume in ten days – was. Decriminalization, the commission reasoned, would remove the threat of criminal stigmatization and increase the demand for treatment, for which there would now be more resources and options.

So what has happened since July 2001? The most important outcomes – viewed from a public health perspective – have been a sharp rise in demand for treatment and a steady decline in lifetime prevalence rates (numbers of people who have consumed a particular drug or drugs over the course of their lifetime) for various age groups. The number of newly reported cases of HIV and AIDS among drug addicts has declined substantially every year since 2001, as have deaths from drug overdose. When treatment rates increase, crime driven by drug addiction trends downward, as fewer people are breaking into cars or houses, stealing from stores or committing similar offences. As hoped, decriminalization has blunted the worst effects of Portugal’s 1990s heroin epidemic while other relevant indicators – related to age of initiation, drug-related crime rates and spread of disease – have reversed their alarming pre-decriminalization climb. None of the horror scenarios promoted by defenders of the former “get tough” regime have come to pass.

Portugal has not “solved” its drug problem. In fact cannabis use has increased – as it has across Europe over the same period. But what Portugal has done is trade one set of big problems for a set of smaller and more manageable problems.20

What’s the lesson for Canada? Could what worked in Portugal produce similar results in the Downtown Eastside of Vancouver? Drug policy and addictions experts argue that, with minor variations, the behaviour of chronic drug abusers is comparable across different jurisdictions. What Portugal demonstrates is that demand for treatment grows where availability of treatment options is greater and the fear of seeking treatment is reduced. Rand Corporation econometric modelling has demonstrated that treatment is up to seven times more effective at reducing demand than supply suppression.21 A net reduction in demand translates not only into reduced reliance on the criminal justice system, but into a range of other positive outcomes as well. Decriminalization does not affect drug supply – so it has no impact on the influence of organized crime. Trafficking is, in any event, still criminalized. If a jurisdiction wanted to combat both demand and supply, it would require a strategy that sought to take the profits out of drug supply.

Toward the evidence-based reregulation of drugs

Drug prohibition is the last surviving experiment in social engineering from the benighted 20th century, outliving the temperance movement, eugenics, National Socialism and, with a few holdouts, Communism. It is a model of regulation that falls into the utopian trap of pretending that governments can socially engineer what individuals choose to ingest.

By regulation, I mean deliberate management of quality and access according to some set of principles and enforced by some set of authorities. Modern societies regulate almost everything that comes into contact with citizens to minimize the harm that such substances may produce if their purity, integrity, safety and access is not administered in the public interest. By and large these models of regulation work well, whether for bike helmets, food products or uranium isotopes. Not all regulation is welcomed by everyone, of course, but we are better off as a society for the deliberately intelligent management of that which touches us. Seen in this light, it is precisely because illicit drugs pose harm for some users that we should wrest control of their production, distribution and consumption from organized crime, which does not have any stake in the intelligent and humane management of our polity, and turn it over to authorities who do.

Prohibition operates in every essential respect by delegating all aspects of illicit drugs and the drug trade to a perpetual contest between suppliers and traffickers on one side and law enforcement on the other. But it is no less a form of regulation just because we don’t call it that, or because it’s unintelligent and irrational. So what would a new model of regulation look like? On what principles would it be based? Would it treat all drugs the same way?

While a full answer to these questions is beyond the scope of this article, a few points can be made. First, prohibition already treats all drugs the same way because it regards all drug use as per se abuse. A reassessment of drugs based on scientific evidence of actual harm to users and communities would rapidly conclude that cannabis should be treated differently from other drugs – indeed this has been the conclusion of all evidence-based analyses of drugs and drug policy since the Le Dain Commission of 1972. So the first issue is how to treat different drugs differently according to criteria established by public health authorities rather than the ideology of one or another group of moral entrepreneurs.

Drugs should be regulated according to principles grounded in evidence regarding their social, not individual, potential for harm and in a way that would minimize their social impact – including the violence that arises from trying to suppress drug business transactions between black market suppliers and their adversaries in law enforcement. Drugs should be regulated in such a manner to suppress, as much as possible, the potential for police corruption – which is everywhere a feature of black markets characterized by high volumes of cash transactions.22 And finally, drugs should be regulated according to principles that seek not to punish their users or abusers, but to make their use as safe as possible to everyone around them with multiple options for treatment on demand.

My own preference for how to regulate drugs arises from my democratic values, informed by a “do less harm” ethic that prioritizes the well-being of our democratic polity over the essentially consensual behaviour of individuals. From this perspective, state action to regulate what individuals ingest – beyond assuring its quality, purity and age-appropriate access – is an unreasonable intrusion. The state’s proper role is to ensure that harm, where harm arises, be confined to the individual rather than socialized across the polity through the use of the criminal justice system, higher insurance rates and other mechanisms which externalize the cost of individual behaviour to the community. This is harm reduction writ large: the state employs its powers to reduce harm to the community by, as much as possible, confining the harm to the individual drug user. The recognition – long understood by drug policy experts and epidemiologists – that much drug use produces no harm to users is effaced by the logic of prohibition.

The “do less harm” ethic can be extended. It would be a catastrophic mistake, comparable to drug prohibition, to turn over the production, distribution and marketing of all currently illicit drugs to the free market. This form of regulation would instantly give rise to economic groups with an incentive to grow the rate of use of various drugs in which they have a business interest, as happened with tobacco and alcohol. Rather, the state could cause to have produced and sold under evidence-based restrictions on age all substances currently supplied by the black market. I do not endorse growing the rate of use of currently illicit drugs. I endorse the safe and responsible use of currently illicit drugs by persons who have attained the age of majority.

My objective here is – as much as possible – to lessen the influence and role of organized crime, the largest beneficiary of the prohibitionist status quo, and refocus public resources currently consumed by the criminal justice system on treatment, rehabilitation, education and research. Thus, the “do less harm” model of regulation seeks, in this order:

  • to minimize the influence and role of organized crime;
  • to reduce reliance on the criminal justice system;
  • to use public health strategies to reduce the harm to the community that arises from drug use and abuse but protects the user’s right to safe enjoyment.

Obviously there would be legal consequences where one person’s use conflicts with another person’s right to security of the person (such as driving under the influence). But the first step is to honestly admit that we already regulate drugs, but we do so in an unintelligent and irrational way that does not get us what we want. If we can’t have zero drug use, then we should aim for informed and moderate drug use by people who have access to a wide range of treatment options. Given that treatment is considerably more effective at reducing demand than supply reduction, there would likely be economic benefits from such a regulatory regime.23 A regulatory model premised on doing less harm would be more compassionate and humane too.

After prohibition: Beyond utopian drug control fantasies

Reducing the role of the criminal justice system in drug regulation is a reform that can be expected to meet with resistance. It would require depoliticizing our drug policy, relieving our elected officials of the compulsion to grandstand, distort, fabricate and prevaricate for short-term electoral advantage. But from a public policy standpoint – that is, from the standpoint of good policy trumping good politics – such a reduction would greatly minimize the individual harm that arises from a criminal record. And that is more consistent with our broader democratic principles, principles that have taken a beating under the impact of prohibition.

We need, it seems to me, to get over the delusion that we can “solve” social problems, including those that arise from drug abuse, through “feel good” measures like punishment and mandatory sentencing. Prohibition makes the best – complete abstinence – the enemy of the good, and as a policy response it has been failing at least since Adam and Eve were banished for altering their consciousness by eating of the tree of knowledge of good and evil. Let it not take Canada another hundred years to abandon it.

Continue reading “Good Politics, Bad Policy”

Is there substance to the Conservatives’ tough-on-crime agenda, or is it just optics?

Understanding how the crime agenda has come to play a starring role in the current government’s quest for a majority requires a short tour through the recent history of thinking about crime and punishment – and specifically of the gap that has opened between practitioners and social scientists of crime and penology, on the one hand, and the response by populist politicians, on the other. What is interesting about this domain of social policy is that it pits peer-reviewed social scientific evidence against what policymakers viscerally feel compelled to do: to be seen to be “doing something” in an issue area that arouses strong emotions and powerful fears.

The criminal justice system is an accommodating environment for the politics of symbolic action. Survey evidence reveals that people with comparatively little knowledge of how the criminal justice system works – the majority of us – tend to think that it does not serve the public interest, that judges are too lenient, that the threat or experience of punishment successfully deters, that prisons are “club feds” and so forth. By contrast, those on the front line of the criminal justice system – police, judges, lawyers, prosecutors – are less confident that punishment can effect social change of a lasting or substantive kind.

But the government’s crime agenda is not driven by what practitioners think would make the criminal justice system “work better,” improve public safety or expedite the justice process. It is driven by the raw retail politics of penal populism. The government needs to be seen to be doing something in one of the few social policy domains where it thinks Canadians will actually believe that it can change things – and that explains why it has launched a crime agenda that is in conflict with the evidence.

Returning to the “tough on crime” themes in its March 3 Throne Speech, the government intoned the grim music of tougher sentencing for dangerous criminals, ensuring that criminals serve sentences that reflect the severity of their crimes, fairness to victims of crime, more powers to police, etc. – all of which had died on the order paper with prorogation. Announcements since the Throne Speech have included amendments to the Youth Criminal Justice Act and changes to the International Transfer of Offenders Act. A recurring talking point states that for the last 40 years – which includes two Mulroney Progressive Conservative majorities – Canadian governments have gone soft on crime, though this does not explain why rates and severity of crime have been trending downward since 1991.

Taken as a whole, it is a large and ambitious agenda and, judged by the unwillingness of the opposition to risk an election on it, it is likely to be passed in its entirety. The fiscal costs are, as of this writing, unknown but presumed to be substantial. But it provokes this question: how much crime reduction can be purchased, at any price, in a context of already declining crime rates?

The long crime decline

Various causes have been offered up for the steady decline in crime rates since the early 1990s, which is seen in both American and Canadian data.1 In the United States, it is thought that the stabilization of the crack cocaine epidemic of the mid- to late-1980s is an important variable, though others have pointed to new municipal policies that combined tougher policing with rehabilitation programs or suggested that the decline in the number of unwanted babies following Roe v. Wade was a significant factor.2 If demographics really does explain two thirds of everything,3 then the aging of the baby boom echo certainly played a role, but the truth is that while every expert has their theory, no one really knows why crime rates fluctuate.

Delaware Senator Joe Biden speaks at the signing of the 1994 Biden Crime Bill as Attorney General Janet Reno, President Bill Clinton and local law enforcement officials look on

What is striking, however, is how closely American and Canadian aggregate crime trends track each other when viewed on the same chart. Adjusting for the difference in severity between the two countries – the United States is about four times more violent on average than Canada – the trend lines describe the same general shape: climbing slowly to the early 1990s and falling steadily thereafter. Summing up the aggregate trends in police-reported incidents as of 2005, Statistics Canada reported that “since 1994, the rate of police-reported incidents has generally declined in most major crime categories.” It continued,

Although the police-reported crime rate in 2004 was 13% lower than a decade earlier, it was still 5% higher than the rate recorded 25 years ago. Compared to 1994, the rate of property crimes (which normally account for about half of all reported offences) was 24% lower in 2004. From 1994 to 2004, the rate of violent crimes decreased by 10%. Contrary to these declines, “other Criminal Code” offences, such as mischief, prostitution, arson, weapons offences, counterfeit currency, disturbing the peace, and probation and bail violations, increased by 10% over the last decade.4

Critics claim that crime rates are still orders of magnitude higher than they were in the early 1960s, but this ignores the contribution of demographics – all those testosterone-fuelled young men – and the tremendous upheavals unleashed in postwar capitalist societies across the industrialized world: the civil rights movement, the war on drugs and much else. Furthermore, there is good reason to believe that – had we sufficiently reliable evidence – the 1960s were, in fact, the bottom of a U-slope in a decades-long crime rate trend. The important point is that crime rates vary as a function of many different factors, but the criminal justice system, which is essentially reactive, is not one of them. In this respect, then, practitioners and numerous government commissions in the postwar era agree: the criminal justice system does not, indeed cannot, drive down the rate of crime.

Wedge politics: The tactics of partisan differentiation

When the Harper Conservatives came to power in February 2006, they brought with them a tactic for differentiating themselves from previous (mostly Liberal) governments, a tactic of reinvigorating the criminal justice system as an instrument of social control. In addition to differentiating the new government from the Mulroney Progressive Conservatives and the Chrétien Liberals, this stance also set it apart from the academic and practitioner consensus on the ability of the criminal justice system to influence – except negatively – rates of crime in any meaningful or enduring way.

This consensus had begun to take shape in the United States with the 1973 publication of A National Strategy to Reduce Crime, the report of President Nixon’s National Advisory Commission on Criminal Justice Standards and Goals: “The prison, the reformatory, and the jail have achieved nothing but a shocking record of failure. There is overwhelming evidence that these institutions create crime rather than prevent it.” This conclusion was echoed in a Canadian government report of 1982: “It is now generally agreed that the cannot realistically be expected to eliminate or even significantly reduce crime.” Summing up his analysis of crime suppression versus prevention in 1993, Progressive Conservative MP Bob Horner argued that “if locking up those who violate the law contributed to safer societies, then the United States should be the safest country in the world. In fact the United States affords a glaring example of the limited impact that criminal justice responses may have on crime.”5

These conclusions jibed with a growing body of international evidence that general deterrence, which rests on a rational actor model of behaviour, showed serious limitations for crime control – compared to certainty of apprehension – and that specific deterrence, targeted at already convicted offenders, also revealed little evidence of reliable effect.6 In short, though not without controversy, the foundational rationale of the criminal justice system – deterrence through the threat of punishment – lacked robust and repeatable validation in a growing body of empirical evidence and lived experience.7

These findings, however, were discordant with the rise of “expressive justice,” the emergence of victims’ rights groups and the politicization of crime as a politically salient wedge issue. The other factor that set the pendulum swinging toward greater punitiveness was the 1974 publication of American criminologist Robert Martinson’s “nothing works” article. He argued that there was little evidence that prisons could perform a rehabilitative role. Though he later amended his findings, the “nothing works” article inflicted serious damage on the legitimacy of the postwar rehabilitative/welfare model of corrections. At roughly the same time, a revived justification for punitiveness was “rendered noble through the inherent virtue of just desert” sentencing philosophy and the enduring prospect that severe punishment might just deter even if cures were impossible. So was born, in the mid- to late 1970s, the “get tough” movement and the ideology of “penal harm” which justified harsh treatment of criminal offenders and the politicization of criminal justice policy.8

In an interesting recent development, however, the United States appears to have reached the limits of mass incarceration through “get tough” policies. Driven largely by a combination of mandatory minimum sentencing practices and an all-out war on drugs – which has really been a war against its black urban underclass – the largest penal jurisdictions of Florida, Michigan, California, Ohio and New York state are either dismantling their mandatory sentencing regimes or closing prisons to balance state budgets.

Tough on crime: The urgency of being seen to be doing something

The Harper government’s crime agenda was laid out in the Conservative campaign document Stand Up for Security in January 2006. The analysis opens with the claim that Canada’s homicide rate is up and that the Liberal record on crime has been weak. Stand Up for Security called for 14 sweeping changes to the criminal code and the Corrections and Custodial Release Act – all premised on the slogan that “serious crime must mean serious time.”

Jane Creba’s death gave Stand Up for Security a face and a narrative: beautiful teenage white girl gunned down in broad daylight on a crowded street by gang-affiliated young black man the day after Christmas.

The late American political scientist and student of symbolic politics Murray Edelman wrote in his 1988 book Constructing the Political Spectacle that in the age of mass media and the 24-hour news cycle, political actors feel an urgency to be seen to be “doing something.” In this regard, the tragic death of Jane Creba on Yonge Street on December 26, 2005, was a gift, arriving as the coda to Toronto’s “Summer of the Gun.” Creba’s death gave Stand Up for Security a face and a narrative: beautiful teenage white girl gunned down in broad daylight on a crowded street by gang-affiliated young black man the day after Christmas. When young black men were shooting each other in the projects, it was sad and unfortunate – but it took on a different quality when it arrived at the corner of Yonge and Dundas.

Seen from the perspective of needing to be seen to be “doing something” in the runup to the election of January 23, 2006, the timing could not have been more auspicious. The circumstances of Creba’s killer(s) were obliterated in the stampede to be tougher than thou which engulfed federal political parties. Lost in the fear and loathing was a critical perspective on how Canada’s 98-year experiment in drug prohibition had nurtured and reproduced the gang-and-gun culture that had spawned the “Summer of the Gun.” There was simply no appetite for looking at causes – and criminologists who tried to put events in context were politely ignored or dismissed as out-of-touch ivory-tower intellectuals.

Among the many promises the government made in its “tough on crime” electoral agenda – and the one where legislation really can affect conditions on the ground – was on the public (mis)perception that Canada’s correctional system was “mollycoddling” prisoners, that too many were simply riding out their time to statutory release, and that there were no meaningful consequences for bad behaviour while incarcerated.

The unstated premise was that prison is insufficiently punitive, that offenders don’t take advantage of their rehabilitative options while incarcerated and that the correctional pendulum had swung too far in the direction of human rights to the detriment of victims and their families. Though never directly stated, the implication is that there exists a zero-sum relationship between offenders and victims in which respect for human rights for prisoners equates to further insult and injury to victims. Steps would be taken, therefore, to address the legitimate complaints of victims by making sentences longer and conditions of incarceration harsher and more punitive. Community-based sentences, which are shown by evidence to be cheaper and in many cases more effective, were to be scaled back. Exactly how these harsher measures were supposed to work was never explained.

Mandatory minimum sentences vs. the evidence

When he was Vice-Chair of the Standing Committee on Justice and Solicitor General in the late 1980s, Rob Nicholson – who would become Harper’s Justice Minister in 2007 – opposed mandatory minimum sentences (MMS) because they are “inconsistent and unfair often do not correspond with the seriousness of the offence to which they apply and they do not relate to what should happen to someone convicted of the offence.”9 Two decades later, however, Stand Up for Security called for “truth in sentencing” through the introduction of MMS for a range of offences and an end to conditional sentences (intended to reduce reliance on incarceration).

MMS have been widely enacted in the United States, starting with the Rockefeller drug laws in New York state and spreading across that country in jurisdiction after jurisdiction. There is no criminal justice policy that is as widely studied or as severely criticized as MMS. As University of Minnesota law professor and prominent criminal law scholar Michael Tonry put it, “The greatest gap between knowledge and policy in American sentencing concerns mandatory penalties.”10 Their appeal to politicians, however, is self-evident: they create the appearance that politicians are “doing something.”11 They appear to address public anxiety over crime and they are easy to enact, requiring only minor legislative changes to limit judicial discretion. Limiting judicial discretion can be done with little pushback in a system that constrains judges from speaking publicly. So MMS produce a clear win for politicians pandering to expressive justice values while simultaneously permitting them to ignore root causes.

The American experience with MMS tells a consistent story: they don’t reduce crime but they do increase prison populations. So Canadians will be enacting MMS at precisely the same time as Florida, New York state, California, Ohio and Michigan are seeking to dismantle theirs. But if there is a great deal of evidence on MMS, it’s irrelevant. As Ian Brodie, the Prime Minister’s former chief of staff, told a public policy seminar at McGill University, “politically it helped us tremendously” to be attacked by sociologists, criminologists and defence lawyers because they are “held in lower repute than Conservative politicians” and thus “we never really had to engage in the question of what the evidence actually shows about various approaches to crime.”12

Roadmap to prison megacomplexes

Among the first acts of the new government was the appointment of a panel to review all aspects of Canada’s correctional policy and system. When the Sampson Panel was struck in April 2007, the die was cast for a specific outcome and specific recommendations as a consequence of the choice of members, their terms of reference and their submission deadline. The selection of Rob Sampson, once Minister of Corrections and of Privatization in the Ontario Conservative government of Mike Harris, telegraphed the nature of the exercise: of the five panelists, none had any history with, or experience of, actually running a correctional institution – nor any training in assessing the evidence on what works in modern corrections.

Panel members included a victims’ rights advocate, a retired deputy police chief and the former chair of the National Parole Board, the one person with even passing familiarity with the operation of the correctional system. The last panel member was the chief of an economically successful band in British Columbia (presumably to reflect the fact that Aboriginal people are heavily overrepresented in the correctional system). The panel was given 50 working days – later extended to six months – to make recommendations on a 13-item agenda, a workload that would have taxed even the most knowledgeable penologists, criminologists or jurists. But the panel had none of these. Panel members travelled to, and toured, a number of correctional facilities, but did not have the advantage of a research staff. They relied solely on interviews, mostly with Correctional Services Canada (CSC) officials, representatives of the guards union and a collection of community-based justice partners.

Correctional policy and practice is complex. It involves the intersection of law, psychology, sociology and public policy and has been the intensive concern of several high level commissions of inquiry, notably Ouimet (1969), McGuigan (1977) and Arbour (1996), as well as several internal analyses and Supreme Court rulings. The Sampson Panel, by contrast with these predecessors, managed to develop 109 recommendations without once referencing human rights – a startling omission given how often CSC has been criticized for its inability to protect human rights. The panel report, A Roadmap to Strengthening Public Safety, also ignored the substantial empirical base on which correctional policy and practice has been grounded since the Archambault Report in the 1930s.13 Immediately, and without stakeholder consultation, the panel’s recommendations were endorsed by then-Minister of Public Safety Stockwell Day and became CSC’s Transformation Agenda: an ambitious program to set the stage for increasing Canada’s rate of incarceration and, perhaps, building prison megacomplexes.

The public safety mantra

The centrepiece of the government’s penal harm philosophy, Bill C-43 (An Act to Amend the Corrections and Conditional Release Act and the Criminal Code), was introduced and received first reading on June 16, 2009. Bill C-43 sought to “improve public safety” by redressing errors and limitations in the Corrections and Conditional Release Act (CCRA) that were highlighted in the minority report of the Canadian Alliance party during the parliamentary review of 2000. But how much was optics and how much substantive? This question is harder to answer.

Take, for example, the proposed changes to sections 3 and 4. Section 3 currently provides that “the purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by (a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and, (b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community,” while section 4 states that “the principles that shall guide the Service in achieving the purpose referred to in section 3 are (a) that the protection of society be the paramount consideration in the corrections process.”

Bill C-43 proposed to move 4(a) into a new section 3.1. The question this provokes is whether this amendment does more than parade public safety as the unique selling proposition of the government’s crime agenda or whether it aspires to change the careful balance between the purposes of corrections as they are currently embedded in the overall purposes of the criminal law as articulated in the Criminal Code. Numerous commentators on the government’s crime agenda have drawn attention to this “window dressing” aspect of the crime bills: where substantive, they are contradicted by the evidence of what actually works to reduce crime and reoffending. Where not substantive, they amount to little more than “we’re doing something” tinkering.

Bill C-43 died on the order paper when Parliament was prorogued in December 2009 and it is not clear when it will be reintroduced. However, what is clear to two long-time observers of the criminal justice system, University of British Columbia law professor Michael Jackson and retired John Howard Society of Canada executive director Graham Stewart, is that “isolating public safety as a stand alone principle in an interpretative vacuum as to what that term actually means for correctional decision making does nothing to further the purposes of corrections.”14 What ought to be cause for concern, viewed in a historical and human rights context, is the government’s willingness to justify far-reaching changes with implications no one can anticipate simply by inserting the justification “public safety” somewhere in the first part of every clause. What measures, when push comes to shove, cannot be defensible under the requirements of “public safety?”

Writing recently in The Mark, a former Privy Council Clerk wrote that “we may be surprised when the cumulative impact of successive incremental decisions plays out”:

In the criminal justice sector, for example, sentences are getting tougher, judicial discretion is being reduced, conditional release is becoming more difficult. Year after year, small step after small step, our system is being transformed, without a real discussion, and in the face of experts who insist that public safety will in fact suffer, that these approaches do not work. Crime rates, they point out, have been coming down for about twenty years, at least partly a result of more balanced, less punitive policies. There are of course legitimate debates to be had about what is just and effective punishment – but we deserve, and ought to demand, a real conversation about the options and the evidence, the costs and the trade-offs.15

So far the government has disparaged requests to demonstrate with evidence how the various elements of its crime agenda will actually result in public safety – or how, in a context of declining crime rates, Canadians will be able to distinguish the impact of “get tough” policies from background trends. And if public safety really were the driving force behind this legislation, the government would be paying much greater attention to prevention, which is cheaper and more effective than punishment. The problem, politically, is that prevention is a long-term enterprise while our electoral system, as currently configured, disproportionately rewards the short term.

Crime does not cause punishment

For decades, while crime rates were trending upward, Canada maintained a stable rate of incarceration and there was broad public and political agreement that incarceration should be the last resort. Between the early 1960s and the early 1990s, when the crime rate peaked, crime did not cause punishment. Today we find ourselves in the enviable position of being among the safest of Western societies yet our government is committed to raising the rate of incarceration. It has to be one of the deeper curiosities of our age that, in both Canada and the United States, rates of incarceration increase while crime rates decline.

What explains this? Is the Harper government in tune with some deeply felt nonspecific anxiety? Could it be that, as some sociologists of modernity have suggested, the safer we are in reality,the more threatened we feel in the abstract? Do unrelated events like 9/11, the sudden collapse of the financial sector, the “underwear bomber” and the continuing escalation of security theatre aggregate into a pervasive if unspecified sense that things are breaking down? Does the aging of the baby boomers mean that we are more likely to have experienced, either directly or indirectly, that which disquiets us, and hence more likely to see rare events as more common than they really are?

The crime agenda was formulated long before the recent economic collapse, yet fiscal austerity does not seem to have provoked a recalibration of the benefits of “tough on crime.” The United States is steadily retreating from its massively expensive and ineffective “get tough” experiment just as Canada is heading into one. While survey after survey reveals that Canadians don’t feel that their own personal safety is imperilled, other surveys pick up a hardening of attitudes toward punishment. A recent Angus Reid poll of the United States, Canada and Britain found a majority in each country endorsing capital punishment. The editors of a recent collection of essays in criminology predict that “future generations of social scientists will look back critically at this period and ask why liberal democracies continued to expand their apparatuses of criminal justice when, at the same time, officially measured and defined rates of ‘crime’ had been in steady decline.”16 One wants to hope that it is all theatre and grandstanding for the political base, that it’s wedge politics in the Rovian mode, that when the numbers are laid out by Treasury Board the government’s libertarian caucus will ask about opportunity costs and alternatives to incarceration and the whole project will be scrapped.

If, however, the government enacts its entire crime agenda and succeeds in raising Canada’s rate of incarceration, it will have little option but to build the megacomplexes called for in the Roadmap to Strengthening Public Safety. What will all this cost? How will the costs be distributed between the federal and provincial governments? And what are likely to be the downstream consequences once people begin returning to their communities having served longer and harsher sentences? How much more “public safety” can be purchased – at any cost – by building prisons in a context of already declining crime rates? Is Canada’s correctional system on its way to becoming the nation’s largest provider of social housing?

So far no one is asking these questions in a systematic way. As of this writing the Parliamentary Budget Officer is trying to evaluate the fiscal and policy costs of the crime agenda – but the important numbers are all cabinet confidence. My office has written numerous letters to public health agencies and officials across Canada to ask what planning can be done for people returning to the streets with their mental and substance abuse problems once released from prison – but no one seems to be looking that far over the horizon. So far as we can reasonably project, crime rates will continue to trend downward – in the aggregate – and crime prevention initiatives will continue to be starved as the federal government prepares to put more people in prison.

It is not a prospect to be welcomed.

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