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.

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.”

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.

Notes

¹ For the Canadian data, see Figure A1.1 in Criminal Justice Indicators, 2005 (Statistics Canada, Catalogue no. 85-227-XIE), p. 14, retrieved April 29, 2010, from here.

² John J. Donohue and Steven D. Levitt, “The Impact of Legalized Abortion on Crime,” Quarterly Journal of Economics, Vol. 116, No. 2 (May 2001), pp. 379–420.

³ David K. Foot, Boom, Bust & Echo (Toronto: Stoddart, 1996).

⁴ Statistics Canada, Criminal Justice Indicators, 2005, p. 14.

⁵ National Advisory Commission on Criminal Justice Standards and Goals, A National Strategy to Reduce Crime (Washington, DC, 1973), p. 597; Canada, The Criminal Law in Canadian Society (Ottawa: Government of Canada, 1982), p. 28; Bob Horner MP, Crime Prevention in Canada: Toward a National Strategy (Ottawa: House of Commons, 1993).

⁶ Mark Lipsey and Francis Cullen, “The Effectiveness of Correctional Rehabilitation: A Review of Systematic Reviews,” Annual Review of Law and Social Science, Vol. 3, 2007, pp. 297-320.

⁷ The controversy arose with economists who argued that because prison represented a price for crime, the prospect of a prison sentence had to deter as predicted by price theory. Criminologists, however, have repeatedly demonstrated that price theory relies on the availability of knowledge – i.e., likely sentence length – which is unevenly distributed among potential offenders. This has given rise to the claim that economists are really defending price theory rather than the effectiveness of deterrence. See John J. Donohue, “Economic Models of Crime and Punishment,” Social Research: An International Quarterly, Vol. 74, No. 2 (Summer 2007), pp. 379–412.

⁸ David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Chicago: University of Chicago Press, 2001); Robert Martinson, “What Works?: Questions and Answers about Prison Reform,” The Public Interest, No. 35 (Spring 1974), pp. 22–54 (Martinson later modified his pessimistic conclusions in “New Findings, New Views: A Note of Caution Regarding Prison Reform,” Hofstra Law Review, Vol. 7 , pp. 243–258); D.A. Andrews and James Bonta, “Rehabilitating Criminal Justice Policy and Practice,” Psychology, Public Policy, and Law, Vol. 16, No. 1 (2010), pp. 39–55; Todd Clear, Harm in American Penology: Offenders, Victims and Their Communities (Albany: State University of New York Press, 1994).

⁹Taking Responsibility: Report of the Standing Committee on Justice and Solicitor General and its Review of Sentencing, Conditional Release and Related Aspects of Corrections (David Daubney, MP, Chair, August 1988), p. 39.

¹⁰ Michael Tonry, “The Mostly Unintended Effects of Mandatory Penalties: Two Centuries of Consistent Findings,” in Michael Tonry, ed., Crime and Justice: A Review of Research, Vol. 38 (Chicago: University of Chicago Press, 2009), p. 65.

¹¹ Murray Edleman, Constructing the Political Spectacle (Chicago: University of Chicago Press, 1988).

¹² John Geddes, “Ian Brodie Offers a Candid Case Study in Politics and Policy,” Maclean’s , March 27, 2009, retrieved April 28, 2010, from here.

¹³ Correctional Service of Canada Review Panel, ARoadmap to Strengthening Public Safety (Ottawa: Minister of Public Works and Government Services Canada, 2007), retrieved April 28, 2010, from here. For an extensive analysis of the Roadmap, see Michael Jackson and Graham Stewart, A Flawed Compass: A Human Rights Analysis of the Roadmap to Strengthening Public Safety, retrieved April 28, 2010, from here.

¹⁴ Michael Jackson and Graham Stewart, “Commentary on Bill C-43” (September 2009), p. 2.

¹⁵ Alex Himelfarb, “Canada’s Silent Transformation,” The Mark, March 1, 2010, retrieved April 28, 2010, from here.

¹⁶ Alana Barton, Karen Corteen, David Scott and David Whyte, eds, Expanding the Criminological Imagination: Critical Readings in Criminology (Cullompton, England: Willan Publishing, 2007), p. 1.