How Not to Argue in Favour of 2-for-1 (Tres)

(updated below)

And Dan Gardner makes his valiant attempt at defending the wisdom of the two-for-one sentencing credit.  He fares no better than those behind previous installments of this saga (here, here, here).

The essential thing to bear in mind when examining the Harper government's policies on crime is that they are not about crime. They are about politics.

Indeed.  Why the Ottawa Citizen didn't war-headline their Saturday edition with "POLITICIANS ENGAGED IN POLITICS" is beyond me.

... Since taking power, in part thanks to tough talk on crime, the Harper government has consistently introduced small, cheap, crowd-pleasing reforms at the most politically opportune moments.

So, they should have introduced big, expensive reforms which pissed people off and at politically inopportune moments?  More seriously, this is just meaningless sniping: if the Conservatives had attempted (wielding a minority government, no less) to pass omnibus wholesale criminal justice reform, pundits like Gardner would be grousing that they had bitten off more than legislators could reasonably chew, it was too complicated, it resulted in lack of attention being paid to significant issues, etc.  This isn't criticism, this is filling up your word count.

It has passed redundant laws. It has passed laws it knows will be struck down by the courts. It has delayed passing popular bills, preferring to keep them handy for the next political opportunity.

It would be nice to have some examples here, but let's take Gardner at his word.  (With respect to the "delay" argument, he's referring to an Aaron Wherry post which itself linked to another article, which, if memory serves, made the argument that the Conservatives were being fiendishly fiendish by passing legislation at a time not to the liking of Wherry and the original writer of the article.  Trust me, it didn't make any more sense in the original rendering.)

And, most tellingly, it has refused to make serious and substantial changes that wouldn't be so politically sexy -- tackling the Corrections and Conditional Release Act, for example.

Touche!  Failure to address the Corrections and Conditional Release Act is indeed a significant failing, but it's unclear why getting rid of statutory release or making parole more difficult to obtain wouldn't be "politically sexy" - it's exactly what many of us have been begging for for years.

... So we should be suspicious about the government's announcement that it will eliminate so-called sentencing discounts for time served awaiting trial.  Is it broadly popular? Absolutely. Will it please the Conservatives' disgruntled base? Certainly. Will it make streets safer or the justice system more just? Not in the slightest.

Wrong on two counts: will it make streets safer?  Yes, to the extent that convicted criminals are kept behind bars longer.  A non-trivial amount of crime is committed by recidivists - keep them in jail and, ipso facto, the crimes they would otherwise be committing would not be committed.  Will it make the justice system more just?  Well, that's really the nub of the question, isn't it?  Is the current two-for-one sentencing credit in any way "just"?  The pro-credit side says "yes", the anti-credit side says "mais non".  Let's see Gardner's arguments for the justness of it all.

Let's start at the beginning: Every person accused of a crime is considered innocent until proven guilty. And we do not put innocent people in jail.

This is the origin of bail. If you are charged, you have a right to go free on bail, unless and until you are convicted at trial.

Sometimes this right must be curtailed, however, such as in cases where the accused clearly poses a threat to the safety of others. So someone accused of a crime may end up sitting in jail, awaiting his day in court. If he is convicted, it only makes sense that the time he spent incarcerated awaiting trial should count against his sentence. He was in jail, after all.

But why should he get a discount? Why should the month he spent in jail count as two months -- even three -- against his sentence?

It doesn't make any sense. Surely, this is just our ridiculously soft justice system finding another way to coddle criminals -- and the Harper government should be applauded for eliminating it.

On the surface, yes. But dig even a little deeper -- something the Harper government never bothers to do -- and the reality looks very different.

Hmmm.  Okay.  With you so far.  "Our ridiculously soft justice system finding another way to coddle criminals", yep.  "Dig a little deeper", sounds good.

"Many of the institutions used to house those awaiting trial are old and poorly equipped. Sanitation and living conditions are primitive. Segregation is difficult, and security conditions designed to meet the requirements of the most difficult inmates must apply to all. This means that security in these institutions often exceeds that in institutions housing the convicted. Little is available in the way of programs. Problems of segregation and classification make even work or recreational programs difficult to organize."

And here is where the Great Schism occurs.  At this point, the pro-credit side is rendering its garments and gnashing its teeth - gods, the injustice of it all!  Poor conditions!  Tight security!  No recreational programs!  We! Must! Give! Two! For! One! Credits!  Everyone else is looking at that passage and thinking, "Isn't jail supposed to be like that?"

That passage comes from the Ouimet Report of 1969, but don't think it's outdated.  If anything, the situation is worse today.

Ka-pow!  That's presumably the sound effect that accompanied Gardner's typing of those two lines.  You think this whole "pre-trial custody" sucks thing is something new?  Hells, no - why, they were concerned about this in the 1960s!  And we all know how genius the criminal justice ideas that flowered in the 1960s are, and how they had such a remarkable effect in lowering crime rates, and... actually, you know what?  Memo to pro-credit partisans: please keep quoting things from the 1960s to buttress your argument.  Y'all wear it well.

In 2005, the number of people incarcerated while awaiting trial surpassed the number serving sentences in all provincial jails combined. The remand population is growing so rapidly, it is now 25 per cent bigger than the population doing time in provincial jails.

Okay.  And?

In the latest StatsCan report, which only goes up to 2006, the number of inmates who spend a week or less in remand has fallen from 62 per cent to 54 per cent. Those who spent three or more months in remand rose from four per cent to seven per cent.

As a result, remand facilities tend to be overcrowded, filthy, tense, warehouses where inmates sit and stare at the walls 24 hours a day with no idea how long they'll be there. The older facilities are the worst but newer jails aren't much better. I've been inside the toughest maximum security prisons in Canada and the United States and Ontario's new Maplehurst jail and remand facility is as locked-down and scary as any of them.

Very simply, remand is hell. And that is why, so the argument goes, time incarcerated awaiting trial counts for more than regular time served.

Ah.  If that's how "the argument goes", man, that it is one crappy argument.  Remand is hell!  Fine.  That's an argument in favour of making remand conditions less harsh (or, as Jim Whyte put it, it's an argument for making jail more like remand).  What it is not is an argument for granting two-for-one sentence credits.  The pro-credit side is trying to making two or three stages of an argument, when they have fuel enough only for one.  Remand is hell?  Fix remand.  Granting two-for-one credits is an irrational response to the perceived problem - it doesn't "fix" the "suffering" which occurs in remand - the prisoner still suffered it.  It's also a nonsensical response to the "problem" - why a 2x credit?  Is remand always exactly twice as harsh as jail?  Why not 1.2x credit?  Or 17x credit?  How precisely are we measuring "hellishness" here?  More importantly, granting two-for-one credits is unjust: it reduces time served without reference to any of the goals of sentencing set out in the Criminal Code: it serves the ends of none of deterrence, denunciation, rehabilitation, incapacitation or the promotion of a sense of responsibility in the offender.  In fact, the two-for-one credit actively undermines each of those purposes,  by arbitrarily lessening the punishment inflicted on the offender and illogically reducing the amount of time they spend in that portion of the prison system where rehabilitation programs are available.

But notice that the core issue here is not the sentence discount. It's that far too many people are spending far too long in remand: Bring people to trial swiftly and everything else is moot.

So why aren't the Conservatives talking about how to unclog the arteries of the justice system and make it work better? Because that's administrative reform.

Actually, federal Conservatives spend little time talking about unclogging the arteries of the justice system because "administrative reform" is not the role of the federal government - provincial governments have responsibility for the administration of the provincial courts, where the vast, vast majority of criminal trials occur.  Seriously, do none of our newspaper columnists understand the separation of powers when it comes to the criminal justice system?

Gardner goes on from there - politics, votes, more politics, but it's all a little deflating by that point.  Still, we hunt in vain for a cogent argument in favour of the two-for-one sentencing credit.

(update: Few things are more embarrasing than posting something like the above and getting the spelling of the guy's name wrong.  Gardner.  Not Gardener.  Which I should know: I read the guy's column, his blog, his book.  *sigh*  Apologies to Dan.  The post above has been modified only to fix the spelling of his last name.  (I would also have corrected "rendering" to "render", but since that just reflects poorly on me, I'll leave it intact.))

Comments

[Dan Gardner]

Bob, as the old saying goes, all publicity is good as long as they spell your name right: So spell my name right, dammit.

Somewhat more substantively, I agree that reducing the hideousness of remand is a logical consequence of my argument. But no one from your side of the aisle seems to be suggesting any such thing. Judges started giving sentencing discounts precisely because, over the years, more and more accused were kept in remand, the conditions got all the uglier, nothing ever changed, and the one and only thing judges can control is sentencing.

So, yes, you're right: the discount is a crappy response. But it's also a desperate response to a problem which politicians simply refuse to address. Eliminating the discount won't address it -- it will simply erase the overcrowding in remand as a political issue, ensuring the problem will steadily worsen.

So, how about agreeing on something we can all agree on? People accused of crimes should be brought to trial swiftly. And as a bonus, if we do that, this whole issue disappears.

And, yes, Bob, I do understand that court administration is handled by the provinces. Show me your law degree and I'll show you mine -- or maybe you could just spare me the condescension.

As everyone involved in justice knows, there is a huge amount of federal-provincial cooperation, as there has to be given that the whole enterprise is effectively a joint production. If a federal government is upset by sentence discounts, they can bring the provinces together to identify the sources of administrative congestion and work together to resolve them. Simple, pragmatic, sensible. But not politically sexy in the least, which might explain why the feds aren't doing it.

[Bob Tarantino]

Dan, apologies for the misspelling - the post has been updated and corrected. Feel free to refer to me as "Tarrnteno". One further correction:

"If a federal government is upset by sentence discounts, they can bring the provinces together to identify the sources of administrative congestion and work together to resolve them. Simple, pragmatic, sensible. But not politically sexy in the least, which might explain why the feds aren't doing it."

Yes, they are "doing it" - in fact, they have done *precisely* what you advocate that they do and accuse them of not doing. In September 2008, in Quebec City, the federal government convened a summit of all attorneys general from across Canada to discuss co-operation on procedural reforms. From that meeting emerged initiatives like the Ontario government's Justice on Target program. Simple? Pragmatic? Sensible? Yes, to all the above. Politically sexy? Nope. Which might explain why news coverage of it was negligible, resulting in misapprehensions like yours.

[Mike H]

"Judges started giving sentencing discounts precisely because, over the years, more and more accused were kept in remand, the conditions got all the uglier, nothing ever changed, and the one and only thing judges can control is sentencing."

That's misleading, because it creates the false impression that all accused persons who have been denied bail are desperate for a speedy trial.

Many accused persons, upon being denied bail, make the conscious decision to game the system, and the reason they do so is the 2 for 1 credit for dead time. If the accused is facing a federal penitentiary sentence, often, the motive is to reduce the amount of actual time that he/she must serve in the federal system. Criminals who have never served a federal sentence are often intimidated by the prospect of doing time with murderers and other extremely violent inmates. Similarly, some inmates who have served previous federal sentences are desperate to avoid returning to a federal institution, or, faced with no alternative, seek to minimize the length of their federal penitentiary stay.

In my experience, many accused persons who are held in pre-trial custody have no intention of running a trial. (unless they luck out, and can capitalize on the witness problems that occasionally crop up for the crown as a result of lengthy trial delays). In such cases, these individuals plead guilty many months after earlier opportunities to plead guilty have been waived, opportunities that would have expedited their transition out of detention centres and into correctional centres and federal penitentiaries.

Don't buy this one-sided tale of woe and victimization put forward by proponents of 2 for 1.