It was just a matter of time until someone trotted out the "clamping down on judicial discretion" argument against the elimination of the 2-for-1 sentencing credit. James Stribopoulos cheerfully obliges. Here's the thing: we can tell, right off the bat, that those arguing in favour of "judicial discretion" are engaging in bad faith. How can we tell? Because they only ever want to increase "judicial discretion" in order to enable judges to hand down more lenient sentences. You will never, ever, under any circumstances, hear one of the supposed proponents of "judicial discretion" make the argument that we should eliminate the caps on sentencing contained in the Criminal Code - under no circumstances should judges be able to indulge their "discretion" to, say, levy an even harsher punishment on a convicted criminal. No, "discretion" is only allowed to flow in one direction - away from punishment. If the "judicial discretionists" were even marginally consistent, they would be lamenting the fact that the Youth Criminal Justice Act, f'rinstance, prohibits judges from exercising their "discretion" when it comes to first-degree murderers and sentencing them to longer than a few years imprisonment. You will never hear them say that they think the cap on aggravated assault of fourteen years imprisonment should be lifted, otherwise the legislature is "interfering" with the "discretion" of judges. I could go on. Suffice it to say that since the judicial discretionists don't take their own argument terribly seriously, neither should anyone else.
But Stribopoulos goes on. It is unfair not to give 2-for-1 credit on Stribopoulos' account (left completely unexamined is why 2x is the magic number - why not 1.3x? 2.4x? 16.2x?) because conditions in pre-trial detention facilities are "comparatively harsh": overcrowding, "few, if any, activities or programs and minimal opportunities for physical exercise". (I know, I know - I also had to pick myself up off the floor when I read of the lack of "activities or programs", but soldier on.) It's unclear, however, how that is argument in favour of sentencing credits and not, say, ameliorating the "comparatively harsh" conditions. If conditions are harsh, fix them - but why would that translate into a mystical amplification of time served? Don't forget, we're not giving sentencing credit to people who are innocent of a crime - we're giving it to people who have been convicted of the crime. An argument a few orders of magnitude stronger than "being in pre-trial detention, like, sucks" will need to be brought to bear here. "In short," Stribopoulos thunders, "these are very unpleasant places to spend time." Well, good. It's prison. It's supposed to be unpleasant. Can't do the time, don't do the crime, etc. etc. If proponents of the 2-for-1 credit are trying to make an argument about how unfair it is to put people who are ultimately determined to be innocent in pre-trial detention, then that's an entirely separate discussion - the answer to which is not "give everyone a 2-for-1 credit". If the state has harmed an innocent individual, then the state should be obliged to compensate that individual, not the guy down the hall.
Perhaps acknowledging that this is a less than fruitful avenue of rhetoric, Stribopoulos moves on:
The second, and even more compelling rationale, is that unlike an actual sentence, the period spent in pretrial custody is not open to remission for good behaviour and the offender is not eligible for parole. For example, an offender sentenced to more than two years is eligible for parole after 1/3rd of their sentence and must be paroled, barring exceptional circumstances, on the completion of 2/3rds of their sentence. In contrast, an offender who spends two years in pretrial custody awaiting trial spends two years in custody with no chance for remission. Giving enhanced credit for pretrial custody is meant to provide some redress for the fundamental unfairness that would otherwise result, unfairness that the Conservatives now wish to legally mandate.
This is where things start getting a little wonky - it's not Stribopoulos' fault, the wonkiness lies at the very heart of the entire 2-for-1 credit position. Take Accused A and Accused B. Both spend two years in pre-trial detenion. Once the trial occurs, A gets sentenced to 2 years and B gets sentenced to 14 years. An unfairness has occurred vis-a-vis A: he has spent 2 years in confinement, when he would have been entitled to parole at 1/3 and statutory release at 2/3 of that time (we'll ignore for now the rampant idiocy in the statutory release scheme). But, again, how does granting 2-for-1 credit to B (who will spend two less years in prison than he should) in any way address the unfairness to A? If we've been unfair to A, let's compensate A in some fashion - giving B a windfall is nonsensical and counterproductive.
Then everything spins out of control. The Conservative efforts (supported, according to news reports, by the Liberals and NDP, a fact which garners no attention from Stribopoulos) are motivated by "a perception, which has much public sympathy but no empirical support, that Canadian judges are too lenient and that criminals are being treated with kid gloves". No empirical support? Really? Let's put this in ways that the 2-for-1 advocates can understand: Canadian judges are too lenient and are treating criminals with kid gloves. 18 months for killing someone while drunk driving (less parole, statutory release and 2-for-1 credit, of course). Five years (less parole, statutory release and 2-for-1 credit, of course) for "a vicious racial assault on a disabled black man" by someone who had 43 prior convictions. Fourteen years (less parole, statutory release and 2-for-1 credit, of course) for a brutal rape - the eighth which the man had committed. Five years (less parole, statutory release and 2-for-1 credit, of course) for repeatedly raping a baby. I could go on. But, really, I don't have the stomach for it today. So, yes, Mr. Stribopoulos, leniency and kid gloves - anything that can be done to put a halt to that, I, and many, many others, am and are all for it.
From there, things get downright surreal. As with all the best Canadian commentary, fingers start being pointed at the United States:
It is interesting that this was the sentiment [i.e., restricting judicial discretion in sentencing] that swept over the United States a generation ago, leading to a wave of harsh mandatory minimum sentences. It is now relatively well accepted that these efforts have not succeeded in deterring crime. What really influences deterrence is certainty of apprehension rather than the severity of the potential punishment.
Frankly, that's just bizarre. US crimes rates (particularly violent crime rates) have collapsed compared to their highs in the 1980s and 1990s. Let me quote from this article, which everyone is encouraged to read: "the increase in incarceration over the 1990s can account for a reduction in crime of ... about one-third of the observed decline in crime" (page 178-179 of the article, 16-17 of the .pdf). The "relatively well accepted" notion of Stribopoulos's argument is not "accepted" at all. Then he trots out the old canard that it is not punishment that deters crime, but "certainty of apprehension" which does all the work. If that is the case, then why not propose a system based on no punishments whatsoever, or punishments only of one day, but massively increased police presence, so that apprehension is all but assured? Few propose it, for a variety of reasons, but most important of all, because we know that an exceedingly small number of people would support it. And why? Because criminal justice, pace Stribopoulos, is not all about "deterrence", it's in significant part about denunciation and retribution. But Stribopoulos, in the repetition of a technique used by criminologists and pundits to forestall debate on these issues, refuses to engage in matters of whether criminals deserve to be punished, or whether they deserve to get magical reductions in their sentences because judges are exercising their "discretion". Instead, he attempts, falteringly, to rely on statistics and arguments which don't withstand the barest of scrutiny.
Devastating.
"It's unclear, however, how that is argument in favour of sentencing credits and not, say, ameliorating the 'comparatively harsh' conditions."
Or, in the alternative, maybe we could satisfy Jimmy if we made conditions in the pen twice as bad as they are now -- after all, it's simple 'rithmetic.
Let's run that one by him and see what he thinks...
Posted by: Jim Whyte | March 27, 2009 at 01:48 PM
Haha, that was one of the more severe ass kickings I've witnessed in a long time. Kudos Bob.
Posted by: Olaf | March 27, 2009 at 03:56 PM
I think this one was your best effort yet on the subject of sentencing propaganda. Outstanding...
Posted by: Mike H | March 28, 2009 at 12:37 AM
Yes, congrats. I'd say this is like shooting fish in a barrel anyway, but nice to see it so eloquently, logically and statistically stated (the antithesis of the "status quo or less time" argument).
I have a few similar cases here:
http://thejagwire.blogspot.com/2009/03/dumb-judges.html
This is ONE week in a small town's court!
And Rob Tripp's site is amazing:
http://cancrime.com/
Posted by: James Goneaux | March 28, 2009 at 03:07 AM
First, the point about maximum sentences is not a fair analogy. Judges virtually never feel a need to reach them, let alone exceed them. So to say that they fetter judicial discretion in the same way that the elimination of enhanced credit for pre-trial custody, fails to recognize that minimums and maximums are like apples and oranges.
There are constitutional impediments to the elimination of maximums, the Charter's prohibition on cruel and unusual punishment (s. 12), and, in the case of youth, the constitutional requirement that we recognize their reduced moral blameworthiness by not treating them as harshly as adults (s. 7). I suspect you would respond by arguing "well, if you believe in judicial discretion, repeal the responsible provisions in the Charter". But the problem with that sort of response is that it tries to force your opponent into a zero sum position. I do believe in judicial discretion, but I also believe in cabining that discretion against excesses and abuses, which is what the Charter does.
I suspect you will say, "but that's what this 2 for 1 proposal is intended to do, cabin discretion". The difference is that we know eliminating enhanced credit for pre-trial custody will visit unfairness on a great many offenders, whereas maximum sentences never do. If an offender is especially dangerous the Crown can always move to have them designated a Dangerous Offender under the Criminal Code and incarcerate them indefinitely, so I don't worry about the dangers that lurk on the other side of the spectrum of discretion in sentencing. Parliament has included an escape valve for the worst offenders. (There are other problems on that end, but we will get to that later.) On the other end of the spectrum, enhanced credit for pre-trial custody was an escape valve that judges had developed that Parliament seems poised to eliminate.
Second, I think we just fundamentally disagree on how people should be treated who are subject to pre-trial custody. Remember, both the innocent and the guilty are housed in these facilities and the conditions are deplorable. Everyone in the system knows this but nothing changes. You say my argument is logically deficient because I should be arguing to change those conditions rather than against the elimination of enhanced credit for those who must sit in pre-trial custody. I am all in favour of changing the conditions found in these places, but unfortunately the provincial governments aren't. Nor are the Conservatives pledging federal funds to do so. So let’s stay focused on what they are proposing.
You also suggest that the solution is to compensate those who have been held in these facilities but who are ultimately not convicted. Statistics vary, depending on the period and jurisdiction, but you would be amazed at how high a percentage that actually is. The rate varies from 20% to 50%, depending on the jurisdiction and time period considered. As the law currently stands these individuals are not entitled to compensation. Bail is about the likelihood that an accused will attend trial and/or whether he or she poses a threat to public safety, so many innocent individuals are charged with offences and held pending trial simply because they are poor candidates for bail. In other words, their detention is lawful and therefore not actionable. I expect you will say “then change the bail criteria, so that screening the adequacy of the charges is made an essential precondition for detention”. I have actually advocated for that elsewhere. (See “Unchecked Power: The Constitutional Regulation of Arrest Reconsidered” (2003) 48 McGill Law Journal 225).
Of course, the real solution is to dedicate adequate resources to the criminal justice system so that cases get brought on for trial much faster than they currently do. That would obviously cost more money, requiring the construction of more courthouses, the appointment of more judges, the hiring of more prosecutors and more adequate funding for legal aid. I am enthusiastically in favour of all those things, but as you may know, the Conservatives aren’t interested in spending money on real systemic reforms in the criminal justice system. That sort of reform doesn’t earn them votes or come on the cheap, the way that eliminating enhanced credit for pre-trial custody does.
Moving next to your hypothetical, I think that you, like most everyone else in society, don’t understand the unfairness point. The hypothetical you construct betrays this. Here it is again, for clarity sake:
"Take Accused A and Accused B. Both spend two years in pre-trial detenion. Once the trial occurs, A gets sentenced to 2 years and B gets sentenced to 14 years. An unfairness has occurred vis-a-vis A: he has spent 2 years in confinement, when he would have been entitled to parole at 1/3 and statutory release at 2/3 of that time (we'll ignore for now the rampant idiocy in the statutory release scheme). But, again, how does granting 2-for-1 credit to B (who will spend two less years in prison than he should) in any way address the unfairness to A? If we've been unfair to A, let's compensate A in some fashion - giving B a windfall is nonsensical and counterproductive."
There is no difference in the unfairness to either of these individuals. More precisely, there is no “windfall” to B. That windfall misconception is what evokes a strong response from the public, and it what you, like most people who aren’t in the system, don’t understand. To be sure, the people advising the Minister of Justice should get it. Two further hypotheticals will illustrate this important point:
Hypo 1 - Offender X is at liberty pending trial. He is convicted. The judge determines that the appropriate sentence is 14 years. X is sentenced to 14 years. He will be eligible for parole after serving 1/3rd of that sentence (4 years and 8 months), and if not granted parole sooner, he will in all likelihood be subject to mandatory release after completing 2/3rd (unless the Parole Board concludes he would pose an undue risk of reoffending). This means that he will be released after spending 9 years and 4 months in custody.
Hyp 2- Offender Y is denied bail and spends two years in pre-trial custody. He is convicted. The judge determines that the appropriate sentence is 14 years. If the sentencing judge is legislatively precluded from giving enhanced credit for time spent in pre-trial custody, as the Conservatives propose, Y will be given 2 years credit for his time spent in pre-trial detention. Hence, he will be sentenced to a further 12 years in custody. Let’s do the math, he is eligible for parole at 1/3rd, 4 years after commencing his sentence, in other words unlike offender X he will have spent 6 years (12 additional months) in custody before being eligible for parole. Further, Y will benefit from statutory release at 2/3rds of his sentence (8 years), meaning that he will have spent 10 years in custody before being statutorily released, a full 8 months more than X.
Allowing sentencing judges to give enhanced credit for time spent in pre-trial custody, as I argue in my post, is meant to redress the unfairness that would otherwise operate against Y, to put him in the same position as X, while also giving some recognition that unlike X, Y spent two years of his sentence doing exceptionally hard time.
Given your response, I suspect your answer will be that the real culprit is parole, why are we releasing offenders after 2/3rds of their sentence? With these offenders, however, we are not truly “releasing” them. Rather, they are “paroled”. This means that they are subject to conditions and supervision, they may have to live in a halfway house, take drug treatment, provide urine samples, take courses and/or obtain employment, etc. All of this happens under the watchful eyes of parole officers. The point isn’t to be lenient on convicted criminals, although I am sure many people, including you, probably feel that way. Rather, the object is ultimately the protection of society. Gradual return to full liberty is said to increase an offenders chances to be reintegrated into society. To simply hold offenders until their sentence is complete might be a more punitive approach, but it would return potentially dangerous people into the community without the benefit of any supervision or controls. That would be bad for everyone, and has nothing to do with coddling criminals.
I can anticipate your response to this, why not change the parole rules to take pre-trial custody into account in determining parole eligibility periods? At present, the Criminal Code only allows for this in the case of murder. This would indeed be a positive step if the Conservatives were really concerned about “truth in sentencing”. But that’s not what they are proposing. It would be far more difficult to portray that sort of change as hard on criminals, so instead we get this ill-conceived proposal that is all about grabbing headlines and does nothing to address the many real problems that exist in our system.
Further, your ability to isolate a couple examples of judges in our system being far too lenient doesn’t have anything to do whatsoever with the principle that offenders should receive enhanced credit for time spent in pre-trial custody. I know you think it does, but that’s because you misunderstand the principle and think it provides some sort of windfall, as I point out above, it doesn’t. (By the way, the solution in the cases you highlight is for the Crown to appeal.)
Finally, you are right that crime is drastically down in the United States. You are wrong, however, to draw a connection between this statistical truth and mandatory minimum sentences. Crime is down throughout the industrialized world, including Canada, a fact that criminologists convincingly explain by an aging baby boomer population in all of these countries. The fact is, the American have the highest rate of incarceration as compared to any of these countries. If throwing people in jail for longer and longer periods is the solution to crime, then the United States should be the safest country in the industrialized world, I trust you won’t make me cite the statistics that debunk that suggestion. The fact is, the Americans are retreating from mandatory minimums, the decision of the NY legislature the other day (which I reference in my post) is reflective of this. After sending a generation of non-violent drug offenders to jail for shockingly long periods, the United States can no longer afford the costs associated with having the highest rate of per capita incarceration in the industrialized world. It might be a price worth paying if it accomplished anything, but it doesn’t.
I think the Conservatives would very much like to send more offenders to jail, and this is what is behind much of their criminal justice agenda. If I thought this sort of indiscriminate policy would make us safer I would be the first to jump on the bandwagon. But the experience in the US shows that it won’t. Instead of wasting money on building more prisons to house more offenders, including the non-violent kind, which is what the Conservatives’ agenda will ultimately lead to (for example, their stance on conditional sentence, so-called "house arrest"), we should instead be targeting our scarce resources on those who really belong in jail: violent criminals. We should be bringing more Dangerous Offender applications to indefinitely incarcerate violent recidivists. When you speak to Crowns (BTW, I do regularly), they are terribly overworked and already stretched thin. They would like to bring more such applications, but they are forced to make difficult decisions because of resourcing limitations.
We have ended up far away from where we started, the Conservatives’ recent announcement to end enhanced credit in sentencing for periods spent in pre-trial custody. I am still waiting to hear a convincing argument from anyone as to why this proposed reform is sensible from a public policy standpoint?
Posted by: James Stribopoulos | March 29, 2009 at 02:32 PM
James - before I try to respond to your points, which I will no doubt do deficiently, I just wanted to say thanks for taking the time to post what is, in all likelihood, the most thoughtful and detailed comment I've seen in (1, 2, carry the 4) a little over five years of blogging. Here goes (obviously I'm cherry-picking your comment to save space, and I'm hoping I don't mangle your points in the process):
"Judges virtually never feel a need to reach them, let alone exceed them. So to say that they fetter judicial discretion in the same way that the elimination of enhanced credit for pre-trial custody, fails to recognize that minimums and maximums are like apples and oranges."
I don't disagree that judges never feel the need to exceed them (though whether that is a comment on the structure or the judges is another matter), but if we are arguing against fettering discretion, we need to unfetter *all* discretion, not merely the fetters which we don't particularly like. If there's a fence penning in cattle, it's still a fence even if the cattle don't wander over to the far side of the field and bump up against it. (That might be the most inelegant analogy I've ever used, but it's all I've got at the moment.) If our true goal is to let the will of the judiciary run free, let's go for it, and revert to common law criminal laws. But I suspect that's not the point - the point which you're raising is that you want to limit the ability of judges to impose harsh sentences, but let them be free to impose more lenient ones. That's fine, that's a cogent point in and of itself, but it doesn't need to be dressed up in the glamorous robes of "judicial discretion".
"There are constitutional impediments to the elimination of maximums, the Charter's prohibition on cruel and unusual punishment (s. 12), and, in the case of youth, the constitutional requirement that we recognize their reduced moral blameworthiness by not treating them as harshly as adults (s. 7). I suspect you would respond by arguing "well, if you believe in judicial discretion, repeal the responsible provisions in the Charter". But the problem with that sort of response is that it tries to force your opponent into a zero sum position. I do believe in judicial discretion, but I also believe in cabining that discretion against excesses and abuses, which is what the Charter does."
Fair enough, but, with respect, I think you're using "excesses and abuses" to describe activity only at the top end of the scale - in other words, I'm guessing you would never characterize a - I'll avoid using "lenient" for the moment - let's say "low" sentence as an "abuse". You're artificially castigating one set of activities (what you would call "abusive" punishments) while not applying the same set of moral criteria to the set of activities under discussion - if we admit that punishments can go too far in the one direction (too excessive), then presumably we have to be prepared to admit that they can go too far in the other direction (too lenient).
"On the other end of the spectrum, enhanced credit for pre-trial custody was an escape valve that judges had developed that Parliament seems poised to eliminate."
I'm intrigued by your use of the term "escape valve" - to extend the metaphor what "pressure" is being released or what danger is being avoided by allowing for sentencing credit?
"Of course, the real solution is to dedicate adequate resources to the criminal justice system so that cases get brought on for trial much faster than they currently do. That would obviously cost more money, requiring the construction of more courthouses, the appointment of more judges, the hiring of more prosecutors and more adequate funding for legal aid. I am enthusiastically in favour of all those things..."
To be clear, as am I.
"... but as you may know, the Conservatives aren’t interested in spending money on real systemic reforms in the criminal justice system. That sort of reform doesn’t earn them votes or come on the cheap, the way that eliminating enhanced credit for pre-trial custody does."
I'm not going to defend the general approach (or, more precisely, decisions which have *not* been taken) of the Conservatives, but I've never understood the argument that "spending money on real systemic reforms in the criminal justice system ... doesn't earn them votes". I know of absolutely no one on the right-hand side of the spectrum that argues *against* spending that money in that way or argues *against* systemic reform. As the last few months have undoubtedly demonstrated, this isn't a government averse to spending money. But we've got the proposals we've got - I'm still struggling to see what is so offensive about them *in and of themselves*.
re your hypotheticals and the point about per-trial time not being taken into account in determining parole and statutory release elgibility
Excellent, thank you for explaining that. I was not aware that pre-trial custody is not taken into account in determining parole and statutory release eligibility (and I will give Michael Mandel a piece of my mind for not making that clearer in class) - I think we can both agree that that is a clear injustice and should be rectified. But, again, I'm not sure how I follow that using the two-for-one credit is an acceptable "cure" for this problem - if anything, it sounds like 2-for-1 then results in a dramatically over-generous windfall for Offender Y (using your scenario) - if the discrepancy is eight months, then giving two years credit seems a bit excessive. (I appreciate that you think a component of the credit is to render amends for the harshness of pre-trial custody, but I think we'll just have to disagree on that.)
Given your response, I suspect your answer will be that the real culprit is parole, why are we releasing offenders after 2/3rds of their sentence? With these offenders, however, we are not truly “releasing” them. Rather, they are “paroled”.
I don't want to get side-tracked into a discussion of statutory release since I think it's orthogonal to the issue of two-for-one credits, but, yes, I'm fully aware of the supervisory elements and the arguments in favour of supervised reintegration. But the astoundingly high recidivism rates of those on statutory release indicate that *something*, whether it is the mechanism itself or the poor supervision after release, is seriously amiss. My instincts are to say it is the mechanism itself which is a failure, but I'm sure you have different views on that (not trying to be dismissive, just acknowledging that I don't think we're going to see eye to eye on this one either).
Further, your ability to isolate a couple examples of judges in our system being far too lenient doesn’t have anything to do whatsoever with the principle that offenders should receive enhanced credit for time spent in pre-trial custody. I know you think it does, but that’s because you misunderstand the principle and think it provides some sort of windfall, as I point out above, it doesn’t. (By the way, the solution in the cases you highlight is for the Crown to appeal.)
I agree that leniency in total sentencing has little to do with two-for-one credits, but I didn't bring up leniency - you did, in citing it as a motivating factor for elimination of two-for-one credits. I'm also not arguing that there isn't a solution to leniency - I'm "isolating examples" of lenient sentences - a phenomenon the exitence of which you, in your post, seemed to express some doubts.
Finally, you are right that crime is drastically down in the United States. You are wrong, however, to draw a connection between this statistical truth and mandatory minimum sentences.
I certainly don't support mandatory minimum sentences, and I certainly have never made the argument that mandatory minimums contribute to declines in crime rates - but I'm quite happy to make the argument that putting more convicted criminals in jail for longer periods of time (a result which is achievable without the use of mandatory minimums) will, and has, resulted in lower crime rates.
Crime is down throughout the industrialized world, including Canada, a fact that criminologists convincingly explain by an aging baby boomer population in all of these countries.
With respect, I have never seen a "convincing" argument that the aging baby boomer population is the sole contributing factor to the decline in crime rates. It may play some role (though even about that there is considerable debate), but to ascribe sole, or even dominant, causal status to changing demographics simply doesn't hold water (see Levitt or Zimring's The Great American Crime Decline. If demographics is destiny in crime rates, then we should have seen significant increases in crime in the late 1990s and early 2000s as the juvenile population soared - but we didn't.
The fact is, the American have the highest rate of incarceration as compared to any of these countries. If throwing people in jail for longer and longer periods is the solution to crime, then the United States should be the safest country in the industrialized world, I trust you won’t make me cite the statistics that debunk that suggestion.
Making cross-cultural comparisons, especially across large heterogeneous societies like the US and more homogeneous societies like many of the other members of the "industrialized world" is a precarious game, at best. StatsCan consistently warns us against even comparing Canadian and US crime statistics, given definitional differences, so comparing the US and, say, Japan or Portugal is specious. The US has consistently had higher crime rates than other countries, though that in many cases is driven by urban and racial issues (compare suburban and rural crime rates across Canada and the US, for example, and you'll see they are both relatively low - factor in the massive urban and gang-related crime rate of the US, however, and you suddenly see very different results). In any event, point being that one wouldn't expect, as you claim, that increased sentence severity in the US would result in the lowest crime rate in the world, but rather that increased sentence severity would result in lower crimes rates in the US *as against periods of time when sentences were less severe* - and that's precisely the result we see.
The fact is, the Americans are retreating from mandatory minimums, the decision of the NY legislature the other day (which I reference in my post) is reflective of this. After sending a generation of non-violent drug offenders to jail for shockingly long periods, the United States can no longer afford the costs associated with having the highest rate of per capita incarceration in the industrialized world. It might be a price worth paying if it accomplished anything, but it doesn’t.
Societies should, indeed, retreat from mandatory minimums, indiscriminate sentencing of non-violent drug offenders and the "war on drugs" more generally. I've certainly never argued otherwise. But what any of this has to do with the wisdom or justice of two-for-one sentence credits is becoming a little bit fuzzy.
I think the Conservatives would very much like to send more offenders to jail, and this is what is behind much of their criminal justice agenda. If I thought this sort of indiscriminate policy would make us safer I would be the first to jump on the bandwagon. But the experience in the US shows that it won’t. Instead of wasting money on building more prisons to house more offenders, including the non-violent kind, which is what the Conservatives’ agenda will ultimately lead to (for example, their stance on conditional sentence, so-called "house arrest"), we should instead be targeting our scarce resources on those who really belong in jail: violent criminals.
Couldn't agree more. Well, I think you're disingenuous about the Conservatives' stance on conditional sentencing - the argument is not that conditional sentencing should never be available, but that it should not be available to those convicted or violent or serious crimes (fraud, etc.). I'm struggling to imagine a scenario where a violent offender should receive house arrest.
We should be bringing more Dangerous Offender applications to indefinitely incarcerate violent recidivists. When you speak to Crowns (BTW, I do regularly), they are terribly overworked and already stretched thin. They would like to bring more such applications, but they are forced to make difficult decisions because of resourcing limitations.
Agreed, again - resources should be increased and there should be more DO applications and we should indefinitely incarcerate violent recidivists.
I am still waiting to hear a convincing argument from anyone as to why this proposed reform is sensible from a public policy standpoint?
I'm not sure where you're going to draw the lines around what constitutes a "public policy" argument, but I think the basic argument against two-for-one sentencing is because they are unjust, and for the following reasons: 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? 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.
Posted by: Bob Tarantino | March 29, 2009 at 03:40 PM