I have to admit I'm becoming a keen anticipator of Edward Greenspan's columns written for the Sun chain of newspapers. Because they're so good, you ask? No, because they are so painfully bad (his installment discussing the finer points of this newfangled thinger called "the internet" is for the ages). His latest column, soaringly entitled "Let criminals write" is absolutely glorious in its awfulness. The arguments presented are so poor he actually manages to refute every single one of his own arguments by the time he gets to the end of the column. It is, and I speak with no hyperbole whatsoever, a masterwork.
I am frequently told Canada is soft on crime. I think that is a myth.
Canada is tougher on crime than most people believe, and getting tougher by the day. Just consider the response to the news that convicted murderer Colin Thatcher is planning to publish a book later this year about his infamous case.
Tougher and tougher (by the day no less)! One has to admire the sheer gall of writing the phrases "Canada is tougher on crime than most people believe" and "Colin Thatcher" within a couple of sentences of each other. Colin Thatcher, you might recall, was convicted of the first-degree murder of his ex-wife. Bear that in mind: first-degree murder, supposedly the worst of the worst crimes that can be committed under our legal system, nominally resulting in an automatic "life sentence" with no possibility of parole for a minimum of twenty-five years. So, as I was saying, Colin Thatcher gets convicted of first-degree murder, and what does the "tougher and tougher" Canadian sado-state do to him? It houses him in Ferndale, a "prison" complex which accords Thatcher residence in a duplex-style house with a room of his own, a nine-hole golf course on the grounds to sate any desire to swing at little white balls, and room for him to board his pony (seriously.) I've never committed a crime in my life, and the government doesn't pay for me to play golf every day with my pony nearby; it's an outrage, I tells ya. Oh, and then Thatcher was given full parole (after previously being accorded day parole) after twenty-two years. With malicious, gratuitous punishment like that, it's a wonder people have any faith left in the government whatsoever. But them's were the olden days! you might cry - we're really tough on criminals now. We sure is! Like, say, this guy, who was convicted in 2000 of raping an 11-year old girl (after being on statutory release for a previous sexual assault conviction), and who has "a history of violence against 'people he perceives that he has a grievance' as well as those he comes into contact with during the commission of other crimes, such as robberies". What did the "tougher and tougher" Canadian prison-industrial gulag-complex do to him? Paroled him the other day. I digress...
On to the topic at hand, Greenspan's arguments against Saskatchewan's Profits of Criminal Notoriety Act (text of bill can be found here - Download Saskatchewan Bill 94).
Greenspan argument against, the first:
Several provinces already make it illegal to profit from writing or selling the story of a crime, but Morgan said he will consider new legislation "not just with regard to specific items but with regard to all sources of revenue." Apparently Saskatchewan may want to prohibit convicted criminals from ever having a cent of revenue for the rest of their lives. I am sure many readers would have no problem with that.
Oh ho! Little bit of misdirection there - "apparently Saskatchewan may want to prohibit convicted criminals from ever having a cent of revenue for the rest of their lives". Well, no - as anyone who is familiar with similar "Son of Sam"-type legislation in force in other provinces, or anyone who read the Saskatchewan government's press release, or anyone who has read the draft bill, or anyone who understands basic English, could have told you, the Saskatchewan justice minister was referring to all sources of revenue arising from the crime or the recounting of it, such as the sale of memorabilia or the sale of movie rights in the book. But yes, if it makes your argument easier to make, Mr Greenspan, let's assume the government of Saskatchewan is going to introduce legislation which will prevent convicted criminals from ever earning a dollar in their lives from any source of income whatsoever. So, first argument against fails due to acute strawman-itis.
Greenspan argument against, the second:
Saskatchewan should not fall for the same mob mentality other provinces have. The publication of accounts of crime should be unfettered in a democratic society that respects freedoms of expression, press and other media communication.
Indeed they should be, and the proposed legislation does absolutely nothing to inhibit any of "freedoms of expression, press and other media communication". It contains no language whatsoever which prevents anyone, at any time, from writing and/or publishing accounts of crime. It merely prohibits payment to a convicted (or accused - more on that later) criminal on account of the recounting of their crime. So, second argument against fails due to... I don't know, sheer obtuseness.
Greenspan argument against, the third:
History has repeatedly demonstrated there are invaluable insights to be gained from the writings of convicted criminals.
Following that sentence, Greenspan provides... no examples whatsoever. Maybe they're out there. Mr Greenspan couldn't be bothered to enumerate them. Third argument fails due to lack of evidence.
Greenspan argument against, the fourth:
And in an era where wrongful convictions are prevalent, we should not discourage people who believe they are innocent from trying to raise funds to plead their case. There would be a major chilling effect upon the wrongfully convicted.
At first glance, this seems like a compelling argument. But only at first glance. The main organizations in Canada which advocate on behalf of the wrongfully convicted (the Osgoode Hall Law School Innocence Project and the Association in Defence of the Wrongfully Convicted (both of which are endeavours which deserve greater financial support from both government and public) are both non-profit volunteer organizations - the ability of an individual contesting their conviction to pay is irrelevant (there is no one to pay). Might there be situations where an individual who has been wrongfully convicted is rejected by both those organizations and yet still wants to mount a contestation of his or her conviction? Possibly - but since those will inevitably be marginal cases, we would need to balance such marginality against the purposes of the legislation (about which more later). We should also note that the proposed legislation (in sections 8 and 9) allows for the possibility of a convicted individual to apply for a court order approving a contract for payment in exchange for recounting a crime - meaning someone who is wrongfully convicted could enter into a contract which provides that payment be made to their lawyer, thereby funding their contestation of their conviction. So, argument the fourth gets about a third of the way there, then gets harried back to the starting line.
Greenspan argument against, the fifth:
The proposed law and existing ones like it are not even necessary. It is important to recognize there is a difference between the proceeds of crime and the proceeds of writing about crime. Convicts are typically required to return the proceeds of their crimes, such as stolen property.
But crime victims and their families can sue the perpetrators for damages. If the victim receives a judgment, then the victim can seek to collect money from the perpetrator until the judgment is satisfied, regardless of whether the perpetrator's income is from writing fact, fiction or just from plain working.
It is thus an irony of the proposed Saskatchewan law that under the current status quo, victims are now more likely to have a chance of receiving compensation from their attackers than they would be if the law passes and perpetrators lose all financial incentives to tell their tales.
Here is where Greenspan's argument starts getting really wonky. The argument, as near as one can translate it into plain English, appears to be that the proposed law is "unnecessary". Not "unnecessary" in the sense that "it serves no purpose", but "unnecessary" in the sense that "it is redundant" - in other words, the purpose is already being served by existing laws - in this case, tort law. Let's accept that as the case for the moment. If so, then why isn't Greenspan arguing against the existing doctrines of tort law which have the result he decries? He doesn't - not even once, not even remotely. He apparently thinks it is perfectly fine for victims to be able to sue criminals and recover the proceeds of any book advance or royalty or any other revenue stream derived from the "sale" of a recounting of the crime they committed. And note that the tort law doctrine, which Greenspan does not argue against, actually bears the characteristic which he incorrectly ascribed to the proposed legislation: if you obtain a judgment in tort, it applies against all sources of revenue, regardless of provenance, until the judgment is satisfied. So now we know that Greenspan is either lying about his objections to the proposed legislation, does not understand the implications of his argument against it, or misunderstands the laws to which he is pointing. On this account, all that the proposed legislation does is short-circuit the need for victims to sue their victimizers: instead of having to go to court to get a judgment in order to get their hands on the book advance/royalties, the funds are supposed to be paid directly over (well, first they go to the minister of justice, then they go to the victim - still, that's a lot quicker than going through a trial and trying to enforce a judgment). Since Greenspan evidently has no objection whatsoever to the underlying principle, why is he opposed to victims being given a more efficient way to seize those funds? His fifth argument therefore fails for lack of internal consistency and coherency.
The final portion of his fifth argument reveals just how confused it is, and I'll repeat it here for the sake of convenience:
It is thus an irony of the proposed Saskatchewan law that under the current status quo, victims are now more likely to have a chance of receiving compensation from their attackers than they would be if the law passes and perpetrators lose all financial incentives to tell their tales.
That makes no sense whatsoever - on both scenarios, whether sued in tort or as a result of the proposed legislation, the "perpetrators lose all financial incentives to tell their tales", since in both cases they would be foregoing the money in favour of the victim. So, on Greenspan's account, authors never have a financial incentive to tell their tale - under current law, they can be sued in tort, and under the proposed law they are a priori not entitled to receive the funds. So what's he complaining about? Which gets us into the question of motivation and incentives. But before we get there, let's take a look at the remaining arguments which Greenspan proposes, because from this point, they become simply nonsensical.
Greenspan argument against, the sixth:
If the purpose of the law is to ensure victims are compensated, then the law is unnecessary as that is already a remedy available to victims.
Simply a reiteration of the fifth argument, so it remains unnecessary to address it for the reasons outlined above.
Greenspan argument against, the seventh:
If the purpose of the law is to somehow protect victims from having their story told in public, then the law is a violation of the free speech protections of the Charter.
Yeah, that does seem like it woul... hey, wait a second - why are we talking about "the purpose of the law" as "if" we're not quite sure what it is? The purpose of the law is not at all to "somehow protect victims from having their story told in public" - because then the law would need to cover not just the criminals, but also journalists, court reports, lawyers, hell, even judges - each of them participate in the "telling of a victim's story in public". So we know that's not the supposed purpose of the law - it would be a deranged purpose, first of all. So why doesn't Greenspan do the simple thing, and see what the law itself cites as its purpose? From Section 3 of the proposed legislation:
The purpose of this Act is to prevent persons convicted of, or charged with, a designated crime from financially exploiting the notoriety of their crimes and to: (a) compensate victims of those crimes and their family members; and (b) support victims of crime.
Was that so hard? To find out what the actual purpose of the law is, rather than concocting absurd "purposes" advanced by absolutely no one, solely in order to buttress an already collapsing argument?
And anyhow, the law would be ineffective in protecting victims from having their story published, since the law would still not prohibit the perpetrator from writing about the crime for no compensation, and would not prohibit journalists or others from writing about it too.
Of course it would be ineffective in "protecting victims from having their story published" - because that's not what the law is trying to accomplish.
Authors can write and profit from the crimes of others with no compensation whatsoever owed to the victims. In Cold Blood, The Executioner's Song, Fatal Vision, and Dead Man Walking all easily come to mind.
It's excellent that those all easily come to mind. Why, the question arises, though, did the actual purpose of the law not come so "easily to mind"? The quoted sentence even hints at the underlying philosophy of the law: we don't care so much about other people writing about crime, because they are not involved in the moral grotesquery of committing a crime and then also profiting from its recounting. You need both elements of that equation in order to fall afoul of the moral and legal sanction. Oddly, Greenspan does not once, ever, address the very basic moral question at the heart of the matter: does he think it is morally acceptable to profit from a crime you have committed? It's just possible that he doesn't think it is morally acceptable: as noted above, he's certainly not opposed to people being able to recover a criminal author's monies by means of a tort claim. But if that's the case, if he agrees that it isn't morally acceptable, then all he's complaining about is the means by which the end is accomplished - and his arguments against the means simply hold no water.
Buried in the heart of his previous argument is the latent fact which undercuts his entire piece:
... the law would still not prohibit the perpetrator from writing about the crime for no compensation...
Exactly. So, since the law does not prohibit criminals from writing about their exploits, we need not be troubled by any of his first, second, third, fourth, fifth, sixth or seventh arguments against the proposed law - the accounts will still be written (thus ensuring us access to their doubtlessly endless historical value), there will be no censorship of views contra the Charter, there will be no inhibitions on fundraising for appeals, and the actual purpose of the law (not the faux purposes invented out of thin air by Greenspan) is valid and accomplished in a (relatively) limited manner. But Greenspan isn't done yet:
Thatcher was convicted and punished. He has served his time.
If you think Colin Thatcher should not profit from his book, simply do not buy it.
Yes, that does seem like an innovative approach. It would not, however, address the fact that Thatcher has already received an advance from his publisher for his, er, efforts. And it also does not address the fact that the impulse of criminal prohibition is not that the act in question offends me or you or someone else, but that it offends societal norms - it's all well and good for Thatcher not to get my money, but he will still be getting some money, and therein lies the objectionable act.
And so, at the end, we are left with a limp noodle of a column and argument: Greenspan is objecting to a proposed statute which accomplishes a much more narrow goal than is accomplished by existing law which he implicitly supports. He is objecting to it on grounds which are so flimsy that they don't even manage to last through to the end of a 700-wrd op-ed column, being refuted by the author's own arguments.
Now, what arguments could be levelled against this proposed legislation? Overbreadth for one: it applies not just to those convicted of crimes, but those accused of crimes - quite a big difference; it seems unjust to prevent someone who has not yet been convicted of a crime from receiving monies to which they are otherwise lawfully entitled. We could query whether the mechanisms put in place in the law are as straightforward as they might be (there's a lot of holding onto funds by the government occurring) or put sufficient onus on the government to disburse in a timely manner. There might be others. Do we get any hint of them in the column? No. Do we get even an explanation of how the proposed law would work? No. Instead, we get hand-waving and mischaracterization. Not bad work if you can get it, I suppose.
"Instead, we get hand-waving and mischaracterization. Not bad work if you can get it, I suppose."
Yes, and once you get it, there is the whole business of keeping it. As deadlines loom, there may be some cutting of corners in the facts-and-logic department.
I suspect Greenspan had very little time to think before writing, with the result that, rightly, you demolish here.
I want a pony and a book advance too. But I will say I am opposed to recounting the tale of hacking up one's ex-wife to get them. And of course Colin Thatcher was just a po' boy, whose cleaving habits are being denormalized by the pompous moralizers that comment here. [/not-wholly-justified dig at Loather]
Posted by: Jim Whyte | May 19, 2009 at 08:46 AM