"political grandstanding time again"

Eddie Greenspan has taken another opportunity to offer up a hodgepodge of terrible arguments and fatuous reasoning, this time in support of... being more lenient on criminals.  But then you probably could have guessed that last part.

Greenspan is flummoxed by the government's plan to limit the circumstances under which judges can hand out conditional sentences (known in the real world as "house arrest", although even that is a misnomer, because people generally aren't actually restricted to their residence - they can leave to attend work or school). 

As we've seen before, one of Greenspan's stylistic quirks is argument by misdirection: he simply mischaracterizes the point he's arguing against in order to make his own argument appear stronger.  Honesty and good faith are the first requirements for a good debate, and Greenspan elects not to treat with either.  Here's Greenspan on the government's proposal [emphasis added]:

This season's version is Justice Minister Rob Nicholson's proposed legislation that would terminate the use of conditional sentences in many cases.

... The Conservatives' proposal would remove sentencing judges' discretion to impose a conditional sentence, even though the judge -- not Parliament -- is in the best position to determine the proper sentence on a case by case basis.

Those are just flat-out lies (the second more flagrant than the first): the government's proposal ends conditional sentencing for a limited selection of serious crimes: crimes that the Criminal Code prescribes a maximum punishment of 14 years, or crimes for which the maximum punishment is 10 years and involves bodily harm or the use of a weapon.  As an example, the list would include crimes "such as theft over $5,000, auto theft (proposed by Bill C-26 currently before Parliament), breaking and entering and arson are included on the list of indictable offences that will be ineligible for a conditional sentence."  It's telling that Greenspan frames his argument in the abstract, instead of telling us why he thinks people convicted of aggravated assault, or assault causing bodily harm or arson should be able to hang out at home as "punishment".

Let's turn to Greenspan's positive arguments in favour of conditional sentencing.

In fact, a conditional sentence may be as onerous as, or perhaps even more onerous than a jail term, particularly where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the while living in the community under tight controls.

That's the sort of statement that could only make sense to someone in the blind thrall of ideology.  Getting to hang out at home ("under conditions") is tough!  But let's even accept it as correct - let's say that hanging out at home really is "even more onerous than a jail term".  Can we at least now admit, if being in your own home and going to work and school is rougher than being in prison, that maybe our prisons have become a little more soft, a little more thug-huggy, a little more cushy, than they ought otherwise be? No? Oh. That's a surprise.  Because the little bit of jiu jitsu that Greenspan attempts is all part of the rhetorical stupidity that goes on in criminal justice thinking: prison is just so awful and inhumane and degrading that we should never send anyone there, except that "keeping" them "at home" under conditional sentencing is potentially even worse, and, suddenly, then, you're at the point where both punishing someone (by putting them in jail) is inhumane and not punishing someone (by letting them hang out at home) is (even more) inhumane, and so, really, why not just drop the whole "punishment" thing and we'll just have them write essays expressing how sorry they are, except if they don't want to then they don't have to?

How is it possible for a conditional sentence to be more onerous than being confined to prison?  It's not, but it's the kind of delusion to which one needs to subscribe in order for most things in the Canadian criminal justice system to make sense.  We keep being told that the criminal justice system in Canada is just one long nightmare of punishment and pain, and yet now we find out that it's actually not so bad, being sent home (well, when you're not busy not being home) is even worse.  And it is worth recalling that what Greenspan is arguing in favour of is conditional sentencing for violent criminals.  We're not talking about people who have stolen a comic book, but people who have committed aggravated assaults and burned down people's homes.  Which alludes to the matter at the heart of it all, and which, of course, Greenspan conveniently ignores: society's just entitlement in punishing, denouncing and exacting retribution on those who commit crime.  Like most of the commentariat when talking about sentencing in Canada, Greenspan prefers to frame the issue in purely instrumental terms: if Criminal A gets a conditional sentence and never commits another crime, then the system has "worked" - which overlooks the fact that Criminal A has never received his desert for the original crime he committed.  Discussions led by the likes of Greenspan have sidelined the issue of what people, particularly violent criminals, deserve when being sentenced.  Paul Tuns did a nice job of articulating the point a few weeks back:

People do not -- or at least should not -- want tougher sentences because they deter crime or otherwise affect the crime rate. They want tougher sentences because criminals should pay a price for their law-breaking, especially for violent crimes. The popular saying among regular folks who don't read editorials in the large dailies is "you do the crime, you do the time." That isn't incarcerating Paul to stop Peter from robbing a store or beating up someone on the street. It means putting Paul behind bars because that is what Paul deserves. It's called just desserts. That is why the crime rate is not a relevant consideration to what a just punishment is; there is no correlation between how many crimes are committed and what a criminal deserves. To take the Ottawa Citizen argument to an extreme, let's say there was zero crime in Canada and out of the blue a person kills his neighbour. Would that killer deserve just a few days in jail? No, that is ludicrous -- he would still deserve a long time in jail (or death) because that is what murderers deserve.

Indeed.  I harp on this point a lot, but only because too many commentators on the matter insist on ignoring it: deterrence is simply one of the reasons for which we punish.

But, of all the pathetic arguments in favour of conditional sentencing, the "it's just so hard on the criminals!" line isn't even the worst one.  This one is:

To the contrary, it is known that offenders who serve their sentences without prison have a much better chance of rehabilitation and reintegration into society.

Read that again.  Slowly.  Okay, read it again.  Has your brain turned to mush yet?  It should.  You know why "offenders who serve their sentences without prison have a much better chance of rehabilitation and reintegration into society"?  Because they've never been separated from society.  There's nothing for the them to reintegrate into - they've been integrated all along.  But that, folks, is the best argument which the pro-lenient sentencing side has.

Next, Greenspan offers up this bit:

Concerns about releasing offenders into society are overblown and exaggerated. There is no denying that some offenders under conditional sentences have committed crimes. But an offender on a conditional sentence is no more likely to re-offend than someone who has served his or her time in jail. To the contrary, it is known that offenders who serve their sentences without prison have a much better chance of rehabilitation and reintegration into society.

Odd.  Nobody has produced any studies which demonstrate what Greenspan is asserting.  In 2006, the Canadian Criminal Justice Association, in its submission to Parliament arguing in favour of increasing the use of conditional sentences, stated "To date, there is no known recidivism data available to evaluate the impact of conditional sentencing."  Nothing that I've been able to find subsequently indicates anything to the contrary.  So, where is Greenspan getting his information from, such that he is able to make those definitive statements quoted?

And here, evidently realizing that he doesn't have any actual arguments to wield, he falls back on a bit of sophistry which amounts to effective arguing in the courtroom, but elsewhere is regarded as feeble.  I'll call it the "but Billy said it" form of reasoning.  When losing a debate, the last refuge of incompetence is not patriotism, but relying on external assertion - "but Billy said it!".  In legal reasoning, because of its institutional nature, arguing by reference to authority is considered not just acceptable, but the most effective form of argument - it's actually acceptable in legal argumentation to say "but these guys over there said this, therefore this is correct".  It's usually gussied up as an appeal to precedent, in the form "the Supreme Court of Canada said X, therefore X is correct and the law of the land".  It's a puerile form of argument, but within the confines of the courtroom, and within the four corners of a judgment, it's necessary and understandable.  As a form of reasoning absent those particular circumstances, it's nonsensical.  Rationality requires examining the substance of the argument, not its source.  But that's all Greenspan has, so he starts waving his hands:

Because I am a criminal defence lawyer, people will think I'm just trying to protect my clients. If you don't want to hear it from me, then at least listen to the Supreme Court of Canada, which has repeatedly upheld the use of conditional sentences and explained their value: "Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence."

It is too simplistic to dismiss conditional sentences as getting off easy. Again, the Supreme Court has said it best: "The stigma of a conditional sentence with house arrest should not be underestimated. Living in the community under strict conditions where fellow residents are well aware of the offender's criminal misconduct can provide ample denunciation in many cases. In certain circumstances, the shame of encountering members of the community may make it even more difficult for the offender to serve his or her sentence in the community than in prison."

Right.  Shorter Eddie Greenspan: not only am I soft on crime - so is the Supreme Court of Canada!  But then we knew that already.

But, fine.  If we're just going to accept, like babies being fed pabulum, the words of the Supreme Court of Canada about conditional sentencing, we should at least take time to look at everything they've said about it.

The quotes which Greenspan provides are taken from a case called R v Proulx.  Let's see what else the Court in Proulx had to say about conditional sentences:

Although a conditional sentence is by statutory definition a sentence of imprisonment, this Court, in R. v. Shropshire, [1995] 4 S.C.R. 227, at para. 21, recognized that there "is a very significant difference between being behind bars and functioning within society while on conditional release". See also Cunningham v. Canada, [1993] 2 S.C.R. 143, at p. 150, per McLachlin J. These comments are equally applicable to the conditional sentence. Indeed, offenders serving a conditional sentence in the community are only partially deprived of their freedom. Even if their liberty is restricted by the conditions attached to their sentence, they are not confined to an institution and they can continue to attend to their normal employment or educational endeavours. They are not deprived of their private life to the same extent. Nor are they subject to a regimented schedule or an institutional diet.

Heck, since we're playing this fun game, howzabout we take a look at who precisely wrote those words?  Let's, in other words, since we're on the merry-go-round of "but Billy said it!", see what Billy actually said.  So - who was the author of the judgment in Proulx? Ah, former Chief Justice Lamer, one of the softest of the soft touches when it came to criminals.  Just for fun, let's take a look at what Lamer was saying a few years later:

in an interview in his Ottawa apartment, [former Chief Justice of Canada Antonio] Lamer said he thinks some judges these days are too lenient and some prisoners, such as drug traffickers, are up for parole too early. "I will candidly say I have been looking at some sentences and I have found they are not what they should be. They should be more severe," said Mr. Lamer. "These words coming from me might surprise some people, but I mean them." To that end, Mr. Lamer said, he agrees with some of the Harper government's tough-on-crime initiatives. [emphasis added]

So, if we're going to indulge in "argument via source", let's really indulge in argument via source.  Odd that Greenspan elected to leave all that stuff out, innit?

One final thing to note about what both Greenspan and the Supreme Court yammer on about when talking about conditional sentencing.  Let's look again at what the Court (and Greenspan) have said:

Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender.

That sounds nice. Regrettably, as we've previously seen, when some members of the judiciary are confronted with a law which runs counter to their instinct to treat criminals leniently, they just, you know, ignore the law.  So, no one should be suprised to learn that the rhetoric about conditional sentences providing an opportunity for "reparation" to be made to the victim and for the criminal to accept responsibility for the conduct are simply that - empty rhetoric.  As the Department of Justice's 2004 report on conditional sentences found, judges (surprisingly!) have little interest in making criminals take responsibility for their crimes in any meaningful way: "Very few reported cases contained conditions that provided acknowledgment of and reparation for the harm done to the victim".  Even better, imposing conditional sentences in crimes of serious violence has the consequence of "increas[ing] the suffering of the crime victim, whatever the benefits for the offender", because victims see their offenders not being punished in any meaningful way, even to the point of having to endure criminals entertaining friends at home while being "punished".  Strange, again, that Greenspan elected not to mention any of these empirical reports about the uselessness (and in some cases positive misfeasance) of conditional sentencing in his little jeremiad.

What we see in Greenspan's column, in the Supreme Court's decisions on the matter (and even, as yesterday, in judicial pronouncements when talking about sentencing, when letting someone out of jail was emphatically described as not letting them out of jail), is the embedding in the very heart of our discourse on crime and sentencing the cancer of a radical untruth: that not punishing is the same as punishing, that being soft is the same (even worse!) as being hard, that things which have not been shown to work actually do work, that up is down, wet is dry, right is wrong.  Worse than the implicit degradation of the suffering of innocent victims which is implicit in the entire conditional sentencing regime is the fact that the soft on crime agenda debases not just language but the ability to engage in rational debate.  Even worse than that is the fact that it undermines public confidence in the system: people aren't so stupid that they don't know when they're being lied to, and the fervent assertions of judges, academics, pundits and criminal defence lawyers that giving someone a slap on the wrist is just as bad, just as effective, just as meaningful, as actually punishing them by putting them in jail, are lies of a profound and debilitating order.

Comments

[Jim Whyte]

So maybe my earlier indulgent view of Eddie (tight for time, not marshalling facts carefully) was a little too charitable.

[Jason Hickman]

Excellent stuff. Keep 'em coming. Didn't want you to think nobody was reading!

[Mike H]

Wow.

That might be the most dishonest, lame argument for sentencing leniency I have ever seen.

And thanks Bob, for excerpting Paul Tuns' excellent reasoning on the moral justification for the punitive component to sentencing criminal offenders.

Many years ago, I read a book Greenspan wrote concerning his legal career and some of his views on the workings of the Canadian criminal justice system. One passage has stuck in my mind to this day, and sheds considerable insight into Greenspan's morally skewed and irrational hatred of incarceration for criminals.

Greenspan recounted a commercial airline trip he took with his daughter, when she was a young child. While the boarding of passengers was still in progress, two police officers appeared, escorting a handcuffed and leg-shackled prisoner. Evidently, they were flying the prisoner to another jurisdiction for a court appearance. Greenspan's daughter began to cry, prompting Greenspan to console her, telling her she had nothing to fear from the prisoner, what with the two burly police officers and the handcuffs and shackles. Greenspan's daughter replied that she wasn't crying because whe was afraid of the prisoner, but rather, she was crying because she felt sorry for him. The anecdote concluded with Greenspan making some joke about how the apple didn't fall very far from the tree. It should come as no surprise then, that Greenspan's daughter went on to become a criminal defence lawyer, in practice with her father.

You can't teach or persuade someone to develop that kind of visceral, emotive, yet thoroughly illogical aversion to state-imposed incarceration. It's a bred-in-the-bone fanatical impulse carried by those on the far Left, and Eddie has one of the worst cases I've ever seen.

[Dr.Dawg]

I'd go further--it's not even a simple matter of retrivution--that we want criminals to pay a fair price. I don't know about you, but I'll freely admit that violent criminals scare me. I don't want them walking around the streets. I want them locked up for a long time, not to punish them, but to make me feel safe. And, unlike the nonsensical "national security" nonsense that allows our government to maroon its own citizens with out such luxuries as a trial, violent people really are a danger, if I might end on a truism.

[Mike H]

Hey Dawg, how are you doing?

[Dr.Dawg]

Mike! Not half bad. You? You never come around any more! :)

[Mike H]

I'm good, Dawg. Actually, I peaked in for a visit last night (or maybe it was the night before...).

I promise to leave a comment and stir up some trouble over the next few days.

:>)