On truth in $enten¢ing - Macleans.ca
 

On truth in $enten¢ing


 

The debate over the net costs of the government’s Truth in Sentencing bill is of the kind that makes me want to throw up my hands and whine “Aw, I don’t knowwwww…”. On the one hand, the Parliamentary Budget Office has presented an estimate of the costs that makes the bill seem demented. Kevin Page’s numbers don’t factor in the benefits of any potential deterrence effect; they admittedly rely, at many points, on wild assumptions; and they were assembled with the help of a lot of the sort of “independent” expert who sees prisons as inherently barbarous and would happily blow them all up if someone presented them with a big red button that would do it instantly. But as Page himself has pointed out, this is a fight between questionable evidence and no evidence. The government hasn’t really shown any good-faith sign of a serious effort to cost out the elimination of two-for-one credit for time in remand.

Penology, by and large, isn’t treated as a fundamental political issue in this country at all. We have a series of arguments over specific proposals; we don’t have explicit contending ideologies. Yet it’s discernible, surely, that those ideologies exist.

What we have, I think, is a group of citizens who believe that penology contains no moral component whatsoever. They are, or the most logical ones are, pure utilitarians who believe that punishment has no inherent place in a justice system. If we had a pill for perfect deterrence, one that could eliminate criminal tendencies with 100% effectiveness and no ill effects or pain, they would argue that the ethical thing to do would be to give it to all convicts, even serial murderers and child rapists, and turn them loose to reintegrate with society, preferably with their identities protected. And on the other side, we have the moralists, people who do believe in punishment even where it has no necessary utilitarian or deterrent value at all. They believe that the function of a criminal justice system is to provide justice, in the schoolyard, eye-for-an-eye sense of the term. These people would want prisons, and perhaps other miserable and dire punishments, even if we had a deterrence pill.

The camps don’t challenge each other ideologically very often. It goes unstated that the overwhelming majority of those who actually administer criminal sentencing don’t really believe in punishment—this is fairly obvious, for example, from their shiny-happy trade literature. And it goes unstated that people like Vic Toews are, in a sense, beyond evidentiary arguments like Page’s. Toews is pursuing “truth in sentencing” and applying the statutes of the land, which are based on an idea of punishment favoured by much of the citizenry (and by the framers and re-framers of our Criminal Code) but by few among the bureaucracy or the polite social elite. Toews’ bill may be stupid or insane, but his basic claim to be pursing an abandoned or betrayed “truth” is serious, and it is even half-supported by some critics, who agree that two-for-one remand credit is a substantially unlawful kludge.

I suppose a law-and-order conservative, somebody who has a moralist ideology when it comes to crime and punishment, can’t very well complain about the inspired passion for austerity displayed by critics of Truth in Sentencing. But when the Globe picked up its unsigned-editorial stick and gave Toews a broadly justified hiding with it on Wednesday, I wondered about the lede:

It is unfathomable that the Canadian government would be preparing to more than double annual spending on the country’s jails at a time when almost all other government departments are being held in check, or cut. Never mind deficit reduction. Never mind health care or education. Never mind the environment. Only one thing matters: to be seen as tough on crime.

When Canadian justice went on a liberalization binge between about 1965 and 1985, nobody thought it was necessary to provide an accurate accounting of every penny of the cost of the new measures. And while we’re on the subject, Page’s report notes, in passing, that the cost per individual federal inmate in our corrections system grew by about 50% in nominal dollars between 2001 and 2009. Where were the complaints about this extravagance, the demands that we be shown where the money was going? I must say it is funny how every newspaper columnist suddenly masters the Generally Accepted Accounting Principles as soon as a Conservative government wants to “be seen as tough on crime”.

(And, frankly, I’m not sure why the “seen as” is in that sentence, since Truth in Sentencing really would lengthen criminal sentences for virtually everybody that is held in pre-trial custody and eventually convicted. Can it be argued that this is not genuine toughness on crime?)

Anti-moralist utilitarians betray their own cause when they fail to count the social costs or benefits of a change to criminal justice. Surely, according to either ideology, formal line items in the federal budget should really be marginal considerations compared to whether the measures in question lead to a safer society and less fear. For the moralists, of course, the bar is even higher: the measures must also be just in themselves. The utilitarians, for their part, have a pretty strong case that we need not consider morality or Old Testament-y justice at all.* (This is basically how the emergent field of law-and-economics approaches criminal justice.)

*But then again, you can’t be a half-utilitarian: it’s not fair to fake it because you’re concealing a specious, one-sided romantic concern for the welfare of criminals. If you are going to scream for efficient deterrence as the ultimate penological standard and insist on evidence, you must be prepared to be held to the judgment of the evidence even where it supports apparently unjust or objectionable procedures.

(In the U.S., for example, I would say a consensus is forming around the proposition that capital punishment might save a large, even double-digit number of potential murder victims for each execution; but there have, on statistical grounds, just not been enough executions since Gregg v. Georgia to warrant much confidence in the relevant interstate comparisons. In other words, the jury is still out until the sample grows. So what if the large deterrent effect is upheld over time? Will reality-based liberals in Canada circa 2060 A.D. acknowledge their forebears’ mistake and bring back the noose?)


 

On truth in $enten¢ing

  1. From a utilitarian perspective, a three-strikes-and-you're-dead law has a lot going for it. Somebody who commits a third felony is obviously someone whom the criminal justice system has already twice failed to deter or reform, a swift execution is a lot cheaper than even a short prison sentence, and a recidivist felon on average will be of negative net value to society. You can even harvest the organs like the Chinese do, allowing one execution to directly save multiple lives and improve others.

    • And, of course, should it later be proven that an individual was wrongly convicted, it's no big deal to reclaim all the organs and bring the executed back to life.

      • And you're being sarcastic, of course, because the death penalty is the only irreversible punishment that exists: we have the magic power to give jailed people their time back.

        • We can release an individual from jail, thus returning the balance of their life to freedom (that otherwise would have been wrongly spent behind bars). We can't give back time, but we can make financial amends, we can allow that individual to enjoy his or her restored reputation in society, and we can allow familes, friends and communities to have the indivual back amongst them. It's not perfect, but it's a hell of a lot better than we can do for a corpse, no?

          • Not really, no. I think any wrongfully-convicted person who had spent decades in jail would puke upon reading your feelgood "We can make amends" spiel, quite honestly. Obviously they are glad to be let out, but the idea that they thereby haven't been wrongfully and irreversibly punished is silly. (We never do give them SO much money that they would have freely chosen to sit in jail all those years and take the fat cheque at the end, which would be the only possible indicator that "financial amends" amounted to anything but a pisspoor marginal gesture.)

          • I agree that no amount of money can replace lost years of freedom (and not just lost freedom – jail sounds like a pretty hellish place to live, at least in maximum security facilities).

            But if you're suggesting that being killed is no worse than spending decades wrongfully behind bars, I'd be interested to hear if Milgaard et al would agree with that. You haven't addressed the remaining years of one's life to live freely, nor the ability to see one's name exhonerated. Making amends doesn't undo bad things, but it does allow for some good to be done.

            Dead is dead. I love abstract philosophical arguments as much as the next guy, but it's hard to overlook the finality of killing someone by mistake. And I don't follow how the irreversability of time wrongly spent in jail somehow makes wrongful killing less repugnant.

            It's an imperfect world, and sometimes evil things will happen. Choosing the lesser evil isn't as morally fuzzy as you're trying to make it.

          • So you're saying they'd rather we'd have killed them, then?

            As Sean points out, the problem in the instance of wrongful conviction is the wrongful conviction itself. And no, there's nothing that can be done to fix that. Crap happens.

            Given that, then, what's the best alternative for the wrongfully convicted? Dead? Or freedom taken away for some period?

          • "So you're saying they'd rather we'd have killed them, then?"

            I had to read his post twice to make sure but, to my bewilderment, that is exactly what Cosh is advancing.

          • It's no wonder you're bewildered with reading skills like that. The argument was not over whether capital punishment is more SEVERE than imprisonment. The argument was over whether it's really any less reversible after the fact.

          • Uh… That`s exactly what I understood. You think that because it`s “any less reversible,“ killing them instead of letting them live wouldn`t make a difference.

            How about explaining yourself instead of insulting people? Can you do that?

          • I didn't say there was no difference. I said there was no meaningful difference in reversibility. This is not very hard to understand; sorry if it seems terribly insulting to point that out.

            If you're still having trouble, maybe another question will make this clear: would you consider torture to be a reversible punishment just because we could set innocent people free afterwards, "making amends" with a cheque and an apology? Or would it, in fact, be completely fatuous to suggest such a thing?

          • no meaningful difference as opposed to no difference. You are right. The nuance here was lost on me.

          • This is pretty weak, dude. We might not be able to compensate them in a way which makes them whole again, but that's orders of magnitude better than being, like, dead.

      • Are you under the impression you made a serious objection?

        If we are acting according to justice, certainly, the possibility of erroneous punishment is a concern whatever the sentence. Of course, if we're acting according to justice, executing someone for the third time they commit a nonviolent felony-level crime is so disproportionate that the possibility of error and the inability to mitigate the punishment after discovery of the error don't show up on the screen.

        If we are acting according to utilitarianism, however? The possibility of erroneously convicting someone for felonies on three separate occasions is so small, and differences in practical effect between executing people who have been rightfully convicted of two felonies instead of three so minor, that the negative utilitarian effects of a wrongful execution under a three-strikes-and-you're-dead law are too negligible to show up on the cost-benefit assessment.

        Really, it's as if I'd heard your argument before, and deliberately constructed my proposal to defeat it in advance.

        • Actually, if you're acting on utilitarianism, then you need to look at the stats and realize that places that implement a 3rd strike rule see increases in homicide rates.

          Why? Because if you're already on your second strike, then if your crime goes bad, it's better to make sure there are no witnesses.

          • Certainly, there is a rise in homicide rates that can be expected. Experience suggests it's rather small. And the increase in the death rate is offset by the increased availability both of donor organs to save lives and the increase in funds available to spend on initiatives that will save lives.

            It can also be discouraged at the margin by including enhancers in cases of people who kill witnesses. For example, using a paralytic agent instead of anesthesia and harvesting a murderer's organs while he is still alive and conscious is pretty severe torture, and might well cause a reconsideration of willingness to kill. Or imposing punishments on the family of the murderer.

            You could also offset the value of murdering witnesses by reducing the standard of proof in such cases and/or denying the two-time loser suspected of killing a witness of the right to counsel during trial.

  2. Colby — why can't someone be a half-utilitarian, in the sense that you're using the term? Isn't it quite obvious that many or most of the type of "polite-society" voices you're referring to are indeed half-utilitarians/half-retributivists? The majority of them would oppose punishments that exceeded what the criminals in question deserved–there we've got the retributivist half of the equation. They would believe, though, that desert is merely a necessary, not a sufficient, basis for punishment—the actual rationale for settling on a level of punishment, within the spectrum between zero and the level of desert, would be utilitarian. (Few of them would actually be purely utilitarian here—if there were no instrumental benefit to be gained by punishing murder with more than a three-dollar fine, I doubt that many of them would actually agree to set the punishment at $3.)

    Anyway, while your point is clear, I think the standard practice of contrasting "utilitarian" approaches to "moralist" approaches (which easily morphs in our minds into a contrast between "utilitarian" concerns and "moral" interests) just reinforces the tendency to shallow thinking on this issue. If "utilitarian" is taken to connote "not concerned with moral considerations," then there are no real live utilitarians. Philosophical utilitarianism obviously embodies a moral vision; not sure why we should imagine that utilitarian thinking in the more generic sense doesn't.

    You're very right that we should debate crime and punishment in a more ideological vein in this country. No need to give the utilitarians credit for a non-moral orientation that they don't actually have.

    • But I do think they have it. There are people who would take the no-punishment side on the deterrence-pill question. I am not in fact certain that I ultimately wouldn't. You're confusing the idea of the "penalty" with the idea of a "punishment"; there are a lot of people who would say (or act on the premise) that the penalty for a crime should have nothing to do with punishing the offender at all, and that if giving them ice cream in some sense "worked" better than fines or imprisonments, then we should give them ice cream.

      • "If we had a pill for perfect deterrence, one that could eliminate criminal tendencies with 100% effectiveness and no ill effects or pain, they would argue that the ethical thing to do would be to give it to all convicts, even serial murderers and child rapists, and turn them loose…"

        Am I misunderstanding you, Colby? Your hypothetical situation says 'Commit a crime, be forced to take the deterrence pill, no jail time'. The trouble is, we can never identify who will commit a crime. Unless we're prepared to give everyone the deterrence pill, then you're talking about removing deterrence altogether – heck, if the only consequence of my first conviction was a pill, I would save that first, free crime for something I really wanted to do.

        Even a perfect utilitarian, if such a thing exists, would see the necessity of severe consequences for committing a crime. A pill could only eliminate recidivism.

        • OK, so let's say we are only talking about the people who are already in jail. What about those cases?

          • Then we have a perfect solution to recidivism. But you could not modify their sentences if they take the pill, lest you lose the deterrence of jail time, probation, etc. for everyone else.

          • You're hair-splitting–mostly my fault, but if you'd stop looking for loopholes you could address the real question. What if we just give everybody, inside prison and outside, the pill? Can we then empty the jails? Or do we have to make people already in jail continue paying for the crimes they have already committed, for NON-deterrence reasons?

          • Ah, I see what you're getting at.

            I think it would make sense for those in prison to continue their sentences, even if we could be 100% certain they would not commit another crime. To release them early would be a slap in the face to the victims, who expect some measure of comfort that the criminal faces consequences.

      • Colby — two things:

        1) I guess I'm just disagreeing with you; I don't think that most of those who supposedly prefer utilitarian arguments about punishment would actually be cool with a "sentence" of ice cream or what have you. That is, this wouldn't sit right with them if it achieved only equally good or slightly better instrumental results than a less pleasant sanction. They might go for the ice cream if it brought *much* better crime-reducing results (that is, the benefit might override their dissatisfaction at the absence of any punitive element), and they would prefer the ice cream to a punishment that they considered greatly excessive. But all things being equal, they'd prefer if there were some cost to the offender in the sanction. That's not to say that they'd be want to admit to this preference, or conceptualize either it or the sanction as punitive. I'm making a claim about their psychology rather than about their conscious reasoning. But a reluctance to acknowledge a punitive element would be a result of their moral distaste for punishment as such, not primarily of a positive preference for utilitarianism as such.

        2) In any case, a positive preference for utilitarianism is not usually non-moral position. It's bound up with a sensibility, or maybe just a set of arguments, about what life should be like: that it's good to find satisfaction, that it's bad to put a taboo around practices that might generate greater happiness, that as many people as possible should find happiness, that it's good to exercise our ingenuity to the limit, etc. Many utilitarians might well think, intellectually, that "morality" or "the good" are meaningless concepts. But functionally the sorts of notions listed above still serve as moral beliefs, either psychologically (they actually perceive such things as best, and their contraries as less valid) or rhetorically (their style of argument portrays these values as best for others to embrace, and the contraries as less legitimate).

    • Because if you can't ascribe ridiculous arguments to broad groups of people "opinion" journalism is harder.

  3. The analysis starts off correct: the tough-on-criminologists agenda has nothing to do with achieving any quantifiable objectives, while the utilitarian one is not concerned with public opinion. If we actually want to increase the level of security, then ask criminologists for the the results of the data based on actual evidence. If it's justice that you want, then give judges the discretion to be just. If what you want is the most security and the best justice within a certain amount of money, then fix a budget then figure out what will give you the optimal results. The problem is that all three evidence-driven methods result in a less punitive approach. But the urge to punish people is an emotional reaction, one that does not have much patience with measurable objectives or the dispassionate value-for-money rules that we know governments should have.

    I would hardly call that punitive urge a moral imperative of any kind. That may have been the way of religion thousands of years ago, but Christianity is different. Christianity does not require that we evaluate the transgressions of others and punish them for it according to an inflexible mandatory sentence. Other religions in this day and age also require some leeway in sentencing. Surely modern morality is not Hammurabian but has progressed a bit since then.

    • It is possible Hammurabi knew things Christ did not?

      • No, it's not.

        • Then I guess we can go straight to the Bible for advice on criminal justice? Let's all steel ourselves.

          • Recall that the Bible is not completely prescriptive in this regard (that is, once you bear in mind Jesus's reinterpretation of the scriptures — and I would say reducing the prescriptiveness and focussing on the spirit of the Law was part of his mission). But to speak more directly to your point, if you're going to use "morals" for guiding criminal justice, aren't you going to wind up relying on someone's bible?

          • No, because not everybody has a Bible and nobody's notion of the good really depends on one. You can put the whole "religion is the source of all morality" thing in an enema bag and squeeze as far as I'm concerned.

  4. Thanks for the insight into one of the stranger hallways of academia. The equations in that second paper looked like they were starting to incorporate rudimentary quantum mechanics into their elaborate statistical analysis. Perhaps Schrodinger's cat can be saved after all!

    • Indeed, and reading the studies, the number of estimates and "constructed variables" they use to get their theories to work makes the whole endeavour doubtful in my mind.

      Not to mention that the only way any of them manage to show that there's a negative correlation between death penalty and homicide rate is to try to "normalize" the data by adjusting for demographics and economic conditions. In essence saying, "Look, a bunch of these states that don't have capital punishment were less likely to have murders anyway, so factoring them in makes the states without capital punishment look bad. So we need to adjust their numbers to what it would be like if they were as crappy as the ones with capital punishment" without ever questioning *why* states that don't have capital punishment were less likely to have murders anyway.

      I suggest that it's unlikely that a society can hold the attitude that murder can be a sanctioned state activity without also holding a number of other attitudes that would tend to make the state a worse place to live overall.

      • "I suggest that it's unlikely that a society can hold the attitude that murder can be a sanctioned state activity without also holding a number of other attitudes that would tend to make the state a worse place to live overall."

        (1) Capital punishment isn't murder, since murder is "the deliberate killing of an innocent human being".
        (2) If you disagree with (1), then you would have to also categorize war as "state sanctioned murder". In which case our society already does "hold the attitude that murder can be a sanctioned state activity."
        (3) For those who agree with (1), our society still already does hold the attitude that murder can be a sanctioned state activity: late term abortion up until the moment the umbilical cord is cut, for any reason or no reason, is legal and funded by the state.

  5. On a more serious note, I do believe there is a great opportunity to unify the utilitarians with the moralists in a new cost-effective, deterrent-optimized system. The key to this is noted in Joanna M. Shepherd's work which indicated that even if you kill the wrong guy… the deterrent is still effective! Step 1. Starting with a modification of Lunatic's three strike provision, we compile a broad list of serial offenders. On this list, we should include the entire gamut of criminal behavior from driving under the influence of cocaine through to accepting money from Karlheinz Schreiber. We also would include all unelected Senators on the list just out of spite.

    Step 2. Put law enforcement under the gun and require all criminals to be caught within 3 months of committing a crime.

    Step 3a. Trust and support your police… therefore allow 48 hours max of courtroom time before convicting the criminal.

    Step 3b. In cases where the police fail, take the next "volunteer" from the list created in step 1. No trial necessary, we know they are guilty.

    Step 4. Go public or go home. Young and Bloor, down at the Forks, on the wall of the Citadel, create gruesome execution chambers. These should not however be your grandmother's gallows. We will require connectivity, include a special app for i-phone users.

    I humbly submit that the above procedures would eliminate wait times in the court system, reduce criminal behavior and stop people from parking in the handicapped spots. It would dramatically reduce costs throughout the justice system , facilitate badly needed Senate reform and even help parents get their children to bed on time.

    • This sounds pretty much like the West's approach to terrorism, actually.

  6. While it is great to speculate on the additional costs of the new anti crime measures at some point the government will need to put the real costs forward in a budget. Then the numbers will be there for all to see. No more speculation required.
    So now we have a p.ssing contest between the Budget Officer, the media and the government.
    The fact remains the majority of Canadians want a tougher punishment regime in this country.
    For Page to produce reports that are inaccurate, incomplete or pure speculation does a real disservice for the country.
    For too long the system has been perceived as favouring the criminals and not the victims.
    In the meantime the bleeding hearts who believe there is a way to rehabilitate the bad guys without punishing them will continue to live in their nirvana.
    There are bad people in this world and building more basketball courts will not make them change their ways.

    • The disservice to the country lies solely with the executive who refuses to provide costs, you blathering troll.

    • You're only partially correct that the real costs will eventually need to be put forward in a budget. That's true for building new prisons and hiring additional prison guards, but real costs will also accrue just from eliminating the 2 for 1 sentencing. As we approach the due date on those sentences, prison populations will increase, and so will overtime for prison guards, food costs, medical costs, etc. and those cost increases will be over budget precisely because the governments, federal and provincial, haven't accounted for, or weren't able to account for the consequences of the bill.

      You seem to be okay that the government either doesn't know or won't tell us what those costs are. I say that should have happened before the legislation was passed. After the fact, what's done is done, and Page's reporting is only relevant for predicting the next deficit increase.

    • Only some of the costs will be in a budget.

      Most of these costs are downloaded to the provinces. And they will have no choice because they will be obliged to follow the law that the Conservatives set down.

  7. "When Canadian justice went on a liberalization binge between about 1965 and 1985, nobody thought it was necessary to provide an accurate accounting of every penny of the cost of the new measures."

    For pretty any new measure, not just justice. Do we really want to go back to Trudeaupian budget making?

    • It's interesting to compare and contrast Trudeaupian budget making with (shall we say) Harperian budget making.

      During the Trudeau era, the government spent money it didn't have in order to implement its vision of what Canada should be.

      Today, the government is spending money it doesn't have in order to try to get itself a majority at whatever cost.

      Trudeaupian budgeting may have been bad, but this, to me, seems far worse.

      • Yes, hooray for social engineering and boo to run-of-the-mill politics as it has existed everywhere for all time.

  8. I think there's possibly more nuance to the utilitarian approach than you allow for. One can still recognize the need for punishment (regardless of deterrence outcomes) while questioning if jails and executions are the sole means of punishing individuals.

    I'm not sure the useful debate lies in jails v. no jails, so much as questioning how much time in prison is a reasonable for a given offence (the 'law and order' lobby seems to want nothing but longer sentences, yet I rarely see an explanation of why crime X is properly punished by Y years in jail).

    Also, I think some of the utilitarian criticism of the moralist position is more a response to the poltical rhetoric that supports a more punitive approach. I don't often hear politicians simply say that they want bad people to suffer for their bad actions. Instead, we hear a lot about making our society safer – without much evidence to back that claim.

    I guess my short concern is that it's a bit unfair to suggest that all with utilitarian leanings would be happy to see jails eliminated, if deterrence could be otherwise satisfied; and we need to recognize that moralists often try to sell their ideology with utilitarian claims (safer streets) that are poorly supported.

    • Bang on. One thing I'd add:

      "I'm not sure the useful debate lies in jails v. no jails, so much as questioning how much time in prison is a reasonable for a given offence" for a given person.

      Mandatory minimum sentences remove a judge's ability to consider factors relevant to the criminal and his/her actions. It might feel good to rail against "liberal" judges and to disempower them, but there seems to be little evidence that judges are particularly "soft" on crime. And even if such evidence were available, there are other ways (such as modified sentencing guidelines) that could preserve the fairness and flexibility of the system while ensuring that society's expectations are met regarding sentencing.

      • I think part of the problem with mandatory minimums is that while we may all agree that punishment is warranted in many cases, the reality is that prisons (as currently implemented) tend to make individuals more sociopathic, and less able to integrate usefully in communities, than before they enter the system.

        I'm probably less a utilitarian, and more a pragmatist, in that I'd rather find a way to punish a 20 year old car thief that doesn't ensure he'll emerge *more* likely to commit crimes and generally be drag on society. It has nothing to do with feeling sorry for criminals – individuals make their choices and ought to live with appropriate consequences. It has a lot to do with a desire to consider all the ramifications of sending individuals to jail, both desirable (punishment, deterrence) and undesirable (potentially rendering individuals unsuitable for peaceful participation in society).

        • "… the reality is that prisons (as currently implemented) tend to make individuals more sociopathic, and less able to integrate usefully in communities, than before they enter the system. "

          I'll agree with that – clearly having the criminal emerge in worse shape (in terms of character) does no one much good. But this is a problem with the jails themselves, not the sentencing. Therefore we should fix the jails themselves (break up gangs, crack down hard on guard corruption/bribery, ensure that prisoners are safe from abuse by other prisoners, etc.) rather than reducing the time convicts have to spend in them.

          • No argument here. But making our jails more humane – or whatever you'd call it – is pretty much politically impossible (it's too easily painted as coddling criminals, whatever the long term societal benefits may be). In the short term, we have to work with the prison system we have, and acknowledge the reality of what time spent there does to people. In that sense, mandatory minimums may do more harm than good, and ought to be enacted only after we fix the prisons.

          • I don't know about that. If it was handled as a tradeoff (e.g. "we'll improve prisoner safety and guard treatment of prisoners, but all prisoners will be made to do at least 6 hours a day of hard labour and will get no TVs") I think it would fly.

            The point is to make them pay a price and emerge as better people, not to leave them to the mercy of other prisoners and brutal guards with all the humiliation, abuse, and degradation that that entails. I think much of the public would understand that if it was accompanied by a reduction in prison idleness.

          • Regarding "fixing" the jails — that's exactly what the 2-for-1 sentence reduction is supposed to encourage. It was instituted because of the unfairness and relative squalor of pre-trial confinement. The goal of the 2-for-1 was punishing the system to encourage system reform (which it failed at) and not rewarding convicts (which it is criticised for).
            So how do we fix the system?

          • Great point – the Don Jail is notorious for harsh, cramped and dangerous conditions. Fairness alone suggests that time in such a place is "worth" more than time in a more stable provincial or federal prison.

  9. "Truth in sentencing" is meaningless. What one wants is justice in sentencing.

    It's not about revenge, or making the victims feel better. It's a question of honesty: you take something that isn't yours, you should pay a commensurate price if possible. That's justice. I suppose the "honesty" is what the name "Truth in sentencing" is trying to get at.

    This honesty is good for all concerned: the victims, the rest of society, and even the criminal. Better to make amends for one's misdeeds and be a good man than to get away with something and have the character to match.

    • I like this description – justice and honesty being the same.

  10. The argument in favour of a more utilitarian approach to sentencing is that government resources are finite: money spent on more punishment for criminals is money not spent on other useful things that society deems to be good. Cutting back on spending on (say) education, infrastructure and the environment and diverting that money to punishing criminals seems foolhardy – especially if such spending does not increase public safety (as appears to be the case, based on American evidence).

    I do not think that a more utilitarian approach to sentencing leads to coddling of criminals: some deterrents need to be in place to ensure public safety. I humbly contend that the argument that utilitarians would eliminate punishment if this proved to be maximally effective is something of a straw man.

    As for capital punishment (since Mr. Cosh mentioned it in passing): even leaving aside whether it is moral for the state to kill any of its citizens, and leaving aside the argument that capital punishment is expensive (given the legal costs of the appeal process), the biggest problem with capital punishment is that the criminal justice system is imperfect. We cannot, I contend, allow even one innocent man or woman to be put to death by the state.

    • So how can we permit one to be jailed for life?

      • If somebody is wrongfully sentenced to life in prison, the innocent person can be set free. But he or she can't be brought back from the dead.

        Some crimes are deserving of life in prison – but people were being sentenced to life even before the Conservatives started getting "tough on crime".

        • Well, this isn't utilitarian talk, certainly. I feel it's unlikely you're saying "We cannot allow even one innocent man or woman to be put to death by the state" for utilitarian, non-moral reasons.

          • True enough.

            From a utilitarian perspective, the death penalty is also wrong: from what I've read, it costs more for the United States to execute a person than to put him or her in prison for life.

          • Only because of the extraordinary efforts to avoid the injustice of executing an innocent man. Administer the appeals system in a utilitarian manner, instead of with a concern for morality, and the cost of executions goes way down.

          • What did I say about there being no real non-utilitarians? :)

  11. "Can it be argued that this is not genuine toughness on crime?"

    No. It is politics and with a view to appearing tough on crime. At best, it is an attempt at being tough on criminals without regard or care for what happens to crime rates. Harper himself has public stated he doesn't care for the statistics on crime rates.

    Which is not to say that leniency produces results, just that the focus of the Conservatives/moralists is to be tough on criminals, not crime, but sell it as a utilitarian pursuit of reducing crime without much supporting evidence.

  12. We, of course, have two ideologies in this country.

    The Liberals design policy around evidence as to what will work and Conservatives base policy on their particular mythology and what they find emotionally statisfying.

    Liberals are by and large realists.

    Conservatives are neo-conservatives.

  13. Harper Conservative mindset on basing policy on "evidence“:

    "Despite economic evidence to the contrary, in my view the GST cut worked,” Brodie said in Montreal at the annual conference of the McGill Institute for the Study of Canada. “It worked in the sense that by the end of the '05-'06 campaign, voters identified the Conservative party as the party of lower taxes. It worked in the sense that it helped us to win.” […]

    What's noteworthy is that Brodie, who is now a visiting fellow at the McGill institute, doesn't shrink from publicly asserting that such a major public policy decision can still be deemed a success—even in the face of “evidence to the contrary”—if that move paid the desired political dividends. […]"
    [cont…]

    • […cont]
      "He made it in a panel discussion meant to try to address the question “Does Evidence Matter in Policy-Making?” To some of the other panelists, and I would guess to most of those in the roomful of academics and bureaucrats listening, the assumed premise was that evidence—facts, objective analysis, expertise—should matter a great deal more in policy than it does now.
      But Brodie painted a picture of politics where that would appear to be a hopeless aspiration.[…]
      Brodie talked mostly about the GST, but he suggested the same sort of clash between policy expertise and political necessity is common. He mentioned the way “sociologists, criminologists, and defence lawyers” attack just about every aspect of the Harper government's tough-on-crime policy package.
      Rather than actually rebut any of the arguments those opponents raise, however, Brodie noted that such experts are “all held in lower repute than Conservative politicians.”
      “Politically it helped us tremendously to be attacked by this coalition,” he said. “So we never really had to engage in the question of what the evidence actually shows about various approaches to crime.”

  14. If Kevin Page's numbers don't factor in the benefits of any potential deterrence effect, this probably because study after study has made clear that potential criminals don't take minor criminal policy changes into account when deciding whether or not to commit a crime. That's why Ted in the comments above is correct: the Conservatives are not being tough on crime with this bill; at most they are being tough on criminals.

    Also, the idea that someone who is generally interested in efficient deterrence rather than revenge and punishment as the purpose of the justice system must be prepared to be held to the judgment of the evidence even where it supports apparently unjust or objectionable procedures is a bit silly. Just because one is interested in deterrence does not mean that they must be disinterested in having minimum societal standards for how we treat one another.

    • Then we're in moral territory, and you are certainly vulnerable to the argument that we must have "minimum societal standards" for expressing our horror of crime and our concern for victims, irrespective of evidence of effectiveness per se. Your second paragraph turns your first into junk, unless it is only convicted criminals who have an appeal to these "minimum standards". Eat your cake or have it.

      • No, you've gotten a bit confused. Having a belief in rights does not imply a belief that criminal policy needs to be based upon revenge and punishment. Likewise, having a belief that deterrence ought to be the general goal of the judicial system does not imply that we cannot have concerns that override this goal, such as human rights.

        You seem to have set up this binary moral worldview, where you are either a utilitarian or a moralist. You also seem to have attributed the belief to Utilitarians that human rights matter less than the effective deterrence of crime. Somehow in your view, it is actually moralists (those who believe that the goal of the justice system should be punishment and revenge) who are able to stop short of the more terrible punishments, because… they are moral? And Utilitarians are necessarily amoral? And everyone who believes that deterrence should be the goal of the justice system is necessarily utilitarian, and therefore necessarily amoral?

        Colby, none of these things necessarily follow. One can want the goal of the justice system to be deterrence, because one feels that it is important to prevent crime against potential future victims, and one believes that feelings of revenge and the want to punish are some of the darkest within human nature (though completely understandable) and therefore that public policy ought not be based upon them, without also believing that deterrence of crime is the most important thing in the world, even more important than respecting human rights. This person would likely also feel that punishment of wrongdoers is not necessarily the best way to express our horror of crime and concern for victims; they would likely feel that this is best accomplished by doing our best within our means to prevent future victims.

        Thanks for the discussion though. Thanks for bringing this topic up as well. Too many times, we argue over public policy in ways that distort the fact that we are arguing from different moral points of view. I think it is important for intellectual clarity to explain the assumptions and goals of the different stances we take on public policy.

        • What I'm saying is that utilitarians ought to be amoral if they seek to be consistent. The "third way" person you're trying to describe, in practice, will criticize harsher penological measures on moral grounds but claim wholly utilitarian, evidence-based superiority for their own preferred soft-ice-cream type remedies. Essentially this is to say, I think, that the moral claims of victims to retribution, justice, and the sequestering of determined outlaws are "dark", atavistic and objectionable, even where they might have evidentiary or economic warrant, but the moral claims of convicted criminals to the full apparatus of classical-liberal entitlements can be limited by utilitarian criteria only.

          I mean, your hypothetical person is explicitly professing the disbelief in punishment; it seems clear that, presented with the "deterrence pill" thought experiment described elsewhere, your third-way person would be in favour of setting all those harmless criminals free. Because he can't make a purely utilitarian case for continuing to punish them: there isn't one. The case for doing so is moral (the offender is not done "paying" his metaphorical debt).

          So I'd say the dichotomy divides the world pretty well, and your hypothetical fence-sitter, is firmly to one side if you look closely. If you really look at the political world, there just obviously IS a tug-of-war between punishmentarians and rehabilitators; indeed, what other single issue defines the difference in agendas, rhetoric, and ideology between the Conservatives and the Opposition so clearly?

          • The "third way" person you're trying to describe, in practice, will criticize harsher penological measures on moral grounds but claim wholly utilitarian, evidence-based superiority for their own preferred soft-ice-cream type remedies.

            Not at all. Utilitarians can certainly be in favour of human rights, on grounds of utility. They can also believe that it holds more utility to respect human rights than it does to deter crime in certain situations, perhaps on the grounds that not respecting human rights leads to the brutalization of society as a whole. John Stuart Mill comes to mind. As a side note, utilitarians generally aren't considered to be amoral; utilitarianism is a moral theory. Their morality is just based upon utility.

            Beyond that, it isn't only utilitarians who might believe that the goal of the justice system should be deterrence instead of punishment and revenge. As I noted, one can want the goal of the justice system to be deterrence, because one feels that it is important to prevent crime against potential future victims, and one believes that feelings of revenge and the want to punish are some of the darkest within human nature (though completely understandable) and therefore that public policy ought not be based upon them. Why would this person need to be a utilitarian? This could easily fit into a deontological or virtue-based theory of morality. Ask Andrew Potter the next time you're in the break room together.

            If you really look at the political world, there just obviously IS a tug-of-war between punishmentarians and rehabilitators; indeed, what other single issue defines the difference in agendas, rhetoric, and ideology between the Conservatives and the Opposition so clearly?

            Hasn't the opposition essentially conceded this issue to the Conservatives?

          • Surely an a-priori conviction that certain motives are metaphysically "dark" cannot, by definition, be utilitarian. And if rights stand on a utilitarian basis then "moral" colourings are a middle term we can dispense with. It would be so much the worse for Colleague Potter if he didn't agree; but I don't really think you have permission to speak on his behalf.

          • Surely an a-priori conviction that certain motives are metaphysically "dark" cannot, by definition, be utilitarian.

            If you read it again, you'll find that I was attributing this belief to a non-utilitarian who still believes in deterrence rather than punishment and revenge as the main goal of the justice system. At any rate, to turn it into a utilitarian argument, one would have to say that a system whose goal is revenge and punishment will not have the best consequences for society, and will therefore not be of the greatest utility.

            Also, this wasn't what I was telling you to ask Potter about (which was a bit of a joke, by the way). I gather that he is a philosophy professor, and would have some insight into explaining why a belief in deterrence could easily fit into a deontological or virtue-based theory of ethics. That was laziness on my part, but really this shouldn't be a particularly controversial claim once you have the background on these theories. Why couldn't a belief in deterrence fit within a moral code where the morality of an action is based upon the action's adherence to a rule or rules, such as some form of social contract theory? Likewise, why couldn't a belief in deterrence fit within a moral code that emphasizes the character of the moral agent instead? Neither of these would be utilitarian, yet both could emphasize deterrence.

            I don't have the space to properly explain either theory here, but if you don't feel like asking Macleans' resident philosopher, you could just look up the wikipedia pages for the theories, or you could pick up a first year ethics text like Michael Sandel's "Justice" or James Rachels' "The Elements of Moral Philosophy" and quickly read about them. Once you do, you'll find that the deterrence/punsihment debate does not necessarily break down on utilitarian/non-utilitarian grounds.

          • "Why couldn't a belief in deterrence fit within a moral code where the morality of an action is based upon the action's adherence to a rule or rules, such as some form of social contract theory?" Because in this context, we mean by "a belief in deterrence" that the choice of penalty is going to be determined according to the (ineluctably, inherently) utilitarian standard of whether it deters or not; no reference to morality influences our choice. If we can't agree on that, then no amount of "first-year ethics texts" are going to help either of us. (Though I'm sure close scrutiny of a good one might encourage you to break the habit of mistaking sneering appeals to authority for polite arguments.)

  15. With regard to the eye-for-an-eye thing, please note that this was intended as a compassionate measure. The idea was “an EYE for an eye” and “a TOOTH for a tooth” as opposed to, say, “an arm for a tooth”. In other words, the punishment must be commensurate to the crime. All too often in history (and even today) a nobleman could literally get away with murder, while a peasant was hung for poaching a rabbit.

    There is another aspect that is often overlooked, namely restitution. First there is the punishment for the crime, but following that it is the criminal’s moral obligation to try, as much as possible, to make it right with the victim (or the victim’s loved ones). In our modern society it seems that the punishment is also the restitution, which is questionable.

  16. "Kevin Page's numbers don't factor in the benefits of any potential deterrence effect"

    I read this and I have to remind myself that Cosh also believes that in the death penalty.

    Question: If this policy is supposed to have a deterent effect on would-be criminals, can someone explain to me why the US (which has this policy in effect in a great many states) still holds a significantly higher crime rate than us?

    • Because it's another country with a different history, different policies, and a different mix of cultures? Just spitballing here, I know it's a totally crazy idea.

      • Of all people on the planet, the Americans are the ones we have the most in common with when it comes to policies, history or culture.

        If jail time or a lethal injection was an effective deterrent, the US would be one of the safest place on earth. They not only have the highest % of incarcerated people in the Western World but they also have the death penalty.

        So I ask you again. Why isn`t it working?

        I don`t see how you can advocate building more jails and even reinstating the death penalty without knowing the answer to this question, Cosh.

        • Really? You can't sit down with a pencil and list a half-dozen other social problems and policy errors that contribute to the violent crime rates in the U.S.? I could answer "It's not working because they don't have our awesome gun-control laws" to this question!

          • You can't sit down with a pencil and list a half-dozen other social problems and policy errors that contribute to the violent crime rates in the U.S.?

            I could but I`m pretty sure that I would find the same social problems or policy errors or their equivalent on this side of the border.

            The fact remains that the solution applied to punish the criminals seems to have next to no deterrent effect. I`m merely asking you why.

            “I could answer "It's not working because they don't have our awesome gun-control laws" to this question! “

            DC and NYC have banned handguns. Have you seen their crime statistics?

          • Yes, and the Canadian gun-control fans would immediately rejoin that municipal bans are like bailing out the Titanic with a thimble (which, in fact, is obviously the case); what the US "needs", but cannot have because of its constitution, is FEDERAL action like that which we've so sagely taken. I'm not really interested in re-enacting the gun control debate with me on the dumber side, thanks, but the suggestion that capital punishment is absolutely the only relevant difference between Canadian and American society is still loopy.

          • “but the suggestion that capital punishment is absolutely the only relevant difference between Canadian and American society is still loopy. “

            I don`t believe I`ve said anything of the sort. What was it that you were saying about reading comprehension skills?

            You suggested that Kevin Page`s math doesn`t take into consideration the bill`s potential deterrence effect, did you not? I then suggested to you that given what is taking place down south, building more prisons may in fact have no such deterrent effect on criminals.

          • You really seemed to be saying "I can't think of any reasons unrelated to the death penalty that the U.S. might have higher rates of violent crime than Canada." Assuming we agree that your question "Why isn't it working?" has many very plausible answers totally unrelated to capital punishment, there is no argument at all, I guess. But I am left unsure sure why you were asking the question.

            And of course nobody is actually suggesting that it's the building of prisons per se that will deter crime. The building is just a consequence of the anterior one-day-is-one-day sentencing policy, which will, virtually by definition, increase the legal disincentives against committing crime. To believe that there will be zero deterrent effect is to believe that incentives don't influence behaviour…in which case it can hardly matter what laws of any kind we pass at all, right?

          • “I can't think of any reasons unrelated to the death penalty that the U.S. might have higher rates of violent crime than Canada."

            Nope. Never said anything remotely close to this. I said that I see no evidence that the death penalty or jail sentences act as a deterrent for the simple fact that our neighbour to the South still manages to have a ridiculously higher crime rate than we do. Your argument against Page`s math on this very point doesn`t seem to hold.

            You, on the other hand, are suggesting that longer sentences are going to have an effect on crime. This, despite the fact that you cannot come up with an explanation for what is happening across the border. They have stiffer sentences, longer sentences, capital sentences. Yet… They still have the most crime in the G8.

            You seem determined to ignore that little cumbersome fact.

            “And of course nobody is actually suggesting that it's the building of prisons per se that will deter crime. `

            uh… Cosh? Stiffer sentences infer a need for more jails. That`s why Page came up with a $5B tab.

          • "I said that I see no evidence that the death penalty or jail sentences act as a deterrent for the simple fact that our neighbour to the South still manages to have a ridiculously higher crime rate than we do." But if there are OTHER reasons the rate would be higher anyway, your "simple fact" is meaningless. It might be the case that the rate would be (relatively) even HIGHER down south without the death penalty.

            Also, you meant "imply", not "infer".

          • "But if there are OTHER reasons the rate would be higher anyway, your "simple fact" is meaningless. It might be the case that the rate would be (relatively) even HIGHER down south without the death penalty. "

            Absolutely. So name the said reasons. I'm all ears.

            And thank you for correcting my grammar. English isn't my first language. It's my third. It might also account for my lack of "reading comprehension skills." What's your excuse?

          • Well, for all the anonymous polyglot geniuses out there who were declining Serbo-Croatian verbs during American history classes, the U.S. is a revolutionary republic founded on the principle of violent resistance to tyranny; it has a large, abominably treated black underclass (nonblack rates of homicide are actually quite similar on opposite sides of the border); and it has been pursuing imperialistic policies for about 120 years, with the large standing army implied thereby, and puritanical drug prohibition for 100, with the large paramilitary police complement implied thereby.

            If capital punishment were the dominant variable in determining rates of violent crime, Japan is awfully hard to explain, isn't it?

          • OMG!

            The death penaly is NOT a dominant variable in crime rates. I don't even believe that it is even a variable.

            If anyone here is suggesting that the death penalty has an impact, it is YOU. You are the one who believes that criminals are deterred by the threat of it in sentencing.

            Maybe I should write in serbo-croatian. Perhaps we'd get somewhere.

          • Also… I cannot come up with an explanation for what is happening across the border?? I came up with one immediately, if you'll review the record.

          • The gun control argument? Rebutted.

          • No fair! Cosh gets to be nuanced but everyone else has to adhere to weak arguments and labels he ascribes to them!

  17. I can't imagine that this Bill has anything to do with deterence. What potential criminal is going to think to himself, "Gee I'd like to commit that crime I've been contimplating but now that my pre-conviction time spent in remand doesn't count as two days for one — I'd better not."
    Seriously? Do law makers really imagine that criminals think this way?

    • Actually, if you talk to criminal lawyers, they will tell you that criminals tend to be quite knowledgeable, and, in a way, sophisticated with respect to their knowledge of how the criminal justice and sentencing systems work. So in fact, if you know you're facing more real time in jail for your behaviour, it's quite conceivable that you might modify your behaviour.

      • But on the other hand, if you're trying to argue that, in a sense, there's no such thing as a deterrent effect in sentencing at all, well, I'd be interested in seeing statistics or studies to back that up. It certainly does seem that different justice systems result in different outcomes. Singapore being an obvious example.

      • That tends to be more of a "do I try for bail" question not a "do I commit the crime" question, though.

    • "Do law makers really imagine that criminals think this way?"

      They most certainly do. Ask Cosh.

  18. *Everyone* is a "law-and-order" person, when they wish to use the Criminal Code for their own political hobbyhorses.

    Thus it is with feminists, who want `tougher sentences' for those convicted of rape or wife-beating

    It is with gay rights activists, who want `tougher sentences' for those who have been convicted of anti-gay `hate' crimes

    It is with multiculturalists, who want `tougher sentences' for those who are convicted of `hate' crimes against `vulnerable' ethnic communities

    These and other activists lobby for tougher sentencing, and no one seems to ask if there is empirical evidence that they work, or what the cost of enforcing such laws will be.

  19. It's easy to be a utilitarian until you're a victim. Utilitarians don't attempt to see the world from the eyes of a victim, and they fail to see that a victim demands that a criminal serve a sentence that is at least a feeble attempt to atone for the harm that has been done. You can't undo the crime, but you can serve a penalty for it.

    Utilitarians also fail to see the crime through the eyes of the individual when he committed it. Almost all crimes confer a benefit to the individual that committed it (even a murder is committed as a gain to the perpetrator). If the penalty does not exceed the benefit, then you will get more crime.

    A strictly utilitarian view on crime is like hockey without penalties. Can you imagine how well that works?! A hockey penalty serves three purposes – it keeps the guilty individual off the ice for a period of time and identifies that individual as the one to put his team as a disadvantage (moralist in the sense of penalizing the guilty person), and it gives the aggrieved team justice, a period of numerical superiority (moralist in the sense this is an attempt to right the previous wrong).

    Hockey without penalties – I'll bet a utilitarian who has never played the game thinks this makes perfect sense. For the utilitarian, he would say "stop the play when a penalty has occurred, but don't bother with any punishment at all, don't even bother identifying the perpetrator, just try to keep the game clean from that point on, don't bother dwelling on it". Anyone who has played hockey knows how senseless this would be.

  20. the simple fact is going to prison is not a deterrrent. take away the luxuries and the rights to everything and make prison something people dont want to go back to. Having worked with people in a law enforcement and also in a federal 1/2 house prison is simply seen as a hassle. People who commit heinous crimes need to have society show them it is not acceptable. No prison should spend any more on a inmate than what the national average of welfare is for a single person. Perhaps then sentencing would only be a side issue and the costs would be offset by the fewer court appearances and such. Lock them in and feed them in their cells, leave them there, dont let them mingle, dont give them fancy food or the right footwear just what they need to survive. Seems to work for the rest of the world. Make punishment an actual deterrent.