If hard criminals do soft time in Canada, as the federal Conservative government insists, then John Virgil Punko seems a poster boy for all that’s wrong with the judicial system. In police jargon, Punko was “a low-level mope”—a full-patch member of the Vancouver East End Hells Angels with a healthy dose of greed and a bad addiction to Percocet. Such vulnerabilities made him a useful target in 2003 when the RCMP launched E-Pandora, a $10-million sting operation aiming at netting the big fish in the East End Angels.
Punko got into methamphetamine production with Michael Plante, an “official friend” of the gang—one the RCMP had secretly turned into a paid informant. Business went well; in late 2004 they expanded into cocaine trafficking. By July 2005—when police swept in, arresting six Angels and a dozen associates—Punko had amassed $381,000 in drug profits, and a world of trouble. Found guilty of provincially prosecuted weapons and mischief charges, he was sentenced in July 2009 to five years and three months—a penalty effectively reduced to a day because he’d been in custody since his arrest. Finally, in late 2009, he faced a series of high-stakes federally prosecuted drug charges.
It was before British Columbia Supreme Court Justice Peter Leask that his luck changed for the better. Leask rejected the Crown’s attempt to prosecute Punko as a member of a criminal organization, the Hells Angels. In exchange, Punko pleaded guilty of conspiracy to produce meth, to trafficking in cocaine and to possessing the proceeds of crime.
This March, Leask set the sentence at six years for conspiracy, five years for trafficking and three years for the proceeds of crime. Then the mathematics of the justice system kicked in. He ruled the sentences would be served “concurrently” (at the same time), compressing the 14 years into six. He deducted a year as a reward for pleading guilty, and another year to mitigate police conduct (Plante had fed his partner’s addiction with police-provided painkillers). Finally, Punko got a two-for-one credit for the “dead time” in custody before his conviction, a 34-month reduction.
The ruling boiled Punko’s 14-year sentence down to 14 months. Police were frustrated. The prosecutors appealed. An outraged public had its perceptions confirmed: criminals are running roughshod over the justice system. “It really called into question the integrity of the judiciary when you get a decision that is so out of whack,” says John Martin, a criminologist at the University of the Fraser Valley. “Mercifully, that doesn’t happen a lot of the time.”
Such cases make the Conservatives’ anti-crime crusade one of the strongest trump cards in their agenda. To argue against it, as opposition parties have done rather ineffectively, is to be labelled “soft on crime”—as much of a political death sentence in Canada as it has been for decades in the U.S. But good politics isn’t always good policy, critics note. Nor is perception always based on reality.
For one thing, there is little evidence that judges have gotten demonstrably softer in their sentences, according to data assembled for Maclean’s by Juristat, an arm of Statistics Canada. Exceptionally light, headline-grabbing sentences like Punko’s are just that, the exception.
And for that matter, if locking up more people for longer periods is the answer, the United States—with one-quarter of the world’s prisoners in its jails—should be the safest place on Earth. But while Canada is intent on adding to its prison population, America is cutting back, saddled with a massive prison industry it can’t afford. And studies show that reducing prison populations doesn’t necessarily make the streets any more dangerous. Punishment is just one factor in reducing crime, one criminologists warn is often based on emotion rather than sound strategy.
The names of the Tories’ new and proposed laws hammer home longer sentences as the centrepiece of their anti-crime agenda. In 2008 the Tackling Violent Crime Act came into force, mandating tougher mandatory jail time for gun crimes, tougher bail conditions for those accused of gun crimes and the increasing use of indefinite sentences for repeat violent or sexual offenders. Soon to come into force is the Serious Time for the Most Serious Crime Act, removing the so-called faint-hope clause that lets some convicted murderers seek jury hearings to apply for parole before the end of their minimum 25-year sentence.
This February, the Truth in Sentencing Act came into force, eliminating the almost automatic two-for-one credit that prisoners received for time served prior to their conviction, a period when they have little access to rehabilitation services. It eliminates a major contributor to public discontent about lax sentences: the suspicion that some accused played the system, earning double credit by delaying their trial dates. Justice Minister Rob Nicholson hailed it “as a major step forward in restoring Canadians’ confidence that justice is being served.” And, he promised, “Our government will continue to listen to Canadians and work with our partners to improve the administration of justice, advance our crime agenda and make our streets and communities safer.”
Fair sentences, restored faith, safer streets: who could argue with that? A majority of criminologists for one, who question enlisting in an American-style war on crime that has demonstrably failed south of the border. “Our government is pandering to a very conservative populist sentiment,” says Walter DeKeseredy, a criminologist at the University of Ontario Institute of Technology in Oshawa. And Kevin Page, the parliamentary budget officer, for another. In a devastating analysis from his department, he warns that the impact of the Truth In Sentencing Act alone will fill thousands more cells, more than doubling in five years—to $9.5 billion—the cost of the provincial and federal penal system. And that’s just part of an agenda of longer sentences and new crimes.
Already in force is a law making all homicides linked to organized crime automatic first-degree murders with a 25-year eligibility for parole, as well as new offences for drive-by shootings and assaults against police or public officials. A raft of anti-crime laws is in the works, some delayed when the Conservatives prorogued Parliament. Among them, mandatory jail time for fraud above $1 million and trafficking in stolen autos or other property obtained by crime. Last month, Nicholson announced a change in regulations with the potential to boost prison populations even further. He extended the definition of “serious offence” to allow for jail sentences of up to 14 years for such “signature activities” of organized crime as gambling, prostitution and drug-related crime.
The reforms could be a bonanza for criminal lawyers, but the Canadian Bar Association is emphatically not on board. A defiant Nicholson was met with skepticism at the association’s annual meeting in Niagara Falls, Ont., last month. There were concerns that increasingly rigid sentencing will divert resources from rehabilitation and add to the overrepresentation of Aboriginal people in custody. “It seems to me more and more crimes are being created and people are being sent to jail for longer and longer periods,” former bar president Tom Heintzman told the justice minister. “That policy hasn’t worked anywhere else I’m aware of, and I can’t see it working in Canada.” Throughout, the essence of the government’s position remains consistent: the public thinks crime is a problem, so crime is a problem.
Public fears notwithstanding, crime rates are falling. The national murder rate hasn’t been this low since 1968. And Statistics Canada’s Crime Severity Index, a measure of serious crimes, is 22 per cent lower than in 1999. DeKeseredy is not alone in suggesting Prime Minister Stephen Harper is intent on saving the country from an imaginary crisis. “I don’t think they’re too happy that the crime rate is going down when they’re trying to build prisons and lock people up for longer periods of time,” says David MacAlister, director of the Institute for Studies in Criminal Justice Policy at Simon Fraser University. “That just wasn’t what they wanted to hear, so they have to try to create a new reality.”
There is limited evidence that judges have gone soft. Juristat data gathered for Maclean’s show little change in the last decade in the length of sentences in 10 jurisdictions representing 90 per cent of all crimes committed. Most jail time for violent crime has stayed the same or gone up. The median, or middle of the road, sentence for attempted murder increased to 1,715 days from 1,680 between 2000. The average or mean penalty for attemped murder is 2,223 days (about six years), an increase of more than a year from the start of the century. The median for major assault increased to 90 days from 71, and drug trafficking jumped to 120 days from 90. The averages are higher in all cases (288 days for trafficking, for example), reflecting that some penalties are substantially tougher than the norm.
Meantime, sentences for property crimes have declined. The median for breaking and entering, for example, has fallen to 150 days from 180. “I think they are down in a useful way,” says Bryan Kinney, a criminologist at Simon Fraser University. “We really don’t want our property offenders doing real time, because those are our young folks, younger males, generally speaking. They’ll learn plenty if they serve time,” he says. None of it good.
For all that, tougher-still measures resonate with voters. Some 44 per cent of Canadians think crime rates have increased in the past five years, according to an international poll conducted earlier this year by Angus Reid Public Opinion. Just 26 per cent said crime has declined. (In fact, police-reported crime has been dropping for a decade.)
Conservatives are speaking to a law-and-order constituency as strong as that in the U.S. Two-thirds of both Canadians and Americans agreed in the Reid survey that “When lawmakers set mandatory minimum sentences, they are getting tough on crime and sending a message to criminals.” More Canadians than Americans favour hard time for crime. Some 62 per cent of Canadians agreed that “long prison sentences are the most powerful way to reduce crime,” a sentiment shared by 57 per cent in the U.S. Even a return to the death penalty is supported by 57 per cent of Canadians surveyed—and by 70 per cent in the Prime Minister’s Alberta base.
Canada, inevitably, will embark on a prison expansion program to house its growing inmate population. Truth in Sentencing will require $1.8 billion in prison construction in the next five years, according to the parliamentary budget officer. Mandatory minimum sentences will also boost the jail population, though some predict police and prosecutors will use those sentences as threats, a way to get offenders to plead guilty to lesser charges. “Please, please, please plead guilty to the lesser offence,” says Kinney, “so we don’t have to house you.” With good reason. The average annual cost of keeping a person in a provincial jail is $84,000. It rises to $224,000 for a man in maximum security and an astonishing $344,000 for a woman doing federal time.
Critics decry the lost opportunity to invest that money in softer alternatives: anti-poverty initiatives, education and rehabilitation. But Martin, a criminologist who supports the government initiative, says prison expenses are just one side of the coin. “We’re not getting an honest accounting of the actual cost in allowing offenders to accumulate dozens and dozens of victims,” he says. “Policing costs, insurance costs, medical costs. The pain and suffering of victims that cannot be quantified in dollars and cents.” Nicholson quotes a 2003 Justice Department estimate that puts the annual cost of crime at $70 billion, much of it borne by victims.
Notably, as the Conservatives head down this path, the U.S. is retreating from policies that generated a massive four-decade expansion of its prison system. Some 26 recession-battered states this year have cut prison spending, often by turning out prisoners who’ve served a fraction of their sentences. At least four states—Kansas, Michigan, New Jersey and New York—have been reducing prison populations for a decade using strategies like drug-treatment diversion programs, electronic monitoring and elimination of mandatory minimums; a study of those states found no increase in crime. New York cut its incarceration rate by 15 per cent between 1997 and 2007; violent crime fell 40 per cent.
Canada already imprisons more people that most countries in Western Europe, but it’s hyperbole to equate Conservative reforms with America’s war on crime. America’s incarceration rate is 6½ times that of Canada’s. Some 2.3 million American adults are in state, local or federal custody and another 5.1 million are on parole. One of every 31 American adults is under correctional supervision—an enormous economic and social cost. But is it an effective deterrent? Crime rates are falling in the U.S., but they are in Canada, too.
Regardless, in Nicholson’s view, the rate remains “unacceptably high.” As his office noted in a statement this summer, after a broadside from the opposition: “Unlike the Liberals, we do not use statistics as an excuse not to get tough on criminals.”
As for Punko, his luck ran out this August. The B.C. Court of Appeal more than quadrupled his 14-month sentence, concluding it was “demonstrably unfit.”
Like so much in the sentencing debate, the appeal ruling can be interpreted two ways: that mandatory minimum sentences would have prevented the mess in the first place, or that the checks and balances of the existing system work just fine. Either way, a fallen Angel spends four extra years behind bars.