On truth in $enten¢ing - Macleans.ca

On truth in $enten¢ing

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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?)