Let punishment fit crime

March 14th, 2012
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With the number of words written about the federal government’s omnibus crime bill, which is about to pass into law, there might be an argument for mandatory maximums in journalism. Certainly the debate over mandatory minimum sentences has been exhaustive and, at times, exhausting.

Opponents of the legislation have argued that mandatory minimums “don’t work”, that they are too expensive to enforce, etc. They essentially boil down to a set of utilitarian arguments and/or cost-benefit analyses. My belief is that these arguments miss the point of the debate, which is why conservatives and liberals, “experts” and laymen often seem to be talking past each other on these issues. Nevertheless, let’s examine some of them.

When people say mandatory minimums “don’t work”, I assume they mean that they don’t modify criminal behaviour, don’t diminish recidivism, etc. Jonathan Kay, for example wrote that they wouldn’t “reduce drug use or improve public safety”.  We’ll forego the intuitive argument that one more criminal behind bars is one less threatening the public.  The assumption must be that there is a virtually endless supply of thugs stepping up to take their place. Or, better put, there is enough of a revolving door in the penal system to keep a fairly constant number of criminals on the street. Fair enough.

Then there is the limited resources argument. Again, quoting Kay: “Even as things stand, prosecutors can only prosecute about 10% of their caseload … C-10 may push that number into single digits.” This was echoed in coverage of the provinces’ unwillingness to foot the bill for the new legislation. Regarding the latter, some commentators rightly asked what other provisions of the constitution the provinces might agree to suspend – as it is, in many cases, their constitutional obligation to pay for incarceration. More cynical observers wondered why this should be the first time certain provinces cared about the cost of anything. Regarding case backlogs, my suspicion is that the legal system is bogged down in myriad trivialities and nuisance cases. Would it not be possible to prioritize based on the most violent and egregious crimes?

Others argue that violent crime statistics are on the decrease (although this is disputed), so “what’s all the fuss about”? This is one variant of the cost-benefit argument. The “social cost” of this insignificant amount of crime is so small that there is no benefit to harsh penalties.

Here are some words of rebuttal. The last argument reveals one aspect of the yawning chasm between “Left” and “Right” in the crime debate. The absolute number of crimes, or criminals, has absolutely nothing to do with what an appropriate punishment might be. Ironically, the “decreasing crime” gambit partly undermines the “limited resources” one. Confused yet?

Secondly, it reveals a common view of the Left that I mentioned in my last post – the treatment of crime as some kind of sociological experiment, and society as a laboratory. This view pays lip service to victims and violent crime – “Of course we’re ALL concerned about …” – but in reality focuses almost exclusively on the criminal. In fact, this approach could be called “beyond victims” because it only kicks into gear after the crime has been committed. It bears mentioning that the criminal-centric approach is of course steeped in the Left’s belief that much crime originates due to social inequity, economic pressures, etc. Hence the aforementioned desire for state intervention to “cure” this social ill.

To traditionalists, I hesitate even to use the word conservative because this transcends ideology, crime and punishment are seen as completely different phenomena. Crime, regardless of the individual’s circumstance, is seen as a conscious act for which the individual must bear responsibility. Punishment is a simple reflection of justice being done. Action brings reaction. Justice has not been done the victim, and by extension society, until the “debt” has been paid.

Again, the bias on the other side (although they usually deny it) is to very quickly skip over this uncomfortable phase. They want to jump right on to the rehabilitation part. They want to debate statistics and round up the usual group of criminologists.

Traditionalists, by contrast, will insist on a just punishment as the first order of business. Rehabilitation is fine and necessary, but the very public censure and sentencing must come first. This does not even address more traditional concepts like public shaming and restitution to the victim and/or their families, which generally stick in the collective craw of the Left.

A significant part of the public understands this concept of justice at the gut level, while the “experts” almost by definition do not. Even some skeptics of mandatory sentencing admit this. Matt Gurney recognizes the gap between the public and “legal insiders” in determining what constitutes “harsh” sentencing. He goes on to say: “… what the public feels is not (irrelevant) when dealing with public safety (No kidding!). Even if legal experts would prefer to keep the administration of criminal justice “in the family,” they ignore public sentiment at their peril — if the public believes the courts are going too easy on criminals, they’ll support efforts like mandatory minimums regardless of whether they are objectively a good idea.”

And that is the nub of it. Much of the public believes the “system”, the legal echo chamber, is too soft on criminals. And there is no lack of evidence for this. Stephen Taylor gave just one example - a Quebec cyber-predator, who preyed on 285 young girls, was sentenced to … wait for it … two years in prison. Prosecutors had asked for five years. This is the type of sentence that causes the public to lose faith in the judiciary.

Finally, I want to refute Jonathan Kay’s contention that the government’s position is “intellectually bankrupt”. He drew part of his analysis from attending a meeting of just the kind of experts we’ve been talking about (although it did include a former victims-rights advocate). He believes the government’s position constitutes a “complete divorce between policy-making that affects millions of people, and real-life research and experiences offered by men such as Messrs. Simmons, Oscapella and Sullivan (the experts); that it is based on neither “evidence (nor) expertise”. Well, what about the “real-life-experiences” of those who disagree? None of the expert analysis negates the right of victims and the public to demand a minimum level of punishment for specific crimes, nor contradicts victims’ and society’s organic sense of justice.

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By John Weissenberger