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July 26, 2008 -- Toronto Star (CN ON)

OpEd: The Politics Of Punishment

Being 'Tough On Crime' May Win Votes But It Also Incubates A New Generation Of Criminals

By Julian Falconer

Return to Drug War News: Don't Miss Archive

I've spent time behind bars -- not as an inmate. Whether it's prison inquiries or criminal trial work, I've seen the "inside" on too many occasions. Jails are not country clubs. They are repressive, violent places from which no one emerges unscathed. But do they work?

Put two people in a room -- "law and order" versus "bleeding heart" ideologues -- and they will disagree on almost everything with one exception: Our current system is failing. Despite our jammed prisons, we have not succeeded in making the law-and-order type feel more secure, nor fulfilled the bleeding heart's desire for rehabilitation. Truly effective measures lie somewhere in the middle between retributive justice through bigger jails and the compassionate "hug a thug" approach.

While overall crime rates, including homicides, are down, some of our larger cities have experienced a scary increase in the number of murders involving guns. Many feel that Toronto is a more dangerous city than it was. But this enhanced danger only makes it more important that the next policy steps taken are good ones, not simply fuelled by fear and politics. Banning handguns and cutting off supplies of cheap, illegal guns would be a far more effective way to make our streets safer than investing in initiatives that double our prison populations and produce more hardened criminals.

We should be concerned by the federal government's efforts to bring us closer to the U.S. model of mass incarceration that has proven to be a colossal failure. Ironically, a significant number of U.S. states have reversed the "three-strikes" trend. A 2002 report commissioned by the Canadian Department of Justice on mandatory minimum jail sentences cautioned that the evidence is sparse about their deterrent effect and recognized that there are many counterproductive societal impacts.

Despite these realities, our government proposes to increase the number of crimes subject to mandatory minimum sentences, including a mandatory six months in jail for growing one marijuana plant. At the same time, community-based sentences have been seriously underfunded, thereby ensuring that the case is made stronger for creating bigger jails to warehouse more people. Judicial conditions controlling behaviour on the outside work to reintegrate and rehabilitate, but only if they are adequately funded and monitored.

The social gutting caused by these "tough-on-crime" measures is not felt by all. Increased poverty throughout the 1990s, coupled with punitive cutbacks to social programs, have widened the gap between haves and have-nots. The law-and-order crackdown is a politically expedient way to manage this rising inequality. Predictably, it is poor, racialized and marginalized offenders -- particularly black and aboriginal -- who make up a disproportionate share of Canada's prisons.

Despite the public outcry, crime has dropped more than 25 per cent during the past 15 years. So why the panic? Canadians wildly overestimate the involvement of black offenders in crime. Fear of crime has become a "polite" way to express fear of young black males. The media must share the blame. The "if it bleeds, it leads" mentality has contributed to the perception that murderers and rapists are out of control.

In reality, most inmates are incarcerated for petty public order offences relating to drugs, property crimes and prostitution. Rapists and murderers are a tiny minority. Building a system on these extreme cases is the worst way to make public policy. One size of punishment does not fit all types of crime -- jails need to be used where other strategies have failed. But where lesser means of punishment may pave the way for reintegration, we need to invest in these strategies.

Social-science evidence shows that increased reliance on incarceration as a "quick fix" for complex social problems is a recipe for failure. Last year, I served as chair of a panel on school safety following the shooting death of Jordan Manners. On youth criminality, we learned that punitive discipline as a primary tool for controlling anti-social behaviour does not work. Racial and social inequality are not solved through bigger jails capable of warehousing more people.

Measures aimed at addressing the roots of criminality can have concrete effects. Early intervention programs, including early childhood education and parenting courses, hold promise. So do rehabilitation programs combating addictions and mental illness. De-carceration strategies such as the "Gladue courts" that take into account the impact of social factors such as racism when sentencing aboriginal offenders, should be fostered and expanded. We still have a lot to learn about restorative justice systems from Canada's First Nations. The expansion of Toronto's "Drug Treatment Court" and the Mental Health Court diversion programs, which emphasize alternatives to jailing people, are no-brainers yet they continue to be underfunded.

Crime prevention policies take decades to bear fruit, rather than the months or years that make up the election cycle. This is the heart of the problem: Politics have a life span far shorter than the time it takes real change to take effect. Tough-on-crime initiatives cater to the election cycle but accomplish little else. There is little or no return on the social and fiscal investment in crime control reflected in these policies.

Canada remains a safe country with much lower rates of crime, particularly violent crime, than the U.S. Rather than looking south for solutions, we should preserve those things that Canada has done right -- a better social safety net and a commitment to social equality.

If we continue down the tough-on-crime road, draining money away from social programs in order to fund more prisons, we will create the very social conditions that give rise to rampant crime -- guaranteeing our prisons are full. In the end, we get the public policy we deserve -- - we must ensure that we recognize we deserve better.

Julian Falconer is a Toronto trial lawyer with Falconer Charney LLP. He recently completed an appointment as chair of the School Community Safety Advisory Panel, a three-person panel that studied safety in the city's schools.

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