Prison Reform, North And South

With parallel discussions on prison and sentencing reform now occurring in Canada and the U.S., a great divide is emerging between the directions of policy-makers here and those south of the border.

As we've previously noted, the New York Times reported on March 24, 2009 that several states, including Colorado, Michigan, Kansas and New Jersey, are closing prisons or adopting sentencing alternatives to reduce pressure on over-stretched state budgets:

Some states, like Colorado and Kansas, are closing prisons. Others, like New Jersey, have replaced jail time with community programs or other sanctions for people who violate parole. Kentucky lawmakers passed a bill this month that enhances the credits some inmates can earn toward release.

Michigan is doing a little of all of this, in addition to freeing some offenders who have yet to serve their maximum sentence.

In an article today, Salon's Glenn Greenwald looks at American prison overcrowding. He lauds a recent Senate floor speech by Virginia Senator Jim Webb, excerpted below:

Let's start with a premise that I don't think a lot of Americans are aware of. We have 5% of the world's population; we have 25% of the world's known prison population. We have an incarceration rate in the United States, the world's greatest democracy, that is five times as high as the average incarceration rate of the rest of the world. There are only two possibilities here: either we have the most evil people on earth living in the United States; or we are doing something dramatically wrong in terms of how we approach the issue of criminal justice. . . . The elephant in the bedroom in many discussions on the criminal justice system is the sharp increase in drug incarceration over the past three decades. In 1980, we had 41,000 drug offenders in prison; today we have more than 500,000, an increase of 1,200%.

Meanwhile, in Canada, federal legislation was introduced this week to lengthen jail sentences by curtailing two-for-one "dead-time" credit for time served by accused persons prior to conviction.

(Whether the legislation represents substantive change or is simply a public relations exercise in window-dressing is a question for another day. This Globe and Mail op-ed elaborates on the specifics of the proposed amendment:

The Criminal Code amendments tabled yesterday would allow judges some discretion (up to 1.5 times credit, with reasons spelled out). That should add predictability and comprehensibility to the system.)

In an editorial today, the Ottawa Citizen addresses the yet-unspoken budgetary questions underpinning this proposed change:

In theory, those accused of committing a crime should wait for trial for as short a time as possible, so they can move on -- either to life outside as an innocent person, or to an appropriate sentence. But when judges saw that delays were causing an accused to spend years locked up in limbo, they started giving two-for-one credit for that time, upon conviction.

That should have served as an incentive for governments to reduce delays. Instead, Nicholson wants to curtail judges' ability to give two-for-one credit.

Chris Bentley, Ontario's attorney general, likes Nicholson's law. He and others suggest it will help the justice system move faster, because hardened criminals intentionally try to delay their trials, knowing they'll get two-for-one credit. Remove that incentive, and you remove some delays.

...Canadians should welcome the removal of the perverse incentive that two-for-one credit provides for crafty criminals. But we must also be honest about the effect the new law could have on correctional facilities. The assumption behind Nicholson's initiative is that criminals are receiving sentences that are too short. But if sentences are longer, jails will be more crowded -- which means jails will have to be bigger or there will have to be more of them.

As Ontario's attorney general, Bentley should be asking Nicholson where the extra money is going to come from. (emphasis added)

Canada should think-twice before adopting this legislation. There is a lesson to be taken from the American incarceration experiment of recent decades.

The additional monies required by this legislation to lengthen Canadian prison sentences would be significantly better spent on elimination of the systematic delays that impede access to justice in the nation.

That means more courtrooms, more judges and rational funding of alternative sentencing programmes that effectively protect the public, while also promoting the legitimate objectives of deterrence, treatment and rehabilitation.

What we do not need is a legislated rehash of knee-jerk, politically-charged band aids that have been tried, and have failed, elsewhere.

Particularly at a time when we can't afford it.

- Garry J. Wise, Toronto

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