Category: Harm Reduction

Discretion in Bill C-10 Part II: Ministers versus Judges

Today’s Senate committee hearings into Bill C-10 focused on testimony from three lawyers regarding amendments to the International Transfer of Prisoners Act: Nathalie Des Rosiers, General Counsel of the Canadian Civil Liberties Association, Fannie Lafontaine, a law professor at the University of Laval, and John Conroy, a lawyer in the Fraser Valley.

These lawyers were very concerned with the expansion of ministerial discretion over the repatriation of Canadian prisoners. They argued that the bill would make it easier for a minister to deny the transfer of prisoners for what amounts to arbitrary reasons.

Mr. Conroy brought up the example of the Goulet case, where Minister Toews’ decision not to repatriate a prisoner convicted of a drug crime was deemed unreasonable by a federal judge. The decision cited twelve previous ministerial decisions since 2008 that were also deemed unreasonable, showing a problematic pattern in politicized decision-making over prisoner transfer. In these cases, the minister ignored the evidence put forward by officials at the Ministry of Public Safety; as Mr. Conroy put it, “It’s as if the minister doesn’t trust his own ministry.”

The three lawyers made it clear that there were many good reasons to repatriate prisoners. Chief among them was that in serving a sentence elsewhere, and returning to Canada upon release, the offender neither has a criminal record in Canada, nor is required to check in with correctional authorities.

Lawyers argued that public safety is far better served when prisoners are repatriated, since, in the words of Mr. Conroy, it allows Correctional Service Canada to “get to know” the offender through risk evaluations, follow ups, and the increasingly long leash of parole prior to full release. Furthermore, Canadian prison objectives prioritize the rehabilitation and reintegration of offenders, which is not the case in many other jurisdictions including the United States, the source country of 85% of transfers to Canadian prisons.

But for Conservative members of the committee such as Senators Lang, Runciman, Boisvenu, Dagenais, and Wallace, these arguments are akin to “hug-a-thug” rhetoric that privileges offenders over victims.

As Senator Lang argued, these offenders “knew the consequences of the crimes they were committing” and should therefore serve out their sentences in the jurisdiction where they committed the crime.

These senators claim that Canadian prisons are too lax, and it is only for this reason that Canadian offenders would want to return home. For instance, according to Senator Lang, prisoners in the US must serve 85% of their sentence before being eligible for parole, and in many cases the sentences are harsher than those for the same offences in Canada. Lang ignored the fact that the length of a prisoner’s sentence does not change once he or she is repatriated to Canada. From these comments, it seems that what these Conservative senators are really saying is Canada should not only have harsher sentences, but the Canadian Criminal Code’s principal objectives of rehabilitation and reintegration are not to be respected.

But Lang does have a point: the United States has very harsh sentences. As I mentioned in a previous post, California’s “3 strikes and you’re out” law has put thousands of drug offenders behind bars for life. And in the US federal system as a whole, over half of inmates are serving time for drug offences.

In watching the committee hearings unfold, I am struck by the way the bill’s proponents seem to desire that our system of justice should do nothing but dole out retributive punishment. Supporters of Bill-C10 consistently show contempt for the Canadian justice system, and a preference for policies that we know do not work. For this reason, they want ministerial discretion over prisoner transfers to be greater, at the expense of judges and officials at Correctional Services Canada whose job it is to determine the likelihood that a criminal will reoffend.

The real question seems to be who should be in charge of passing judgment on Canadians: elected officials, whose jobs depend on being popular, or the judiciary, who are meant to use objective criteria? We must remember that democracy requires the rule of law to be respected and applied equally to all.

As the Goulet case shows, ministerial discretion in the case of prisoner transfer is a threat to Canadian democratic values.

February 16, 2012
Book Review – A Plague of Prisons: The Epidemiology of Mass Incarceration in America

by Craig Jones Former Executive Director, The John Howard Society of Canada.

A Plague of Prisons: The Epidemiology of Mass Incarceration in America
By Ernest Drucker
The New Press, 2011, pp. xiv, 211

Every student of epidemiology learns the story of the Broad Street pump (London, Summer 1854), which marks the birth of epidemiology. In A Plague of Prisons, Ernest Drucker uses that story as a metaphor to explain the explosion of incarceration in the United States that followed the 1973 enactment of the Rockefeller drug laws and to illustrate how political decisions act as vectors – pumps – and how these vectors create a social epidemic of gargantuan proportions. Drucker is professor emeritus of family and social medicine at Montefiore Medical Center/Albert Einstein College of Medicine. He was present at the creation of the AIDS epidemic in the Bronx in the early 1980s and watched how politics, ignorance, homophobia and racism facilitated the transmission of disease from certain neighborhoods and populations to a much larger population via the Riker’s Island prison.Between 1880 and roughly 1975, American rates of incarceration were stable at roughly 75 per 100,000 population. Today that number hovers around 743 per 100,000. Drucker’s project is to explain the political path between those two numbers. Drucker employs epidemiology to explain the mechanism by which the United States came to incarcerate 1 out of every 4 incarcerated persons in the world. He can be read in three ways: as an undergraduate introduction to the explanatory power of social epidemiology; as a non-technical analysis of how the United States achieved its historically unprecedented rate of incarceration; and as a warning to Canadians on the propensity of criminalization of non-violent drug users to become a contagion with multi-generational consequences. The book’s timing is apt: Canadians are enacting the political mistakes that produced the plague of prisons in the United States.What were those mistakes? There were three elements embedded in the Rockefeller drug laws that transformed a public health issue into mass incarceration and transmitted that contagion to the entire country. In chronological sequence they are: the decision to criminalize drug use; the political reliance on punishment as the appropriate response; and, the attack on judicial discretion through mandatory minimum sentences. Of the three, the criminalization of drug use featuring large-scale arrests of low-level drug users primed the pump that fueled the contagion of self-sustaining criminality.There are important differences in the way criminal justice is done between the United States and Canada – some of those differences will insulate Canada from the worst effects of the plague of prisons. But there are a couple of lessons for Canadians too. The first is that criminal justice policy is too often made in a consequentialist vacuum – that is, without deliberation over downstream effects on families and particularly children of the incarcerated who will likely be the next generation of the incarcerated. The political imperatives that pushed US policy makers into adopting mandatory minimum sentences appealed to the short-term interests of private prison contractors, correctional officer unions, victims’ advocates, judges and prosecutors. Policies enacted for short-term political opportunity have long-term economic and social consequences, a long tail, but these are of little moment compared to the immediate electoral advantage. The children of the incarcerated – who are at higher risk of incarceration themselves – have no one to speak for them, at least no one with the clout of correctional officer unions or private prison contractors.

The second lesson is that it is hard to reverse bad policy ideas once they take hold in the public imagination – even once the fiscal costs become unsustainable and the policy itself is clearly failing. As is now clear, the proliferation of mandatory sentencing regimes across the United States has pushed several jurisdictions – Texas, California, Ohio, Florida and New York – to the brink of insolvency, yet they have not achieved rates of crime reduction greater than those jurisdictions that did not embrace draconian sentencing practices. Worse, the sentencing regimes are hard to unwind because they have created a political constituency where prisons have become a source of high-income, non-polluting jobs. The third lesson Canadians should heed is that – in seeking to increase the burden of punishment – criminal justice systems engender a self-perpetuating underclass of non-violent but ever more marginalized persons who, because of onerous pardon requirements, may never be reintegrated. They simply cycle through the prison system and transmit the contagion of criminality to their children and family members.

This is a cautionary tale. Canadians would be wise to be more attentive to Drucker’s warnings on the self-sustaining dynamic that emerges out of deliberately growing the rate of incarceration for electoral advantage.
–
Craig Jones, PhD
Former Executive Director
The John Howard Society of Canada
Kingston ON

December 13, 2011
Thrown Under the Omnibus

The idea for the Toronto forum on Bill C10 (the Safe Streets & Communities Act) – “Thrown Under the Omnibus” – was hatched at the harm reduction conference in Ottawa this past summer, during a round-table session that wrapped up the final day. Representatives of five Toronto-based organisations were present – The Toronto Harm Reduction Task Force, The Social Justice committee of the Community Justice Coalition, The Canadian HIV/AIDS Legal Network, PASAN and The Canadian Harm Reduction Network, as well as Donald MacPherson from the Canadian Drug Policy Coalition. It was decided that we would jointly host a forum on Bill C10 in Toronto, as one of a number of community events across Canada supported by the Coalition.

Back in Toronto, we struck a planning committee culled from the five organisations. The committee also included a current drug user, a person on methadone, a former prisoner, and a very valuable volunteer who because of her employment found it prudent to remain anonymous. Such is life now in the big smoke!

The Forum itself was very well attended. With an audience of about 225 people almost every seat was filled. It was well moderated and stimulating, and audience questions were addressed with thoroughness and respect.

There was an excellent networking social after the Forum. We picked up a large number of addresses for our growing mailing list. We had a positive article in the National Post. We also saw many new faces. We had made a particular effort to expand our reach to people outside our usual social services, prison activist and policy lists … particularly into the arts communities, for example … and a number of them turned up.

What would I do differently the next time?

Ensure that there is a next time. We need to build on interest and success. Put greater concentration on expanding the audience base. We need to “convert” even more than we need to speak to the converted. We need to form new relationships and coalitions as well as nurturing existing ones.

Do more with social media. We did some … but none of us was particularly savvy.Really court the media. We did a lot … but obviously we need to do more. Hold a post mortem. We never did it. Perhaps we still will.

Really celebrate our success.

November 10, 2011