To make society safer ...
A recent letter in the Edmonton Journal made the point that criminal defence lawyers are in no better position that anyone else to suggest what is--or is not--an appropriate and proper penalty for the commission of any particular crime. In a sense, that point is valid: in so far as society wishes to respond to crime with a politically or socially symbolic move, defence lawyers--and police, prosecutors, and victims groups--have no claim to any special expertise or insights. If we want Canada to become known as a place where certain offences are met with a uniformly strict symbolic response--life imprisonment for all sex offenders, for example--that is primarily a political issue that no sector of society can claim unusual knowledge or awareness of. Similarly, if we want to adopt a position whereby every person charged with a minor first offence receives a discharge, then we should discuss the benefits and detriments of that approach and decide accordingly. (This debate has, of course, been taking place over the last few years in relation to the decriminalization of marijuana in Canada.)
However, if we want the sentences imposed in response to the commission of crime to accomplish more than the merely symbolic, I suggest that criminal defence lawyers do approach the discussion from a unique perspective (as, I admit, do the police and victims' lobbies). Our democracy thrives on the freest exchange of views on all subjects and issues. Just as police and victims' groups can be counted on to call for tougher punishments and longer sentences in light of their personal experiences, most members of the defence bar will probably point out that jailing people for longer and longer periods is not likely to make society a safer place in any lasting or substantive way. Putting people who have committed crimes in jail for longer and longer periods might make us all feel good inside for a while, but the comfort is largely false and misleading if we are hoping for longer term security. Defence lawyers are not likely to adopt this position out of some sort of loyalty to their clients, but rather, because we are often the ones who see first hand the results--or lack of positive results--of previous jail sentences of varying lengths. There are not many other members or sectors of society outside of the correctional system itself with the same exposure as criminal defence lawyers to the so-called criminal element and the background circumstances of those individuals.
Rather than simply calling for longer sentences of imprisonment, a more constructive and useful response to the commission of crimes by repeat offenders would be to explore, understand, and address what actually happens to persons who are imprisoned in our jails and penitentiaries--both before and during their incarceration--and how we respond to them upon their release. The Correctional Service of Canada approaches its task on the basis that most offenders will return to mainstream society at some point in the future. An effort is therefore made to identify and address the underlying causes of the conduct that led to the individual's conviction and sentence in the first place. An attempt is then made to structure the sentence accordingly and to provide programs--courses, counselling, treatment, and so on--and other activities that might assist in achieving the rehabilitation of the individual by the time he or she returns to the community.
Unfortunately, though, corrections has never been--and probably never will be--a high priority, at either the federal or provincial levels of government. This is reflected by chronic underfunding and lack of resources when it comes to ensuring that inmates have sufficient access to meaningful and effective forms of assistance. Probably any federal penitentiary in this country could easily employ two or three times as many mental health professionals as at present. More and better programming, which might actually address the real needs and underlying causes of criminal conduct, is always needed--and always in short supply. Most programs that aim at integrating offenders back into the community are hampered by waiting lists and limited accessibility. This means that individuals must wait until well into their sentences before they can have access to such assistance.
Provincially--at least in Alberta--our correctional facilities fall even further down the list of spending priorities. Most provincial jails operate on the basis that the minimum requirements will suffice--and occasionally legitimate allegations surface that even the minimum (by United Nations standards) is not being met. Most politicians--and large segments of the public--resist spending great amounts of money on corrections mainly because it means spending tax dollars on criminals when there are so many other members of society considered more deserving. No politician wants to have to explain why he or she has voted to spend money educating a convicted criminal, for example, when there are so many outside of our jails and penitentiaries who need an education.
This approach is clearly narrow-minded and short-sighted. Of course society stands to benefit by the education of all of its members--and by addressing poverty, health care issues, and other family and community problems that we know frequently contribute to criminal conduct. But even after the criminal offence has been committed and the perpetrator imprisoned, society has a continuing interest in achieving now what it failed to accomplish before the crime, that is, rehabilitation. Such rehabilitation may take whatever form might work for the particular convicted persons, in order to ensure that when they rejoin the rest of us on the street, they will no longer pose a threat to other individuals or to the community as a whole.
While we can all understand what motivates the families of the four dead Mayerthorpe police officers in their call for harsher sentences, society would be far better served by a more detailed, unemotional and impartial examination of everything we know about James Roszko and how we responded when he came into conflict with the law on earlier occasions. (We may leave aside for present purposes the many other issues surrounding the deaths of the four officers and Roszko himself, such as the police handling of the incident.) From what we have heard and read since the events of March 2005, Roszko was apparently an angry and bitter man who had access to firearms. What happened to him as he grew up that led to the attitudes and views of the rest of society that he apparently held by March 2005? What had happened to him when he served earlier sentences of imprisonment. Why did he view the police as enemies, to be gunned down in cold blood? What kinds of assistance was he offered and what forms of support did he use? What kinds of help were considered needed but not available, and why not? He apparently left prison as angry as when he entered--why?
The suggestion that society will be better off--and better protected--just by: warehousing its criminals for longer periods of time is a simplistic, emotional, and not terribly helpful response to a tragic event. A less political, more thoughtful, and deeper analysis of the many contributing factors is more likely to lead to long-term change with real potential for reducing the recurrence of such horrors.
Charles B. Davison is a lawyer with the firm of Abbey Hunter Davison Spencer in Edmonton, Alberta.
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|Title Annotation:||criminal law|
|Author:||Davison, Charles B.|
|Date:||Apr 1, 2006|
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