Canada has lurched to the right in its criminal justice policies, which invites a number of unflattering comparisons to the United States. In Fearmonger: Stephen Harper’s Tough-on-Crime Agenda, Paula Mallea mounts a comprehensive attack on the Conservative government’s crime agenda dating back to 2006, including many proposals that appear destined to become law in 2012. (As of this writing, passage of Omnibus Crime Bill C-10 looked relatively assured.) While centred on recent events, the relevance of Mallea’s critique extends well into the future. The U.S. experience has been that enactment of tough-on-crime legislation does little to assuage the appetite for even more such laws—and justice minister Rob Nicholson has gone on record to say that Bill C-10 “is just the beginning of our efforts.”

Both the content of the Harper/Nicholson program and the rhetoric of the debate it has engendered are distressingly familiar to the U.S. ear. Mallea catalogues the legal changes that have occurred, or will soon, in Canada: greater use of prison for drug offenders, a panoply of mandatory minimum penalty laws that remove sentencing discretion from the courts, harsher dispositions for youthful offenders (who will more often be punished “as adults”), declines in treatment availability for mentally ill and addicted prisoners, deterioration of conditions and programming inside prison walls, limitations on the use of conditional sentences as alternatives to imprisonment, significant cutbacks in the ability of prisoners to advance toward release through credits for pre-trial custody, reduced eligibility for parole and pardons—or even the “faint hope” of review of life sentences after 15 years of prison time—and an overall shift of correctional costs from the federal government to the provinces and territories.

Paula Mallea is against all of this. She favours less use of incarceration, greater dignity, treatment and educational opportunities to those who are confined, elimination of mandatory penalties, more services for those newly released from prison and the decriminalization of drugs—especially marijuana (short of this, she would expand the use of drug treatment courts). She would replace much current correctional spending with investments in restorative justice alternatives and early childhood prevention programs. She advocates ambitious efforts to overhaul the Criminal Code of Canada and create a permanent commission on sentencing to bring greater information and expertise (and less political demagoguery) to the lawmaking process.

Image by Byron Eggenschwiler

My policy preferences run in the same direction as Mallea’s, although I am apprehensive about the way in which some of her arguments are presented. The goal of a book like Fearmonger should be to change the minds of people who are not already committed to the author’s viewpoint. The United States has a long track record of ineffectual liberal advocacy in criminal justice matters, and I fear that Mallea falls into some of the same self-defeating tendencies. I have several suggestions for broadening the appeal of Fearmonger’s message.

First, it is essential to play fair with the facts. This is more easily said than done because heated argument impairs judgement. Like most well-intentioned people, Mallea says she will present a balanced analysis, “leaving ideology and personal beliefs aside.” Very quickly, however, strains begin to appear in the form of overstatements and overpromises. Take the fundamental policy question of whether the expansion of prison systems results in less crime in the community. Mallea speaks to this repeatedly, always concluding that “crime rates do not fluctuate according to the number of offenders who are incarcerated.” This leads to a one-sided assessment of the benefits of a de-incarceration program: “savings in the billions can be produced by reducing the numbers in prison, with no discernable negative effect upon crime rates.”

In Mallea’s defence, these claims have been echoed by many others, including distinguished academics. That does not make them factually accurate. There is no question that incarceration rates do influence crime rates through the brute force of incapacitation. (We are not required to put stock in the more elusive theories of rehabilitation or deterrence.) Years ago this mechanism was encapsulated in a Wall Street Journal editorial titled “A Thug in Prison Cannot Shoot Your Sister.”

Across social science disciplines, there is a consensus that locking up large numbers of people during the active phases of their criminal careers heads off criminal victimization. The precise amount of crime reduction is very hard to establish scientifically, however. Plausible estimates, based on the work of William Spelman, Richard Rosenfeld, John Donohue and others, are that between 5 percent and 40 percent of the U.S. crime drop since the early 1990s can fairly be attributed to massive increases—roughly a doubling—in the country’s prison populations. Serious observers tend to think the truth is somewhere in the middle. Even at the lowest estimates, however, the societal benefits are hard to ignore. In a study of California’s prison boom of the 1980s, Franklin Zimring and Gordon Hawkins combined four different methodologies to surmise that for every 1,000 inmates added to the state prison system, approximately seven murders and 55 rapes were avoided per year, together with much larger numbers of less serious crimes. What if we accept these as ballpark figures? Because the California prisons grew by roughly 100,000 during the decade, the number of averted victimizations each year, and cumulatively, was appreciable.

Acknowledging these realities makes it difficult for proponents of de-incarceration to simply wish them away. Yet there is still a compelling case that U.S.-style mass incarceration has had more costs than benefits. Prison buildups inflict untold suffering on offenders, their families and communities. Children of incarcerated parents, for example, are very likely to become offenders themselves. Furthermore, the proposition that prison “works” has many ifs, ands or buts: the amount of crime reduction is smaller than most people would expect, the great majority of averted acts are property crimes rather than violent offences, many crimes within groups or organizations are simply committed by someone else when one minion is taken off the streets, many incarcerated offenders are unnecessarily confined since they will not in fact reoffend, and the marginal gains of crime avoidance rapidly diminish as the size of the prison population increases. More globally, the research consensus on prisons and crime suggests that most of the fluctuation in crime rates over time—perhaps as much as 90 percent of causation—is due to factors other than the confinement rate. This places most of the discussion on familiar liberal terrain.

A second commandment for effective advocacy is that liberals should stop saying that they base their policy prescriptions on “evidence” while accusing conservatives of being driven by “ideology.” Everybody in the criminal justice debate brings their ideology to the table, in the crazy-quilt process that is human thought. Emotions and moral intuitions intermix with the more objective information we glean from such things as statistical reports, historical experience and research results. The ratio of evidence-based and emotional thinking does vary from person to person, as does the degree to which people base their moral conclusions on rigorous factual inquiry. But it is needlessly insulting and counterproductive to belittle opposing viewpoints as purely knee-jerk, or to claim that one’s own position is founded on undiluted rationality. Very few liberals can deny that they carry their own intuitive sense of justice and proportionality on criminal punishment—and on the moral legitimacy of the criminal justice system as a whole. Indeed, a defining characteristic of criminal justice liberals in the United States is their strong sense of always being in the right.

One consequence of the cartooning of opposing viewpoints is that the other side will not listen to you; another is that you fail to understand them. It is always a productive exercise to try to imagine the most well-reasoned and articulate statements that can be made on the other side of any debate one is engaged in. Mallea, like many others in the heat of battle, gives no attention to this question.

It is a pity Fearmonger does not work harder to understand the motivations of its antagonists. One puzzle of Canada’s new criminal justice punitivism is where in the world it has come from. In the United States, conservative crime policy took hold during an era when actual crime rates, including the most serious violent and sex offences, had increased dramatically—and then stubbornly persisted at very high levels. In the early 1990s, for example, the U.S. homicide rate was fully four times the Canadian rate—and had been at roughly the same stratospheric level for 20 years.

Over the past 20 years, crime rates in the United States have been dropping back to lows not seen since the 1960s. This—combined with the financial crisis—has made room for cutbacks in punishment severity in many states. Even prominent Republicans such as Edwin Meese, Newt Gingrich, William Bennett and Jeb Bush are now calling for a leaner and smarter criminal justice system, as can be seen on the “Right on Crime” website at <www.rightoncrime.com>.

Canada has also experienced a drop in crime since the early 1990s, albeit not from the same high peak as in the United States. Canada also faces serious financial difficulties. Why then is it moving in the opposite direction of the U.S. at exactly this moment? Fearmonger helps us understand the foolishness of these trends, but not how large numbers of people who are not fools could be in favour of them.

No breakthrough in criminological knowledge explains Canada’s current trajectory, either. In the United States, the prison buildup began immediately after scientific studies of the 1970s cast staggering doubts on governments’ ability to rehabilitate offenders. For a long time it was intellectually respectable to say that “nothing works” in the treatment of criminals.

Once again, the present-day policy environment in Canada is entirely different. Decades of criminological research have shown that some programs do “work” in reducing criminal behaviour and its correlates such as drug and alcohol abuse—and we have also gotten much better at identifying low-risk offenders who are unlikely to require muscular interventions in order to get on with unthreatening, law-abiding lives. Low-risk types are much more numerous, and easier to spot statistically, than the most dangerous offenders.

I do not know what explains today’s crime policy in Canada, but people of the talent and scope of vision of Paula Mallea should be trying to identify those causes, in order to address them directly.

A final item of advice comes from the few arguments that have found traction in the U.S. criminal justice milieu: those who favour restraint in punishment should talk more about costs, and more about racial disparities, every time changes in criminal sentencing laws are proposed. They should insist that data-based projections of fiscal and demographic impacts be prepared routinely before new measures are adopted.

Fiscal impact projections have been vital policy tools in many U.S. jurisdictions. Especially in states where sentencing commissions and guidelines are in use, these projections have proven accurate over time, and are given credence by both political parties. There are many examples across the U.S. of draconian legislation that has failed, or been scaled back, because responsible policy makers on both sides of the aisle could not stomach the known budgetary consequences.

For understandable reasons, Canada is far behind many of the U.S. states in this regard. Invention sometimes waits for necessity. The U.S. did not develop and use sophisticated impact projection tools until it was already deep into its prison crowding crisis. The time for Canada to do so is now, before the emergency occurs.

It is deplorable that the Conservative majority government has been so elusive in calculating the monetary costs of its new criminal law initiatives (this only a small improvement over its earlier practice of refusing to supply cost information altogether). The press has reported wildly diverging estimates of what Bill C-10 and all of its mandatory penalties will cost Canadian taxpayers, including one projection by Quebec’s Infostructure de Recherche Intégrée en Santé that the bill will drain federal coffers by more than $900 million over five years, with the provinces paying an additional $1.4 billion. The Harper government says it has not tallied the costs to the provinces, but calculates the federal price tag at less than one tenth of the Quebec institute’s figure. This is a dismaying range of uncertainty that leaves legislators and the public with no useful information at all.

A small handful of U.S. states has also recently begun to forecast the demographic impacts of new criminal laws before they are passed—based on the same predictive technologies that are used in fiscal projections. Canada should do the same. As Mallea points out with grim statistics, the overrepresentation of aboriginal people in Canadian penitentiaries and jails is every bit as shocking as the racial disparities found in the United States. She notes, for example, that “Aboriginal young people are more likely to go to jail than to finish Grade 12” and “Aboriginal women comprise the fastest-­growing segment in federal prisons.”

In the U.S., one important barometer of racial inequity is the comparison of black and white per capita imprisonment rates, which produces a “disparity ratio.” As Michael Tonry recounts in his recent book, Punishing Race: A Continuing American Dilemma, blacks are overrepresented in U.S. prisons and jails by more than a factor of six when compared to whites—and this ratio was even higher in the 1980s and ’90s. Mallea does not calculate disparity ratios based on Canadian data, but the statistics she does include for federal and provincial prisons in 2006–07 yield a disparity ratio of at least 7.5 to 1 when comparing the aboriginal prison rate to that for all other Canadians. The ratios are even worse in some of the prairie provinces (e.g., more than 16 to 1 in Manitoba jails and a whopping 35 to 1 in Saskatchewan).

Canada is in an era of worsening correctional disparities, growing prisons and growing minority populations. This is a pathway for accelerating disaster that has been well worn in the United States. For those who already have serious doubts about the Conservative crime agenda, projections of disparate racial impact might be the last straw.

Kevin R. Reitz is the James Annenberg La Vea Professor of Criminal Procedure at the University of Minnesota Law School. He is co-author, with Henry Ruth, of The Challenge of Crime: Rethinking Our Response and serves as reporter for the American Law Institute’s Model Penal Code: Sentencing project.

Related Letters and Responses I want to thank Kevin Reitz for his comprehensive review of Fearmonger: Stephen Harper’s Tough-on-Crime Agenda. He powerfully restates the arguments against over-incarceration while highlighting disparities inherent in the system and the negative financial consequences of these policies. I would like to respond to a couple of his concerns with the book. Reitz says I failed to identify reasons why our elected officials have chosen an exclusively punitive approach over more sensible, effective and affordable policies. However, the book deals at length with arguments that long sentences deter offenders, that tougher prison conditions reduce recidivism, and that “drugs...