Recently, the Canadian government passed a new crime bill into law with some rather strong penalties for what many consider minor offenses. Non-violent drug related crime in particular has been pointed out as a glaring disconnect when placed alongside general Canadian attitudes toward drug use, particularly when it comes to cannabis. On top of these stiffer penalties, mandatory sentencing has been introduced, stripping our courts of their ability to assess the appropriate penalty for individual criminal cases, applying blanket punishments regardless of the details of each case. A university student growing a few pot plants for his personal use is going to face the same minimum penalty as a small-time gang member who just got started growing for distribution to minors, so long as the same numbers of plants are found in each case. Even stranger, there are circumstances where the minimum penalties for growing pot are heavier than those measured out to child pornographers, based in part on whether the grower owned or rented the property where his plants were growing. Because of this odd inclusion in the sentencing rules, the university student would face a stiffer penalty than the gang member if he was renting his apartment and the gang member owned his home. Personally, this all seems like nonsense to me, but I’m willing to allow for the possibility that some personal bias could be entering into my considerations. The Harper government has based their justification of their crime bill on the idea that getting tough on crime will result in safer streets and a reduction of criminal cases, so let’s examine this claim’s merits and see if it holds up under scrutiny.

It seems like the best way to determine the likelihood of a proposal’s success would be to look around to see if other jurisdictions have implemented similar legislation in the past and gauge how well things worked out for those people. Of course, for we Canadians, the first place we think of when we start talking about getting tough on things is the good old U. S. of A., our good neighbour to the south. Several US states have passed laws that are very similar to what Mr. Harper has pushed through our Parliament, and there are not too many countries that are more alike than America and her favourite hat, so it seems to be an ideal test case to look at for predictions as to how well our new laws are going to work out for us. Surely we are not likely to find a country much more like Canada than the US, but by all means feel free to add in your own preferred example if you can think of a country that would be a better predictor of outcomes for us.

So then, armed with these two strong examples to consider, let’s take a look at how well “Get Tough on ______” has worked out in similar countries passing similar laws. In the US, the results of these laws have been somewhat less than spectacular. According to one estimate, “there are 100,000 more non-violent drug offenders in U.S. prisons than the entire prison population of the European Union – even though the EU has 100 million more people.” At first blush, this does not seem to recommend the American model of getting tough on crime, but let’s look at the things its proponents tout as virtues, rather than giving too much time right off the bat to critics of this system. First and foremost, getting tough on criminals is presented as the course of action that gives the most weight to victims’ rights by providing much stiffer punishments to offenders. The family of a murder victim receives the peace of mind that comes from knowing that the state laid a much heavier penalty on the killer than they might have received under a more lenient judicial system, and this is something very attractive to a great many people out there. The idea that people are punished “enough” for their wrongdoing certainly has a strong appeal to those with a retributive streak running through their theory of justice; and if the punishment goes a little over the “enough” line? Well, that’s OK too, right? Victim impact statements are definitely important in determining what a fitting punishment might be for a given offense, but should that be our top concern, or even our only concern? In practical terms, what is the “enough” line for victims? Are we going to look at going straight, “An eye for an eye,” in our criminal justice system, and if the answer is yes, what does that look like when applied in a courtroom? Is a rape victim entitled to rape her attacker? Is a murder victim’s family entitled to kill the killer? Is the victim of a grow-op entitled to . . . um . . . who is the victim of a grow-op again?

This is where retributive justice falls flat on its face: it simply cannot address the matter of victimless crimes. Where there is no direct harm to an identifiable victim that can be measured so a proportional punishment can be worked out and applied, a system based on getting retribution on offenders is completely useless. It may in fact be worse than useless if your aim is to maintain these victimless acts on the books as crimes, since it cuts the legs out from under that position. If there is no victim, there is no crime, and no punishment can be prescribed, period. If you want to make growing pot for your own use illegal, you need to find a different way to justify your position, because “an eye for an eye” does not apply to the case of “a high for a high”. If you want to make the case that pot and other recreational drugs ought to be criminalized on the grounds that drug abuse causes social harm that indirectly affects everyone, so punishment can be based on that broad-based harm, you’re welcome to try, but that identical reasoning would also apply to fast food, alcohol, tobacco, video games, air pollution, and any number of other social harms that nobody is looking to criminalize in at least an equal measure. While there are plenty of people who are perfectly fine with using special pleading in order to support a pet argument, I unfortunately have some background education in logical fallacies that prevents me from joining in the fun.

So, between realizing that for many victims, there is no such thing as “enough” when it comes to punishing their assailants, and getting stuck on the fact that it cannot prescribe any punishment at all for certain criminal offenses, a retributive justice argument fails to provide a solid grounding for the Conservatives’ newly passed legislation. It certainly has a strong emotional appeal to victims’ rights groups and other similar supporters, along with those among us who feel drawn to the “eye for an eye” style of frontier justice, but it would be nice to think that our criminal justice system would satisfy more than an emotional itch among people who like to see the guilty “pay” for what they’ve done. What would be nice would be to set up the criminal justice system in such a way that it offered something more than vengeance-seeking for injured parties, maybe even some kind of restorative justice model for those of us who view criminals as still being human beings and fellow citizens.

Call me an old softie, but I genuinely do think that committing a crime does not necessarily take a person and set them outside the human race. I think it would be worthwhile to set up a justice system that did what it could to reduce recidivism by reforming offenders so that when they are released from prison, they can re-enter society and contribute to the common good in a way that maybe even makes some amends for what they did. While victim’s rights are important, and ought to have a strong bearing on the disposition of a criminal case, unless you’re going to apply capital punishment across the board, these people are going to be coming back out of jail at some point, like it or not. It is up to us whether our justice system does what it can to promote reform or just throws people in a cage for a period of time, let the chips fall where they may once their time is up, and I don’t see a whole lot of the former in what Harper and his Tories have passed into Canadian law.

Sorry, I’ve digressed from what I said I was going to do, examine the merits of our newly passed crime bill by taking a look at how similar systems have worked out in similar legal settings. Going back to this point, it seems relevant to point out that while the US has spent something in the neighbourhood of $1 trillion on its War on Drugs, mainly on law enforcement and prisons, drug use rates in the US are showing no signs of dropping off, and it is still topping the charts for *the* place to ship your illegal narcotics if you happen to run a drug cartel. Canadians are no slouch in this department though; we spend $454 million every year on controlling our drug problem, with $426 million of that total (93.8%) going to law enforcement. Nearly half a billion dollars each and every year is spent by the Canadian government in order to shrink our country’s drug problem, and it can just be taken for granted that this has had a strong, positive effect on reducing drug abuse rates. I mean, it has to be taken for granted, since there is an “almost complete absence of basic management information on spending of resources, on expectations, and on results,” according to a recent report released by the Chief Medical Health Officers of Saskatchewan, Nova Scotia and BC, along with a UBC Medicine professor. Also according to that report, drugs have gotten stronger and cheaper over the past few decades, and the US National Institutes of Health conducted a survey where American 12th graders responded saying 80-90% had “very easy” or “fairly easy” access to cannabis (which has gotten about 170% stronger since the 80’s).

So what are we to conclude from all of this? Could it be that Mr. Harper and the Conservatives have passed a law that holds a strong possibility of leading to all sorts of negative unintended consequences, while providing little or no benefit to Canadians in the long run? It certainly seems so from what we’ve looked at so far, but we haven’t really looked at the whole argument in favour of what they’ve put into our legal system. Forget all about that whole question of pursuing methods that have proven to be disastrously ineffective in other, similar jurisdictions, what we really need to focus on is reigning in all those activist judges out there, letting the guilty go free while families suffer. That’s the real issue here, the affront to justice we open ourselves up to by giving judges discretionary powers during sentencing. Applying a blanket minimum sentence to every infraction of any law is the way to ensure that the guilty are punished and none are let off the hook by bleeding-heart judges who don’t care about victims or their families. Just look at any newspaper and you’ll find a story of some offender getting a light sentence just because the particulars of their case warranted a reduction in jail time or possibly even an alternative punishment like probation or conditional sentencing. These insults to justice will no longer be able to exist, since those activist judges will have their hands tied by prescribed minimum sentences.

Except, don’t we make people judges on the basis of them being good at judging things, generally speaking? I mean, obviously there are some crap judges out there doing a terrible job of things who have no business serving on the bench, but as a whole, don’t we usually give the job of “Judge” to people who actually merit the position in some way? Is it really a good idea to remove their ability to exercise discretion in cases where mitigating circumstances genuinely do reduce the severity of the crime committed? Are we meant to believe that the university student and gang member mentioned above really present an equal threat to society and deserve to go to jail for the same minimum amount of time? I’m sorry, but I can’t find a sensible way to justify this idea; if you can think of something, please drop me a line in the comments below and clue me in to how to get on board with all this, I’d welcome any insight anyone has to offer. I didn’t get to cover a few things I wanted to in this post, but I’m already over my self-imposed 2,000 word limit, so there’s going to have to be a follow-up post to this one, and any contributions that offer support to this whole thing will certainly be addressed then.