We only have a handful of remedies when someone commits a criminal act. There are fines and restitution, there are restrictions imposed by the courts, but above all else, we have prison.
I have come to doubt, more and more, whether prison is useful for the vast majority of people convicted of a crime.
There are some people who require detention away from the public, because they are clearly dangerous. Serial killers, violent sexual predators, and a few gangsters who cheerfully kill and maim do exist.
But that’s a tiny minority of people charged with crimes. Most who find themselves standing in front of a judge have been accused of thefts and drug-related offenses, of fights and domestic violence. There’s a range of behaviour on display here, from the annoying to the frightening to the deeply harmful.
The question is whether prison is the best tool for changing behaviour and providing some form of social restitution.
Because of the extreme delays in our trial system, it’s not unheard of for someone to be arrested for assault or drug trafficking, and then wait three or four years before they are sentenced.
In the meantime, they may continue on their path of antisocial behaviour. Or, in many cases, they stop. They come before the judge with stabilized lives, working steady jobs, having not been arrested for anything for years. Judges acknowledge that throwing them in jail for years may derail all that progress.
It is common to see judges wrestle with the conflict between sentencing norms, and the threat of damaging rehabilitation already underway.
That’s remarkable. Judges, whose job is deciding how long someone will stay in prison, tacitly acknowledge that it will likely only make an offender a worse person when they are freed.
There are multiple purposes to sentencing in the Canadian system.
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One is separating some dangerous people from the public. Two other key principles are deterrence and denunciation.
Deterrence mostly doesn’t work. Most crimes meriting a jail term are done by people who are convinced they are going to get away with it, or who are desperate, enraged, drunk/high, or otherwise not thinking that clearly.
Denunciation is a hammer in search of a nail. The popular view is that people should spend more time in prison, that judges are soft, that criminals need to be punished. Most people don’t believe in denunciation. They just want public revenge. They are not interested in the other systems of control the justice system uses – driving bans, prohibitions on associating with certain people, orders to get into drug treatment or stay sober, even though those are more likely to be useful in preventing future crimes.
There are other systems, like restorative justice and sentencing circles, but they remain uncommon.
The question remains – and I don’t have the answer for this – what can we do that denounces crime, without invoking the expensive, punitive waste of prison?