November 24, 2007 - Ottawa Citizen (CAN) A Solution In Search Of A Problem By Don Butler, The Ottawa Citizen

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There may be no crime epidemic in Canada, but cracking down on it is a sure-fire political winner. Don Butler examines why getting tough on crime is so appealing, despite a lack of evidence that it works.

Ten days after Jane Creba was gunned down in crossfire between gangs on Toronto's Yonge Street, Stephen Harper stood near the scene of the shooting and unveiled a tough-on-crime agenda to address what he called "the tide of gun, drug and gang crime plaguing our cities."

The 15-year-old girl's killing on Boxing Day 2005 followed a summer of gang warfare Toronto media dubbed "the summer of the gun." Coming as it did in the middle of a federal election campaign, the shooting propelled crime to the top of the political agenda.

In the end, Mr. Harper's Conservatives -- the party with the most robust tough-on-crime credentials -- were the main beneficiaries. Their hard-nosed response to Jane's homicide helped get them elected.

The lesson has not been lost. Last month, the Harper government introduced a compendium of five anti-crime bills that were introduced, but failed to pass, during the last session of Parliament. After all parties agreed to just three weeks of committee scrutiny, the omnibus bill was sent back to Parliament yesterday.

Among other things, the bill raises mandatory minimum sentences for serious gun crimes and impaired driving, and requires those convicted of three or more serious violent or sexual crimes to demonstrate why they should not be designated dangerous offenders and jailed indefinitely. It also forces those charged with a variety of firearm offences to show why they should not be denied bail.

"Canadians want action on crime now, and that's what we aim to deliver," declared Justice Minister Rob Nicholson.

The clear implication was that crime is a growing danger to Canadians. Yet most experts say the Conservative bill is a solution in search of a problem. They point out that crime rates in Canada have steadily declined over the past 25 years.

Even gun-related homicides -- the ostensible trigger for the Conservative crackdown -- fell by 16 per cent last year. More people were killed by knives than by guns in 2006.

Moreover, there's near universal agreement among criminologists that mandatory minimum sentences and tougher penalties do little, if anything, to reduce crime.

"I can't believe that even in the deep bowels of the governing party anyone really believes that," says Ron Melchers, a University of Ottawa criminologist.

"If we're really serious about trying to deter crime," agrees Tony Doob, a leading criminologist at the University of Toronto, "the problem is you can't do it very well with penalties."

So if there's no epidemic, and experts insist tough-on-crime measures are ineffective, what explains the bulletproof political appeal of such measures? Here are 11 possible factors:

1) Media coverage of high-profile crimes distorts the public's perception of risk.

"Every time there's a major headline case," says William Trudell, president of the Canadian Council of Criminal Defence Lawyers, "there's a reaction -- we've got to get tougher."

And the more familiar we are with high-profile cases, says University of Ottawa law professor David Paciocco, "the greater the impression that crime's a significant player in our society."

Tough-on-crime politicians feed this misperception, Mr. Paciocco says. And that drives bad policy. "The thing that's frustrating is that complex issues are easily reduced to sound bites that appeal to emotions and fear rather than to the actual facts."

Mr. Trudell, who believes the criminal justice system system "is being politicized more than ever," says even the title of the current bill - -- the Tackling Violent Crime Act -- is designed to fan fears. "There's an undercurrent that we don't live a safe society and that we need to be protected."

Mr. Paciocco says the media's role in this is significant. "It's just a fact that crime sells. This is the type of story that catches people's imagination."

But Mr. Melchers says the media's role is overstated. He says newspaper and TV stories only have an effect if people talk about them to others.

2) The idea that tougher penalties will deter crime seems plausible to many.

But that wrongly assumes criminals know what the penalties are, says Mr. Paciocco. "It's ridiculous to think that criminals are going to have accurate knowledge of what the relevant penalties are."

It also presupposes that criminals engage in a rational cost-benefit analysis before committing a crime, Mr. Paciocco says. Most don't. "We know that much of our crime is emotional, opportunistic, unthinking. It's often uneducated or mentally challenged or mentally ill people."

The reality, says Mr. Trudell, is that most criminals don't think at all. "They don't weigh the consequences. They're interested in immediate gratification. And so is the government when it introduces this kind of legislation."

Even if potential offenders know penalties have been toughened, it's absurd to believe that will affect their behaviour, says Mr. Doob.

For example, the current bill raises the mandatory minimum penalty for certain firearm offences to five years from the current four. "I can't imagine there's a group of people who are saying, 'well, I'll do it if I'm only facing a four-year sentence but I won't do it if I'm facing a five-year sentence,'" scoffs Mr. Doob.

3) Our response to crime is driven by emotion and feelings of vulnerability.

Attitudes toward crime, Mr. Melchers argues, are a proxy for social pessimism.

"People who think that crime is worse today than it was five years ago tend to be people who also feel a greater sense of vulnerability," he says. "They're concerned about unemployment, poor health, the war in Afghanistan, a whole bunch of things."

It's almost a badge of citizenship to denounce crime, he says. Talking about crime "is the most highly valued way of sharing any feelings of vulnerability, any sense that life isn't going as it should. I call it the 'going to hell in a hand-basket' theory. Crime picks it up. It's like a Swiffer.

4) There's no real public debate about the effectiveness of harsher penalties.

Politicians have learned that preaching law and order makes good politics. "I can't remember a politician in power who's stood up and said, 'I think it's wise to be softer on crime,'" says Don Stuart, a law professor at Queen's University in Kingston.

Even opposition parties who know bad policy is being advanced "know they can't speak out for fear of looking soft on crime," says Mr. Paciocco.

"This is a debate in a complete vacuum from evidence, effectiveness and cost," says Mr. Doob. "It takes someone like me minutes, if not hours, to lay out all the evidence that suggests it's not going to do anything." But tough-on-crime advocates don't face that burden. "They can assert anything under the sun.

Alan Gold, a criminal lawyer in Toronto, says the crime bill is a classic example of what the British satirical show, Yes Minister, calls "the politician's syllogism -- we must do something, this is something, therefore we must do it."

Those who advocate a hard line on crime often point to the United States, where crime rates fell by 40 per cent during the 1990s, when three-strikes laws and other tough-on-crime measures sent incarceration rates soaring, at crushing cost to taxpayers.

There are now more than 2.2 million people in U.S. prisons -- 0.7 per cent of the population. By contrast, Canada has only about 32,000 people in custody, 0.13 per cent of the population.

The problem is, crime rates fell almost as much during the 1990s in Canada, where similar anti-crime measures weren't adopted, as they did in the U.S. As University of California law professor Franklin Zimring points out, Canada's prison population and ratio of police actually declined slightly during that period.

5) The public believes the courts don't deal harshly enough with criminals.

A survey reported in the January 2007 issue of the Canadian Journal of Criminology & Criminal Justice found that 74 per cent of Canadians think sentencing is too lenient. Just two per cent think it's too strict. This view has been consistent over decades and is shared in almost all jurisdictions.

This suggests that many perceive that sentences often offend a basic principle of justice -- that punishment should fit the crime. "We like there to be a balance between the final outcome and the horror of the crime," says Mr. Melchers.

Mr. Doob has no problem with harsh sentences for serious violent crimes. "What I'm looking for is proportional sentencing," he says. But because mandatory minimum sentences remove judicial discretion, they actually subvert that goal, he argues.

6) It's not just about deterrence.

In the survey reported in the Canadian Journal of Criminology, respondents were asked if they would support mandatory minimum penalties even if research showed they would not reduce the likelihood of re-offence. Two-thirds said yes, leading the study's authors to suggest the public supports mandatory sentences more as a way of denouncing crime than deterring it.

7) Tough-on-crime policies simplify the world.

In the modern age, coverage of crime serves much the same purpose as stories about the lives of saints did in earlier times, says Mr. Melchers. Both are morality tales. "Good must be rewarded and evil punished. There's a need for the story to be taught that way."

That's legitimate, he says. One of the objectives of sentencing is to "convince the public that good has triumphed over evil and evil has been punished and order has been re-established in the world. It's not trivial. It's not wrong. It has to be done."

That doesn't mean pandering to the public's emotional response to crime makes good policy. "Public policy needs to navigate in these public perceptions. There's room to make good policy decisions that will still reassure the public."

8) Most people have little first-hand knowledge of crime.

In any given year, only 10 per cent of the population will have any contact with the criminal justice system, half of them for traffic offences. Only one per cent of people are charged with an offence, including a traffic summons, in any given year. "The pool of experience out there is really, really thin," says Mr. Melchers.

9) The threat of terrorism has increased our sense of insecurity.

Some argue the 9/11 attacks and subsequent events have strengthened public support for harsh crime policies. "The language is always public safety or public security, and it gets mixed up," says Mr. Stuart.

Mr. Melchers doesn't buy that, though. "Those policies were as popular in the '60s as they are today."

While 9/11 did ratchet up public receptivity temporarily, the effect didn't last, he says. In fact, with unemployment low, the dollar high and the economy chugging along, "right now we're probably in a period where feelings of vulnerability are at their lowest."

10) Because we're safer, we feel less safe.

Mr. Gold argues that people feel less safe precisely because crime is less common than it used to be.

"It's like when you're really sick, you tend not to notice every little thing because you have real problems," he says. "But when you're almost perfectly healthy, every little itch is a real problem. Things stand out more when they are rarer."

11) Everyone's looking for a quick fix.

The causes of crime are complex, says Mr. Doob, and often related to social policies that ignore marginalized populations. Yet when the latest crime horror erupts on the front pages, nobody wants to hear that.

"I've had discussions with politicians and they say, 'that all may be, but what are we going to do right now?'" Mr. Doob says.

"They're looking for a quick fix. If I say I don't know of any good quick fixes, then they'll turn to the next guy who says 'I've got one.' He can offer them something that's a lie. He may even know it's a lie, but it sounds more optimistic."

The problem, says Mr. Paciocco, is that the tough-on-crime solutions are worse than useless. They are actually harmful, beginning with the fear-mongering that justifies the measures.

"When you use fear as a political tool, you create the very crisis that you should be trying to remove," Mr. Paciocco says. "Crime doesn't only harm society; fear of crime harms society. It diminishes the quality of life. It's causing apprehension and pain to the public."

Damaging, as well, is the belittlement of the judiciary that often accompanies tough-on-crime rhetoric, he says.

"I just see a really horrible tradeoff occurring. In order to gain whatever political points law-and-order politics brings, we're prepared to denigrate the institutions that we must rely upon to protect us. It can't have a good outcome."

Measures such as the presumption of dangerous offender status for three-time serious offenders not only bleed money away from other priorities, they create needless suffering for no gain, he says.

Mr. Stuart sees evidence in recent Supreme Court of Canada and Ontario Court of Appeal decisions that the judiciary has started "pandering to public fears" about crime.

"I thought that one of the advantages of having an independent judiciary was that they didn't have to play this game," he says. "But they're playing it as well."

At the end of the day, the government's crime crackdown won't alter crime rates much, Mr. Gold predicts. But it will generate enormous litigation, a great deal of taxpayer expense and "will ruin a certain number of people's lives who are subject to the harsh penalties.

"And 10 years from now," Mr. Gold says, "the pendulum will swing back and these laws will all be revoked and we'll go through another cycle."

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