A SOLUTION IN SEARCH OF A PROBLEM

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

Don Butler
The Ottawa Citizen

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 find 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.

7Tough-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."

11Everyone'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."