THE COURTS SHOULD NOT BE DOING SOCIAL WORK

So it turns out that the justice minister doesn't want 10- and
11-year-olds to attend sleepovers in the Kingston Pen. "They do not
need incarceration," Vic Toews wrote in a letter to the Citizen
("Correcting the record on youth crime," Aug. 17).

Well, that's a relief. When the minister suggested in a speech to the
Canadian Bar Association -- not exactly a Jesus-and-jails crowd --
that the age of criminal responsibility be lowered to 10, he got
people wondering what the next step would be. One lawyer speculated on
the return of the death penalty. For children 10 and 11 years old. I
think she was joking but given Mr. Toews's track record, and
considering what most criminal justice experts think of Mr. Toews and
his government, I cannot be certain.

But as the minister explained in his letter, he actually sees troubled
children as "victims" and he wants to ensure "they get the treatment
they need." The way to do that, he feels, is to lower the age of
criminal responsibility so pre-teens can be brought into the loving
embrace of the criminal justice system.

I beg the reader to pardon the wholly excessive tone of sarcasm in the
preceding sentences. It's just that I have rarely read something as
disingenuous, dumb and dangerous as Mr. Toews's letter.

The disingenuousness is easy to spot. In his letter, Mr. Toews
portrays his proposal as one big group hug. But in his speech to the
CBA, Mr. Toews said "we need to find ways to ensure that kids are
deterred from crime." That's not the language of group hugs. It's the
same scare-the-punks-straight thinking the minister uses in regard to
adult criminals.

And boy, is that dumb. These are kids we are talking about. By
definition they are immature, and a big part of immaturity is an
inability to consider the future consequences of actions. Literally:
The part of the adult brain that weighs future consequences doesn't
exist in the brains of pre-pubescent children.

Dumber still is the logic of Mr. Toews's proposal.

The minister complains that provincial social service agencies aren't
intervening to help 10- and 11- year-olds caught up in gangs and
crime. So the age of criminal responsibility must be lowered, Mr.
Toews says, to allow courts to give kids the help they need but aren't
getting from the agencies.

But here's a thought: Why not ask the social service agencies to do
what they are trained and paid to do? If they need more money or
power, give it to them. But tell them to do their job. Isn't that the
straightforward way to go about it?

What Mr. Toews is proposing makes about as much sense as calling for
the RCMP to take over road maintenance because provincial transport
ministries are doing a lousy job filling potholes.

As for the danger in Mr. Toews's letter, it comes in two forms. One is
obvious. The other, less so.

The obvious danger is labelling. However enlightened the justice
system's handling of young offenders, its foundation remains the
finding of guilt -- deciding and declaring that what you did was a
crime and what you are is a criminal.

And telling a 10-year-old he is a criminal is an excellent way to
ensure he becomes one.

The less obvious danger is hinted at in Mr. Toews's use of the word
"treatment." What these kids need is help for all sorts of problems,
only a few of which (such as mental illness and substance abuse) would
require what most people would call "treatment." So why would Mr.
Toews label all help "treatment"?

The answer lies in a seismic shift in justice philosophy right across
North America. Sometimes called "therapeutic justice," the idea is to
replace the justice system's traditional role of blaming and punishing
with one of curing the ills that cause the criminal behaviour. Drug
courts and other speciality treatment courts are the most tangible
product but the concept is influencing justice in countless other ways.

In practice, therapeutic justice does not, however, displace blame and
punishment. It is simply layered on top of it. The result is a
blurring of the line between the sick and the guilty. Is the person in
a drug court a sick addict or a responsible criminal? In effect, he's
both. That's why therapeutic justice is popular across the political
spectrum: There's something for everyone.

But in logic and principle, this blurring is indefensible. Mr. Toews
offers a good example in his letter when he writes that
child-offenders are "victims" who must be held "accountable for their
actions." When most people talk about blaming the victim, they mean it
be a criticism: Mr. Toews wants to make it national policy.

Beyond principle, the blurring of lines caused by therapeutic justice
invites abuses of the sort that routinely occurred in American
criminal justice in the 1950s -- the last time the idea of courts
"curing" criminals was popular. Chief among these abuses was a steady
expansion of the justice system's net, particularly among young
offenders: What started as benevolence ended in abuse, and it took
more than a decade of struggle to put a stop to it.

Now, to be fair, Mr. Toews deserves credit for drawing attention to a
real problem. It would have been easier to say nothing.

But still, if the best solution he can come up with is to haul
10-year-olds into court, it might be best if, next time, he took the
easy way out.