A TOUGH APPROACH THAT MIGHT WORK

Instead of shuffling repeat offenders in and out of jail for property
crimes, we should be sending many of them to mandatory addiction treatment.

In a season of tough talk on crime, I would like to propose a
challenge to our political leaders. In this country, one group of
criminals commits a disproportionate number of crimes that we could
easily reduce with more coercive sentencing. However, our usual form
of coercion -- imprisonment -- doesn't work for them. They need a
different kind of sentence. But to make that happen -- and to
significantly reduce the number of crimes they commit -- would require
a degree of will and wisdom that our legislators can't seem to muster.

The legal system refers to these men -- they are almost all men -- as
chronic offenders. What everyone knows -- but the justice system
doesn't acknowledge -- is that they are also drug addicts, hooked on
heroin or crack cocaine. They steal not for gain but to support their
addiction, to pay for their next fix.

This has nothing to do with getting high. For an addict, the point is
to avoid the effects of withdrawal -- in the case of heroin, including
cramps and muscle spasms, fever, cold sweats and goose bumps (hence
the phrase "cold turkey"), insomnia, vomiting, diarrhea and a
condition called "itchy blood," which can cause compulsive scratching
so severe that it leads to open sores. For addicts, drug use is not a
lifestyle choice that's easy to change.

Many have been addicted for their entire adult lives, and as a result
have spent half their lives behind bars, serving dozens of sentences
for minor crimes. These are the "revolving door" criminals that some
critics point to -- arrested, tried, sentenced to a few weeks or
months, then dumped back out on the street, only to be arrested, tried
and convicted again a few weeks later.

Canada has hundreds of criminals like that, mainly in the larger
cities. Vancouver alone recently identified 379. According to a report
by the Vancouver Police Department, the vast majority were addicted to
drugs or alcohol. Many also suffer from a mental disorder, generally
untreated. In the five years between 2001 and 2006, Vancouver's few
hundred chronic offenders, as a group, were responsible for 26,755
police contacts -- more than 5,000 contacts per year, 14 a day. The
costs are staggering. Arrests, prosecutions and incarcerations end up
costing some $20,000 per criminal per month -- per month! There has to
be a better way.

Punishment alone is not it, though, for a couple of reasons. For one,
the idea of punishing criminals is based at least partly on the
concept of specific deterrence. You steal, we lock you up. Applied
most strongly to property crimes -- which is what these offenders
mainly commit -- specific deterrence assumes that the criminal is a
rational actor who will consider: Is it worth it? And in fact,
specific deterrence often works; many offenders really do stop
committing crimes after fairly short jail sentences. But not addicts.

The problem is the presumption of a rational actor. That is exactly
what we do not have with drug addicts, who do not -- usually cannot --
stop to consider the likely punishment for a crime they are about to
commit. They see only the escape from the more immediate and dire
punishments of drug deprivation. By comparison, the threat of being
caught and thrown in jail is nothing.

As well, because chronic offenders tend to commit minor crimes and
draw short sentences -- say, 30 to 90 days for theft -- their lives
shift constantly between jail and the streets.

We could use longer sentences to "warehouse" chronic offenders -- the
American "three strikes and you're out" approach. But long-term
imprisonment would be a very high-cost way to deal with what is really
a public health issue.

And there's the crux of the problem. The criminal justice system is
not designed to treat addicts. While prisons do provide some drug
treatment, it is almost always short-term and underfunded. And these
offenders, with their short sentences, rarely get even that. The
voluntary drug treatment programs offered by the public health system
seldom work for them either, because kicking an addiction is extremely
unpleasant and requires willpower and usually some money, neither of
which street addicts have.

Clearly, Canadians need more protection from chronic offenders than we
are now getting. While their crimes may be petty, their victims number
in the thousands. And those victims are left not only with a monetary
loss, but also with a lingering fear that affects their sense of
personal safety and their trust in the criminal justice system. But
blaming that system, as many do, misses the point -- which is our
failure as a society to deal with severe drug and alcohol addiction.

With chronic offenders, the first step is to recognize that what we
have is an issue of both criminal law and public health. The next step
is to require addicted offenders to undergo serious, long-term drug
treatment.

Canada's experience with mandatory drug treatment is quite limited. In
the late 1970s, British Columbia passed legislation under which heroin
addicts could be compelled to take part in an intensive
government-funded treatment program. The Supreme Court of Canada
upheld the statute but the provincial legislature ultimately repealed
it, concerned about civil liberties. (This was the time of One Flew
Over the Cuckoo's Nest.)

These days, Vancouver's Downtown Community Court tackles street crime
by taking guilty pleas and moving the accused into treatment as part
of their sentencing, but only with their consent, which misses the
point.

We're less constrained with juvenile offenders. Since 1996, Alberta
law has required minors with an apparent alcohol or drug addiction to
participate, with or without their consent, in an assessment and
treatment program. Saskatchewan and Manitoba have similar legislation
and even allow parents of drug-addicted children to ask a court to
require treatment, whether or not the child is in trouble with the
law.

Although the research is scant, mandatory treatment does appear to
have about the same success rate as voluntary treatment. A 1970s
American study looked at the effectiveness of methadone maintenance
treatment for those who entered the program under high, moderate or no
coercion and found no significant difference in outcomes for the three
groups.

Given the costs of incarceration -- not counting the costs to future
victims -- paying for mandatory drug treatment for them hardly seems
an issue, even if it only works some of the time. As for whether
mandatory treatment is somehow inhumane, how humane is it to sentence
these addicts to punishments we know don't work and then dump them
back on the street no better than before?

More than costs or moral qualms, though, the main obstacle to
mandatory drug treatment for addicted offenders is probably
institutional. Both the justice system and the health system have
entrenched groups with turf to protect: prisons, parole boards,
hospitals. Collaboration would mean breaching walls; even with good
intentions, a mandatory treatment program would raise irksome issues
such as which ministry pays, health or justice, and which is
responsible. But don't we elect our leaders to solve such problems?

The question is not whether we will be soft on crime but whether we
can be smart about crime. Crime in the real world is not an exciting
TV show. Crime has real costs and victims. Politics aside, Canadians
generally -- and victims of crime specifically -- deserve
evidence-based criminal justice policies that actually reduce crime.
Our challenge is to make the tough choices that move beyond "tough on
crime" rhetoric and produce real change.

James C. Morton is a prominent litigation lawyer at Steinberg Morton
Frymer in Toronto and adjunct professor and lecturer in evidence and
advanced evidence at Osgoode Hall Law School, York University. He is
also the immediate past president of the Ontario Bar Association.