TOUGH ON CRIME (IN THEORY)

Will the federal Conservatives' new package of anti-gang measures make
a difference on the street? It's hard to say. The implementation of
criminal justice depends on a chain of trust including not only
elected legislators, but judges, prosecutors and policemen.
Governments can re-jig the Criminal Code to make it as "tough" as they
like; their role is to set incentives. But if the other players in the
drama don't play their parts in enforcing those incentives, the whole
enterprise must inevitably come to grief.

Consider, for example, the provision that would make murders
"connected to organized crime activity" first-degree, ipso facto. (To
qualify as first-degree, a murder ordinarily must fall into one or
another statutorily defined aggravating categories -- such as a
contract killing, the murder of a police officer, a killing committed
during a rape, terrorism, etc.) Many will agree with the
Conservatives' proposed expansion of the first-degree definition. But
it represents another small blow to the original scheme of first-and
second-degree murder, whereby the amount of premeditation was the
deciding factor. In any case, since most gang hits are premeditated
anyway, this is really just a way of making up for Crown prosecutors'
increasing reluctance to proceed with first-degree murder charges in
cases where they seem obviously warranted.

How will the Crown respond? In some cases, we suspect, not by carrying
out more first-degree prosecutions, but by bargaining down to
manslaughter (defined as a culpable homicide that does not rise to the
level of outright murder) even more often than they do now. Meanwhile,
the tougher-minded prosecutors will be ransacking every file that
crosses their desk for the slightest evidence of "gang activity,"
however meagre.

Needless to say, the stipulation about certain murders being
"connected to organized crime activity" will itself open up fertile
new fields for courtroom argument and appeal, and we can have no sure
idea of the overall effects for many years -- just as it took American
officials many years to realize that the 1970 Racketeer Influenced and
Corrupt Organizations Act, a powerful law originally conceived to go
after organized criminal gangs, could be applied against everyone from
anti-abortion activists to insider traders.

We're also not sure what to make of new minimum sentences for
intentional shootings involving "reckless disregard for the life or
safety of others." One would hope that the courts will find that any
discharge of a firearm against another person for purposes other than
self-defence involves "reckless disregard for life." What's more
likely is that they will decide that the proviso cannot possibly mean
what it says in plain English, and will proceed to erect an
unpredictable body of doctrine around it.

Other clauses just seem odd -- such as the one that amends the
Criminal Code to "clarify that when courts impose sentences for
certain offences against justice system participants, including peace
officers, they must give primary consideration to the objectives of
denunciation and deterrence." The natural question: Why not clarify
that courts should put denunciation and deterrence first when dealing
with crimes against any person, or for that matter, crimes against
property? The answer is that the Conservatives could not possibly find
Liberal or New Democrat support for such a rule. The left will make a
show of embracing the idea of deterrence to protect cops, but not us
poor bloody members of the public.

As for the tougher drug penalties Justice Minister Rob Nicholson is
expected to roll out today, it will perhaps suffice to say that
punishing drug trafficking more harshly as a means of wresting control
of the drug trade away from organized crime makes about as much sense
as drinking a dozen beers to improve your driving skills. Those
penalties are precisely the reason that the drug trade is dominated by
society's most sociopathic hard cases, social dropouts and
self-proclaimed outlaws -- everyone else is smart enough to stay away
from a business in which the costs (in the form of both violence and
imprisonment) so vastly outweigh the financial benefits. When drug
laws are tough, only the tough sell drugs. And when drug laws get
tougher, drug salesmen have all the more reason to protect their
stashes with deadly force.

Mostly, that deadly force gets applied against other drug dealers --
which is no great loss to society, but contributes to the widespread
(and incorrect) impression that our cities aren't particularly safe
for normal law-abiding people. But every once in a while, a police
officer goes down, notwithstanding the Criminal Code's special
sanctions against killing police officers. Chalk it up as yet another
toxic side-effect of our society's misguided war on drugs.