THE PROVINCES' JAILHOUSE BLUES

It's Easier to Be Tough on Crime When You Are Spending Other People's Money

The cost of new federal crime legislation is high, much higher that
previously announced. Bill C-25, limiting the credit that offenders
receive for pre-trial custody, was supposed to cost around $90
million. The actual cost, the government now admits, is in the
$2-billion range, and parliamentary budget officer Kevin Page,will
release a report this week that might show the actual amount to be
very substantially higher.

Legislation that increases Canada's inmate population is, inevitably, costly.

Among various new and proposed criminal-law reforms, the federal
government is bringing back a bill that would impose mandatory
minimum sentences on people convicted of growing small numbers of
marijuana plants. The new legislation will include a mandatory
six-month sentence for people convicted of growing as few as five pot plants.

Last year I testified before the Senate about an earlier version of
this legislation. I argued that mandatory jail should not apply to
drug offenders who grow marijuana for personal, as opposed to
commercial, use. I also pointed out that there is a serious issue
about who would pay for the inevitable increase in prison populations.

Canada's federal system provides for both federal and provincial
prisons. Surprisingly, perhaps, the division between the federal and
provincial system is not based on who breached what laws (with
provincial offenders going to provincial jails) but rather on the
length of sentence. Anyone held pending a trial or sentenced to less
than two years in custody goes to a provincial jail; longer sentences
are served in a federal institution.

Another aspect of Canada's federal system is that criminal law is set
by the federal government. Hence, a federal legislative change that
increases the number of offenders sentenced to a six-month stay in
custody- as with the proposed marijuana law - sends offenders to
jails paid for by the provinces.

Federal criminal legislation creating mandatory sentences of anything
less than two years generates an immediate provincial liability. The
federal government gets credit for new legislation, but doesn't have
to pay for it.

As I mentioned, changes to the bail system have limited the credit to
be given for pretrial custody. The result of this change will be to
expand the number of people sentenced to jail following conviction
and to lengthen the time they serve once convicted. This increases
federal costs somewhat but since most accused ultimately serve less
than two years in custody, the changes serve mainly to increase the
number of people in provincial custody.

Claims these changes will be neutral because more prisoners will be
sent to the federal system from the provincial system ring hollow.

More generally, "tough on crime" policies have had the effect of
increasing pretrial custody - bail is more difficult to obtain.
Correctional facilities in the provinces are experiencing
ever-increasing numbers of accused being held in pretrial custody, to
the point where the population awaiting trial now exceeds the
population in sentenced custody. Ignoring the fact that those
awaiting trial are still presumed innocent and so the increase in
numbers is a problem for that reason, consider also that all those
awaiting trial are doing so in provincial institutions paid for by
the provinces.

We know the cost of crime bills is high - several U.S. states have
started releasing low-level drug offenders (the sort the federal
government proposes to put in jail in Canada) to save money. What is
less often acknowledged is that the bulk of these new costs will come
out of provincial coffers. Federal changes impose costs on
cash-strapped provinces that will have to find cuts in education,
health care or somewhere else in order to put potheads in prison.

Much of the recent "tough on crime" legislation is wrongheaded. There
are better ways to deal with crime than a reflexive imposition of
prison. Drug treatment, especially for addicts, is a cheaper and more
effective way to reduce addiction than sending drug users to jail.
Regardless, the true costs of crime legislation -- who will pay and
how such payment will affect other programs - must be acknowledged.

Crime doesn't pay - but the taxpayer certainly will.

James Morton is a Toronto lawyer and deputy chair of the National
Council of Presidents for the Liberal Party of Canada.