DELUSIONS ON ALL SIDES

The political left, right and centre all have an unjustified belief
that criminal law can fix social ills.

I've interviewed Irwin Cotler -- lawyer, human-rights activist, now
justice minister -- and I know him to be an intelligent and thoughtful
person. But nonsense is nonsense, and last week the minister spoke
nonsense.

There's no need for stronger hate crime laws, Mr. Cotler told
reporters, because the Criminal Code already directs judges to make
sentences tougher if a crime is motivated by hate. That provision
effectively prevents crimes, Mr. Cotler added. "It is not only those
that have been apprehended, it is also those that have been deterred
from the commission of these crimes because these laws are on the books."

To believe this, one must be able to imagine a semi-literate, drunk
19-year-old stroking his chin as he rationally calculates that the
sentence enhancement prescribed under the Criminal Code section
718.2(a)(i) tips the balance of utility against lashing out in blind
hate.

It would be a pleasant world if criminals were so thoughtful, but
sadly, they're not. Criminologists have produced a small mountain of
research showing that although the perceived likelihood of getting
caught does deter crime, tougher punishments do not.

Reality aside, if the minister feels that tougher punishment deters
hate crimes, surely he should propose tougher sentences for other
crimes so they may also be deterred. And if tougher hate crime
sentences deter hate crimes, why not toughen them further to deter
better? That's the relentless logic of punishment, a cancer that will
spread if untreated.

California was one of the most liberal jurisdictions in North America
when it was stricken with the disease just a little more than two
decades ago -- it is now a place where petty thieves get 25-to-life,
prisoners are driven mad in supermaxes and death row overflows.

It might seem strange to suggest that a Liberal justice minister
shares something of the mentality that produced the American gulag
and, perhaps worse, the TV show Cops. After all, a fetish for
punishment is one of the defining features of the political right.
Drug abuse, prostitution, homelessness, community decay, gangs, guns:
There's a long list of social ills conservatives think can be cured
with a stiff dose of punishment. And it is the political left that
calls the right crude and foolish for thinking so.

But Mr. Cotler's comment is a demonstration that one need not be a
conservative to be deluded about the ability of the criminal law to
cure social ills. In fact, the only distinction between the delusions
of the left and right is the list of ills each would prefer to treat
with punishment.

The left routinely demands deterrence and a pound of flesh for
white-collar crime and other corporate malfeasance. And it was the
left that brought us hate-speech laws three decades ago in the belief
that punishment would put a halt to bigotry at mere words. A decade
later, the concept of "hate crime" was invented because, evidently,
bigots didn't stop at words. It's more than a little strange that many
of the same people who consider it barbaric to bring the mailed fist
of the criminal law down on social ills such as drug abuse
passionately insist that the mailed fist of the criminal law be
brought down on social ills such as racism.

The essential problem -- on the right, left, and most points in
between -- is a wholly unjustified faith in the curative powers of the
criminal law. Governments have at their disposal a vast array of
sticks and carrots, including scores of regulatory mechanisms that
discourage or restrict, but none of these is ever good enough. No, if
we are personally passionate about changing some behaviour or other,
nothing less than criminalization will do. The issue may be complex.
Experts may tell us the most effective tool for dealing with it is a
precise regulatory scalpel. No matter. We demand the government swing
the criminal-law sledgehammer.

Fear of violence in schools led to "zero tolerance" and fist fights
being punished with criminal charges -- skipping over the many
constructive alternatives available. Also typical is the crusade of
Mothers Against Drunk Driving to lower the the cut-off for criminal
drunk driving to a blood-alcohol content of .05 per cent. There's no
evidence that criminalization will accomplish anything that
administrative means, such as roadside licence suspension, do not. But
still nothing less than criminalization will do.

The extent of our embrace of punishment isn't often recognized because
it's often expressed outside the Criminal Code. Recent
reproductive-technologies legislation, for example, makes it a crime
to sell sperm for profit, with violations punishable by up to 10 years
in prison. Parliament constantly churns out sledgehammer laws such as
this. The shelves of law libraries are overflowing with them.

Sociologists struggle to understand this mad proliferation, but I
can't help thinking it owes much to the simplicity of criminal law.
Issues such as racism, troubled youth and corporate governance are
enormously complex and nuanced. Looking for the best policy fit
requires us first to understand them. We have to grapple with detail
and see the shades of grey. We may also have to face troubling
questions that poke and prod our comfortable assumptions.

But the criminal law promises to do away with all this. We merely have
to identify the behaviour we don't like and ban it. No need to dig
into the issues, understand perspectives that are not our own and
question what we think we know. We simply have to forbid and punish
and be done with it. This is surely one reason why we have such deep
faith in the criminal law: We think it works because we want it to
work.

Sadly, reality is not made of wishes. The criminal law very often
fails to be the silver bullet we hope for. And just as often it
produces socially harmful side-effects instead -- arresting troubled
students, for example, only serves to alienate them further from
schools and communities which leads to more anti-social behaviour and
crime.

This is why experts routinely urge the criminal law be used sparingly.
"No conduct should be defined as criminal unless it represents a
serious threat to society, and unless the act cannot be dealt with
through other social or legal means," advised a parliamentary report
way back in 1969. A Justice department report said the same more than
a decade later. So did the Law Reform Commission. Forbidding and
punishing must be a last resort.

Clearly, this sage advice is not being followed. "As a society, we
often turn to the criminal law as our first response to unwanted
behaviour," noted a 2003 discussion paper of the Law Commission of
Canada.

That paper, entitled "What is a Crime?", is a superb effort to get
people to think about what the criminal law is, why we use it, and
whether we use it too much. That may sound a little dry, but the paper
is not. It can be found at www.lcc.gc.ca .