Civil death in the 21st century

My first take on proposed “life means life” legislation.
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It is not necessary to see the text of the Government’s anticipated legislation on life without parole before commenting on its purposes, purported and real.
The PM has already provided an equivocal rationale for making certain crimes subject to Life with no Parole. And this rationale reveals the flaws of his Government’s approach.
Yesterday he said that, on the one hand, “There are certain crimes so repulsive that only a life-long sentence adequately reflects their truly horrific nature.”
On the other hand, he went on to justify the proposed legislation by saying that “God forbid” we should never find ourselves in the position of having released a prisoner sentenced for such crimes, who then commits another.
Either Mr. Harper is confused or I am. (the latter is the better bet)
Let’s look at the principles of sentencing in the Criminal Code
718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
It seems that Mr. Harper’s first justification was denunciation (para.a) He seemed to say that the seriousness of such crimes reflects the common values that are usually the basis for measuring the evil of an offence, per se, and that must be addressed by a proportionate sentence. No consideration of the other principles of sentencing is involved here, just that bad is bad and the punishment must be retributive.
His second justification, though, took another tac – separation of offenders (para. c) to address the risk of their return to the community. He was saying, in effect, that somehow the offences that will be listed in the new legislation are not unable heinous; they also happen to be so heinous that the offenders will never be an assumable risk for release.
What a coincidence.
As reported in the National Post, these crimes include “sexual assault; kidnapping or forcible confinement; terrorism; the killing of police officers or corrections officers; or, any first degree murders that are found to be of a particularly brutal nature,” according to a government backgrounder on the subject.
There are several problems with Mr. Harper’s premises from both a legal and a correctional perspective.
First, looking at the list of crimes involved, how can it be said that these crimes, in all the circumstances that they may occur, should be subject to mandatory incarceration for life?
For example, the factors surrounding a forcible confinement resulting in a murder can be numerous and complex. Shouldn’t the Courts, based on arguments from experienced counsel and subject matter experts, be permitted to assess the gravity of the offence, rather than simply acceding to a mandatory minimum that requires the automatic trashing of the offender’s life?
This problem is exacerbated when we anticipate how it will be determined that a crime is of a “particularly brutal nature”.
Second, the PM’s assertion that the risk of releasing offenders who commit these crimes is so prohibitive that there is no room for error
has no empirical basis.
It is no more likely that re-offending will occur with respect to major capital offences than with others – in fact research indicates that violent recidivism is less likely for murder than for lesser offences, to the point of statistical certainty.
It is true that the nature of an offence is one factor to be considered in assessing risk on release but the Parole Board of Canada has shown itself to be able to take decisions on the crimes to be included in this legislation that very effectively minimize risk. (Some might say that they err markedly on the side of not granting release even where warranted)
Third, the proposals do not consider the potential effect on the operation of the correctional system and on public safety. Correctional officers have been forthright in saying that the presence of offenders in population with no hope for release, and therefore no incentive to cooperate, will create more serious risks than those related to releasing these offenders to the community.
Fourth, and to me most fundamental, there is a danger that, absent principled parliamentary discussion, the debate and the legislation will cater to attitudes rather than to values.
Denunciation is a legitimate objective in criminal sentencing and in legislating but it can’t be justified on empirical grounds. It is not intended address tangibles such as managing risk, promoting reintegration or even dissuading potential offenders. It won’t be the product of data. It requires discussion, not surveys. It involves the rationale identification of collective morality and it attempts to assess the infringement of that morality by imposing proportionate punishment. It is intended to be a principle arising from our hearts and minds.
Because denunciation cannot be grounded in the tangible mischief that it prevents it must be based on the knowledge and experience, if not the wisdom, of those framing the new law. They must exchange ideas, not sound bites.
That wisdom, in turn, cannot be simply a compilation of community attitudes. Determining that the first-blush reactions of a plurality are to label something “repugnant” or “horrific” or “bad” ignores that those reactions are only one of the many elements that comprise considered thought.
Since we know that we have no empirical anchor for denunciation we must be sure that denunciation involves defensible elements of truth and justice.
In this sense, basing law on electoral hot buttons is the polar opposite of what debate on denunciation should involve. This is especially so where what we are contemplating is a form of civil death.

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