3C Part 1.

The 3C Report ( Conviction Confinement Correction )

This paper will be divided into 3 parts as the title implies. The thoughts offered here are gained from direct experience and some research into the various systems used in Canada. The aim is to offer both criticism and possible avenues of improvement.

Introduction.

The idea of vengeance and punishment runs deep in society. Compassion for criminals is almost laughable. They should be locked away for a long time and made to suffer for the things they did. If you want a system that accomplishes this aim, then we are doing fine. No need to keep reading. But if your concern is reform and the actual reduction of criminal activity, then you should consider what is presented here.

Public opinion will naturally be against most of what I shall talk about, because it may seem lenient towards the offenders and it will be expensive to implement any effective changes. As we constantly deal with deficits and cuts to all sorts of social programs, certainly we can not afford to spend any more on the corrections system. Best to just rename it the punishment system and cut all funding to anything that may actually rehabilitate people. ( sarcasm – not a real recommendation )

Part 1. Conviction; The Justice system.

We are told that you are innocent until proven guilty. In a technical way that is true, but in most functional ways it is not. As soon as you are charged with a crime there is an assumption of guilt. The police are convinced of it, the crown prosecutor is convinced of it. They will do everything possible to put you away and win the case. The word order here is very deliberate and refers to the process of remand that can have people sitting in jail, sometimes for many months, before they go to trial.

The assumption of your guilt stands against the proclaimed “innocent until found guilty” rule. Some people believe we do not do that in this country. I assure you that it happens a lot, if not all the time. The prosecution will often put as much pressure on the defendant as it can to force him into pleading guilty, if not to everything than to some things. They assert that if you defend yourself and are found guilty they will demand a harsher sentence than if you simply come forward quickly and admit your guilt. In what way is this justice in action? You have a right to defend yourself, but if you do so you will receive extra punishment.

With some cases the burden of proof does still lie with the prosecution, they must show evidence. But many cases today are simply matters of an accusation made against the defendant. The victim, often as the only witness, is given credibility, their claim has to be taken seriously. But this places the defendant in a very difficult situation as he is forced to prove his innocence. If he pleads “not guilty” and says the accusation is untrue, but offers no compelling evidence the court will almost always find in favour of the accuser, who offered no evidence other than a story about what happened.

This sort of situation is particularly troubling in historic cases, ones dealing with events that happens a number of ears ago and are only now being prosecuted.

The pressure to get a conviction starts with the police. When they arrest you, they want you to make a statement, they want you to make a confession. That simplifies things a lot. Interestingly they are required to remind you; “You have the right to remain silent, anything you say may be used against you. You have nothing to gain from any promise made and nothing to fear from any threat.” That last part is often overlooked, but it is part of the mandatory warning. Having said this, the officer will then say whatever he can to get you to make a confession. This often included the promise that cooperation and full disclosure will be good for you and get the judge to be lenient.

That is part of the regular polite interrogation technique. It may include a bit of “good cop, bad cop” and it is very effective, especially on first time defendants who are stunned and confused by their situation. Any sort of torture and physical abuse are strictly prohibited. But it is not unusual to be left in a holding cell for many hours with out food or water before the interrogation takes place. You have a concrete slab to sit on, there is a toilet, they may be toilet paper, there is no clock on the wall, there is no way of really knowing what will happen next or when it will happen. You can call a guard, but mostly they will ignore you. It is very frightening and disorienting especially for first timers.

You may call legal aid, the free advice service that you are allowed to call. They will advise you to say nothing, make no statement at all. Because your statement will be used against you, not for you.

The two points here are;

1. assumption of guilty requires one to prove innocence.

2. forceful tactics used to gain a guilty plea.

The next point is about a Judge’s ability to make rulings and sentences.

With the increasing “tough on crime” attitude and laws, the amount of flexibility that a judge can express has been seriously limited. Harsh minimum sentences are a horrible idea, because they do not allow the consideration of the many factors around a case to have any real impact on the sentence. It is a form of simplistic efficiency to say any crime of type Y must have a minimum of 2 years jail time. It is not a wise or just practice. After a guilty ruling, the judge should be able, be required, to take time and consider the factors of the case, then have a wide range of options available. Time behind bars should not be the only choice. Yet it is the almost universal sentence these days.

What alternative to incarceration already exist?

A conditional discharge or A suspended sentence.

Unless there is a minimum sentence required by law (there now often is) the court can give an offender an Absolute discharge – which almost never happens, or a Conditional discharge – which is a form of probation, or a Suspended sentence – which usually comes with a period of probation.

Probation.

This allows control over an offended with out the need for incarceration. He can live and work normally, with in a framework of restrictions. Probation is based on the belief that some offenders should have the opportunity to remain in the community under the supervision of a probation officer. If they violate the terms of probation they face jail time and or a fine. ( A major difference between Probation and Parole, is that those who commit a breach while on parole can be sent directly back to jail, while those on probation must have a day in court.) This form of punishment is imposed most frequently in the case of first offenders or in cases where the offence is relatively minor.

Some good things can be said for the idea of probation. However it usually only works for those who are not already living a “criminal life style”. Unfortunately the rate of re-offenders is quite high, causing many people to disregard probation as a serious form of punishment or correction.

The main aim here seems to be an inexpensive form of warning-discipline, with very little effort made at correcting a criminal’s behaviour. If the offender is generally able to manage himself and function in society, then probation is a fine idea. But if he is troubled, addicted, or otherwise deeply involved in an unhealthy life style, then probation needs to have more substance to it.

Fines.

A wide range of offences, federal and provincial, as well as municipal by-laws, include fines as possible punishments. Fines are used extensively by courts, both alone and in conjunction with other punishments.

However there is a problem with how the system of fines works. The imposition of a fine, without any other penalty, indicates that the judge believes the offender does not present a threat to the community and, therefore, should not be jailed. Yet if he somehow fails to pay the fine, he can be sent directly to jail. The amount of time he is required to serve depends on the size of the fine. Despite how damaging jail time is to the individual, and the cost to keep him there, the rate at which the fine is paid off is ridiculously low, about $10/day.

The problem here is that a sizable number of people every year end up sitting in jail for failure to pay fines. This maybe necessary to keep law and order, but a key injustice in the current system is the lack of a hearing to examine the reasons why a person did not pay.

So we see there are not many alternatives to incarceration. Certainly not if the crime is considered at all serious. A discharge or suspended sentence or a fine, implies that although the person is guilty the circumstances in his case are such that he does not deserve any harsh punishment. Probation could cover a wide range of situations with many possible sentencing details, however it is seen as lenient and ineffective, thus not fitting for any serious offence.

Of particular interest to me are the cases of people who are generally functional and law abiding citizens, who commit one crime which is by its definition considered serious and carries a minimum sentence. No matter what the circumstances of the offence, they face time in captivity, because no lesser punishment is open for consideration. This trip to prison can often ruin life for them and for their family. Even a short sentence can be damaging to their mental and physical health. In some ways a short stay in provincial jail is the most harmful possible alternative, because it provides no program of rehabilitation and no support mechanism once the offender is released.

Having taken a look at what is available, we should consider what is desirable.

Many people want to make the evil offenders pay. They often claim that conditions in prison (as they understand them) are to soft. Sentences need to be more harsh. Seeing an endless stream of criminals, some judges may support these sentiments whole heatedly. However it may be doing more harm than good. Tough laws that put more people in jail for longer do not actually reduce crime. This is a major point to think upon. The desire for retribution, for punishment is understandable but it is not the most effective principal for actually fixing the problem.

These observations are mostly my own.

To add some weight, let me point out that a few things from an official report;

“The most prominent feature of Canadian sentencing practices is the over-reliance on jail. It often appears that judges do not feel they are confronted with a continuum of sentencing options, but, rather, a dichotomy: incarceration, which is viewed as a real sentence, or some form of community sanction, which is viewed as a form of leniency."

“Countless studies have shown that jails do not rehabilitate offenders. Moreover, researchers have concluded that there is no evidence that imprisonment works as either a specific or general deterrent. While it is true that jails remove offenders from the community, this is a temporary reprieve.”

“Rather than rehabilitate, correctional institutions expose offenders to conditions in which they develop habits and attitudes that leave them less, rather than more, able to integrate into society after serving their sentences.”

“Given the ineffectiveness of the current system, we believe that the apparent public demand for longer sentences requires a thoughtful response. While we can understand the anger at crime that motivates this reaction, we know that longer sentences will not reduce crime. We are firmly of the view that it is more important to determine what has caused a person to act in an inappropriate way, and to deal with the cause of the behaviour, than it is to sentence a person for longer periods to satisfy a public demand for punishment.”

I believe minimum sentencing laws are exactly the opposite of what we should be doing to fix the system. They are a great example of a political fix to the problem. Not the problem of crime but the problem of angry voters. 

 

Reform in the area of sentencing.

There should be numerous options to chose from at sentencing time. When ever possible, one that allow for the lest damage to the individual and his family should be selected. It is not often considered that sending a person to jail can be very damaging to their family. The court frequently inflicts suffering not only on the guilty but also on those around him. Of course all blame must be put on the criminal, if he had not done anything wrong none of this would happen. The judge needs not concern himself with the side affects of his ruling. Maybe he should.

A short sharp sentence is very effective on first time offenders. After a few days in jail you are felling so low and homesick you desperately want out and you would never want to come back. However most people get over this. After some time, about 1 month inside, you learn to adjust to your situation, however horrible it is. This is why repeat offenders do not have any fear of prison. It is uncomfortable, but they know what to expect and how to make the most of it. With a long sentence a person has to adapt to his environment to survive. Then when released he must re-adapt to the outside world. The length of time and the conditions you hold a person in will have a large impact on how successful this reintegration is. As it stands, judges seem to have little, if any, knowledge of the reintegration aspect of the system.

Psychological and physical treatments should be considered more often as a primary ruling rather than a secondary corrective measure tacked onto a prison sentence.

More about the side effects of incarceration.

“Despite the attention being paid to criminal justice, one issue remains entirely absent from public policy and the government’s statements of intent: the concrete social effects of criminal policy on offenders’ families, and particularly their children. In civil law, separating a child from a parent is the exception and may be done only in the best interests of the child, but a court handing down a sentence on a defendant who has been found guilty of a crime has no obligation to inquire about his or her family circumstances. While there are legal precedents for considering the potential effects of a sentence on children, sentencing principles are silent on the matter.”

“Well you should have thought about that before you came to jail.” a guard said to a prisoner who expressed concern over the difficult time his family was having because of his captivity. On the one hand it is true that the criminal is responsible for his being in jail, and all the consequences that involves. But on the other hand, the justice system is playing a role in destroying the lives of his family. Very few want to recognize this fact. All blame must be placed on the criminal’s shoulders.

Yet the unspoken truth is that the judge and the justice system do carry some responsibility for the well being of the criminal’s family. When ever possible the punishment and rehabilitation of an offender should be done in a way that does not bring heavy suffering upon the family. As things stand, little consideration is given to this, and there are few if any measures that are in place to help keep the family together during a criminal’s confinement.

Counselling is only offered to a family if it is the victim of a crime. In this case the aim is mostly to split up the family, because they are better off away from the offender. For the families who are suffering simply because the husband is in jail, they are told to turn to the welfare system for help. At best this usually means a long waiting list before any actual counselling may occur.