Harper’s Justice Agenda: Theory vs. the Evidence

What follows is a guest post by Craig Jones, former Executive Director of the John Howard Society of Canada.

Champions of harsher justice measures in the Harper government would have us believe that longer sentences are a win-win-win: for victims, for safe streets and for future victims. To that end, the government enacted a number of mandatory minimum sentences – which almost always involves incarceration – in the belief that Canada’s judiciary are too lenient. In some cases, these crimes would not have warranted incarceration but for the requirement imposed by a mandatory minimum sentence – in other cases, the length of the sentence is longer than it would otherwise be due to the mandatory sentence. It has been thought impolite to ask, “what is the impact on those who experience harsher measures?” or “at what cost?”

 The operative theory holds that offenders learn from the experience of others (general deterrence) or from their own direct experience (specific deterrence). In particular, after they have served a sentence, offenders will not re-offend because their experience has taught them that harsh sentences are a consequence of repeat offending. Coincidentally, the theory that harsher sentences lead to lower rates of re-offending has been tested in the closest thing social scientists have to a natural randomized controlled trial. Across the United States, mandatory minimum sentences – many for drug-related crimes – have attracted popular support for their “get tough” ethic. There has also been wide variability in the harshness of imposed sentences, even in cases that were substantially similar, across contiguous jurisdictions where mandatory sentences are not as prevalent. This variability in sentencing decisions across jurisdictions permits outcome tracking of these sentences to enable – with some confidence – robust conclusions about how well these sentences actually accomplish what their champions claim for them.

 The results show either no effect or higher rates of re-offending in jurisdictions with mandatory sentencing compared to non-prison options. Put another way: focusing on the high quality research into deterrence-based sentencing – most of it conducted in an environment as close to random assignment as social scientists ever enjoy – leads to the conclusion that there is either no deterrent effect or, ironically, that deterrence-based sentencing leads, in practice, to higher rates of re-offending when compared with non-prison alternatives.

 What about settings with more homogeneous criminal populations? Here too, no evidence can be found to support deterrence-based sentencing and what evidence exists points in the opposite direction: incarceration makes people more likely to re-offend rather than less. Interestingly, this same conclusion emerges across different methodologies and in different countries. Worse, drug offenders sent to prison seem to be more likely to reoffend than those sentenced to probation – and this seems to be true irrespective of the sex. So the policy choice to employ mandatory minimum sentences turns out to be a policy choice not only to increase the rate of incarceration, but to create a cohort of people who will continue to re-offend irrespective of the length of their previous sentence. Worse, it appears from the evidence that those sent to prison for the first time are more likely to re-offend than similar offenders sentenced to a community-based option. The experience of imprisonment – so it appears – is criminogenic, a finding which substantially confirms what criminologists and sociologists of crime have been arguing for decades: prisons “do succeed in punishing,” concluded Richard Nixon’s 1973 National Commission on Criminal Justice Standards and Goals, “but they do not deter. They change the committed offender, but the change is likely to be more negative than positive.” A similar finding emerged in the United Kingdom at about the same time: “the inmate who has served a longer amount of time … has had his tendencies toward criminality strengthened and is therefore more likely to recidivate than the inmate who has served a lesser amount of time.”[1] Worse, harsher prison conditions seem to produce more violent prisoners.[2]

 The annual average cost per inmate (in current dollars) has climbed steadily since 2006-7 from $93,030 to $114.364 in 2010-11. Over the last decade, the number of women admitted to federal jurisdiction increased 69.6% from 204 in 2002-03 to 346 in 2011-12, with costs per year per offender rising from $166,830 to $214,614 by 2010-11.[3] It would appear to be true, as a British Home Secretary realized, that “prison is an expensive way to make bad people worse.”

 A priority for the next non-Conservative government must include unwinding the regressive, expensive and counter-productive “justice agenda” enacted during the Harper regime – preferably in one massive omnibus bill that limits deliberation by parliamentarians. Going further, the next Prime Minister should re-constitute a law reform commission and begin the task of bringing coherence, human rights and logic back to Canada’s justice and correctional systems. Canadians can do better than spending money on measures that have already failed in the United States.

 The irrationality, cost and ineffectiveness of the Harper justice agenda is the theme of my forthcoming chapter in the next edition of How Ottawa Spends from McGill-Queen’s University Press.