Pubdate: Thu, 07 Aug 2008
Source: National Post (Canada)
Copyright: 2008 Canwest Publishing Inc.
Contact:  http://www.nationalpost.com/
Details: http://www.mapinc.org/media/286
Author: James Morton
Note: James C. Morton is a litigation lawyer at Steinberg Morton 
Frymer in Toronto and adjunct professor and lecturer in Evidence and 
Advanced Evidence at Osgoode Hall Law School, York University. He is 
also the immediate past president of the Ontario Bar Association.

BEYOND CRIME AND PUNISHMENT

William M. lives in Vancouver, but his world is so different from 
that of ordinary Canadians that he might as well live on another 
planet. Born in 1961, he began compiling an adult criminal record in 
Ontario as soon as he became of age, committing dozens of property 
crimes, violent crimes and minor offences such as breaching bail.

In 1991, William moved west and began offending in the Lower B. C. 
Mainland, most often in Vancouver, but also in Surrey and Port 
Coquitlam. Now 46, he has been arrested hundreds of times since 1979, 
with an astonishing 148 convictions. The vast majority of his 
offenses have been property related, driven by the need to get money for drugs.

William is not alone. In cities across Canada there are hundreds of 
chronic offenders like him. Vancouver alone has 379. According to a 
recent report by the Vancouver Police Department, the vast majority 
are addicted to drugs or alcohol. Many also suffer from a mental 
disorder, generally untreated. As a group, those few hundred chronic 
offenders were responsible for 26,755 police contacts between 2001 
and 2006 --more than 5,000 contacts per year, 14 a day. The costs are 
staggering. Arrests, prosecutions and incarcerations end up costing 
some $20,000 per criminal per month. There has to be a better way, 
and there is.

A trial program in the Australian state of New South Wales targets 
100 repeat male offenders with long-term illicit drug dependency and 
an associated life of crime and constant imprisonment. The program 
combines a term of incarceration with mandatory treatment and a slow 
reintegration into society -- jail followed by custody in the 
community with ongoing supervision. Initial results seem positive.

Money is not an issue. By contrast with the $20,000 cost per criminal 
per month of the current system--and that doesn't include the costs 
to victims -- the cost of keeping a prisoner in a provincial 
institution is about $4,250 per month, with reintegration into the 
community adding no more than another $1,500. On that financial basis 
alone, a program integrating the criminal justice system and the 
mental health system makes sense. Working together, the two systems 
can at least begin to address the problem, but either system by 
itself is doomed to failure.

Because chronic offenders tend to commit minor crimes, drawing fairly 
short sentences, their lives shift rapidly between jail and the 
neighbourhoods where they find their drugs -- in Vancouver, for 
example, the Downtown Eastside. William's sentences, most often for 
theft, generally range from 30 to 90 days. Then he's back on the street.

Petty as their crimes may be, collectively William and his fellow 
chronic offenders cause enormous hardship. Their victims number in 
the thousands.

Those victims are left not only with a monetary loss, but also with a 
lingering fear that affects their sense of personal safety and their 
trust in the justice system.

We clearly need protection from chronic offenders, and we are clearly 
not getting it. But blaming the criminal justice system, as many do, 
misses the real problem--our failure as a society to deal with severe 
drug and alcohol addiction.

Punishment alone doesn't work for a simple reason. The idea of 
punishing criminals for their crimes is premised at least partly on 
the concept of specific deterrence. Applied most strongly to property 
crimes, specific deterrence assumes that the criminal is a rational 
actor who will consider: Is it worth it? In fact, specific deterrence 
often works; many offenders actually do swear off crime after fairly 
short jail sentences.

The problem is that specific deterrence presumes a rational actor, 
which is exactly what we do not have with offenders like those of the 
Downtown Eastside, who are drug addicted and often mentally ill. They 
do not pause to consider the possible punishment for the crime they 
are about to commit. As a result, punishment acts as little or no 
deterrent to them.

We could use longer sentences to "warehouse" those too dangerous to 
allow on the streets, but that would be using a very high-cost 
mechanism to deal with what is really a public health issue. The 
criminal justice system is not designed to treat addicts; while 
prisons provide some treatment, it is almost always short-term and 
under-funded. By the same token, voluntary drug treatment, as 
available from the public health system, seldom works either, because 
kicking an addiction is extremely unpleasant and demands willpower 
and money, both seldom found in criminal street addicts.

The first step is to recognize that the issue is one of both public 
health and criminal law. The next step is to include compulsory drug 
treatment, as that trial program in New South Wales is doing.

In principle, it seems unfair and arguably unjust for a court to 
impose mandatory drug withdrawal and psychiatric treatment. Most 
people do not want to be treated against their will, even for a 
serious illness. Canadians feel strongly about the right to choose 
what to do with their own bodies, and that is usually appropriate. 
But our moral intuitions can fail us when it comes to the few hard 
cases, which include chronic offenders.

We have to move on from the "war on crime" to an approach that will 
protect society while rehabilitating those who can be rehabilitated. 
This means making some tough choices. But these choices can be 
avoided no longer.
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MAP posted-by: Jay Bergstrom