To be presented at the
Annual General Meeting of Maison Decision House
Tuesday, May 25, 2010
[CHECK AGAINST DELIVERY]
Thank you for inviting me to speak at your AGM. I’m grateful for the opportunity to speak about penal policy with those working in the field and the discussion that will ensue. I’m here to talk about the prospects of community-based reintegration programs in Canada at this time, and in particular, the impact that the minority Conservative Government of Canada`s punishment agenda may have on initiatives such as yours. But before I address this issue I want to briefly review how we got here.
In the latter half of 2005, there were a number of high profile shootings in Toronto. The moral panic that ensued, where disparate events were presented as symptomatic of a larger trend requiring immediate intervention, was seized upon by politicians from both the left and right who touted their ‘tough on crime’ credentials during the 2006 federal election campaign. The Conservatives in particular, who had listed “tackling crime” as one of their five legislative priorities, took every opportunity to link the apparent surge in violence in our communities displayed on the front pages of our newspapers to the penal policies of previous Liberal governments.
The Conservative Administration's Punishment Agenda
While the overall volume and severity in police-reported ‘crime’ has continued to decline since 2006, a trend which began well over a decade ago, the Conservatives have been busy drafting, advertising, tabling, killing (through prorogation), and re-tabling punishment bills. In fact, of the 248 pieces of legislation tabled by the Government in the House of Commons and the Senate since 2006, 55 have focussed on making changes to the penal system (also known as the criminal justice system) – that is over 22 percent. For a more detailed breakdown of the legislation tabled by the current Government please visit my blog where you will find a copy of my talk.
39th Parliament, 1st Session:
House of Commons = C-9, C-10, C-17, C-18, C-19, C-21, C-22, C-23, C-25, C-26, C-27, C-32, C-35, C-48, C-59 (15 of 63 Government bills tabled = 23. 8 percent) / Senate = S-3 (1 of 5 Government bills tabled = 20 percent)
* 16 out of 68 Government bills tabled = 23.5 percent
39th Parliament, 2nd Session:
House of Commons = C-2, C-13, C-24, C-25, C-26, C-27, C-53 (7 of 63 Government bills tabled = 11.1 percent) / Senate = S-3 (1 of 3 Government bills tabled = 33.3 percent)
* 8 out of 68 Government bills tabled = 12.1 percent
40th Parliament, 1st Session:
House of Commons = 0 / Senate = 0
* None of the 5 Government bills tabled = 0 percent
40th Parliament, 2nd Session:
House of Commons = C-14, C-15, C-18, C-19, C-25, C-26, C-31, C-34, C-36, C-42, C-43, C-46, C-52, C-53, C-54, C-55, C-59 (17 out of 64 Government bills tabled = 26.6 percent) / Senate = S-4, S-5 (2 out of 8 Government bills tabled = 25 percent)
* 19 out of 72 Government bills tabled = 26.4 percent
40th Parliament, 3rd Session:
House of Commons = C-4, C-5, C-16, C-17, C-21, C-22, C-23 (7 out of 27 Government bills tabled = 26 percent) / Senate = S-2, S-6, S-7, S-9, S-10 (5 out of the 10 Government bills tabled = 50 percent)
* 12 out of 37 Government bills tabled = 32 perscent
In previous sessions, many of these legislative initiatives received support from one or more of the opposition parties in Parliament who have sought to avoid the ‘soft on crime’ label. As a result, some of the policies ushered in by previous Progressive Conservative and Liberal governments that propelled Canada’s reputation as an international leader in ‘corrections’ have been undone. These recent changes in penal policy are not driven by need or empirical evidence, but by an ideological addiction to incarceration and the perceived electoral gain such a stance engenders.
In the first few years of Conservative rule, the focus of their punishment agenda was on reducing the ability of judges to sentence individuals to terms of imprisonment in the community and to ensure that more individuals would be sentenced to more time behind bars going forward. While this continues, they have recently turned their attention towards crafting sentencing laws intended to restrict the use of parole and other release mechanisms for those who are incarcerated in federal penitentiaries.
An Overview of Federal Community Release Mechanisms or 'The Problem'
According to the National Parole Board (see NPB 2010a), there are four primary mechanisms that allow federal prisoners to serve a portion of their sentences in the community.
Accelerated Parole Review (APR) allows individuals who are “serving a first penitentiary sentence for a non-violent offence” or “a drug offence for which the judge did not set parole eligibility at one-half of the sentence” to be “released on full parole after they have served one-third of their sentence”. It should be noted that the NPB can block the release of a prisoner should they determine that the individual is likely to commit “an offence involving violence before the end of the sentence” (NPB, 2009b).
Day Parole is a mechanism that allows federal prisoners “to participate in community-based activities to prepare for release on full parole or statutory release”. It should be noted that these individuals “must return nightly to a community based residential facility or halfway house unless otherwise authorized by the National Parole Board” (NPB 2009a).
Full Parole “is granted at the discretion of the National Parole Board after a thorough risk assessment” and allows federally sentenced prisoners “to live in the community in his/her own accommodation”. It should be noted that these individuals are “subject to strict conditions” that provide them “with an opportunity to demonstrate that they can be a law-abiding member of society” (ibid).
Statutory Release is another mechanism that allows federal prisoners – life and indeterminately sentenced individuals excluded – who have not been granted parole previously to be released on parole. In these cases, prisoners “are supervised in the community and will be returned to prison if they are believed to present an undue risk to public safety” (ibid). It should also be noted that the NPB can detain a prisoner until the expiry of their sentence if they determine the individual is at risk of committing “an offence causing death or serious harm to another person; a sexual offence involving a child; or a serious drug offence” (ibid).
CSC's 'Transformation' Agenda or 'The Remedy'
For proponents of deterrence, ‘just deserts’ and incapacitation – all empirically unsubstantiated approaches to incarceration if community safety is the primary objective being pursued – existing earned parole mechanisms, and their eligibility timelines in particular, are indicative of a crisis in our federal penitentiary system. This position is one rooted in mythology.
The best myths about existing parole mechanisms in Canada can be found in the CSC Review Panel Report (2007). One such example of distortion is that federal prisoners are not accountable for how they progress through their ‘correctional’ plans or their actions. This assertion borders on fiction.
As it stands, should prisoners not follow the agenda CSC has set out for them they may still be eligible for parole, but it is highly unlikely that they will be released prior to Statutory Release. This means that they most likely will not be able to get out of the penitentiary until they have served two-thirds of their sentences, which certainly should be considered a grave penalty for not being ‘accountable’ in the eyes of CSC officials.
Another gripe of the CSC Review Panel was that the Corrections and Conditional Release Act (CCRA) specifies that prisoners are to be deprived of their liberty using the least restrictive measures. For the authors, this provision has resulted in “an imbalance... that places the onus on CSC to justify why the least restrictive measures shouldn’t be used, rather than on the offenders to justify why they should have access to privileges based upon their performance under their correctional plans. The Panel believes that this imbalance is detrimental to offender responsibility and accountability”. This statement ignores the fact that in practice federal prisoners have to justify almost every move to authorities in order to build a case for their cascading through the system.
More worrisome is the suggestion made in the Panel’s assertion that the state and its officials should not have to justify when and how it deprives its citizens of their liberty, a position that used to only be acceptable in countries ruled by authoritarian regimes and dictators. The state should never be given a carte blanche – not on our streets, not in our courts and not in our prison systems. Wouldn’t it be rich for our government to preach the virtues of accountability and obeying the rule of law, and then to not ensure that its agencies and employees are accountable and follow the rule of law themselves?
To address the perceived insufficiencies associated with existing community release mechanisms, the CSC Review Panel recommended the adoption of “earned parole”. Gone would be APR and Statutory Release. Day and Full Parole would also be more difficult to obtain should it be determined that prisoners do not have employment in place or excellent job prospects upon release. They would also not be released in cases where ‘correctional’ plans have not been followed in a system where the specified programs are said to be readily available to prisoners when we know this is not the case.
Why We Ought to Abandon the Proposed Vintage of 'Earned Parole'
There are a number of reasons why we ought to abandon the vintage of ‘earned parole’ envisioned by the CSC Review Panel and our Government.
We Already Have Earned Parole
While police associations and a number of victims’ groups argue that our penitentiary system is a revolving door, where prisoners are released back into our communities without having lifted a finger, they are being disingenuous at best.
No matter the form of release, in the vast majority of cases prisoners are not released if they are considered to pose a significant risk to public safety. Prisoners who wish to obtain Day or Full Parole earn it by demonstrating that they would not pose a risk by exhibiting ‘good behaviour’ according to the rules of the penitentiary system, by participating in their programs and so on. Those on Statutory Release earn their stays in the community by exhibiting ‘good conduct’ based on standards determined by the NPB while serving the remainder of their sentences amongst us.
Community release is never a given, which is illustrated by the number of prisoners who have their parole revoked for actions that are considered to be normal if carried out by ‘law-abiding’ citizens. Being eligible for parole means just that. If we are to incarcerate individuals, why would we remove some of the key incentives that promote the very behaviours amongst their captives that prison officials’ desire?
Our Current Community Release Mechanisms Are Proven to be More Successful at Reintegrating Prisoners than Longer Terms of Imprisonment
Another reason to not move towards an even more restrictive system of earned parole that will result in prisoners serving longer portions of their sentences behind bars is that individuals who spend less time in prison are more likely to successfully reintegrate themselves into society than those who serve more time in prison.
Consider these statistics:
According to 2008-2009 figures produced by Public Safety Canada (PSC 2009), 71 percent of those on Accelerated Parole did not “return to prison for a breach of conditions or for a new offence” (p. 94). While 21 percent did return to prison for breaches, only 7.1 percent of those on accelerated parole committed a non-violent offence and a minuscule 0.2 percent committed a violent offence (ibid).
Of those on Day or Full Parole, 76.3 percent did not commit an offence or breach their conditions. While 16.2 percent did return to prison for breaches, only 5.9 percent of those on Day or Full Parole committed a non-violent offence and another 1.7 percent committed a violent offence (ibid).
For individuals who enter our communities on Statutory Release, 60.3 percent did not commit an offence or breach their conditions. Of these prisoners, only 8.4 percent committed a non-violent offence and another 1.3 percent committed a violent offence (ibid, p. 96). While it has been argued that this mechanism should be abolished given that 30 percent of those on Statutory Release breach their conditions, perhaps it is worth examining the nature of these breaches and whether the system could benefit from more discretion when deciding who we send back into our penitentiaries.
The figures above indicate that there room for improvement, yes, but it is not through increasing our reliance on criminalization and imprisonment that we will enhance safety in our communities. Given the successes of our existing release mechanisms and the fact that the “rate of conviction for violent offences while under community supervision has declined since 1999-00” (ibid, p. 97), there is certainly an argument to be made for preserving the status quo when the alternative is unnecessarily more repressive and will likely generate less results. Add the average annual cost of $24,825 for incarcerating individuals in the community (ibid, p. 30) to the discussion – which is close to 25% of the average cost of incarcerating a male prisoner in a penitentiary and less than 15% of the cost of incarcerating a female prisoner in a federal institution – and this argument becomes that much more compelling.
The Proposals, If Implemented, Will Erode Community-Based Resources
The combination of the Conservative punishment agenda and CSC’s ‘transformation’, which both involve plans to restrict community release, is likely to force the closure of many community-based reintegration programs in the years ahead. This was the case in Ontario when the province moved towards a system of earned parole under a Conservative Government and a number of halfway houses, including Maison Decision House, were closed.
In combination with other federal punishment initiatives including mandatory minimum prison terms which seek to limit the ability of judges to sentence individuals to terms of imprisonment in the community, the Government of Canada is slowly dismantling community-based resources that are proven to be less costly and more effective at enhancing a prisoner’s ability to successfully reintegrate into society than imprisonment (see Canadian Criminal Justice Association, 2006).
Increasing Our Reliance on Incarceration
is Not Only Ineffective, It is Costly
By its own admission, the CSC Review Panel stated that if implemented, their brand of ‘earned parole’ “could affect the size of the incarcerated population because of the time served” (p. 118). Indeed, eliminating mechanisms such as APR and Statutory Release would lead to increases in the federal penitentiary system where 9.7 percent of its prisoners were already double-bunked as of February 2009 according to CSC.
While Minister Toews has stated that CSC will be increasing its use of double-bunking in the years ahead to absorb the influx of new prisoners serving longer terms in penitentiaries with fewer chances of being released in the community prior to the expiry of their of sentences, he failed to recognize the existence of Commissioner’s Directive 550 and Canada’s 1975 commitment to the United Nations' Standard Minimum Rules for the Treatment of Prisoner. Both of these documents recognize that single-bunking is the most appropriate approach to imprisonment from a humane and ‘correctional’ perspective. The practice of double-bunking is also known to put the personal safety of prisoners and prison staff at significant risk. If the Conservatives were concerned about public safety, one must ask why they would take such a stance that contradicts national and international standards, as well as experience.
Stuffing more people into our penitentiaries will also exacerbate a situation where, according to Howard Sapers – the Correctional Investigator of Canada – there are already long waiting lists for programming in federal penitentiaries that prisoners may need to safely reintegrate into society. The Office of the Correctional Investigator (OCI) has also repeatedly denounced the fact that only 2 percent of CSC’s budget is dedicated to programming (see OCI 2009, page 23). This being the case, what is the logic behind adding more prisoners to an already overburdened system? It’s certainly not a concern for public safety that is driving this bus into walls of brick and mortar.
If talk of effectiveness is not convincing, consider the costs of increasing our reliance on imprisonment. According to PSC’s (2009) own figures, the average cost of incarcerating a male prisoner per year in 2007-2008 was $99,205 (p. 30). That same year, PSC estimates that the average annual cost of incarcerating a female prisoner was $182,506 (ibid). Not included in these figures are the billions of dollars we will likely have to spend to warehouse new federal prisoners should the current legislative trajectory continue.
The 'Independent' Expert Chair
A fifth item we should consider as our Government and CSC seek to implement the recommendations of the so-called Roadmap to Public Safety is who is behind this ‘independent’ report. The chair of the influential document, which is currently driving federal penal policy, is Rob Sampson who was once the Minister responsible for privatization and later became the Minister of Correctional Services under Mike Harris. Of particular relevance to this discussion, is the fact that Ontario ‘corrections’ moved to a system of earned remission, not dissimilar from what is being proposed federally at this time, during the period the Conservatives were in provincial office from 1995 to 2003. In light of this, one must ask to what degree the findings of this 50-day ‘review’ panel were pre-ordained to serve as a catalyst for the types of changes the federal Conservatives have wanted to make to our penitentiary system since their time in opposition as the Reform Party.
Canada at a Crossroads:
Building Prisons or Building Safe Communities?
As a student entering high school in Ontario in 1995, I recall how John Snobelen, then Minister of Education in the province, proclaimed that the Conservatives were going to reform the public education system by “creating a useful crisis”. Naomi Klein (2007) argues that Snobelen and his successors created this crisis by tabling legislative measures and entering labour negotiations with teachers’ with the purpose of laying the groundwork for the privatization of education in the province. While publicly-funded schools remain, the legacy of this ‘crisis’ for students in the form of larger class sizes with a greater focus on mathematics and sciences to the detriment of arts and social science courses continues to be felt.
While ‘reform’ of government institutions can be slow, it is often through the construction and mobilization of crisis by various stakeholders – concerned citizens, those working with public bodies, politicians and the like – that measures that allow for the perpetuation and reproduction of social structures are implemented. The minority Conservative Government of Canada has manufactured a crisis in the penal system that has opened the door to a cycle of retrograde reforms that until recently would have been dismissed by those responsible for crafting and implementing penal policy, including those of you in this room.
Today, you find yourselves implementing a punishment agenda that characterizes what you previously considered as your successes – pardons being one example – as failures requiring immediate correction in the form of measures that are said to be in the best interest of public safety. In your capacity as CSC employees, parole officers and practitioners in the community, it is necessary that you speak out against the Conservative punishment agenda that is a roadmap to nowhere except cuts in social expenditures that provide individuals with the tools to avoid criminalization and higher taxes to cover the costs of increasing our reliance on incarceration.
Canada is at a crossroads and the choice before us is clear: either we continue our march down the disastrous path towards mass incarceration – a costly and ineffective response to the complex harms and conflicts we call ‘crime’, or we renew our commitment to building communities by addressing the issues we face in the community – a less costly and effective approach to achieving public safety.
While there are some who privately oppose the Conservative legislative push, choosing to defer making comment until the day that a new government that will be receptive to our message takes their place, if we fail to mount an effective opposition now this day will likely never come, no matter the political party in office. Now is not the time for silence – the stakes are far too great.
Thank you for your time.