Table of contents
The fundamental purpose of the justice system is to protect the majority of law-abiding citizens from a minority which would prey on them in one way or another. If the justice system is working properly then people should feel safe and well protected.
But they donâ€™t.
By its own admission, Canadaâ€™s penal system releases offenders into the community with the full knowledge and expectation that they will re-offend. (Reference to almost weekly news articles of unreformed sex offenders being released.) Therefore, by definition, Canadaâ€™s penal system does not protect Canadians and is, to that extent, a failure.
Why do these people get released? Because they have served their â€˜timeâ€™. But obviously not long enough. The knee-jerk response that is frequently advocated is to simply impose longer sentences, but for people who can be and are willing to rehabilitate, longer sentences are just that much longer away from a â€˜normalâ€™ life and that much greater expense to the taxpayer. Besides, longer sentences just postpone the return to crime for those who are so inclined.
â€˜Dangerous offenderâ€™ status is being given to more criminals in order to keep them locked up, but for obvious reasons, the designation is used sparingly.
Judges are not trained nor do they have the time to get inside an offenderâ€™s head and determine with reasonable certainty whether a convicted felon can be rehabilitated and how long it will take. Parole boards with much greater resources and time at their disposal also find themselves fooled frequently.
The ideal sentence for any convict is the exact time it will take to prepare them for a new start on life free of crime.
In some cases, like a crime of passion in circumstances that are unlikely to ever occur again, a short period of evaluation and counselling might be all that is necessary even for a major crime like murder. On the other hand, a
â€˜dangerous offenderâ€™ may need to be incarcerated for life even if the offence was relatively minor.
So why doesnâ€™t the system work that way? Because from time immemorial, sentencing has been part of the trial process. To fix the problem, trials should be exclusively for the purpose of determining guilt or innocence.
Sentencing should be handed over to something akin to a parole board which would have the resources and time to evaluate the convict and determine the most appropriate course of rehabilitation/punishment.
Restoritive justice which has been found to work effectively in many situations could be used as one of many tools.
Whatever rehabilitative process was decided, it would be monitored and adjusted for each individual convict from time to time. All sentences would be indeterminate in length with release coming only when the offender is considered to be safe for the world at large. The release could be gradual as it usually is now, but with an indefinite sentence the period of integration could be as long as necessary.
Electronic monitoring (see below) should be used routinely for any person allowed into the community under restrictions.
Unlike timed sentences, rehabilitation would become the condition for release. This changes the dynamics and there would then be a real incentive to become rehabilitated. No longer will incarcerees who have
refused treatment or training be released to prey again upon innocent people. Even most of the multiple offenders currently in the system will show a willingness (sincere?) to rehabilitate in order to earn their release.
As we know, however, even parole boards can be fooled in spite of an extensive array of resources available. Re-offences will still occur under this revised sentencing system, but in reduced numbers. When a
re-offender comes before the system again, the bar for his release will be that much higher. A second chance will be difficult to earn and subject to far more stringent scrutiny. A third chance? Maybe never.
With a prison population more inclined towards serious rehabilitation and knowing that release can come sooner rather than later, many of the current prison problems like boredom, drugs, and violence will be greatly reduced. And with the reoffenders locked up for longer and longer periods (preferably far away from those that want to go straight), there will be fewer bad eggs on the outside to lead newly released incarerees astray.
The result, fewer criminals on the street, an easier job for the police and a population that can feel more confident about their safety.
A side issue to this is how the courts have handled issues like insanity pleas. â€œNot guilty by reason of insanityâ€ is not a very comforting result for society. The individual is sent to a mental institution where they will stay until they are â€˜curedâ€™. Given the lack of exactness in psychiarty, we can only hope that they are correct. In my opinion, the courts should determine, â€œdid he do it, or didnâ€™t he?â€ and any extenuating circumstances such as insanity, drunkenness, compassion or sleepwalking should be a factor for consideration in sentencing.
In the case of murder committed as an act of mercy or compassion, society could take comfort in the fact that a murder conviction has been registered. Perhaps extensive community service could be required so
that society gets some benefit rather than paying through the nose for years of incarceration which really benefits no one.
By dissociating a guilty plea from any specific sentence, certain crimes of compassion could be dealt with quickly without costly and contentious trials.
In the case of some exotic circumstances like sleepwalking, no time may need to be served but on-going monitoring, perhaps for life, would be possible.
Insanity should be treated for what it is. Forensic psychiatric facilities should be integrated into the general penal system and should be one of many tools available in the process of rehabilitating offenders.
If the justice system gets back to its core functionality of protecting society and the penal system accepts a new mandate to rehabilitate within the context of open-ended sentences then Canada will be a safer country.
With such technology available, a lot more people should be allowed to be back in the community where they can earn a living, go to school and lead relatively normal lives away from the criminal elements we house in our jails.
People accused ("innocent until proven guilty") of non-violent offences should never be put in jail prior to trial. An electronic monitor will ensure their compliance with whatever terms are dictated.
Often the very people we hire to keep order among the inmates are themselves victims. Inmates often project saliva, blood (possibly HIV positive) and urine onto guards as they walk past the cells. The prisons themselves need to be redesigned to prevent this. Plus such action needs to have specific consequences whether it be extended incarceration, solitary confinement (without a TV) or a revoking of some privilege.