Published by The Royal Bank of Canada

Punishment and CrimePunishment is a necessary response tocrime, but it degrades all concernedwhen it gives vent to cruelty. Societyhas come a long way since it was usedfor revenge. The question is: Can we gofurther? Can we make punishment pay?

[] The Bible says that the first crime on earthoccurred when it had only two inhabitants. Godtold Adam not to eat the fruit of the tree ofknowledge of good and evil; tempted by theserpent, Adam’s wife took and ate some of it;Adam ate some too. It was, if you like, a case oftheft; God had reserved the fruit of this one treeafter inviting the couple to help themselves fromall the others. The first crime was swiftly followedby the first punishment: Adam and Eve werebanished from the perfection of Eden to the land oftoil and suffering which we now know as the realworld.

Whether we take this story literally or as aparable, it nevertheless reminds us that crime isas old as mankind and is inherent in the humancondition. So is punishment: the most funda-mental precept of justice is that people must facethe unpleasant consequences of having donewrong.

It is not only Judeo-Christian doctrine thatholds this belief. Anthropologists have found thatsanctions for criminal behaviour exist in the mostprimitive societies. Not only is punishment amoral necessity, it is necessary for the survival ofthe community. Men have always come togetherto punish other men who have broken the laws oftheir group in efforts to preserve that group fromfuture harm.

But when men took it upon themselves to wreakthe wrath of God on transgressors, they assumedthe right to wreak some of their own wrath in theprocess. The same Old Testament that tells us the

tale of Adam and Eve goes on to tell us thatdisobedient sons and girls who are not virgins atthe time of marriage were to be stoned to death."So shalt you put evil away from among you," itexplains.

In succeeding centuries, people sprang to thetask of putting evil away from among them withsadistic relish. Much ingenuity was lavished ondevising death sentences, which included drown-ing, impaling, beheading, hanging, being pushedoff a precipice and having all one’s bones brokenon "the wheel."

Branding, flogging, life-long banishment andbeing locked in a painful position in a pillory werecommon penalties for minor offences, but theoffences had to be minor indeed not to provoke adeath sentence. Until the late 18th century, alarge proportion of the crimes in the law books ofall European countries were punishable by publicexecution.

Imprisonment did not come into general use asa medium of punishment until the early 1800s.There had been prisons long before that, but theywere mainly places of detention where accusedpersons were held before and after trial. The neworder did not represent any great advance inhumane treatment. The notorious English prisonof Newgate was, in the words of one visitor, "dampand noisome, half a foot deep in water, with anopen sewer running through the centre of thefloor... The wretched inmates huddled togetherfor warmth upon heaps of rags reeking with foulexhalation."

Reformers like John Howard and JeremyBentham were able to bring about some improve-ments in these ghastly conditions by creating anational sense of shame about them. A gradualshift took place from the idea of social vengeanceto the idea of using the prison system to correctcriminal behaviour. But the correctional tech-nique remained punitive: its object was to makelife so miserable for the convict that he wouldnever consider committing another crime.

Vindictiveness degradeswhile mercy ennobles

Another objective was to deter potential of-fenders from turning to crime, despite the knowl-edge that the horrible punishments of the pasthad never succeeded in stopping really hardenedcriminals. In Elizabethan times, professionalcrime had flourished in the ever-present shadowof the gibbet. Reviewing a book on the subject,Anthony Burgess concluded: "Those who electedfor crime for the sheer love of it were as propor-tionately numerous then as now."

The severity of conditions in prison eased to-wards the end of the nineteenth century. Theguiding philosophy of penology became "an eyefor an eye." Often misinterpreted as a licence toindulge in revenge, this Biblical injunction setslimits on the severity and extent of punishment.It means that we should take one eye for one eyeand no more.

The Victorian humanists who called for a les-sening of the harshness of prison life made thepoint that the infliction of unnecessary sufferingdebases and brutalizes the society that condonesit. They called for more mercy in penal practiceson the grounds that, while vindictiveness degradesthe human spirit, mercy ennobles it.

This appeal to the better instincts of the bodypolitic eventually resulted in a more humanecorrectional system. The concept of correction waslater extended to include rehabilitation -- that is,conditioning the prisoner to become a usefulcitizen on his re-entry into normal society.

The system that has emerged in present-dayCanada embodies elements of all the functions forwhich imprisonment has been used in the past. Itseeks to punish, deter, rehabilitate and protectthe public. While it fulfils some or all of these

purposes in individual cases, what it does not andcannot do is prevent crime.

On the contrary, there is much evidence to showthat imprisonment can breed crime by placingimpressionable young offenders under the in-fluence of inveterate criminals. This is no newphenomenon. Napoleon Bonaparte is quoted assaying: "The contagion of crime is like the plague.Criminals collected together corrupt each other.They are worse than ever when, at the terminationof their imprisonment, they return to society."

To counter this effect, the Canadian penalsystem seeks to segregate prisoners according tothe gravity of their offences. Still, the records ofmany people who have been in and out of jail showa discouraging progression from minor to majorcrimes.

If there is one sure antidote to the contagion, itis to have fewer people behind bars. Yet theCanadian justice system has a propensity "torespond to crime by greater overall use of impris-onment in comparison with the justice systems ofmany similar countries," according to a paperissued by the federal government.

Canadians tend to overestimatethe incidence of violent crime

The paper in which this fact is cited is entitledThe Criminal Law in Canadian Society, publishedby the Department of Justice in 1982 as a guideto the purpose and principles of the federal-provincial Criminal Law Review. An underlyingobjective of the review was to reduce the incidenceof imprisonment as a punishment and promotealternative ways to make offenders pay.

At first glance this would seem to fly in the faceof public opinion. The current public mood appearsto favour more and harsher punishment in re-sponse to the growing crime rate. But the paperstates that people are misinformed about theextent of crime in Canada, partly because theyequate the general subject of crime with crimes ofviolence.

It quotes the results of a Gallup poll in whichCanadians were asked: "In your opinion, of every100 crimes committed in Canada, what per centinvolve violence -- for example, where the victim

was beaten up, raped, robbed at gunpoint, and soon?" The respondents estimated 53.9 per cent. Infact, the number of crimes of violence in the pastfew years in Canada has amounted to no morethan 8 per cent of all offences reported to police.

The paper speculates that the enormous gapbetween the public perception and the reality ofthe situation is partly accounted for by the media’sinclination to concentrate on violent crimes fortheir shock value. Any television newscast islikely to leave the viewer with the impressionthat violence is far more common than it is.Canadians also watch news and entertainmentprograms from the United States, from whichthey infer that in crime, as in so many otherthings, the two countries are rather similar. Thetruth is that Canadian society is nowhere near asviolent as American society. Almost five times asmany violent crimes are committed per capita inthe U.S. than in Canada.

This is not to say that our own crime rate holdsany reason for complacency. The number ofoffences reported to police more than doubled inthe 1970s, although it has levelled out somewhatsince 1975. At the same time, the situation doesnot appear to justify calls for Draconian measuresto protect the public against crime of a violentnature. According to the most recent completestatistics up to 1982, violent crime has not beenincreasing significantly more than the increase inthe population. The homicide rate has declinedsince 1975.

The Canadian system isnot uncommonly lenient

The majority of admissions to the federal peni-tentiary system in 1981-82 were for non-violentproperty offences, mostly theft and burglary. Themajority of inmates in provincial prisons werethere for drinking/driving infractions and non-payment of fines. Otherwise, people are sentencedto jail terms (often because they are unable to payfines) for a vast variety of reasons. In addition tothe 350 laws contained in the federal CriminalCode, there are some 40,000 federal and provin-cial statutes and countless municipal bylaws.

The classification as criminal offences of suchinfractions as water-skiing at night and selling

fish without a permit grossly distorts the statis-tical crime rate. At the same time, the incursionof government regulation into more and morefacets of life has created more and more laws tobreak. Much of the public concern over the"soaring crime rate" arises from this distortedstatistical picture. Cries for harsher punishmentsto meet this supposed menace are also influencedby the mistaken notion that the Canadian systemis overly lenient, when in fact it is one of the leastlenient in the western world.

The impression that the system is too soft alsoarises from media coverage which focuses onsensational incidents. Many people gather fromthe news that parole from prison is easy to obtain.The fact is that parole is not granted as freely inCanada as in most other western countries. TheNational Parole Board rejects about 60 per cent ofall the initial applications it hears.

In the above-mentioned Gallup poll, four out offive of the respondents believed that many paroledconvicts commit violent crimes soon after they arelet out of prison. They overestimated the actualrate of parolee crime by 500 per cent. One reasonfor this misunderstanding is that people tend tothink that everyone under conditional liberationis on parole, including those free on bail, onprobation and under mandatory supervision.

Parole itself is an alternative to incarcerationdesigned to allow convicts to serve a portion oftheir sentences while becoming re-integrated intothe community. Prisoners in Canada normallybecome eligible for full parole after they haveserved two-thirds of their sentences or sevenyears, whichever is less. In the meantime, theymay be granted temporary passes for rehabilita-tive or humanitarian reasons. The NationalParole Board may refuse to grant conditionalreleases to prisoners convicted of violent crimesbefore they have completed one-half of theirsentences. Persons convicted of first-degreemurder since 1976 do not become eligible forparole until they have served 25 years.

About one-quarter of those granted parole re-turn to prison either because they have committeda new crime or violated the conditions underwhich they were released. The recidivism raterises to about 50 per cent, however, among pris-oners under the mandatory supervision of theBoard who must be released after they have

completed two-thirds of their sentences under the"time off for good behaviour" rule. These areusually inmates whose applications for parole hadbeen rejected because the Board deemed them apublic menace. Hence most of the parolee crimescandals so dear to the hearts of the mediaconcern people who were denied parole until thelaw dictated that they must be released.

Parole prepares prisonersfor their inevitable return

The parole system recognizes the fact that thegreat majority of prisoners in Canada will bereleased sooner or later. It only makes sense to re-introduce them gradually and conditionally tocommunity life. But, says a policy statement, "theBoard believes, and insists, that the communityshould not be exposed to unacceptable levels ofrisk and potential harm, through the release ofoffenders. The Board’s principal concern, there-fore, in rendering a decision to grant, deny orrevoke a parole is the level of risk that may beposed to the community."

Parole is one element of the system of non-custodial corrections which has lately been grow-ing in Canada. As matters now stand, mostsentences imposed by the courts (over and abovefines) are being served outside of jail. While in1981-82, there were 21,000 inmates in federal andprovincial prisons, approximately 73,000 convictedpersons were serving out their sentences in theircommunities. Of these, close to 90 per cent hadtheir sentences suspended on probation. If theybreak the terms of this restricted freedom, theyare liable to be jailed.

In the past few years, community correctionalservices have been branching out in new direc-tions. Specialized programs aimed at target groupssuch as women, native people and drinking/drivingoffenders have been established, and more andmore of the rehabilitative work is being done bynon-professional volunteers.

Governments could not be more pleased withthis movement. While 75 per cent of the total

correctional case load in Canada in 1981-82 wasbeing handled within communities, it accountedfor only 8 per cent of total correctional expen-ditures. Keeping people in prison has become anextremely expensive proposition. In Canada as awhole, it costs an average of $80 to keep oneinmate for one day; $106 a day in the federalsystem and $65 in the provincial. It all adds up tomore than $1 billion a year.

For financial reasons alone, the federal andprovincial governments are anxious to move moreof the correctional system out of the prisons andinto the community. One of the pre-establishedprinciples of the revision of the Criminal Coderecently introduced in the House of Commons isthat imprisonment should be considered a lastresort to be saved for those whose removal fromthe community is necessary to protect othercitizens.

Another consideration is that carrying out morecorrections within the community might help toremedy a basic injustice. Until quite recently, thesystem looked upon crime as an affront to societyin general, and paid little attention to rightingthe wrongs done to the individual victim of crime.

Experiments are now being made in Canada inframing sentences to be served in the communitythrough which the perpetrator of a crime makesrestitution to the victim. Where no one victim canbe singled out, offenders are sometimes made topay back the community by doing public works.

The evolution of the system is likely to continuein this direction. It is not without its risks, ofcourse, but it does seem a natural stage in thecivilizing process which began when they stoppedhanging people for petty theft. In any case, severepunishment has never eliminated crime; we nowknow that the chief reason for imprisonment is to"quarantine" criminals and thus protect thepublic. Since we will never be rid of crime, we mayat least try to draw some good out of it. The non-custodial approach offers a chance for crime vic-tims and the community to salvage somethingfrom the evil in their midst.