Christie Blatchford has an article out deploring the Harper government’s latest tough-on-crime initiative. As it is full of liberal shibboleths, let’s consider them one by one:
What this is about is the unseemly business of mandatory victim surcharges, the state’s way of characterizing the act of getting blood from a stone.
Why is it ‘unseemly’ to try to get blood from a wicked stone? It may be futile, but it isn’t unseemly.
Like other changes from this government — from mandatory minimum sentences for some offences to doing away with the two-for-one credit for time served as a mere accused person in pre-trial custody — this one curtails the ability of the trial judge, who knows a case best, to tailor a sentence to an offender.
Clearly, allowing a trial judge latitude is better than blindly following a universal decree mandated from above, or rather it would be if we could trust the judges. The problem is we can’t. Too many are liberal appointees (or Conservative appointees who have been marinated in the permissive ideology of the law profession) who are soft on crime and end up prematurely releasing vicious predators. Having tough-on-crime judges, who have latitude in sentencing, as well as the common sense to apply that latitude wisely, would be the ideal solution. But lacking a preponderance of such judges, the least-worst solution is mandatory sentencing guidelines that apply across the board.
The truth in my view is that most offenders don’t belong in prison.
Actually, I agree with this. But the problem is not that we punish people too severely. The problem is we have too many laws. A lot – probably most – of our criminal laws need to go. Gun laws, drug laws, sex laws, money laundering laws, campaign finance laws, most are procedural laws that are designed to punish activities that can lead to crime - i.e. they punish people for things that are not in themselves crimes; or they are just laws against personal vices. However, real crimes with real victims do exist: robbery, rape, arson, murder, assault, stuff like that. Biblical crimes. It is with such crimes where the justice system demonstrates laxity.
Prison is deadening to the soul, destructive, the very admission of societal defeat. It rehabilitates almost no one. It takes remarkable strength for anyone to emerge less damaged than before.
What it does do, reasonably well, is protect the public from the relative few who are violent or dangerous — those who have murdered, maimed, raped, shot up the streets and hurt the vulnerable among us.
Agreed. But at least with regard to vicious predators, what is the alternative to locking them up, given that the possibility of rehabilitation has been investigated for a century and a half with zero success? Unless there is some breakthrough in this field, locking up psychopaths so that they are away from the public is the least-worst option – the deterrence factor of which has been proven by American crime statistics over the past 40 years.
Of course, I have championed alternate - and cheaper - deterrence measures like corporal punishment and capital punishment, but absent political will to enact those reforms, were are back to the least-worst option: incarceration. (And with executions we have the very real problem of how to right wrongful convictions, a problem that I fear is more widespread than the justice system lets on. So at best, capital punishment should be meted out very carefully.)
The problem is [with the new victim rights law], victims don’t belong anywhere near the centre.
The whole reason for the rule of law is to take justice out of the hands of any one of us who might feel wronged or aggrieved and who understandably might be inclined to revenge, to say, as a prosecutor pal of mine once put it, “You burned down my house, so I’ll burn down yours and maybe rape your daughter too.”
Instead, we have all agreed to have these matters settled by a justice system, where trials are meant to be a contest between an accused and the state, not an accused and the state and the victim. The arrangement is supposed to be a straight line, not a triangle, let alone a triangle with victims as a full leg.
What Blatchford says here is half true. She has described the philosophy of our justice system accurately. Unfortunately, it is not the whole truth.
The fact is, leaving the victim completely out of the loop left our justice system too bloodless. This is the reason for victim impact statements: they remind the system of the devastation caused by the crime in question. As I understand it, these are delivered after the verdict has been delivered but before the sentence is handed out. The ideal time! The impact that a crime has had should have an effect on the severity of the sentence. (On the other hand, the victims’ emotions should have no place in the trial itself. The trial should only be about facts and law and nothing else. That part should be as bloodless as possible.)
Blatchford concludes with this statement:
Yet, and this is where I sound like the judge who delivers a thundering denunciation of the offender before him and then gives him a kiss of a sentence, while I agree with Judge Westman and dislike the Conservatives’ vision of justice, Peter MacKay and his colleagues were elected. Judge Westman was not. He should continue to speak out — in my view, judges should be less shy about this — but to thwart the will of Parliament is wrong.
If he wants to make law, in other words, he should run for office.
Bingo. The place for judges is the interpretation of law not the making of law. The latter just means a tyranny of the judiciary.