by Mike O’Brien
If this article seems less lucid, or artful, or otherwise good in the way that some of my columns are good, you must excuse my failings and instead direct your disappointment towards the ingenuity of modern immunology. I am still, as far as I know, untouched by Covid-19; however, in anticipation of an inevitable despoilment of my precious bodily fluids, I have received a sixth vaccination and can confidently, emphatically say that it is not a placebo. I am heartened by the argument that my scalp-to-toes suffering is a sign that I possess a robust and responsive immune system. Good for me. I am less heartened by the argument that if the vaccine’s viral simulacrum throws me into a sack and beats me with bricks, the real thing will visit even worse horrors upon me. I try not to think about it too much. I wear my mask and get my shots and hope that the virus doesn’t mutate into something worse.
As I discussed in my previous article, I was summoned for jury duty selection in September. It was a breathtakingly botched affair (especially the part where dozens of fellow potential jurors were crammed into an unventilated conference room in the basement of Montreal’s imposing brutalist monument of a courthouse, and this just as Covid rates were spiking upwards again). About an hour into the day, the few hundred citizens compelled to appear in a cavernous courtroom were informed by the judge of four important facts: first, that they would be forbidden from working during the trial; second, that they would receive a stipend amounting to less than the provincial minimum wage; third, that the trial was expected to last a considerable length of time; and fourth, that it was to start the following morning.
I understand that the State has the right to compel certain sacrifices from its citizens, and that citizens should be aware of this possibility and accept, at least in principle, the justifiability of such impositions. But citizens could be forgiven for thinking that they also have a right to expect a certain level of reasonableness and good order in how the State goes about its compelling and imposing.
The mood of the room immediately following the statement of the above-enumerated facts was not that of people mulling over a reasonable proposal. It was rather a mix of indignation, disbelief, and horrified amusement at the apparently absurd functioning of such a core institution of our society. A large majority of these people opted to be exempted or excused from service, requiring each of them to have their reasons heard and decided upon by the judge. It took about ten hours to find fourteen willing and eligible jurors, from a pool of about two hundred (not counting those who were convoked but failed to appear, who may or may not be the smartest people in this whole scenario, depending on whether the harsh penalties listed for such failure were ever applied). I was among those excused from service, because (and this will continue to amuse me for years to come) the court decided that commuting from the suburbs by public transport, as I have done for the last two decades, is a severe hardship. They’re not wrong (I am thankful for the recognition of my quiet suffering), and if they were I would not have corrected them. But is it more severe than the hardship suffered by a working parent suddenly forced to subsist on a fraction of their expected income, for a long and indeterminate time, without even a day’s forewarning? Perhaps the court excused those people too, I don’t know; there was no post-hearing mingling, for obvious reasons. One wouldn’t want potential jurors sharing successful shirking strategies when the State is going begging for judicial labour.
I suppose that I should not have been surprised by anything that happened that day. Canadian news of late has been replete with signs of systemic over-loading and dysfunction in all aspects of the administration of justice and maintenance of order. Of course, news organisations (I would wager more often for-profit ones than public ones) often exaggerate the breadth of law-and-order problems to sell papers (or “drive engagement” in the current media paradigm). But some failures require so many things to go wrong that a single occurrence serves as a systemic indictment. For example, a case in British Columbia where a man, committed to a forensic psychiatric institution for stabbing someone to death, and who continued to stab people while institutionalised, was granted an unsupervised day release despite the fact that he had stabbed someone during a previous unsupervised day release. Not surprisingly, he used this day out to stab three random people, none of whom could reasonably expect someone with this man’s history to be lawfully out and about. There is also the case of a man who killed an Indigenous woman by throwing a metal trailer hitch at her from a moving car, for fun. He was convicted of manslaughter, because he did not intend to murder anyone for fun, he merely committed an act very likely to cause grievous bodily harm for fun. His was sentenced to eight years in prison for this act. In Canada, convicts are usually eligible for parole after serving one third of their sentence, in the absence of any compelling reason to the contrary (and also, apparently, in the presence of any compelling reason to the contrary). This convict was recently released after serving only two years of his sentence, because… well, if anyone knows of a good reason, they haven’t revealed it. I chose this one example because it is particularly egregious, but lenient sentencing is not a merely anecdotal problem in Canada, especially in financial fraud where relatively small fines and non-custodial sentences are simply business expenses for repeat offenders.
It is important to distinguish between cases of criminally responsible offenders, and those deemed not criminally responsible for reasons of mental illness (I wouldn’t describe someone who throws trailer hitches at strangers as mentally healthy, though the kinds of mental illness deemed exculpatory are tightly circumscribed). Both pose a harm to public safety that the State must address and must make itself capable of addressing by creating and maintaining the institutions required to do so. Under-staffing and under-funding of these institutions is a long-running problem in Canada, worse in some parts of the country than others, and the burden of Covid has aggravated these problems. The affordability crisis and other psychological stressors are straining these institutions further. The State is in a difficult position; it cannot conscript people to serve as nurses and psychiatrists and parole officers, nor is any government likely to win re-election by promising to raise taxes to serve the needs of criminals and the criminally insane (plenty of politicians campaign on “law and order”, but this is usually a reactionary grift with no feasible solutions). The duty to protect, in civil as in international humanitarian contexts, is an expensive and legally fraught duty to fulfill, even when the problems from which people are to be protected are straightforward.
The not-criminally-responsible cases are, in one way, less morally complicated for the State than those of fully or mostly culpable criminals. The former are certainly complicated in many ways, by our lack of understanding around psychiatric disorders, by the inefficacy or onerous side-effects of treatments, by the ever-present question of whether, or when, the detention of an offender will cease to be justified by the danger they pose (and to whom such a decision falls, and whether any liability should arise from making such decisions poorly). These are all ethical minefields. But one mine that has been safely defused and removed is the the question of punishment. When the State, through its officers and institutions, fails to fulfill its duty to protect (say, by releasing an inpatient despite evidence of high risk, or neglecting to monitor the behaviour released patients), the public can say that the offender should have been held longer, or watched closer, or medicated more judiciously. But they cannot say that the offender should have been punished more (if, and this is a contentious “if”, they accept the categorical suspension of blame where some adequate degree of mental disturbance is proven).
For those who believe that punishment is a proper and even necessary part of justice (restitutive justice specifically, which may also be satisfied by uncompelled acts of contrition by the offender in some circumstances), the question of adequate punishment hangs over every sentencing and release decision approved by the State. If someone receives too harsh a sentence, that is a wrong perpetrated by the State against the convicted person. If someone receives too light a sentence, that is a wrong perpetrated against the convicted person’s victims (and perhaps the citizenry as a whole). Then there is the question of parole, early release, and pardons, expungements et al. These can be interpreted as over-riding the State’s earlier decision of how an offence should be punished, or determining a sentence that was left open by the sentencing judge, depending on whether you agree with the release, pardon, etc. There are many defensible reasons for leniency in sentencing and parole decisions, but when practical limitations like over-crowding or under-staffing contribute to otherwise indefensible under-sentencing, early release, or the dismissal of even serious criminal cases due to trial delays (as is now required under Canada’s “Jordan rule”, intended to uphold the accused’s right to timely proceedings), it is simply a moral failure arising from material want.
As is the case in so many political and legal matters, the worry of being too American bears on Canada’s thinking about criminal justice. “Too American” in this matter means cruel, excessive and arbitrary sentences, with inadequate access to counsel and appeal. (The United Nations Human Rights Council shares these worries, and voices them in a report on their visit to the USA, published in September.) The problem with trying to be just by avoiding being American is that, on some rare occasions, the right answer lies somewhere between The American Way and its polar opposite. The State (in Canada’s case, the Crown) should not love to punish in the way that some American states seem to do. The Crown is, compared to some of its Southern neighbours, admirably concerned with the upholding the rights of persons under its control. And for good reason; by subjecting these persons to the legitimate (legally speaking) physical force of police, jailers and other sharp-edged components of its institutions of justice, the Crown takes on a special responsibility of care. Most people who are in jail or prison remain there solely because they are prevented by force from leaving. This monopoly of control creates a monopoly of responsibility, and the Crown’s recognition of this special responsibility is a very good thing (I do not mean to suggest that this recognition is perfect or even adequate, or to ignore that it is often forced upon the Crown by advocates for prisoners’ rights).
What is missing from this picture is that the Crown (or Crowns… the metaphysics of distributed sovereignty is tricky) also holds a monopoly of control and responsibility outside of its carceral institutions. Like most civilized places, Canada forbids those within its borders from arming themselves against anticipated criminal dangers (of the vague “it’s a jungle out there” sort; grabbing an ersatz weapon as the ne’er-do-wells are kicking down your door may be considered reasonable). This places all the responsibility for preventing criminal harm on the Crown, since it prevents anyone but its officers from intervening as third parties to prevent or interrupt criminal acts (except where necessary to protect life, and even then things can be tricky). The Crown also prevents anyone but its officers from punishing offenders. It is one thing for a victim to take revenge; that violats the Crown’s laws against whatever acts the revenge employs (violence, theft, defamation, etc.). For a third party to avenge a wrong on behalf of a victim is, from the Crown’s point of view, a more dangerous matter; not merely ignoring laws against the specific acts of vengeance, but challenging the Crown’s monopoly on punitive intervention.
This monopoly on the right to punish creates a monopoly on the duty to punish. Just as the Crown owes a special duty of care to its prisoners and involuntarily confined patients, just as the Crown owes a special duty of protection to its subjects who are forbidden from equipping and organising themselves against human predation, so too does the Crown owe a special duty of justice to its subjects, especially the direct victims of offences, who are forbidden from punishing offenders themselves. It is my hunch that the Crown more anxiously attends to its special duty of care to offenders in custody than it does to its special duty of justice to victims (both individuals and communities) because it is more tractable. The common (in some cultures) psychological distinction between doing and letting happen may also be a play here, though it is arguably moot given the Crown’s monopoly of control. On a more practical and deliberate note, failures of care in custody may also spoil a case or give rise to costly and complicating lawsuits against the Crown. Punishment is also more contentious as a good than, say, reform or deterrence. Reform is good because it makes recidivism less likely. Less harm done is a clear utilitarian win. Deterrence is good because it makes offences by others less likely. Ditto. Punishment is good because… it is the right thing to do, arguably. But where’s the payoff? Not much hedonic accounting to be done there (ignoring the pleasure of witnessing the suffering of one who has wronged you, which should be beneath the dignity of the Crown). Should a state forgive? Not on behalf of anyone but itself, and even then we must ask if forgiveness is unjust (if punishment provides some restitutive function, then withholding punishment leaves those scales unbalanced, absent some alternative means of restitution).
It is easy to say that more punishment is in order when leniency is simply a regretable byproduct of institutional scarcity, just as it is easy to say that more food is in order during a famine. How much more, ideally? That depends on your ideals. (I should also acknowledge that less punishment is in order for historically discriminated-against groups like Indigenous and Black Canadians, who face disproportionately high rates of conviction and incarceration. Such systemic racism is a whole other matter. Except in Quebec where, according to the current government, it does not exist. Yes, really.) I don’t suppose that these deontological issues will be fixed while wars rage, oceans die and large swathes of the globe become thermal exclusion zones. The window on fundamentally improving our commonwealth is probably already closed. I’m a philosopher, not a problem-solver. I am merely trying to diagnose what other conditions the patient suffered from at the time of death.