Nunatsiaq News
COMMENTARY: Around the Arctic February 22, 2018 - 9:30 am

Legal Ease, Feb. 22

Do we need jails?


Prison is such a standard part of the criminal justice system that it is seldom that anyone thinks about it. And yet the reasons we have jail sentences can be challenged.

Section 3.1 of the Corrections and Conditional Release Act, the law that governs federal prisons, reads: “The protection of society is the paramount consideration for the (Correctional Service of Canada) in the corrections process.”

This suggests that prisons are not, at least primarily, intended to rehabilitate or deter but, rather, to separate offenders from society.

Now that is not without value—someone in jail is not tearing up Cambridge Bay.

But if separation is the main goal for prisons, the prison population should be fairly small. There aren’t that many people who are so dangerous that they need to be kept segregated from society on a more or less permanent basis.

Other purposes proposed for prison are deterrence, rehabilitation and denunciation of crime. These purposes are at least arguably not well met.

Crime is not well deterred by the threat of prison. The certainty of being caught is a much more powerful deterrent than the punishment.

Research shows clearly that the chance of being caught is a vastly more effective deterrent than even draconian punishment. Before a crime people are often very emotional, and often drunk, and a rational cost-benefit analysis is just not going to happen.

That said, people do think about getting caught, and that suggests more police will reduce crime better than longer jail sentences.

With regard to rehabilitation, prisons, as we have them in Canada today, are only partially effective.

Some facilities, the healing centre in Rankin and Makigiarvik in Iqaluit are examples, do have solid programs and help heal some of the brokenness that leads to violence and crime. Replacing BCC with the Qikiqtani Correctional Healing Centre may also help.

But traditional punishment prisons can make rehabilitation less likely. Inmates do not learn life skills.

In fact, they learn more effective crime strategies from each other, and time spent in prison may desensitize many to the threat of future imprisonment.

That leaves denunciation as a final goal for prison. And denunciation is not a trivial purpose. Society as a whole is entitled to say to a criminal, “What you did was wrong and your actions need to be denounced and marked as wicked.”

Healing, repentance and forgiveness are important, but so is saying that some conduct is unacceptable. Prison is a good way to mark that.

So that leaves us with prison being useful for some people and some crimes only.

The federal government is reviewing the use of prison as punishment and may well use prison less as a punishment. That may well be a good approach.

Prison is necessary, but not for all cases at all times.

James Morton is a lawyer practising in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.

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