Eddie Greenspan's Scary Crime Blunder

Appearing in the National Post today was something that could be considered Eddie Greenspan's last public words. In the article he condemns Prime Minister Stephen Harper's approach to crime.

He calls Harper's approach to crime "scary."

"We know of no person knowledgeable about criminal justice in any democratic society who has ever proposed imprisonment for all convicted offenders. But earlier this month, Canada’s Public Safety Minister, Steven Blaney, who oversees our penitentiaries, bluntly told Parliament that 'Our Conservative government believes that convicted criminals belong behind bars.' No qualifications, no exceptions.

An opposition MP understandably replied, 'Mr Speaker, that is scary to hear.' Scary? It’s more than scary. It is hard to imagine such a statement being made by someone who supposedly has knowledge about crime and the criminal justice system."

Of course, Minister Blaney's comments in Question Period should not be confused as a comprehensive position on crime, as Greenspan seems to have done. But as a general principle -- criminals belong behind bars -- one could do far worse. Greenspan himself manages.

"Imprisonment is certainly appropriate for some offenders. But it is worth examining two arguments that are often made for imprisoning offenders who could be punished in the community. Some believe that crime will be deterred if punishment severity were increased. Scores of studies demonstrate this to be false. This is inconvenient for Mr. Harper since many of his 86 so-called 'crime' bills (33 of which have become law) are based on the theory that harsh sentences deter. Canada’s first prime minister, John A Macdonald, understood deterrence better than does Mr Harper. Macdonald noted that 'Certainty of punishment …  is of more consequence in the prevention of crime than the severity of the sentence.' Mr Harper, who could benefit from empirical evidence, chooses instead to ignore it.

Some believe that offenders learn from imprisonment that 'crime does not pay.' This, too, is wrong. Published research — some of it Canadian and produced by the federal government — demonstrates that imprisonment, if anything, increases the likelihood of reoffending. For example, a recent study of 10,000 Florida inmates released from prison demonstrated that they were more likely subsequently to reoffend (47% reoffended in 3 years) than an almost perfectly equivalent group of offenders who were lucky enough to be sentenced to probation (37% reoffended)."

Why are these two paragraphs so terrifying? Because Greenspan was considered an elite criminal defense lawyer, and so represents the legal thinking of Canada's legal establishment. And because it's perhaps the most shortsighted and limited view on criminal justice imaginable.

For one thing, the study Greenspan cites is perhaps one of the best examples of unisolated variables on record -- Florida is not exactly a jurisdiction known for its historic dedication to rehabilitation. As one of the key pillars of any criminal justice system, rehabilitation is key to preventing inmates from reoffending. Florida has pursued this route with renewed diligence only since 2011.

Prior to this renewed focus Florida's inmate population had grown by 40% in 11 years. It doesn't require a criminal defense lawyer to recognize this as undesirable. But Florida's growing prison population was not due strictly to imprisoning criminals, but rather what the state was not doing for them on the inside.

So there's the first point on which Mr Greenspan's final words are disturbingly lacking.

Mr Greenspan treats imprisonment of a criminal strictly as punishment. And while it is punishment, it serves a goal key of any criminal justice system: protecting victims from their victimizers by keeping them locked away.

So Mr Greenspan seems to prefer punishing criminals "in the community." Which often entails releasing criminals into the same communities in which those whom they victimized live. And Greenspan, as a criminal defense lawyer, was very successful in helping push this agenda into policy.

What did this bring us?

Well, the RCMP report on missing and murdered indigenous women is very illustrative. Hauntingly illustrative, in fact.

Indigenous women were disproportionately likely to be murdered. More than this, they were disproportionately likely to be murdered by a family member. More still, they were disproportionately likely to be murdered by someone with a prior history of violent crime. Even more yet: they were disproportionately likely to have been a prior victim of a violent crime at their killer's hands.

And via the Gladue ruling, a worrying number of aboriginal are effectively turned loose in their communities under a preference for so-called "restorative justice techniques." And while the Gladue ruling is often treated as inapplicable for more serious and violent offenders, and repeat offenders, this has often come far too late for missing and murdered indigenous women. Far too often the recidivist crime to which Gladue was considered inapplicable was their murder.

That's a tad too late for "restorative justice" and "punishment in the community," as Mr Greenspan clearly preferred.

I've previously written that there in fact should be a national inquiry into missing and murdered indigenous women, but not on the terms that the activists, lawyers and social workers who created this problem would prefer. Instead, this should be treated as an opportunity to call the legal establishment that created this problem on the carpet, and put them and their policies on trial once and for all.

Were he alive today Eddie Greenspan would almost certainly be among them: called to answer for the problem that his ideas, his agenda and his shortsightedness created.

Fortunately for him he did not live to see such an inquiry. Which is by no means a reason why he should be excluded from such scrutiny now that he's passed on.