Reforming the Criminal Code - Essay Example

REFORMING THE CRIMINAL Prof Question 5 To the Minister of Justice: One of the goals of the Criminal is to punish wrong-doers. Another is to seek revenge against those who have broken the social compact. These are important things to remember when discussing capital punishment. For too long, Canada has sat back and allowed criminals convicted of heinous crimes to live long, comfortable lives in prison. To this end, I would advise you to reform the Criminal Code in order to bring back capital punishment for first degree murder and serious sexual assaults. There may indeed be economic costs to doing so, but these costs are worth it. The Supreme Court has never really examined section 7 of the Charter in relation to capital punishment, but I suspect that if the right kind of argument is made to them they will agree that a violation for executing a depraved murderer is not saved under section 1 of the Charter. A free and democratic society should be able to execute its most heinous criminals. Crime has been an unfortunate aspect of human existence from time immemorial. Every civilization and country has had to come to grips with and takes steps to deal with it within their own value frameworks. Many of the different approaches to dealing with time come from the various assumptions and values. For countries or systems that believe a criminal is a product of his or her environment, it is more likely that money will be spent on rehabilitation and treatment, with much less of an emphasis on jail time. For those who believe people are responsible for their own actions and intend to commit crimes (indeed intention or mens rea is required in all common law systems in order to convict someone of a crime), the emphasis is likely to be on punishment or locking up the criminal. Clearly these concepts require a great deal of unpacking—which will be done in the course of this essay. The play an important role in understanding why some people favour the death penalty and why some oppose it, as well as some of the animating principles behind the Charter. To begin with, in the criminal justice system there are two opposing modes of looking of how to deal with criminals. The first is the due process model. The gist of this model is that an individual can never be deprived of basic human rights no matter how horrible a crime he or she has committed. Even to put someone in prison is to take away the criminal’s inalienable right to liberty and there must be many appeals and a thoroughly scrutinized process to ensure that everything is done by the book. At its heart the due process model would rather see nine guilty people on the street than one innocent person in prison. The end result of this mode requires many hours of painstaking work by humans checking and rechecking evidence and the court case moving very slowly through the system. Part of the assumption underlying this idea is that criminals are not really responsible for their actions. Instead of taking the view that they have intentionally violated the laws of society or a social contract and that they should therefore be punished, the belief is rather that the system in some way failed them. Perhaps they were not treated well enough under the social programs in place, perhaps their neighbours didn’t stop their parents from beating them. The concept is sociological in a way as it holds that society is responsible for each of its members and should never give up on anyone. If someone committed a criminal act they just need more help from everyone. This is of course a somewhat extreme notion, but illustrating this pole of the argument is useful for developing the concepts generally expressed in this essay. The second mode of looking at criminal justice is the Criminal Control Mode. This system puts a high value on locking up guilty people. It focuses on protecting citizens from criminals as quickly as possible. Under this system more money is spent on policing and deterring and prosecuting criminals as quickly as possible so that the police and prosecutors can move on quickly to the next batch. If an innocent person is caught in the net, that is a tragedy, but what is important is that many bad guys got caught too. For the most part, however, the Crime Control Mode believes that the police are almost always right and there is probably a very good reason someone was arrested by them. Here the notion of individual responsibility is more significant. People are responsible for their behaviour and will be removed from society if they violate its laws. There is a severe punishment, and part of this punishment is retributive. Criminals may complain that they are acting badly because they come from a broken home or have bad genes (a biological argument for crime), but society under this model is having none of it. It sees their behaviour as an intentional choice and demands that they take individual responsibility for it. Of course, the negative aspect about this model is how the system operates—in its zeal to force people to take responsibility for their actions actual innocent people can be punished. There are two main arguments at play in this debate: one suggests that criminals should not always take individual responsibility for their actions (and pay the ultimate price), and one suggesting that they should. I will examine the debate through the prism of two separate controversial positions that encapsulate the discussion: the idea of the Nanny State and the idea of the Death Penalty. Both concepts take radically different views of the nature of crime and the level of responsibility that should be taken for it, as well as look at the various lenses through which criminal behaviour can be seen: physical, psychological, and sociological. A Nanny State is one that uses excessive state controls, be they regulations or laws, to restrict its citizens’ freedom of choice. This is a criminological theory which suggests that crimes are defined as those that an elite believes to be wrong but which may not have much popular support. It is not based on natural law or on democracy; it is a kind technocratic theory of what is criminal or not. It believes that it knows best and that citizens should follow its centralized morality. This morality is often based on warped sociological or academic data and is enlisted in the name of utilitarianism. Of course, there is a general societal consensus that certain things are wrong and should be discouraged or criminalized, but for proponents of the Nanny State, the government should seize control of actions and issues where there is no consensus and unilaterally impose its view of morality on these issues. While some aspects of the Charter are to be championed, the notion that it is a principle of fundamental justice that the state cannot execute anyone sounds elitist. Indeed, there may be a successful counterargument to this idea. Why does this seem to be happening more and more these days? Many experts believe that in an increasingly complex world people are more willing to turn over power to the government in order to make their own lives easier. There is a sense the world can be and should be completely ordered and that government is the right body to do this. This is an unfortunate state of affairs as it tips the important balance between liberty and order far to the side of order. This theory also has a great deal to do with the Due Process model of crime control mentioned above. At its foundation, the nanny state is one that believes people do not have a responsibility for their own behaviour—the state or society does. That means that when your neighbour burns down his own house because he is an arsonist, the government might punish you too and require you to help pay to rebuild his house. There are many example of this in our contemporary world. Indeed there is a trend that suggests society makes criminals so should be responsible for them in all respects. The natural consequence of this idea is that we all have to pay for the acts of individuals with severe new laws that restrict our liberty. Some sections of the Charter promote this idea. Section 15, for example, is a big interference in peoples lives. It presupposes that government is best at ordering our society to reflect a particular notion of what is good. The Nanny State continues to expand, rolling back individual freedoms in the name of abstract social and public policy “benefits.” It is a difficult fight to maintain our hard-won freedoms, and even harder when at every turn the government and its supporters tell us not to worry, they’ll take of everything. The reason why Canada has worked so well in the past is because of subsidiarity—Ottawa devolving power to the provinces and the provinces devolving power to the people. To many people these days believe their lives are too complicated for them to take responsibility. This is a very sad state of affairs. Worse yet, the responsibility and burden of crime is downshifted on to people who are law-abiding citizens instead of placed where it should be: on those who chose to intentionally break the laws in the first place. And especially on those who break the number one commandment: thou shalt not kill. Another indication of this trend has been the debate and controversy swirling around the death penalty which continues to be rolled back across the world and in American states. Many countries have banned it and there is an international campaign being waged to try to eliminate it worldwide.1 Never before in history has the practice appeared to be under such a threat. Indeed, many people believe it is ineffective and inhumane. They think it is a vestige of a barbaric old-fashioned world that has gone the way of the dodo. But these people are wrong and are misusing evidence. The truth is that when you for the right crimes the death penalty is a deterrent. But more than that, the death penalty is society’s ultimate sanction against those who commit the most heinous crimes. Its elimination is called for by people who in a general sense would tend to see criminals as victims, and refuse to actually see victims of crime at all. When you eliminate the ultimate price from the criminal justice system you simply are left with a bunch of sentencing requirement which vary only in tiny degrees: there is no way to express heartfelt anguish or outrage at a crime. The practice of capital punishment in particular regarding heinous crimes sends a message: no matter the excuses put forward for the behaviour in question—e.g. I was underprivelged as a child, I experience lost time, I was addicted to drugs, etc—society will hold you ultimately responsible for your actions, and that responsibility will include whether or not to continue your life as you know it. Some of this may sound harsh, but that is only because the culture of the nanny state has seeped so far into our subconscious that it is unusual for people to speak of responsibility. In this day and age when a life sentence means ten years and then parole, the idea of the death penalty is indeed an anachronism—but it shouldn’t have to be this way. The death penalty is a deterrent to crime. Famous critics believe so.2 The reason why statistics may not always show this to be true—and are so open to misuse and manipulation by death penalty opponents—is that many homicides are not first degree and do not involve a lot of premeditation. Many are caused by negligence or happen on the spur of the moment. For these sorts of crimes, capital punishment won’t be much of a deterrence—and this fact will be reflected in the so-called statistics. But then again no public policy will provide much of a deterrence for crimes that do not involve intention or are carried out on the spur of the moment. Indeed, I don’t believe there is much of a correlation between crime rates and the death penalty to begin with. Murder is a very small portion of crime statistics, and only a very small portion of murder would be deterred. We should always define our terms at the beginning of such debate. Death penalty opponents consistently refuse to do so. Many countries use the faulty reasoning explained above to justify their abolishment of capital punishment. I think there’s more study needed. Whatever these studies say, no one can deny that the death penalty absolutely deters the murderer who is killed by it—he will never raise his hand against anyone again.3 I think the death penalty should be legal. The Code should be reformed and the Supreme Court can make a decision as to whether it can get past the Charter. Even if the Court says that the Charter will not permit it, the government should use section 33, the notwithstanding clause, to go ahead and implement their program. The symbolism of capital punishment is very important. It is a statement society makes about the highest stigma crimes. Some people do thing so bad that society has the right to kill them. Removed from the face of the Earth, these individuals can no longer taunt their victims families (as some do), nor will they have an opportunity to ever walk free again. To some this is a very old-fashioned and severe idea. I would say that opponents of the death penalty are part of a trend of thinking who would like to preserve criminals’ rights above those of the victims of violent crimes. It is disgusting to see people waste their time and energy trying to stop the executions of heinous murderers rather than volunteering or giving money to victims who have suffered so much. There are some critics of the death penalty who try to confuse the issue and say that it should not be used on young offenders. They try to suggest that there are many fifteen year olds being executed in the electric chair in the United States—a fact that is simply not true. They use this issue to try to publicly paint a picture of what they believe the barbarism of the death penalty to truly be. I would say that as a rule young people should not be executed by capital punishment, but I would not protest an exception to this rule for especially heinous crimes. There should probably be an arbitrary cut off point—for example, 16 years of age—at which youths cannot be executed. But generally speaking I can imagine a terrible crime committed by a 17 year old, which would be appropriately responded to by capital punishment. The penalty exists to reflect society’s disgust with a person’s action—obviously the standard would be higher for a younger person. This is again an argument used by the Due Process people (a.k.a. the Charter-lovers) who try atomize everyone, breaking them up in groups based on physical and ethnic characteristics rather than treating people equally and applying one standard to all. This is the privileging of context over what many consider to be the rule of law and it should not be permitted in countries and civilizations like ours. It is understandable that so many people have strong opinions about this issue. No life should ever be taken without careful consideration and without being responsible for the crime. The death penalty is after all the ultimate sanction and expression of personal responsibility. That said, there is a growing trend around the world to look at criminals themselves as victims of some sort of social injustice, to think about criminals in the same way most people think about victims of crime. This way of thinking has it that criminals come from bad homes and are the subject of discrimination based on race or socio-economic status or what have you. The result is they are unable to control themselves and we should deal with them generously. This idea is very naïve. There truly are bad people out there. The death penalty not only is a deterrent to those who would commit nasty crimes, but it also removes them from human society forever once they are convicted. Opponents of the death penalty will use every trick in the book to try thwart efforts to maintain the status quo. All we can do is remain vigilant, stick to the fact, and stick to the moral argument: crime doesn’t pay. Works consulted Bedau, Hugo. Debating the Death Penalty. New York: Oxford University Press, 2005. Bedau, Hugo Adam (Autumn 1983). "Benthams Utilitarian Critique of the Death Penalty". The Journal of Criminal Law and Criminology (Northwestern University School of Law) 74 (3): Bowling, B and Phillips, C (2002) Chapter 3, Criminological theory pp 55- 75 in Racism, Crime and Justice by the same authors. Pearson Education Ltd. Farrell, S and Calverley, A (2006) Chapter 1, Getting to grips with Desistance pgs 1-29 in Understanding desistance from crime, by the same authors. Open University Press Green, Frank (Feb. 4, 2000). Official fears moratorium on executions in state: He pushes bid to sidetrack study of death-row appeals, Richmond Times-Dispatch, Mappes, Thomas A, and Jane S Zembaty, (2007). Social Ethics: Morality and Social Policy. 7th ed. New York: McGraw Hill,. Schabas, William (2002). The Abolition of the Death Penalty in International Law. Cambridge University Press. Walklate, S (2003). Chapter 4 Understanding Left Realism pgs 48-72 in Understanding Criminology by the same author. Open University Press EU External Relations. “Eliminate The Death Penalty.” http://www.europe.org.sg/en/eu_in_sg/death_penalty.htm White, Joseph. “Uncle Sam enters the debate.” Wall Street Journal. June 23, 2009. Read More