Jamie Sarkonak: Why Poilievre’s three strikes plan for violent offenders has promise

The worst of Canada’s academics are allergic to the thought of locking violent criminals up for any length of time, which is why they began to foam at the mouth when Conservative Leader Pierre Poilievre announced his plan to give escalating sentences to repeat offenders in the form of a three-strikes law.

Poilievre’s idea is to “stop criminals convicted of three serious offences from getting bail, probation, parole or house arrest.” Those convicted of a third serious crime would be given a 10-year sentence minimum, and would also automatically be designated as “dangerous offenders” which, under the law, prevents their release from prison.

At present, dangerous offender status is only applied if a judge thinks a high bar has been met. It’s not automatic, and instead requires evidence to be heard in a courtroom.

Some very basic logic underlies this proposal: repeat offenders are more likely to commit crimes; violent offenders are more likely to hurt people; therefore, taking them out of the general population should result in fewer violent crimes that hurt people.

One counterargument comes from Ben Perrin, a University of British Columbia law professor who circulated one particular 2001 Chicago Journal of Legal Studies paper in response. It analyzed American three-strike laws and found that they correlated with an increase in murder, and was cited in the Globe and Mail for his efforts. His sentiments have been echoed in National Newswatch and elsewhere.

Perrin put the objection of the anti-three-strike camp this way: “It’s the fact that the third offence leads typically to 25 year or life sentences. Or in the case of Poilievre’s 10 minimum followed by indeterminate incarceration. When you have nothing to lose then things can go from bad to worse. That turns robberies into murders.”

The study Perrin highlights found a correlation between three-strike states and higher murder rates — 10 to 12 per cent more homicides in the short term, and 23 to 29 per cent more in the long term. But in this analysis, the authors couldn’t “determine how forceful the laws are in practice.” They did note that California’s three-strikes law was the most severe, and that California also had the lowest increase in homicides.

Counterarguments were raised the next year in a paper by Joanna Shepherd-Bailey, who focused on California’s data. Looking at specific crimes across specific counties, she found that two-strike sentences had a “significant deterrent effect on murder, aggravated assault, robbery, and burglary,” as did three-strike sentences on murder, robbery and burglary. Two- and three-strike sentences for rape resulted in higher numbers, but not to the point of being statistically significant. Also insignificant was the impact on auto theft and larceny (theft), which was positive or negative depending on the number of strikes.

“The results confirm the theoretical predictions that strikeable offenses will be more strongly deterred than other felonies. Murder, aggravated assault, robbery, rape, and most burglaries are strikeable offenses, whereas auto theft and most larcenies are not…. Fearing initial strikes, potential criminals commit fewer crimes that qualify as initial strikes.”

As for the slight increase in rapes, Shepherd-Bailey noted that stricter laws could have resulted in more reports of rape to police. Victims are more likely to speak out if they believe the justice system will keep their attackers locked up, goes the thinking.

The studies and models from the U.S. can only do so much for us here in Canada. There’s a big difference between a life sentence for a third strike in an American court and a 10-year sentence in the Canadian system, as Poilievre is proposing.

And there’s also the element of basic justice. Theoretically, longer sentences for serious crimes, and for repeat serious offenders, should already be the norm here. Judges are required by the Criminal Code to consider harm against family members, intimate partners and children as aggravating factors. The same goes for crimes that involve organized crime, terrorism and offences that were committed on house arrest or parole. In addition, a longer criminal history can contribute to a longer sentence.

However, we see no such thing. Repeat violent offenders are routinely given slap-on-the-hand sentences as soft judges prioritize potential rehabilitation and race relations over community safety. Instead of spending more time away from society, habitual stabbers, sexual offenders and woman-beaters are given indefinite chances at changing their ways — and when they finally do kill someone, it’s often society, not the judges who refused to meaningfully cut off their access to victims, that gets the blame.

And when Parliament does try to step in and prevent unconscionably low sentences, it’s often overruled by the Supreme Court of Canada and its expansive interpretations of the Charter. The use of the notwithstanding clause is our last hope; it’s a relief that Poilievre intends to wield it.

Of Poilievre’s three-strike proposal, one defence lawyer from London, Ont., told the CBC that “The answer lies in spending money at the front end on the things that help prevent crime in the first place, like housing, school, health care, addictions and mental health supports.” Well, duh. The better life is, the fewer criminals our society should produce in the long-term.

But the prison system is the drip tray of society, and it works in the here and now: many of those it catches are people who are long past being helped by schools and hospitals. Some can be rehabilitated, sure, but plenty can’t — and they’ll spend the free portion of their lives wreaking violence on those around them. While we improve the economy and the institutions that are relied upon by vulnerable youth, we must also isolate the people who are attuned to violence.

Parliament can restore justice by limiting judges’ ability to abuse their authority with absurdly light sentences for violent, repeat offenders. Three-strike laws could get us there, and thus, they’re worth a shot.