CCJA
Prison overcrowding and the reintegration of offenders FRANÇAIS


 
MAIN TEXT
 
 
The overcrowding of prisons remains a major concern and challenge in Canada. As a result, the safety of inmates and staff alike is threatened and, ultimately, that of the public. The Canadian Criminal Justice Association is calling on all jurisdictions and the public to address these issues with a view to bringing about necessary and pressing changes, and to defusing a potentially explosive situation.
 
We are conscious that a number of jurisdictions are attempting to deal with overcrowding in their own way and we appreciate their efforts. As well, there have been some laudable efforts to develop a more comprehensive and collaborative approach to dealing with the problem: the Corrections Population Growth report of the federal/provincial/territorial task force of Ministers Responsible for Justice is one example; the National Community Corrections Council is another. However, there still appears to be lacking an overall strategic plan for criminal justice and corrections, and the collective will to eradicate this problem. Major decisions must be made and immediate actions need to follow.
 
This paper identifies some of the more apparent factors contributing to overcrowding. It is not intended to downplay the efforts being deployed; however, by its very nature, its focus is on problems as we perceive them, and, on a more constructive note, on identifying possible solutions. Our views are based on an analysis of statistics and our recommendations attempt to guide us toward a solution while remaining faithful to the principles contained in the Mandate and Principles of Adult Corrections in Canada, the preface to this document.
 
 
WHY BE CONCERNED?
 
       Here are some of the reasons:
 
       Overcrowding impairs the release planning and reintegration efforts of offenders and contributes to recidivism.
 
Overcrowding soaks up vast quantities of resources (human and financial) to "warehouse" inmates, with negative rather than positive impacts.
 
Overcrowding diverts resources from treatment and programs for those who might benefit from them.
 
Overcrowding increases stress and potential danger for both staff and inmates.
 
Overcrowding contributes to programming backlogs which, in turn, delay the timely release of offenders.
 
Overcrowding cripples the ability of the system to deliver programs and treatment in a timely and appropriate manner.
 
Overcrowding leads to double-bunking which is inhumane and infringes upon the basic human dignity of staff, inmates, and volunteers.
 
Overcrowding results in part from Aboriginals being over-represented in the prison population. The issue of Aboriginal over-representation requires specific attention.
 
 
WHY ARE CANADIAN PRISONS OVERCROWDED?
 
       Despite government policy promoting community responsibility and community-based sentencing,
 
       1.        the courts, perhaps influenced by public opinion, continue to rely excessively on incarceration as a reaction to crime;
2. there exist many hurdles to effective release mechanisms;
3. release mechanisms are applied too late during the course of a sentence;
4. offenders remain in the community for too short a period of time following their release, in great part as the result of a lack of adequate and necessary support mechanisms (or, where they exist, their under-utilization) and because re-incarceration is used too broadly in response to technical violations of release conditions.
 
 
1.        OVER-RELIANCE ON INCARCERATION
 
The fact that Canada is over-reliant on incarceration as a response to crime is well documented. It is not a new phenomenon. It has been established for decades now that, amongst western democracies, Canada is outranked only by the United Stated in terms of its high incarceration rate. According to figures published in Corrections Population Growth - First Report on Progress, for the six-year period between 1990-91 and 1995-96, the incarceration rate rose by 29.9% from 485 to 630 per 10,000 adults charged. It now stands at 115 per 100,000 population (Juristat, Vol. 18, No. 3, p.3). While the number of adults charged has decreased, the rate of those charged who are being incarcerated has increased. Barring intervention, the prison population is expected to grow by 50% over the next decade.
 
As there is no real debate around these facts, it is perhaps more fruitful to try to pinpoint the factors that contribute to the phenomenon, rather than trying to demonstrate its existence through yet more statistical data. Here are a few of the contributing factors:

 
       Incarceration as the norm
 
"The Criminal Code displays an apparent bias toward the use of incarceration since, for most offences, the penalty indicated is expressed in terms of a maximum term of imprisonment. A number of difficulties arise if imprisonment is perceived to be the preferred sanction for most offences. Perhaps most significant is that, although we regularly impose this most onerous and expensive sanction, it accomplishes very little apart from separating offenders from society for a period of time. In the past few decades many groups and federally appointed committees and commissions given the responsibility of studying various aspects of the criminal justice system have argued that imprisonment should be used only as a last resort and/or that it should be reserved for those convicted of only the most serious offences. However, although much has been said, little has been done to move us in this direction." (Sentencing Reform, A Canadian Approach, Report of the Canadian Sentencing Commission, 1987, p. xxiii)
 
"In this context, all sanctions other than imprisonment appear to be 'alternatives' to incarceration because they are not expressly indicated as available penalties for individual offences." (Sentencing Reform, A Canadian Approach, Report of the Canadian Sentencing Commission, 1987, p.77)
 
Those comments, though made ten years ago, are still relevant today.
 
"...significant numbers of offenders were sentenced to prison for crimes that are not particularly serious. For example, 528 individuals were incarcerated for possession of a firearm, 1,363 for possession of stolen goods under $1,000, fully 7,353 for theft under $1,000, 1,665 for mischief under $1,000, 854 for soliciting, and 3,455 were incarcerated for simple possession of a narcotic.
 
These crimes should not be dismissed as being trivial, but is incarceration an effective response? Is there no community-based sanction that will suffice to accomplish the goals of sentencing as specified by the statement of the purposes of sentencing contained in Section 718 of the Criminal Code? While these offenders were detained for short periods of time, they still nevertheless cost on average $127 a day while in detention, and short-term admissions are complicated for correctional authorities to administer. Several provisions of the Sentencing Reform Act are aimed at reducing the use of incarceration for such offenders." (Roberts, Julian V. & Birkenmayer, Andy, Sentencing in Canada: Recent Statistical Trends, Canadian Journal of Criminology, Vol. 39, No. 4, October 1997, p.470)
 
"Prison is the most serious sentence handed out in provincial criminal court and is frequently given as the only sentence. In nine participating jurisdictions, a prison sentence was imposed in 88,600 convicted cases, or 33% of all convicted cases, and was the only sentence imposed in almost half of these cases (1995-96). Of the cases resulting in prison, almost 50% were sentenced to one month or less, while 3% had sentences of two years or more" (Juristat, Vol. 17, No. 6, p.8)
 
Under the dispositions of Bill C-41, which was adopted in the fall of 1996, courts are required to consider all available alternatives to imprisonment and to use imprisonment only if no other course of action can ensure the protection of society. It is still too early to measure the impact of that legislation, but, given that half of the 88,600 prison sentences were imposed for one month or less, it is doubtful that in the majority of those cases public safety was at risk. We must therefore conclude one of two things: either the courts are still operating on the basis of "prison as the norm" or no acceptable options were available to them. We suspect that both factors come into play and, if so, two directions need to be explored: (1) place greater emphasis on judicial education, particularly on matters related to the purpose and principles of sentencing, and enhance judicial awareness of available options; (2) increase investments in the development of suitable community options.
 
Our concerns are reflected in some of the recommendations of the Honourable Louise Arbour in the report of the Commission of Inquiry into Certain Events at the Prison for Women in Kingston (1996), particularly the following (see page 258):

 
"13 (b)        that the legal profession increase the awareness of its members to correctional issues, through Bar Associations, defence lawyer' organizations, and others involved in continuing education, offering training to their members in correctional law;
 
(c) that the judiciary be further sensitized to correctional issues through programs developed by the National Judicial Institute, which could include a reminder to all judges of their right to visit any part of any penitentiary in Canada, pursuant to the provisions of s.72 of the Corrections and Conditional Release Act;
 
(e) that Bar Associations and the judiciary draw on the expertise of corrections personnel to increase their awareness of correctional issues;"
 
Acceptance that incarceration offers the best "public protection"
 
"Most of those in prison are not dangerous. However, cruel lockups, isolation, the injustices and harassment deliberately inflicted upon prisoners unable to fight back make non-violent inmates violent, and those already dangerous more dangerous (p.16)" (Sentencing Reform, A Canadian Approach, Report of the Canadian Sentencing Commission, 1987, p.43, quoting from The MacGuigan Sub-Committee)
 
"Society has spent millions of dollars over the years to create and maintain the proven failure of prisons. Incarceration has failed in its two essential purposes - correcting the offender and providing permanent protection to society. The recidivist rate of up to 80 percent is evidence of both (p.35). (Sentencing Reform, A Canadian Approach, Report of the Canadian Sentencing Commission, p.43, quoting from the MacGuigan Sub-Committee)
 
"Growing evidence exists that, as educational centres, our prisons have been most effective in educating less experienced, less hardened offenders to be more difficult and professional criminals." (Solicitor General of Canada, A Summary and Analysis of Some Major Inquiries on Corrections - 1938 to 1977 (p.iv), quoted in Report of the Canadian Sentencing Commission, 1987, p. 44)
 
It is understandable that one might develop a feeling of increased safety knowing that a particular offender is incapacitated for a period of time. But that feeling can relate to that offender only, and only for that specific period of time. Indeed, each day, a number of other offenders are being released who may have become the "more difficult and professional criminals" referred to in the above-quoted Solicitor General of Canada report. Not all offenders can be incapacitated at one time. Hence, to the question "Do prisons offer the best protection?, the answer seems to be "no", when one considers the prison population as a whole. Further, if elements such as overcrowding contribute to making prisons even less effective, prisons contribute that much less to public safety.

 
Increase in the number of inmates
 
"During the past decade, Canadians have witnessed considerable increases in the correctional population. The most dramatic increases occurred between 1988-89 and 1992-93, when the total correctional population increased from 109,000 to 152,000 (+39%)." (Juristat, Vol.17, No.4, p.2)
 
"On an average day in 1995-96, about 33,800 adults were in prison in Canada. While this represents the highest number ever, the total number of adults in jail was about the same as last year. Over the past decade, the inmate population has consistently increased and is 26% higher than in 1986-87. An average of 14,055 offenders were in federal penitentiaries at any one time during 1995-96, the sixth consecutive annual increase. This represents an increase of less than 1% over the previous year. The number of offenders in provincial facilities reached 19,730, down less than 1% in 1995-96 and up 4% since 1991-92." (Juristat, Vol.17, No. 4, p.5). More recent figures (Juristat, Vol. 18, No. 3, p.4) suggest a certain levelling-off: "The average number of people in provincial/territorial facilities in 1996-97 was 20,024, up 1.5% from the previous year. (...) The average number of federal inmates was 14,143, up 1% ...". Despite an encouraging improvement, numbers remain too high. A battle may have been won, but the war rages on.

 
Over-incarceration of Aboriginal offenders
 
This problem has long been acknowledged, yet it continues to exist and requires special attention. Admittedly, numbers pertaining to Aboriginal offenders are included in those pertaining to the overall prison population. Therefore, while they do not alter the global picture, they are very significantly contributing to the problem. And, because they could be buried in the overall figures, there exists a danger that many of the issues particular to Aboriginals will remain unattended. That would not be acceptable.
 
  Aboriginals comprise about 3% of Canada's population, however, on March 31, 1997, they accounted for 12% of all offenders under federal jurisdiction.
 
Aboriginal offenders are more likely than non-Aboriginals to be serving their sentence in an institution than to be under supervision in the community. While they make up 15% of the incarcerated population they represent only 9% of those under supervision in the community.
 
Aboriginal offenders are more likely to be released on statutory release than on full parole.
 
The release rate shows that proportionately, fewer Aboriginal offenders are released on full parole, and, when they are, their release comes later in their sentence. They are less likely to complete their supervision in the community, more likely to be revoked, and more likely to be returned to prison on a technical violation of release conditions.

 
            
These are but a few of the troubling findings drawn from Toward a Just, Peaceful and Safe Society - a consultation document released by the Ministry of the Solicitor General of Canada (March 1998). Yet, they are telling.
 
We need to question why this state of affairs continues to prevail. We need to develop greater awareness of cultural peculiarities, a better understanding of behaviour in specific environments, a greater tolerance of differences, and more culturally-sensitive approaches and programs for the reintegration of Aboriginal offenders.
 
We need to redefine or realign our approach. At least two sections of the Corrections and Conditional Release Act (CCRA) were designed to address the needs of Aboriginal offenders. Section 81 provides for the transfer of responsibility for the care of offenders to Aboriginal communities, while Section 84 reaffirms an intent to engage Aboriginal communities in the conditional release process. Very little has been achieved along those lines over the past five years. Instead, it seems that much energy has been devoted to making the prison experience more tolerable and more meaningful for Aboriginal offenders. That approach has some merit. Yet it should not be the primary goal. The primary goal should be to ensure that a greater number of incarcerated Aboriginal offenders are returned to the community as law-abiding citizens and at the earliest opportune moment. For that to become possible, governments and Aboriginal communities must give priority to translating Sections 81 and 84 into reality, and to developing appropriate support mechanisms in the community.
 
Given the continuing over-representation of Aboriginals in prison, there is a need for an independent review of correctional and conditional release practices to ensure that the issue of systemic discrimination is reasonably addressed.

 
Declining numbers of offenders on full and day parole
 
"The average count of offenders on full parole on March 31, 1996 was 8,493. In the last two years, the average full parole count has decreased by 8% each year. However, the 1995-96 figure is 8% higher than 1991-92. The jurisdictional (provincial/territorial) trends since 1993-94 mirror the national picture, with Ontario showing the largest decrease (-42%) over the previous two years and the National Parole Board (NPB) (for provincial offenders) showing à 45% decrease. The number of federally-sentenced offenders on full parole went down as well (11%). Québec and British Columbia reported increases of 6% and 3% respectively for the same two-year period."
 
"The NPB has authority to grant day parole to offenders under its jurisdiction, the majority (95%, 1,212) being federal offenders. In 1995-96, the number of releases to day parole decreased by 15% from the previous year. The grant rate of day parole applications declined in 1995-96 for the fourth consecutive year. In 1995-96, 59% of applications for day parole were granted. This is down from 67% in 1991-92". (Juristat, Vol. 17, No.4, p.11)
 
"(...)The conditional release population continued to decline in 1995/96 and 1996/97 (by 2%) and the total offender population declined (by 1%). Offender population trends, particularly since introduction of the CCRA (Corrections and Conditional Release Act), have resulted in the conditional release population declining as a proportion of the federal population from 41% or 42% to 39%.
 
The day parole population has declined in number and as a proportion of the conditional release population since introduction of the CCRA. In fact, the day parole population has dropped by about 800 or 44% since 1992/93, and currently stands about 650 (37%) lower than in 1986/87. Day parolees also decreased as a proportion of the conditional release population, falling from over 20% to just 12% in 1996/97.
 
Full parolees increased in number in the years leading up to the CCRA, but remained relatively stable as a proportion of the conditional release population (50%/52%). The full parole population continued to increase in 1992/93 and 1993/94, both in number, and as a proportion of the conditional release population (reaching 60% in 1993/94). In the last 3 years, full parolees have declined to 4,780 or 55% of offenders on conditional release; however, full parolees still remain higher in number, and as a proportion of the conditional release population than in the years before the CCRA.
 
The SR (statutory release) population remained relatively stable in number from 1986/87 to 1994/95. As a proportion of the total conditional release population, however, SR ranged from 23% (1993/94) to 32% (1986/87). In the past 3 years, the SR population has grown steadily reaching 2,936 in 1996/97 or 33% of the conditional release population." (National Parole Board, Performance Monitoring Report 1996-1997, August 1997, p. 5)
 
In summary, despite an apparent and recent levelling-off, the full parole population showed sharp declines in recent years and the decline was even sharper in the day parole population. The statutory release population has remained fairly stable. However, it is subject to the greatest number of reincarcerations. All of these factors combined to exert considerable pressure on prison populations.
 
On the provincial/territorial scene, the most dramatic shift has occurred in the Province of Ontario. 3,427 of 6,306 applicants were granted parole in 1992-93, a grant rate of 53%. Four years later, 1996-97, numbers had fallen to 1,476 for a grant rate of 35%. This means that, in 1996-97, approximately 2,000 offenders were kept in prison who would possibly have been paroled 5 years ago. Why such a large discrepancy?
 
Part of the explanation for the decreased use of parole in Ontario may be found in a Statement by the Solicitor General and Minister of Correctional Services before the Ontario Legislature (October 31, 1996): "We are protecting our communities by moving quickly to reform parole in Ontario. Criminals who are a threat to public safety will be kept behind bars and denied parole. For the first time ever, we are denying more parole applications than we grant. Ontario Board of Parole members are now better trained and have better tools to make good parole decisions."
 
This change in policy should be questioned. First, it perpetuates the myth that prison offers the best form of public protection; second, it implies that all those who are denied parole are a threat to public safety; third, it makes no reference to rehabilitation or reintegration efforts as a means of protecting the public. It is difficult to imagine that, in previous years, the Ontario Board of Parole was releasing 1,500 - 2,000 dangerous offenders each year. It is also difficult to reconcile that statement with the Ontario government's commitment to cost reduction when the average annual cost of maintaining an offender behind bars at the provincial level is $39,470, (Juristat, Vol.17, No.4, p. 12), about 4 times as much as maintaining that same person under parole supervision.
 
Figures provided by the Board of Parole of Québec indicate that the grant rate is now almost twice as high as that of Ontario - 64.8% compared to 35% for the year 1996-97. Still, even in Québec, the grant rate has dropped by 3.3% and 3.4% respectively for the two years that followed 1994-95. These drops are attributed to several factors, notably offenders with more deeply-rooted criminal values.
 
Finally, the grant rate for British Columbia is comparable to that of Québec for 1996-97, i.e. 64%. That same rate has averaged 57.9% over the past six years with significant fluctuations; from 1991-92 and on, the respective grant rates were 60.6%, 59.9%, 54.4%, 49.5%, 59.4%, and 64%. It is unclear what factors contributed to these fluctuations.

 
Length of sentences and growing number of long-term offenders and "lifers"
 
It is interesting to note that sentences, contrary to what many believe, are not much longer today than they were five years ago. According to figures obtained from the Correctional Service of Canada, in 1995-96, the average sentence for all federal offenders admitted on a warrant of committal, who were not serving an indeterminate sentence, was 45.9 months. That figure was 44.9 months in 1990-91 and, in order, for the years that followed, 42.9, 43.4, 43.9, and 44.0. Another source (Juristat, Vol. 18, No. 3, p.7) indicates that, for 1996-97, the average federal sentence was 43 months. Therefore, length of sentence alone cannot be identified as a major contributing factor to overcrowding.
 
The situation is quite different when one considers the numbers relative to long-term offenders and "lifers". Indeed, the population of offenders who are serving an indeterminate sentence (including life) increased by 337 (a small institution), or 13.52%, from 2,155 on March 31, 1994 to 2,492 on that same date in 1997. Persons serving life and indeterminate sentences (men and women combined) make up nearly 18% of the current penitentiary population and their numbers definitely contribute to overcrowding. "Admissions for life terms rose from 3% of all admissions in 1992-93 to 5% in 1996-97. In terms of the numbers of offenders, this means an increase from 173 inmates in 1992-96 to 210 in 1996-97." (Juristat, Vol. 18, No. 3, p. 7)

 
More inmates designated as long-term or dangerous offenders
 
"Bill C-55 was proclaimed into force in July 1997, creating a "long-term offender" category designed to target sex offenders and providing for up to 10 years of supervision after release of these offenders from prison. The long-term offender designation was accompanied (August 1997) by strengthened dangerous offender provisions in the Criminal Code. High risk offender provisions were balanced with new measures for first-time, non-violent federal offenders including accelerated day parole review (APR), and directed release to day parole. Day parole eligibility for these offenders is set at 1/6 of sentence, and review for day parole is automatic.
 
A monitoring framework has been created for C-55 provisions. Subsequent performance reports will document the impacts and effects of these provisions. Based on experience with APR and full parole, however, it is reasonable to expect day parole reviews and the day parole population to increase; completion rates for day parole to decline; and revocations (with and without offence) to rise. There is also a possibility that the APR full parole population will decline if APR day parole cases are revoked at a relatively high rate, and these offenders remain incarcerated to SR (statutory release) date." (National Parole Board, Performance Monitoring Report 1996-1997, August 1997, p.12)

 
Social and mental health services cutbacks
 
Cutbacks in social services may exacerbate the social ills that lead to crime and foster recourse to the criminal justice process to address social problems. The influx of persons from the mental health system is but one example of a consequence of cutbacks in social services. That has had a measurable impact. For example, according to an article published in the March 7, 1998 edition of the Globe and Mail (Cleaning Out the Cuckoo's Nest), 1 in 12 people admitted to Toronto's Don Jail were suffering from a major mental illness, and 70% of them have had multiple jail admissions.
 
It is considered as well that unemployment, poverty, homelessness, and hopelessness also impact in an important way on the crime rate.

 
Public intolerance of risk and advocacy of ultra-conservative lobby groups
 
Public intolerance of risk is another significant factor. In recent years, public policy has been guided in great part by public opinion. Public opinion is often influenced by lurid reports of sensational crimes and results in emotional reaction, stressing a hard- line, tough, war-on-crime response. As a result, a vast majority of jurisdictions have adopted mission statements or other similar documents which promote public safety as the paramount principle. We are obviously supportive of the notion of public safety, but there is a clear need to go beyond expressing it as a principle. For some groups, the paramount principle is made out to be the "only" principle; they advocate vengeance and punishment as primary responses to crime and denigrate any effort aimed at reintegration or attempting to move away from incarceration.
 
"Unfortunately, in the case of incarceration, any driving force that is not rooted in sound correctional philosophy and policy tends to ignore potentially more effective and less costly solutions that could contribute to addressing the more fundamental causes of crime." (CCJA Report on Criminal Justice in Crisis: A National Forum on Incarceration, September 1995, p.7).

 
2.        HURDLES TO EFFECTIVE RELEASE MECHANISMS
 
       The lack of public support for alternatives to incarceration
 
Increasing public demand for law-and-order is a significant hurdle which pervades literally every aspect of criminal justice and corrections. In the area of prevention, it may well facilitate the implementation of police-based or target-hardening type of programs, but renders difficult the implementation of social-development efforts which may not show immediate or short-term results and are often dismissed as expensive forms of social pampering. For many people, retribution and financial costs emerge as the only important principles, and a large portion of the public is oblivious to other social or human costs.
 
In this context, it is most tempting for elected officials to adopt the law-and-order agenda and laws are adopted that are increasingly harsh and coercive, that apply to greater numbers of people and situations, that gradually erode discretionary powers and judgement at all levels, and more people are sentenced to prison for longer periods of time. Yet, it should be clear from experience that problems cannot be solved through legislation alone and that much energy has to be expended to address the root causes of those problems of which crime is only one form of expression.

 
Inadequacy of public education efforts
 
Many people believe that crime deserves punishment and that punishment means prison.
 
Incarceration does not necessarily lead to increased public safety; that, we believe, is a view commonly held by a majority of informed criminal justice and correctional professionals. Yet, it remains a timid affirmation in most documents aimed at informing the public who persist in believing the opposite. Much of the public education material focuses on explaining the law and the processes set in place to ensure its application. However, there is also a need to emphasize the goals and objectives of the law and such processes, to discuss the thinking behind their adoption and, if necessary, to challenge existing beliefs, particularly when the anticipated results are not achieved. Ultimately, public views should prevail, but these should be founded on knowledge, understanding and factual information. Ideally, the democratic process is based on a well informed and discerning public.

 
Emphasis on paperwork and resulting backlogs
 
We have already stated that a certain need for self-protection has led many criminal justice workers, more particularly correctional workers, to focus almost exclusively on risk and case management and the tools developed for that purpose, to the detriment of face-to-face human and professional contacts. While this phenomenon cannot be documented statistically at this time, it is nonetheless perceivable and perceived by several experienced observers. An almost inevitable consequence of that approach is the requirement for paper trails to be developed and, as a result, countless hours are devoted to the development of files and documents, once again to the detriment of a more meaningful and helping relationship. It is not unusual for staff to be consumed and overwhelmed by paperwork; in the end, not only are inmates deprived of quality interventions, but, as well, when the work cannot be completed on time, they are deprived of timely access to existing release mechanisms and, consequently, of opportunities for reintegration.
 
The lack of adequate or timely case preparation leading to delays and postponements is not acceptable and must be addressed as a priority, in accordance with the principles of sound correctional practice.

 
Nature and availability of programs
 
There is a logical relationship between this point and the former. If indeed the emphasis is on assessing risk and managing cases, it flows naturally that there remains less time for the evaluation of personal needs and of the programs best suited to meet those needs. As a result, inmates are often enrolled in programs that bear little relationship to their particular needs, deprived of programs that would serve a useful purpose, or, at the other extreme, enrolled in an overabundance of programs that amount to little more than occupational therapy (e.g., AA for people who do not have an alcohol or drug abuse problem).
 
For programs to be effective, there needs to be meaningful interpersonal contacts, an assessment of actual needs, monitoring of progress from both an objective (scales, grids, prediction tables, etc,) and a subjective (sustained personal contacts, interviews, etc) point of view, and the ability to adjust these approaches according to the individual's progress.
 
In our view, the balance has been lost between the objective and the subjective approach. It needs to be restored.
 
Finally, it is important to ensure that all obstacles to the delivery of effective programs are eliminated and that inmates are granted timely access to the programs they require. This does not appear to be the case under all circumstances at present as the following comment indicates:
 
"The Service (Correctional Service of Canada) over the years, with the proliferation of institutional programming, has become dependent on this extended period of incarceration, between parole eligibility and statutory release, to provide programming. There appears to be a reluctance on the part of case management staff to give consideration to conditional release as an option until such time as these programs have been completed, many of which could be provided under supervision in the community. The current population increase, caused in part by offenders remaining in institutions to complete programs, has further delayed timely access to these programs which, in turn, extends the period of incarceration and adds to the population growth.
 
This cycle of dependency is unlikely to be interrupted until such time as the Service accepts and takes action on the principle that the protection of society is served through the timely re-integration of offenders as law abiding citizens. A continuation of business as usual in this area will promote further population growth and will impact measurably on the viability of the system's current decision-making processes, the efficiency and effectiveness of existing institutional programs, and the ability of the Service to provide equitable and just treatment in a responsive fashion to the inmate population." (Annual Report of the Correctional Investigator 1996-1997, p.27)

 
3.        APPLICATION OF RELEASE MECHANISMS
 
       Over-cautiousness of releasing authorities resulting in declining rates of release
 
We have already discussed the influence of public pressure. Further, we have quoted statistics that clearly point to a general decline in the various forms of conditional release. With recidivism rates remaining rather constant, as is the case with patterns of offending (violent vs. non-violent), we need look elsewhere for factors which can influence the granting of conditional releases.
 
There was a time when the concept of "reasonable risk" was one of the key considerations in determining whether or not an offender would be released. Over time, that concept has all but been replaced by that of "no risk". A good example of over-cautiousness is the proliferation of "special conditions" imposed by paroling authorities on those who are released. It is at times difficult to relate those conditions to criminogenic factors which may be present in a given case. Yet, it is clear that an over-abundance of conditions create that many more opportunities for breaches and failures. Another example can be found in the "instant success" of residency conditions imposed on people who come out on statutory release and which make it mandatory for them to live in a residential facility. Many simply choose not to comply, others abscond, and many derive absolutely no benefit from this process. Further, this approach dramatically and negatively impacts on the role and purpose of halfway houses.
 
Risk is an integral part of any release decision; releasing authorities need to determine what level of risk is acceptable in a given circumstance and be prepared to defend their decision based on that determination, along with other key factors inspired and guided by sound correctional practice. The idea that we would accept no level of risk would ultimately dictate that we abolish all releasing authorities because it is impossible to devise a risk-free correctional system. That is not an option: the Association firmly believes that gradual release is one of the most effective forms of reintegration and, because of that, society must be prepared to accept a reasonable level of risk. Reasonable being defined as the relative assurance that an offender will not recidivate and that, if he or she does re-offend, it will be in a manner that does not cause personal harm to other persons.

 
Timing of release
 
There may be a number of factors to explain why releases have been granted increasingly later during the course of a sentence, but the fact remains that they have and, as a result, inmates have been remaining in prison for longer periods of time, thereby swelling the ranks of the prison population. According to figures presented by the National Parole Board in its Performance Monitoring Report 1996-1997, "Nationally, and in each region over the past five years, offenders have been serving larger portions of their sentences (28% in 1992/93, 36% in 1996/97) before first release on day parole" (p.18). How does this impact on overcrowding? Let us use Correctional Service of Canada figures as an example. According to the CSC, the average length of sentence in 1995-96 was 45.9 months. Let us settle on a figure of 45 for 1996-97 serving 36% of their sentence instead of 28% before their first release on day parole means that, on average, inmates served 16.2 months instead of 12.6, or 3.6 months more than they would have served in 1992-93. As 2,693 inmates were granted day parole in 1996-97, they collectively served an additional 9,695 months, i.e. 808 person/years (2 four hundred-bed institutions for one year). Converting percentages to people does shed a different light on the situation. However, the average proportion of time served prior to release on full parole has decreased slightly during that same period from 40% to 38%. (p.25). One might be encouraged by the latter statistics; yet we need to remember that these figures are still 5% in excess of the actual eligibility date and that there is still room for improvement as the preceding calculations indicate.
 
4.        SUPPORT TO OFFENDERS IN THE COMMUNITY (REINTEGRATION)
 
"What does the state do well and not so well? In the corrections area, the obvious answer is that the state is good at incarcerating offenders. What does the state not do so well? I think it is the social integration of offenders. I know we all can do better" (The Honourable Andy Scott, Solicitor General of Canada, in an address delivered before the 26th Canadian Congress on Criminal Justice, Ottawa, Ontario, September 20th, 1997)
 
       Need for a new paradigm
 
Clearly, the retributive approach to criminal justice has not yielded satisfactory results. There has been no significant decrease in crime or recidivism rates, prison populations have grown steadily, and public safety has not been improved. While recognizing that incarceration remains necessary in certain circumstances and that punishment can have limited effects, it stands to reason that more of the same will only yield similar results. The time has come to look elsewhere for new and more effective approaches that will lead to a more satisfying justice for all, while in no way jeopardizing public safety. Restorative justice is one of the trends that is currently gaining momentum; its concepts find an application in programs such as family group conferencing, victim/offender conciliation, circle sentencing, mediation, and others. We are certainly supportive of the concepts that underlie the restorative justice approach, although we acknowledge that several restorative justice programs need to be evaluated to confirm their effectiveness. Still, restorative programs are but one approach; there exists a variety of directions and other options that may not conform to the strict definition of restorative justice, but that nonetheless deserve to be examined closely; most of them are offered in the community (diversion, fine option programs, community service orders, electronic monitoring, halfway houses, and others).
 
Certainly, effective crime prevention strategies must be developed and implemented. It is self-evident that, if a problem is prevented, there is no need to devote energy and resources to solving it. Our calls for more investment in crime prevention are well documented.
 
Yet, we are conscious that not all crime can be prevented and that we need to deal realistically with the crime that does occur. We are firmly opposed to the notion of incarceration as the normal sanction within the criminal justice process, with every other measure being considered an alternative. It is our belief that this notion is at the very basis of the current problem of overcrowding and at the source of much of the resistance to implementing other approaches which are thereby perceived as "getting off lightly".

 
Lack of political commitment and correctional leadership to divert resources to community alternatives
 
We are encouraged by some of the recommendations contained in Corrections Population Growth First Report on Progress for Federal/Provincial/Territorial Ministers Responsible for Justice, February 1997; they point in the right direction. However, many appear as a reiteration of statements often repeated over the years and do not tackle problems in an aggressive and concerted way. What is required now is concrete action to support the stated intentions. A strategy is needed to address the issues of the day collectively, to challenge the current assumptions that guide the development of public policy, and to ensure the development of community-based options. There is no clear consensus. In fact, some jurisdictions seem headed in opposite directions: for example, in recent years, Québec has closed some of its institutions and placed a cap on its prison population. By contrast, Ontario is building mega-institutions, it has eliminated its halfway house programs and, more recently, significantly reduced its support for Community Service Order Programs (CSO). A cohesive strategy involving all jurisdictions is required to reduce crime and prison populations. It is possible. Speaking at an international symposium held recently in Kingston, Ontario, Tappio Lappi-Seppala, Director of Finland's National Research Institute of Legal Policy, stated that his country's declining incarceration rate is due to a concerted policy.
 
       "We agreed in the 1970s that it was a disgrace to have this type of situation, and we had to do something about it.
 
Judges began to reduce the length of prison sentences for such non-violent crimes as theft, while they simultaneously increased the proportion of inmates sentenced to community service.
 
Parole was extended to a point where 99% of Finish inmates are now released under the program", said Mr. Lappi-Seppala. He said that Finland's politicians never campaign with promises of a law-and-order crackdown, while the press rarely sensationalises crime or lobbies for tougher sentences.
 
The number of prisoners per 100,000 people has dropped from 120 in 1978 to a recent low of 60. (Globe & Mail, March 19, 1998, p. A3)

 
            
We appreciate the political nature of the forum that brings together federal/provincial/territorial ministers responsible for justice. Yet, it is telling that all of the discussions are taking place in the absence of any significant voice from the voluntary and community sectors in Canada. In our view, the successful collaboration of governments and the voluntary sector cannot be the product of an after-thought.
 
       "Correctional services are an essential part of a coordinated and interdependent criminal justice system, and are provided by various levels of government as well as the voluntary sector in Canada."
 
"10. Correctional objectives should be met through shared responsibility and cooperative action by the community, correctional workers, other segments of the criminal justice system and the offenders themselves." (Mandate and Principles of Adult Corrections in Canada)

 
            
Now is the time to involve all parties in the discussion and the search for solutions in a true spirit of cooperation and with a view to shifting some of the burden for corrections away from institutions toward the community. Is there a will to do so?
 
"It seems to me we have been content to play the underdog rather than standing up for what we know to be true."
 
"We cannot keep silent."
 
"We cannot keep on doing what we are doing ... the need is urgent and important." "Will we have the courage to stand against those whose knowledge is less, whose values are counter-productive to sustained public safety, who argue for more and more incarceration and less and less programming." (Ole Ingstrup, Commissioner, Correctional Service of Canada, quoted in the Globe & Mail, March 17, 1998, p.A2)

 
Lack of sentencing alternatives
 
Some may question whether there is in fact a lack of sentencing alternatives. Indeed, there exists a multitude of alternatives at the conceptual level. The issue is whether enough of these alternatives translate into real programs to which the courts can turn. Is there a will to implement more of these programs across the country? Are such programs an option for the courts or a mere experiment available in certain jurisdictions?
 
We need to be humble enough to borrow from other countries who have had demonstrated successes with approaches not currently in place in Canada. In our report, Criminal Justice in Crisis: A National Forum on Incarceration, we cited what appeared to be promising avenues being explored by other countries in addressing overcrowding:

 
       Italy is looking at administrative sanctions (e.g., confiscation of driver's licenses, of gun permits, and passports) instead of jail sentences for offences related to the personal use of drugs.
 
The former West Germany has focussed with some success on improving the working relationship and cooperation between lawyers, prosecutors and the judiciary. No legislative changes were necessary.
 
Austria has implemented a number of alternatives to incarceration in line with the principle of resorting to the least restrictive sanction consistent with the protection of society. Victim-offender mediation, reparation and restitution play an increasing role in preventing minor cases from being dealt with through the criminal justice system.
 
Finland has resorted to a comprehensive strategy of policy changes to de-emphasize imprisonment; the median length of sentences has been reduced significantly and success is credited to the attitudinal readiness of civil servants, the judiciary, and prison authorities to use all available means to bring down the prison population.
 
The Netherlands is pursuing an approach that deals with drug addiction as a health issue, thereby permitting these persons to be removed from the prison population.

 
            
No one program will ever solve all of our problems. We need to experiment with a variety of approaches, targeting specific needs. The cumulative effect of a variety of community-based programs could impact significantly on the prison population. And, when a program proves successful, the required infrastructures should be established to support it and broaden its potential impact.
 
Improper allocation of resources
 
This issue has been addressed in part. It relates to the political or societal choices we make and to the foundations of those choices.
 
Why does it seem that monies can always be found when it comes to building institutions, but appears so difficult to come by when it comes to developing community options?
 
"Governments spent $1.9 billion on correctional services for adults in 1994-95, or $65 for every person in Canada. Constant dollar expenditures increased by 68% between 1978/79 and 1985/86, or by an average of 7% each year. More recently, however, growth has been relatively flat, since 1986/87, average annual decreases of less than 1% have been reported.
 
In 1994/95, the federal share of total adult correctional operating costs ($913 million) neared one-half (48%). Most of this money funded custodial services for offenders sentenced to two years or more in prison (75%). The remainder paid for community supervision services (7%), the National Parole Board (3%), and national headquarters and regional office costs (15%). Provincial and territorial governments allocated a somewhat larger share of expenditures to custodial services (83% in 1994/95)." (Juristat, Vol. 17, No. 3, p.6)
 
"One of the factors that has enabled the federal government to contain prison costs is the use of 'double-bunking'. Today, about one-quarter of the cells originally built for one inmate are shared by two inmates. Although current figures are not available, the provinces also use 'double-bunking' to control costs." (Juristat, Vol. 17, No. 3, p.6) "...the housing of two individuals in a secure cell designed for one individual, for up to twenty hours a day, for months on end, is inhumane. This practice, which continues unmonitored at either the regional (federal) or national level, defies not only any reasonable standard of decency but also the standards of international convention." (Annual Report of the Correctional Investigator 1996-1997, p.30). There are currently in excess of 5,000 inmates in double-bunk situations in federal and provincial institutions. Views similar to that of the Correctional Investigator were expressed by a senior official of the Québec Ministry of Public Security who was defending his ministry's use of temporary absence programs to cope with overcrowding: "The concept of humanitarian grounds may also be invoked in dealing with overcrowding. (...) It is inhumane to house two people in a cell designed for one." [translation] (LeDroit, October 3, 1997)
 
The federal government and provincial/territorial governments allocated respectively 75% and 83% of their correctional resources to prisons. It is noteworthy that the Juristat analysis speaks of constant dollars; indeed the graph showing both constant and current dollars reveals that costs have continued to rise significantly in current dollars since 1986/87, and would have risen even more had it not been for double-bunking. During that same period, a number of community organizations suffered dramatic cuts: e.g., NVO's (National Voluntary Organizations), several of which provide direct services to offenders and ex-offenders, were cut back by approximately 30% in their federal funding and by 100% of their provincial funding in Ontario. Since 1986/87, the occupancy rate of halfway house beds available to the federal correctional service has been approximately 80%. This means that, on average, close to 300 beds (a small institution) were available at less than half the cost of maintaining an inmate in prison, even with double-bunking.
 
Institutional costs have risen and community resources have been cut back. What does this tell us about prevailing correctional philosophy?
 
Statistical information is not available to us at this time relative to other community programs or options. However, most seem to be struggling for survival and the onus is on governments to demonstrate a real commitment to their growth and participation in the correctional process. Further still, governments need to demonstrate their will to develop the community component of their own correctional operations. Many questions arise when we are informed that, within the very operations of government-managed corrections, significant amounts of money earmarked for community corrections are being redirected toward institutional programs. That, in and of itself, is very disturbing.

 
Lack of community programs, options, and infrastructures
 
We have already addressed the gist of this issue. Suffice it to say that, except for rare exceptions (halfway houses perhaps), most community-based programs do not figure as an integral part of a structured correctional strategy. Many programs are used on an ad hoc basis and continue to be perceived as an alternative to the official sanction of incarceration. No plans exist for nation-wide or jurisdiction-wide implementation of community-based programs that have demonstrated some success. Most of them are treated as experimental and, as a consequence, no infrastructure exists to sustain or promote their development. For community-based programs to thrive, there would need to be a commitment to assuring them of adequate and continuing funding. New monies may be difficult to find. However, a commitment to "de-carceration" could free up the necessary amounts and contribute to relieving the pressure on institutions as demonstrated in our discussion around the availability of halfway house beds.
 
Erosion of the halfway house system
 
The halfway house movement was at the very basis of the development of day-parole and other temporary release programs in Canada. Its effectiveness has been demonstrated. Once operated almost exclusively by non-profit organizations, the concept was soon to be espoused by government jurisdictions, particularly the federal correctional service who established a parallel network of community correctional centres (similar to halfway houses, but with little community participation), thereby reinforcing the value of gradual release in a residential framework.
 
There was a time when several offenders had to be placed on waiting lists for admission to a residential facility. Today, an average of 20% of available beds are not used, while institutions are double- and triple-bunking inmates. It is difficult to imagine why.
 
As stated earlier, and for example, in 1995, the government of Ontario closed 350 beds in Community Resource Centres (halfway houses) and has reduced its rate of full parole by 42% since 1993/94. How many of those 42% could have been referred successfully to a halfway house? As well, a steady decrease in temporary absence releases has further reduced the number of inmates benefiting from community programs. While the government of Ontario introduced a program of electronic monitoring (1996) to offset the effect of the above decisions, this program remains woefully under-utilized. The case of Ontario is but one example. How many other jurisdictions could downsize their institutional population if they supported a more vibrant halfway house system?

 
Termination of conditional release
 
One of the factors contributing to overcrowding is the fact that a large number of offenders released conditionally or otherwise are returned to institutions.
 
In the case of recidivists, there may be fewer choices, depending on the nature of the offence. Yet, we need to determine whether a larger number of those offenders could be dealt with through means other than incarceration and whether the necessary support structures were in place to prevent recidivism in the first place.
 
Others are sent back for a breach of condition. Of course, breaches have to be addressed, but is termination of release too often the preferred solution? A review of NPB statistics, included in its Performance Monitoring Report 1996-1997 (pp.48-51), reveals that, for 1996-97, a total of 2,644 offenders were returned to institutions on technical violations - almost 3 times as many as were returned for recidivism (988). How many of these 2,644 could have been maintained in the community without presenting a real or increased threat to the community? The use of attendance centres, required daily reporting, peer support groups, the buddy or mentor concept, and increased monitoring or supervision might well reduce the number of returns for technical violations.
 
There needs to occur a thorough assessment of the factors leading to suspensions or revocations and we need to question whether re-incarceration is always necessary.
 
We need to look for creative options and alternatives, and to assess their effectiveness, all the while maintaining public safety as a paramount consideration.
 
If we preach restorative approaches and diversion at the front end of the system, why could we not consider similar approaches further down the line?
 
The ultimate decision is a matter of discretion. It is difficult to gather statistical information on what motivates people; yet, many experienced observers have noted that many case supervisors have become over-cautious and are no longer prepared to take reasonable risks in dealing with the more difficult offender. Once again, it appears that many have become "gun-shy" and fearful of public backlash. Certainly, if a person presents a real and immediate threat to society, it is important that this person be incapacitated. But, such is not always the case. We need to reinforce the fact that quality decisions made in good professional judgement will not lead to undue sanctions for the supervisor and to encourage professionals to trust their judgement. By definition, people are released under certain conditions because they require a minimal amount of control and some assistance to adjust to their new environment. It is important that professionals acting as supervisors be afforded a reasonable amount of latitude in performing their dual role, without fear of reprisal. It is equally important that they have access to resources that will enable them to meet their responsibility to the public.

 
WHAT NEEDS TO BE DONE?
 
      1.        Commit to change
 
       Acknowledge the need for change on fiscal, social, and humanitarian grounds.
Facilitate a national dialogue on the nature of justice.
Affirm prevention as the best source of long-term protection for the public.
Recognize that, if prevention fails and a crime has been committed, the best means of ensuring public safety in the long term is the effective reintegration of offenders into the community. Effective reintegration is contingent upon an in-depth evaluation and a thorough knowledge of personal dynamics resulting from interpersonal contacts of the individual. Only then can one be in a position to recognize and use appropriate community resources.
The judiciary, correctional, and paroling authorities should commit to using incarceration only as a last resort with respect to the sentencing and conditional release of offenders, as well as to decisions regarding the suspension and revocation of conditional release.
Promote and implement structured and effective community resources.
Recognize community options as an appropriate response in their own right, not solely as an alternative to incarceration. Acknowledge incarceration as only one of a list of options, and not the norm.
Commit to a set of principles and be prepared to be judged on their application. To that end, we propose that all jurisdictions consider adopting the "Mandate and Principles of Adult Corrections in Canada", developed and published by the Canadian Criminal Justice Association in 1985, following two nation-wide consultations with all levels of government and the voluntary sector. Some 2,000 people participated in the first consultation and 200-300 in the second. The vast majority expressed support for that statement which was based on sound correctional philosophy and practice and, though the fiscal climate and the public mood have changed, these should not, in our view, guide our beliefs. Many of the problems which we have stressed throughout this paper can be linked to a breach of one of the principles included in our statement. For example, double-bunking constitutes an infringement on the rights and dignity of offenders, Principle #1; not adopting the least restrictive course of action, Principle #3; the over-cautiousness of releasing authorities could be assessed in the context of Principles #4 and #5; not promoting a wide range of programs and services, Principle #8; developing and using institutional programs when these are available and accessible in the community, Principle #9; the quality of public education efforts and the lack of voluntary sector involvement in discussions could be linked to Principle #10; depriving staff of positive working conditions, Principle # 12; improperly allocating resources, Principle #13.
 
 
      2.        Learn from other countries and improve on their experience
 
       Develop the political and administrative will.
Commit to overcoming the fragmentation of the system.
Elicit cooperation from all levels and components of the system.
Ensure that adequate professional development is available and accompanies programme initiatives.
 
 
      3.        Develop a fundamentally different approach to crime and corrections, and pursue a more satisfying justice system
 
       Determine the needs of all those affected by crime.
Reorient the system toward the principles of healing, participation, accountability, support, restitution, and safety.
Reduce prison inflow by developing and implementing a range of community sentencing options and commit to using incarceration as a last resort only.
Provide the courts with effective community options.
Enlist public support for those options.
Work at ensuring that all conditional release mechanisms are offered in a timely manner to all those who deserve to benefit from them and set measurable goals.
Restore balance between casework and paperwork.
Affirm parole as an effective tool for reintegration and public safety.
Begin closing some prisons as options become available.
 
 
      4.        Increase public awareness, understanding, and support
 
       Undertake a national public education campaign on the benefits of community-based corrections with the Department of Justice, the Ministry of the Solicitor General, provincial/territorial ministries and National Voluntary Organizations working in collaboration.
Challenge the belief system that views punishment as a guarantor of public safety.
Counteract sensational media comments with factual information.
Emphasize the necessity of meeting the needs of victims.
Involve the voluntary sector in developing solutions.
Empower communities through experiences of participatory justice.
Engage the public in major crime prevention strategies.
 
 
      5.        Begin the process of reviewing resource allocation in a major way
 
       Direct and reserve the majority of institutional resources toward the treatment of serious and violent offenders.
Divert resources away from institutional maintenance toward the development and maintenance of community-based programs, infrastructure, ownership and innovation.
Ensure offender access to existing community programs developed for the general public, particularly in the fields of education and employment.
Develop a strategy that involves the community and community-based organizations as partners in corrections.
 
 
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