law and order Crime and populism

Michael Adams

The Harper government has made a tough stance on crime one of its showcase positions. Why?

La répression de la criminalité compte parmi les projets phares du gouvernement Harper. Pourquoi, au juste ?

ver the past eight years, the federal Conservatives pragmatic terms: What helps people function successfully have seldom missed an opportunity to show Can- after being punished for a crime? What is cost-effective? Oadians how seriously they take crime and how eager What works? they are to make convicted offenders sorry for their trans- Today, the tone is less pragmatic and more punitive. gressions. Prime Minister Stephen Harper has made punish- “For too long,” Harper complained in Calgary, “our crim- ing crime a showcase priority of his government. He ham- inal justice system was twisted to make the rights and wel- mered this home in his annual summer speech to the local fare of the criminal its central concern. So we said: do the faithful in Calgary this past July. “If, God forbid, Canadians crime, do the time.” Harper’s government posits a sharp are attacked, or robbed, if they lose someone they love to a dichotomy between good Canadians and bad criminals. It murderer, or if they see their children driven to suicide by rejects a technocratic, evidence-based, intellectual approach bullying and harassment... the first thing they want their in favour of a more emotionally satisfying “tough” stance. government to do is not to make excuses for criminals, but It’s clear that something has shifted in the federal gov- to stick up for victims,” reads the Prime Minister’s prepared ernment’s approach to crime. What is less clear is why. Can- speech. “And that is our role.” adian crime rates are low and falling (though Harper has tried This is not empty rhetoric. Since taking office in 2006, to take credit for falling crime rates, the downward trend the government has introduced no fewer than 81 crime long predates his government). Canadians were not and are bills, though only 30 have been passed into law. According not especially agitated about crime; no Willie ­Horton-style to University of Toronto criminologist Anthony Doob, the ­parolee-run-amok case has inflamed public sentiment. Crime effect of these new laws has largely been to lengthen sen- is rarely mentioned by more than 5 percent of Canadians as tences (as with mandatory minimums) or to eliminate chan- the most important issue facing the country. ces to have sentences shortened (as with the elimination of What benefit, then, to today’s Conservatives in de- “accelerated parole review,” a mechanism that could temper parting from the evidence-based approach of both Liberal punishments for first-time, nonviolent offenders). and Progressive Conservative governments since the Tru- Just as Harper uses crime to shape his political identity, deau era? the government is using new rhetoric to describe crime and The answer can be found in public opinion data on criminals. As Doob points out, in the past, legislators of all the discrepancy between the views of the country’s elite political stripes and in all regions — including Progressive ­decision-makers and those of the public. Analysis of years Conservatives and even those governing Alberta — once of public opinion research suggests that during the Trudeau, tended to emphasize concepts such as restraint and balance. Mulroney and Chrétien/Martin eras, as some of Canada’s They also generally described the criminal justice system in core “progressive” policies emerged, Canadians were not altogether enamoured of them. Instead, they deferred to Michael Adams is the founder and president of the Environics elites: a loose coalition of the educated, the urban, and Que- Institute for Survey Research. bec progressives, who were heavily represented in institu-

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tions such as legislatures, government Public opinion was elsewhere en- Progressive Conservatives than it was bureaucracies and the courts. tirely. In 1979, Environics’ Focus Can- the among other parties, at the time Those elites, in turn, deferred to ada survey asked Canadians: “Would of the 1976 vote all three party leaders evidence, including those darn statis- you say that you are in favour of capital favoured abolition.) Thirty-eight years tics so beloved by criminologists. And punishment for certain crimes or are later, however, Stephen Harper has said over time, Canadians have generally you against capital punishment under he favours the death penalty in some warmed to the progressive policies of any circumstances?” Seventy-seven cases, although he insists that the gov- the last several decades — even if they percent of Canadians were in favour ernment will not reopen the issue. were divided about them when they (for certain crimes), while only 19 per- Over time, the public has come to were first introduced. cent were opposed (see figure 1). reach the same conclusion their leaders However, a significant minority Progressive Conservative MP John inflicted upon them in 1976. Support remained unimpressed with the drift Reynolds did not think it healthy to for the death penalty has come down of the country. This minority repre- have such a large gap between public by 24 points over the past few decades. sented an opportunity for populist sentiment and legislative outcomes. In 2010, just over half of Canadians (53 gestures from a party willing to fan After the 1976 vote, he told a CBC re- percent) favoured the death penalty for the flames of public resentment to- porter: “When you’re looking at less certain crimes. Findings on another item ward supposedly out-of-touch, ivory-­ than 50 percent of the House of Com- suggest that, despite slim majority sup- tower experts and their allies in gov- mons — we only had 131 for it — and port for the death penalty “for certain ernment. It is to the segment of Can- pass a law that 80 percent of the people crimes,” Canadians are not clamoring adians who favour “common sense” are against, I think you’re asking for for capital punishment for murderers in over statistics that Harper is catering trouble from the people of this country. general. When asked in 2007, “Which — so far, successfully. They’ll have no respect for the political of the following do you think is the system.” most appropriate punishment for some- n capital punishment, past gov- At the time, however, the public one convicted of murder?” seven in ten Oernments have led rather than fol- acquiesced, or at least they had no ef- Canadians (69 percent) chose “life im- lowed public opinion. In 1976, Parlia- fective way to vote their displeasure. prisonment with no possibility of par- ment decided in a free vote to abolish Progressive Conservative leaders from ole,” while a quarter (24 percent) saw the death penalty: 131 in favour to 124 Robert Stanfield and Joe Clark to Brian the death penalty as most appropriate. opposed. Liberals and Progressive Con- Mulroney and Kim Campbell partici- The drift in past decades toward servatives fell on both sides of the issue, pated in the multiparty elite consen- progressive public policy went beyond while New Democrats were solidly in sus. (Although the desire to retain the crime and punishment. In 1988 the su- favour of abolition death penalty was stronger among preme Court struck down the abortion laws that had been on the books since 1969. The 1969 legislation had permit- Figure 1. Capital punishment for certain crimes, 1979-2010 ted abortions, but required that they be 100 performed in an approved or accredit- ed facility — and only if the procedure 90 had been approved by a “therapeutic 77 80 Favour abortion committee.” Henry Morgentaler and two col- 70 leagues opened a clinic in Toronto 60 that performed abortions outside those 53 strictures, and duly sparked a legal case 50 that proceeded to the Supreme Court. Percent 40 In a 5-2 decision, the Court declared 42 that the law violated women’s rights Oppose 30 under section 7 of the 1982 Charter of 20 19 Rights and Freedoms, which guarantees life, liberty, and security of the person. 10 Chief Justice Brian Dickson wrote that 0 the existing law “clearly interferes with 1979 1981 1982 1983 1987 1990 1993 1997 1999 2001 2002 2005 2007 2010 a woman’s bodily integrity in both a Question wording: “Would you say that you are in favour of physical and emotional sense.” capital pubishment for certain crimes or are you against capital Since then, abortion, now absent punishment under any circumstances?” (“Capital pubishment” changed to “death penalty” in 2002.) from the Criminal Code, has been

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­governed exclusively by the Canada mentalism, shies from any hint of a A pattern is evident here. Public Health Act. Brian Mulroney’s govern- threat to a Canadian woman’s right to opinion in recent decades seems to ment made two attempts to pass new choose. have followed elite opinion in these legislation that would limit abortion A further example of elites lead- seminal cases at least, with support for under the Criminal Code. The first at- ing instead of following public opin- the death penalty eroding over time, tempt was defeated in the House of ion is the issue of same-sex marriage. support for a woman’s right to choose Commons, the second died in the Sen- On the death penalty, Parliament took to terminate her pregnancy increasing ate. The Upper Chamber was evenly the lead. On abortion, the courts cre- and, most recently and most dramatic- divided, which meant defeat for the ated a gap and the Senate ensured that ally, acceptance of same-sex marriage bill. no new law filled it. On same-sex mar- becoming mainstream. The outcome of the Court and the riage, provincial appeals courts called Public opinion on some other legislative process was that abortion into doubt the constitutionality of issues that have been under consider- became totally decriminalized under a marriage laws that excluded same-sex ation in recent years, notably the de- Progressive Conservative government. couples. These shifts at the provincial criminalization of prostitution and ma- In 1990, a fairly slim majority (55 per- level eventually caused the federal gov- rijuana, suggests that these issues could cent) agreed with the statement “Every- ernment to pass the Civil Marriage Act conceivably follow a similar pattern. woman who wants to have an abortion in 2005 (after seeking advice from the Although opinion is not overwhelm- should be able to have one.” By 2010, Supreme Court). ingly on one side in either case (and the three-quarters of Canadians (74 per- Elites were somewhat ahead of the numbers vary depending on the ques- cent) agreed with that statement. Here public when the critical decision on tion wording), over time it is moving again, over time Canadian attitudes same-sex marriage was made — but the toward less punitive approaches. have become more strongly aligned public has come to embrace the policies In 2005, when Environics asked with the policy landscape that leaders that have already been visited upon Canadians: “In your opinion, should created decades ago (figure 2). them. Environics polled Canadians on prostitution be legal or illegal?” 51 If the Mulroney government want- the issue around the time of the Civil percent said it should be legal, up 11 ed to limit abortion but eventually Marriage Act (in 2004 and in 2006) and points from a decade earlier. In July stopped trying, the Harper government found levels of support in the mid-to- 2014 the government introduced refuses to start trying. Although the high 50s (strong support stood at 33 new prostitution legislation, which public was almost evenly divided at the percent in both years). Since then pub- it describes as aiming at protecting time the current policy (or lack there- lic support for same-sex marriage has women from exploitation and human of) emerged, Canadian public opinion become much more decisive: in 2010, trafficking, but which its critics say is has shifted so significantly toward sup- 68 percent of Canadians were in favour needlessly punitive and out of step port for the status quo that the current of the policy, with 43 percent express- with the evidence on making sex work Prime Minister, famous for his incre- ing strong support (figure 3). safer. On the decriminalization of the “personal use” of marijuana, which six out of ten Canadians (61 percent) Figure 2. “Every woman who wants to have an abortion should be support, the battle lines are drawn: able to have one,” 1985-2010 the Prime Minister is on the record saying “it will not happen under our 1985 53 41 5 government,” and the Liberals have committed to opening a debate on 1988 47 37 16 decriminalization, calling for “smart” Mar. 1989 54 40 6 instead of “tough” drug policies. So why, then, do the federal Con- Oct. 1989 58 38 4 servatives swim against the tide? 1990 55 38 7 lthough majorities of Canadians 1991 37 56 7 Asupport each of these so-called 1993 56 37 7 progressive policy measures, majority opinion is not the whole story. A min- 1997 61 35 5 ority has opposed and continues to op-

2000 66 26 2 pose them. Vexingly for that minority, their members find it difficult to gain a 2010 74 22 2 voice in the leadership of the country’s Agree Disagree Don’t know/no answer political parties, even with Stephen

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Harper’s party. not governing on the basis of the latest at as the wishy-washy “honest broker” The Prime Minister clearly sees statistics. We’re governing on the basis status of the kind that helped Lester the political danger of too lustily in- of what’s right to better protect victims Pearson win the Nobel Peace Prize). dulging his constituents’ opposition and law-abiding Canadians.” In the domestic realm, it is evident to mainstream progressive positions in The Conservatives may not be in the government’s approach to crime. Canada. But he also sees the opportun- governing on statistics (at least not the The Prime Minister does not need a lit- ity in playing to the resentments that kind that speak of a declining crime erature review to tell him how to pun- John Reynolds anticipated after the rate), but they certainly do take ac- ish a bad guy. 1976 vote on capital punishment: by count of the numbers on the breadth Harper’s lights, liberals have been “ask- and depth of the backlash against evi- ociologists, including me in my ing for trouble from the people of this dence-based criminal justice practices S1997 book Sex in the Snow, have country” for a very long time. and other such policies. They know been writing about the decline of def- Conservatives are happy to nurture that although in recent decades public erence in Canada for decades now. the resentments that decades of multi- opinion has moved slowly but surely in Little did most of us predict that this party elite consensus has sown, to judi- favour of the old elite consensus, sig- decline would go beyond question- ciously dole out politically incorrect red nificant minorities of the population ing religious patriarchy to questioning meat and to reap the political rewards. remain skeptical of this direction. the elite consensus supported by post- Performing a delicate balancing act of At the federal level, Conservatives Quiet Revolution Quebecers, urbanites, airing minority frustration without are alone in reaching out to those Can- the highly educated, and now Millen- alienating the wider mainstream, the adians who are unimpressed by papers nials. As social psychologist Jonathan Prime Minister has muzzled his caucus from criminologists and uninterested Haidt has argued in his influential book on issues such as abortion, where he in a government that is a dispassion- The Righteous Mind, liberals who focus sees more danger than opportunity. On ate, technocratic machine. In place of on their own objectives of fairness and same-sex marriage, he quickly delivered statistics, the government offers a lead- care while ignoring other “moral appe- a free vote on whether to reopen the er (even a “strict father,” in American tites” (such as appetites for authority issue, and then let the debate die. cognitive linguist George Lakoff’s for- and loyalty, which conservatives tend On crime, however, while he does mulation) who acts on principle and to favour), can develop blind spots that not expend any energy on reviving conviction. This sensibility is evident cause them to foolishly dismiss ideas capital punishment, he has found a in the realm of foreign affairs, where that resonate strongly with plenty of rich populist vein to mine. As Justice the Harper government chooses friends people (see the review article in Policy Minister Rob Nicholson said of the and sticks by them against all comers Options, October 2012. government’s crime policies, “We’re (instead of aiming for what they sneer Those Canadians who believe that an ounce of common sense beats a pound of statistics have felt out of step with the Figure 3. Support for same-sex marriage, 2001-2010 drift of public opinion and public policy for a long time. It is not surprising that leaders who scorn the experts, especially 2001 29 26 11 30 4 academics, hold some appeal for these voters. Whether it’s scrapping the long-

2002 29 27 12 29 3 form census or ignoring criminologists’ claims that thicker bars and higher walls don’t make a safer society, some right- 2003 32 24 10 32 2 of-centre­ Canadians have been relishing their own “just watch me” moment in recent years. 2004 33 25 9 29 4 Yet populism and backlash politics have their limits, as the Prime Minis- 2006 33 23 10 30 4 ter well knows. On a few occasions, the federal government has gone too

2010 43 25 9 20 3 far. Stephen Harper’s 2008 campaign promise to stiffen sentences for vio- Strongly support Somewhat support Somewhat oppose lent youth offenders aged 14 and over Strongly oppose Neither support nor oppose/ played badly in Quebec, and may have don’t know/no answer cost him seats in that province and Source: therefore a majority.

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In the United States, where former Democratic president Bill Clinton said that fear can lead people to prefer lead- ers who are “wrong and strong” instead of right and weak, even conservatives are growing weary of knee-jerk tough- on-crime policies. Many are coming around to accepting the ineffectiveness and crushing cost of having over 700 of every 100,000 Americans in jail at any one time (Canada still has only around 114). And just as the gap between pub- lic opinion and elite-driven policy has provided an opening for conservatives over the past decade, progressives may find their own opening in the gap be- tween the frugality conservatives es- pouse and their damn-the-torpedoes approach to evidence. Opponents of the Conservatives are unlikely to gain much traction by trotting out mounds of empirical data. But if the Liberals or the NDP can show Canadians that tough-on-crime policies ring up large bills and deliver little in the way of increased public safety, they might steal the support of fiscal con- servatives who find the math too com- pelling to ignore. And stealing votes in large enough numbers is a crime that can carry a penalty of up to four years in government. n

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