Statutory Release

​The recent shooting of a Vancouver Transit Police officer caused a great deal of tension in the community. Not only was a gunman on the loose for several days, creating a sense of fear in the Lower Mainland, but the alleged attacker was also so comfortable with a weapon that he was willing to use it on a police officer.

Police are not often shot in Canada, thankfully. That fact made the idea of someone on the loose who had allegedly shot a police officer that much more troubling.

As details about the shooting and the suspect emerged, however, the conversation changed from one of how horrible it was that a police officer was shot, to one of how horrible it was that a man who had already taken a life was loose on the streets, able to try to do it again.

And that brings up the difficult topic of statutory release.

Statutory release in Canada is given to all people who are incarcerated, except those serving life sentences and those who are serving indeterminate sentences. Essentially, after serving two thirds of a jail sentence, an offender is automatically released into the community on conditions and is monitored. So long as the offender abides by these conditions, there are no problems.

There are good reasons for statutory release. First, it helps with the important process of reintegrating people who have been incarcerated back into traditional society. It helps connect people to the community while still providing them with the same type of structure they may have become accustomed to in prison. It also allows people who are reintegrating to be monitored to ensure they are suitable to be in the community.

But there’s another reason why statutory release is important. And it’s one we do not generally
want to talk about.

Statutory release is necessary because of overcrowding in jails. Canadian jails suffer just as much from overcrowding problems, and in some cases more so, than our American counterparts. We have fewer institutions, but still a healthy number of people sentenced to jail. This has not been assisted by the significant number of offences which carry mandatory minimum jail terms.

So jails cannot house all these inmates. And one way to shuffle them out is to provide a statutorily mandated form of release that keeps the flow of the prison population moving out the door, and back into society.

In principle, this is a good idea. But as we can see from this recent case of a shooting in Vancouver, it can also come with dangerous results. And as soon as the public learned about the fact that the alleged shooter was out on statutory release at the time of the incident, there began to be a public outcry about the viability of statutory release.

But let’s not be too quick to discount this important system that achieves necessary goals in our
criminal justice system.

First of all, most people who are granted statutory release do not leave jail and reoffend. Most people out on statutory release work hard to get their lives back on track. And so taking away their right to be released early from prison and a mechanism that puts them back in society in a positive way unjustly punishes those who reap the rewards of this laudable program. Secondly, statutory release makes jails safer for inmates as well as those who work there. We should not make jail a place that is both harrowing to live and harrowing at which to work.

Instead, let’s try pointing the finger of blame where it properly lies: at the very mechanisms that made statutory release a necessity in the first place. By this, I mean the incarceration of non-violent offenders and people with little to no risk of reoffending.

Mandatory minimum sentences serve one goal and one goal alone: putting more people in cages. They do not deter the population generally. Social science research has time and again found that mandatory minimum sentences do not achieve the goal of general deterrence and that such a goal is really more theoretical than realistic. Many offences for which there are mandatory minimums, or for which those have been recently struck down, have been non-violent offences.

And then there are the jail sentences for non-violent offences generally. Look at impaired or dangerous driving as a good example. An impaired driving causing bodily harm or dangerous driving causing bodily harm offence generally carries with it a jail sentence. The range usually starts at a few months and ends at a few years. While there are instances of impaired drivers avoiding jail terms in cases of accidents with serious results, these are few and far between.

But why are jail sentences necessary?

​One need look no further than the sentencing for the Humboldt Bus Crash that has captivated Canadians’ attention of late. The decision will come in mid-March. In that case, the Crown is suggesting a sentence of ten years jail. The defence could not put a number on it, but agreed that jail was appropriate.

Locking up the truck driver in this case will not deter other individuals from driving in that manner in the future. People are going to be distracted. People are going to miss stop signs. Locking up the truck driver in this case will not deter him from ever doing this again. I imagine that having been through what he’s been through he has no desire to drive again and probably emotionally struggles with that concept. it serves no purpose whatsoever.

But when we lock away people like the driver in the Humboldt case, and when we lock them away for a decade as the Crown is suggesting, we necessarily take space away that could be used to house someone who does need to be separated from society to protect the public. And we make the system rely on concepts like statutory release to ensure there is no prison overcrowding and that the conditions in the prison are more humane.

When we lock up non-violent, remorseful individuals with no criminal history and no potential for reoffending we necessarily create a system that lets out violent criminals who pose a risk to the public.

And I wish people would think about that the next time they complain that a violent criminal was released, or that a first-time impaired driver should go to jail.

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