The faint hope clause puts some of our most violent criminals back on the street. The Conservative government is right to eliminate it.

Spend some time observing the Canadian justice system, and it can be difficult to avoid concluding that it functions to ensure that criminals, no matter how violent or destructive, are returned to the streets as quickly as possible. One of the more galling affronts to decency and basic moral rationality is the “faint hope” clause, which allows those convicted of murder to apply for early parole eligibility – that is, it provides a way for killers to get out of prison early.

Neil Boyd’s September 22 article in The Mark does a masterful job of demonstrating the intellectual and moral incoherency of those arguing in favour of the “faint hope” clause.

It’s easier to win an argument when you fabricate or distort your opponent’s position – which is Boyd’s opening gambit. Feigning affront to Justice Minister Rob Nicholson’s gall in describing the government’s proposal to eliminate the clause as “critical to crime reduction and crime prevention” isn’t difficult. Except that the Justice Minister never made any such claim. Here’s what the Minister of Justice actually said:

Our government believes murderers must serve serious time for the most serious crime … [b]y ending "faint hope" reviews, we are saying "No" to early parole for murders. We are also sparing families the pain of attending repeated parole eligibility hearings and having to relive these unspeakable losses, over and over again.… We are standing up for victims of crime, and we are putting the rights of law-abiding citizens ahead of the rights of criminals.

The Justice Minister has never made any claim about a link between eliminating the faint hope clause and reducing crime because keeping convicted murderers in jail has little to do with crime reduction – it has to do with punishing convicted criminals.

You will rarely come across recognition of that crucial fact in the arguments of those who think it is somehow gauche to speak of punishment. For Boyd, it seems criminal justice and corrections policy can serve only one end: deterrence. One searches Boyd’s piece in vain for even the faintest acknowledgement of the fact that we punish criminals for reasons in addition to this. An incredibly rich body of philosophical thought has explored why punishment of crime, entirely apart from any possible deterrent effect, is morally necessary and psychologically important.

Reducing any discussion of “justice” and “punishment” to a single goal of “deterrence” is not just wretched philosophy, it’s bad law. The Criminal Code describes the following motivations for sentencing: deterrence, denunciation, rehabilitation, the promotion of a sense of responsibility in the offender and incapacitation. Eliminating the faint hope clause is about ensuring that those who commit the most heinous crimes are properly punished and are removed from the community. Its impact on crime reduction or prevention is largely irrelevant. Boyd is advancing a radically impoverished conception of the law.

He engages in obfuscation when he protests that eliminating the clause “will affect only a handful of convicted murderers in any given year.” It is unclear why Boyd regards this as a point in his favour – if all we’re talking about is a handful of killers, why is he so worked up over its elimination? But narrowing the focus here is misdirection. If we look at the numbers in the aggregate, Boyd’s “handful” is actually nearly a thousand convicted murderers who qualify to make an application under the clause. As of April 2009, more than 174 of them had applied for early parole, and 131 of them were granted it. That’s 131 people who committed the most heinous crime our legal system recognizes walking around free before they served the time to which they were sentenced by a duly constituted court of law whose findings have never been challenged as incorrect. If that’s a “handful,” those are some mighty big hands Boyd is wielding.

Furthermore, Boyd elides the important horror of the faint hope clause – while only a “handful” of convicted killers are affected each year, other people who are affected – the families of the murdered – are more numerous. There is a multitude of victims who are gratuitously re-victimized by the faint hope process. The families of nearly 200 murder victims have had to re-live their trauma. But Boyd’s moral calculus does not factor them in.

Bizarrely, he then states that “such legislation certainly wouldn’t enhance the safety of the men and women who work in Canada’s prisons.” This is an implicit admission that the very people the faint hope clause releases into the community are dangerous, even to prison staff. If the people who are being released under the faint hope clause are such a threat to the safety of prison workers, then why is Boyd so intent on making sure these same people have the chance of being released? Won’t they be that much more of a threat to people outside prison? In a perfect distillation of the inversion of rational thought which governs so much of our criminal justice system, the criminals that Boyd thinks are too dangerous to keep in prison are the same ones he thinks should be allowed to apply for release.

By the end of Boyd’s piece, the loop of incoherency is made complete – “it’s fine,” he says, “to be tough on crime – on people who are violent and predatory.” This is an odd concession to make, considering that Boyd was motivated to pen his piece because of his apparent outrage at the temerity of the government in wanting to ensure the system is tough on the most violent and predatory of criminals – murderers.

Murderers deserve to be punished because they have committed the crime of murder. This is elementary reasoning of which Boyd is either entirely unaware or with which he is completely incapable of engaging. Instead he invents arguments which no one is advancing and quixotically jousts against them.