It's All Been Done

A law professor’s ideas have already been tried and are known to be failed policy — writes John Robson

Indictment: The Criminal Justice System on Trial. Benjamin Perrin. University of Toronto Press, 2023. 

CRIMINAL JUSTICE IS one of the parts of government in Canada that are clearly broken. Procedurally it is agonizingly slow, expensive, and unpredictable and it does not deter crime, punish it, or rehabilitate wrongdoers. And Ben Perrin seems just the guy to make original, thoughtful and fundamental proposals for change since he used to be a standard “tough on crime” guy (p. 197) as a standard bare-knuckle right-wing partisan but after a Christian conversion (p. 326) he had second thoughts that led to the book Indictment. Alas, the verdict is that he needs to have third thoughts because the book is a massive, agonizingly woke, unhelpful, and unreflective disappointment.

It was especially disappointing because, contrary to what he seems to think, the approach he takes here is dominant intellectually and practically in virtually all Canada’s official institutions. Recently the official Canadian Military Journal devoted an entire issue to trashing Canada and its military in particular as a nightmarish swamp of “patriarchy, colonialism, white supremacy, heteronormativity, ableism, and classism” where racism “is not a glitch in the system; it is the system” and offering a “feminist intersectional trauma-informed approach to reimagine and transform CAF culture.” That it will result in no soldiers and no equipment and, unless someone else bails us out, the conquest of Canada by foreign enemies who really are that way doesn’t begin to interest the authors calling for things like “meaningful, sustained culture change” based on “a recognition by the white majority of the way in which whiteness organizes lives” and of how “acts of ‘othering’ can result in responses typically associated with post-traumatic stress disorder.”

It may prompt acts of oh brothering, also doubtless patriarchal, heteronormative, and probably white as well. But it’s real and it’s in charge. Including in the legal system, where judges now undergo indoctrination, the chance of someone with any sort of conservative approach to reading statutes or passing sentence being appointed to the bench is minimal, and yet the Law Commission of Canada is advertising for part-time commissioners (with $350 to $500 per diems) who would like to deal with such key issues as “systemic racism in the justice system, access to justice, legal issues around climate change, establishing a new relationship with Indigenous Peoples and rapid technological shifts in the world.” (That the legal system is about the last bastion of the fax machine in Canada makes the last particularly feeble.) 

It’s also the case that most of what Perrin suggests is old hat in the world of judicial reform activism, even if the latest glittering woke coat of paint is fairly new. It hasn’t just been activist or academic orthodoxy on crime for a century or more, it has been governmental orthodoxy since at least the 1960s and it has not worked. To be fair, he does mention that Ruth Morris came up with the term, and idea, of “Transformative Justice” years ago. But of course he invented it independently (p. 203). 

If he had thoughts on why, they might be worth listening to. But he doesn’t even acknowledge the fact, let alone try to explain it. And the fact that he doesn’t realize all this stuff has been tried — and indeed to a significant degree has caused the mess it’s meant to fix — also makes one wonder what else he doesn’t know. And it’s a long list. For instance he rhapsodizes about “Safer communities through 24/7 non-police mobile crisis teams, community-level governance over police services, and enabling people who have been harmed to obtain civil emergency protection orders and longer term protection orders. This means a reallocation of resources away from policing towards non-police responses that are better equipped to deal with a wide range of community needs.” (pp. 205-06) And he favourably cites a Eugene, Oregon non-police mobile crisis team of this sort. (p. 253) But Eugene has a crime rate 63% higher than the American average.

The tone in which he makes various unfair assertions is also offputting. For instance, at one point he quotes approvingly that, “‘The criminal justice system doesn’t know anything about trauma,’ said Myrna McCallum, a Metis-Cree lawyer who has experience as both a criminal defence lawyer and Crown prosecutor.” (p. 11)

Oh really? If you actually talk to the people involved, as he boasts of having done, are none of them aware of the extent to which trauma underlies criminal activity and victimization, heartbroken over it, and frustrated that they can’t make it stop? No judges? No lawyers? No social workers involved in the justice system? No parole officers? Nobody but Perrin and um well this lawyer and prosecutor who does know about it?

He also seems to have no idea that hard drug decriminalization has led, in places like B.C., to a catastrophe for users and communities alike. It turns out that easy access to the thing you’re addicted to is not a great cure for addiction driven by trauma. Mind you difficult access and a life of crime, and somehow finding drugs even in prison is also horrible. But again, he divides the world not into those with good ideas for tricky situations and those without, but into good people like him and a bunch of wretches. And of course it will all be cheaper (p. 323) provided it works. Where have we heard that one before?

For all that, the book is not useless. Its first part makes a number of pertinent criticisms of the system, and its second makes several valuable suggestions, with periodic remarkable insights scattered throughout. But having gone enthusiastically to hear him speak on the book and then ordered it, I would be asking for my money back if I hadn’t been engaged to review it because most of his remedies are both wildly impractical and conventional wisdom, a terrible combination, and he doesn’t even seem to know it.

SO WHAT ARE the book’s strengths? To give credit where it’s due, a key pertinent criticism in Part I is that most of the people who become chronically entangled in the justice system have broken lives, very often due to traumatic childhoods, and our prisons and post-incarceration support systems do not seem to help. And as one example of a surprising and very useful insight he notes, in trying to explain the often repetitively dysfunctional behaviour of such unfortunates, that the conventional trope of a “fight or flight” response to danger excludes two others especially common and significant in those with trauma that can look odd and prove misleading in legal proceedings: “freeze” and “fawn” (p. 12-13).

He is also right that police emergency response procedures are not always ideal in dealing with people who are currently engaged in trauma-driven aggressive criminal conduct and frequently also hammered. So yes, a major problem with law enforcement, and not only here, is that it treats symptoms and not causes. But it’s not exactly news, and as one who wears his compassion on his sleeve Perrin especially ought to have some sympathy for those who must, at considerable personal risk over and over in a highly stressful profession, deal with those symptoms whatever else might then happen.

On the other hand, he is right that a related problem with getting tough on crime is that while it makes good intuitive sense, especially if you grasp that incentives matter, to ensure that “Crime does not pay,” most chronic criminals are very short-sighted people. As the lead character in the old TV series “The Rockford Files” responded, when told that when the villains thought twice they’d change their behaviour, such people don’t think twice. If they did, they’d be in a different business. (I quote from memory and without being able to find it online.) And trauma doesn’t improve the matter, especially in a crisis.

Years ago at the Macdonald-Laurier Institute I had the pleasure of working on crime issues with Scott Newark, who repeatedly said instead of being “tough on crime” or “soft on crime” we should try to be “smart on crime.” Also valid and also, as Kenny Stabler used to say, “Easy to call, hard to run” because a sad result of being smart on crime is recognizing that it is an intractable problem and not because of the cruelty or other self-inflicted blindness of those in authority. If crime results from broken lives, fixing crime means fixing or preventing broken lives. But only a fatuous analyst would suggest that either is easy or in many cases possible.

It’s not that ideas like restorative justice and rehabilitation aren’t good. On the contrary, just about everybody knows it and favours them. The hard part is making them work. Which doesn’t mean we shouldn’t try. But it does mean we should do so in a compassionate, open-minded, and yes humble way, including setting limited initial goals and working our way toward utopia one successful step at a time.

A practical if partial solution is to make punishment swifter because the certainty of long-term consequences has little influence on most criminals. Instead, trials drag on for years and sentencing is both light and arbitrary. But Perrin isn’t making that kind of recommendation. On the contrary, he has achieved full woke cosmic awareness and would deal with crime by totally changing everything so it wouldn’t be an issue.

#MeToo. Black Lives Matter. Defund the Police. Decriminalize Drugs. No More Stolen Sisters. These aren’t just slogans, protests, and movements. Discontent about the criminal justice system is not only a growing social and political force — it’s backed up by statistics, reports, inquiries, commissions, and scholarly research that is shaking its very foundations. (p. 21.)

The first warning sign that the book is not going to be useful or sensible is his parade of references to a settler-colonial legal system, “lived experience” and other woke terms. In his Ottawa talk I thought a few scattered mentions might be an attempt to meet critics half way. But in the book it becomes clear that he doesn’t do half-way. Indeed, for all his talk of inclusion, and the supposed compassion of this avowedly transformed soul who in his “journey” has “found freedom and peace in Jesus Christ,” in his world you’re either with him or in the outer darkness, just as in his bad old days.

There’s an element of unreality about it including that aboriginals seem to have no failings, except those imported from or inflicted by whites. In fact one becomes uneasy early on with his constant parade of virtuous, noble, non-binary, spiritually reconnected aboriginal criminals. As with a book by a noted Canadian feminist I read decades ago in which it felt as though every woman she liked was described as smart, funny, and down-to-earth, Perrin exhibits a curious lack of genuine empathy, a tendency to regard humans as cardboard cutouts in a spectacularly unsubtle morality play, not as individual people with real individual strengths, weaknesses, and quirks.

He seems to believe that whites have no virtues unless they wear sack-cloth and ashes and go fully woke, like him: “I’m a white male law professor and a settler.” (p. 5.) If not, well, his outer darkness is dark indeed. “The settler colonial criminal justice system does not, and cannot, adequately serve Indigenous peoples, no matter how many tinkering reforms are made. A wolf may dress up like a lamb, but it will still behave as a wolf when free to roam among the flock.” (p. 149)

Oh dear. There’s no fixing it. We must destroy it. But then what? At one point he even seems to have problems with crime being an offence against the state rather than private individuals, which he traces back to Henry II. (p. 185.) But if we’re going to go back to the other system, are we talking private vengeance? Or are we just vaporing? As to solutions, my time machine is broken and so is his, so lamenting various aspects of our history, which he does in an exceptionally one-sided way, is not a practical solution. 

IT GETS WORSE, because this kind of cosmic awareness comes at a high price including a kind of analytic paranoia that cannot fail to result in malicious assessments and prescriptions. He writes that “‘Every system is perfectly designed to get the results it gets.’ This simple but powerful idea explains the pervasive and insidious nature of the problems plaguing the criminal justice system.” (p. 193.) Or it expresses the pervasive and insidious nature of left-wing ideology, which denies the very possibility of human error and attributes all mankind’s difficulties, from poverty to war to crime, to deliberate malice. Yet surely a true Christian, of all people, ought to recognize the existence of human frailty. Including, dare I say it, in oneself?

Nope. Not happening. Instead he regards Canada as an irredeemably illegitimate racist project and praises aboriginal systems of justice (see for instance p. 141, where he seems to favour segregated prison systems, and p. 302, where he apparently agrees with all-aboriginal courts, law-making bodies, etc.) without seeming to have any knowledge of or interest in how, say, the Mohawks actually dealt with transgressions against the community prior to European contact. They did not, for instance, have jails, so it’s a little hard to tap into their traditional wisdom on the subject.

He also doesn’t even try to explain to benighted chumps like this reviewer how such a system could coexist practically with one for white people. It shows just how far he’s plunged into identity politics that he doesn’t address why, if the aboriginal way really is better, we shouldn’t all adopt it. And he also doesn’t mention what to do with the mixed-ancestry people who are very common nowadays. Which laws would apply if an aboriginal assaulted a non-aboriginal, for instance, or vice versa. Or whether black persons if convicted would go to aboriginal rather than white jails or alternative institutions, or whether they’d get their own purely black set under a comprehensive, multi-tiered system of legal apartheid. 

At one point he writes approvingly “‘For racialized folks, for me, the starting point is that this was a system that was never designed for racialized people, and Black folks in particular,’ said Brandon Rowley with Nova Scotia Legal Aid.” (p. 133). And if it had been, how would it be different? How exactly do you design a justice system suitable to um uh whatever it is that makes blacks different from whites, whether or not they also differ from other “racialized” people.

Which brings us to his remedies. And again there are a few genuine insights that only create more false promise followed by bitter disappointment. For instance Perrin makes the legitimate point that prisons should not be horrible places. It’s easy to take the opposite view, explicitly or tacitly, on the grounds that people convicted of serious crimes have mostly done pretty bad stuff and do not command our sympathy. 

Perhaps they would if we better understood their past and its traumas. And not everyone in prison is guilty. But prisons are expensive enough, and law-abiding folks are having enough trouble making ends meet, that it’s easy to summon a grumpy populist response about not coddling them if anyone suggests treating inmates better.

Naturally the public is not sympathetic to lavish spending on prisoners, especially when we are going through hard times which seems to be just about always. Nobody will care if Paul Bernardo is fed stale cheese sandwiches until he dies and the sooner the better. But if we really intend to inflict harsh treatment routinely, as a matter of at least informal policy, it should be part of the formal sentence. And if not, is there any reason the kinds of work programs in a jail should not include being able to make better food, furniture, and so on if they choose? Even for people who are never getting out? What exactly is the point, other than petty vindictiveness?

Prisons are necessary because prison sentences are necessary for some people to keep them from harming others, however they got there. And some of them need to have very strict measures to prevent the occupants from escaping and also from inflicting mayhem on one another because, however they got that way, they are often very dangerous people. But none of that is to say they must be, or even should be, dehumanizing places.

IT DOES NOT service justice or rehabilitation. Indeed when you are sentenced, it is to incarceration, not to mistreatment of other sorts. You are not sentenced to eat bad food, live in constant stressful danger, or be bored in surroundings with all the charm of an underground parking garage. On the contrary, our fundamental law rejects the notion of torture, and we no longer even sentence people to hard labour. And if we do not do it in principle, to do it in practice simply adds hypocrisy to all the other drawbacks.

Perrin even suggests that, as in Norway (p. 286), prisons could behind secure walls have something of a park atmosphere except for the bit where the furniture is securely attached so it can’t be weaponized. And it seems a very sensible proposal, not only for those whose crimes while serious do not indicate that they can never become useful free citizens again but also for those who, though entitled to the basic dignity of all those made in the image of God however they behave, must never emerge.

Unfortunately the kind of vital insight totally missing from the book includes a key practical point that I asked him about, to no avail, in his Ottawa talk. It’s the crucial and powerful insight, or rule of thumb, from the economist Vilfredo Pareto that 80% of anything, good or bad, is done by 20% of the people. 

It’s surprisingly consistent across activities and places, on everything from income earned to work done in an office to crimes committed. And the justice system would function at least marginally better if it focused rehabilitation on the 80% who are in trouble and incarceration on the 20% who are trouble. It’s all fine and good to say both are often victims of trauma. But if the consequences are very different in some cases, and they are, it’s no good just wishing the world were different. 

Ruth Morris, who inspired him, wanted to get rid of prisons. What an insane concept. Though if this this book is, in part, preparation for returning to his once-glittering political career as precocious Preston Manning protégé, Supreme Court law clerk, and special advisor to Prime Minister Stephen Harper — though from a very different angle — such an approach may burnish his political credentials.

Not in my view his intellectual ones. For instance, it also does not seem to occur to Perrin that the police are not well-positioned to carry out gentle, thoughtful social work while rushing from one 9-1-1 call to another encountering one hostile, out-of-control person after another whose conduct is manifestly dangerous to others and to themselves due to problems the cops didn’t cause and can’t fix. Indeed, they might even become jaded. And being underfunded, overstretched and constantly insulted is unlikely to improve their mood or the sensitivity of their conduct in a crisis. 

Nor is it clear that it would be safe for the rest of us to demand that they try to, as recent experiments in defunding and otherwise incapacitating the police in American cities has starkly revealed. In Canada, too, crime really is a massive problem and it’s not fair to the victims. As Perrin himself notes, “One in five Canadians are victims of crime every year, according to Statistics Canada, with 8.3 million reported criminal incidents.” (p. 158). Which dramatically understates the problem because, as he also concedes, “the majority of criminal incidents go unreported to the police” (p. 160). 

IT'S ALL FINE and good to wish criminals, most with tragic pasts, could be healed by more gentle treatment. But what if they can’t? Do we just let them rampage and traumatize more people who in a vicious circle then become criminals, before themselves coming to a sorry end? At one point he mentions (p. 17) the insight, or cliché, that “hurt people hurt people.” But while it seems to be true and should inspire sympathy, it must not blind us to the fact that they do hurt people and that those people deserve protection, both inherently and so they won’t in turn become hurters. It’s a difficult situation. And what if none of the options is very attractive? 

Perrin says, on p. 112, that even the Supreme Court has recognized that prison is often “a finishing school for criminals” not a place of rehabilitation. Which it is, and which is very bad, and all decent sensible people wish it were otherwise. But the alternatives are not jailing people convicted of serious crimes, which fails to deter, protect, or satisfy the very strong human desire for condign punishment, or imagining a world with prisons quite unlike our own that nobody knows how to create and retreating into that fantasy.

Perrin chooses the latter option — again a remarkably common and anti-useful progressive approach to real-world problems. Instead of facing hard and often unsatisfying tradeoffs he achieves full cosmic awareness, saying (for instance, p. 205) if we could fix poverty, addiction, and child abuse the crime problem would be far less problematic. Which is indeed true, in the same sense that it would have been easier to win the Second World War if Germany had not been on the Axis side. And that I could dunk a basketball much more easily if I were 6’10” and under 30. So what?

The old conservative Perrin (if he ever really existed) might have been better placed than the new improved one to grasp Thomas Sowell’s key insight that “reality is tricky.” There might be no easy, effective solution to lives gone wrong. Not just those that end in crime; there might despite the best will in the world, lots of funding and a great big pile of academic studies and accounts of “lived experience,” be no simple or reliable way to end deprivation, drug use, and family violence. 

It is very easy to tell someone else how to fix their problems and their character. It is a lot harder to get them to do it as, indeed, it is a lot harder to mend our own ways than to give helpful advice to others. And try getting even a non-criminal alcoholic to stop drinking. 

His default direction is to veer into the banal. He begins Chapter 11, “A New Vision,” by saying, “It is far easier to tear down than to build up.” (p. 201). But instead of basing his analysis on this obvious point, Perrin makes prescriptions that are old and tired and while they sound convincing (and it would be genuinely heartwarming if they worked) trying them for decades because they sound good has not brought good results. Like so many on the left, he seems oblivious that these policies have been tried by supposedly enlightened governments in cities all across North America for a half-century now. 

For instance, he makes a big hoo-hah about disproportionate rates of aboriginal incarceration. Well, yes. It is a tragedy and we all know about it. But the tragedy isn’t that some racist system is framing people. It’s that there are very high rates of crime in aboriginal communities driven, in large measure, by trauma and addiction. And the victims, overwhelmingly, are themselves aboriginal. Which means that to fail to separate out violent repeat offenders would not be compassionate, nor would it break the cycle. It would just create even more hurt people who then hurt people.

If someone (in Perrin’s world, definitely a man) regularly gets drunk and beats his girlfriend, are we to keep him away from her or not? Since he also says women and minorities are hardest hit (p. 159) you’d think it was another example of the tension between more trauma-informed responses to criminals and preventing trauma, or more trauma, to victims. Instead when discussing criminals he asks why they aren’t treated more gently, then in discussing victims he demands to know why they aren’t protected better (see, for instance, p. 155). But you can’t have it both ways; either the police respond aggressively to 911 calls, and the system to convictions including for domestic violence, or they don’t.

STILL, HE DOES want it both ways. And in both cases, the reader gets no points for guessing that the explanation is “settler-colonial racism.” Even though, as he says, the Supreme Court ruled years ago that aboriginals should get lighter sentences than non-aboriginals, not heavier ones as a “settler” system would presumably mandate. Although treating crime against aboriginals as less serious than other kinds is arguably “structurally racist” — a point he ignores when discussing aboriginal criminals, then rediscovers, in a gingerly fashion, when discussing aboriginal victims.

The weirdest thing about the book is its broad, off-putting streak of intolerance. To hear Perrin tell it, he was once that way in his smug partisan Conservative days but repents himself of it; his confession quoted above about being a “settler” continues: 

I have had challenges in my life but have also benefited enormously from that privilege. I’ve also been educated and indoctrinated into the Canadian legal system at some of the country’s top law schools. I’ve spoken at judicial conferences at five-star hotels. I’ve attended beautifully catered Cabinet meetings on Parliament Hill. I’ve sat fireside at the Supreme Court of Canada listening to great speakers. I’ve schmoozed at academic cocktail receptions. The food I ate at such events surpassed what is served at many weddings. These are elite places that exclude the people impacted by the criminal justice system whom Harold [a downtrodden aboriginal Harvard-educated lawyer] calls on us to welcome inside and hear from. (p. 5.)

So back in those days he despised the people he now admires. Fine. But now listen to this scathing dismissal of those he does not: 

Most corrections officers under the status quo certainly couldn’t be expected to adapt to a new approach based on rehabilitation and healing. It is a bridge too far. I heard time and again that no amount of policies or directives make a big enough difference in corrections. Instead, it is necessary to disband federal, provincial, and territorial corrections departments and staff. Start fresh with new people, not tainted by the status quo. This is controversial, but necessary. Organizational ‘culture,’ as it is often called, runs deep and is rarely amenable to reform. Many of these status quo staff and employees, particularly corrections officers, will need their own support to recover from these jobs where they too experienced trauma, and they should be provided that help. They will need to receive educational opportunities and retraining to take up new jobs in other fields. We will all be better for it, including them. (pp. 328-29)

As with Eustace in C.S. Lewis’s The Voyage of the Dawn Treader, a source that should appeal to the new Perrin as a self-proclaimed redeemed Christian, it seems it’s easier to wish away the dragon’s hide than get it off oneself. And the apparent bottom line is that his substantive opinions have changed dramatically. But not his conviction that anyone who disagrees with him is essentially human debris.

By the end, I felt cheated by this book. Not just cheated of its significant hardcover purchase price, but of the thoughtful, helpful, and compassionate rethinking and redesign of its criminal justice that Canada unquestionably needs. 

This article first appeared in the Vol. 14, No. 1 Spring 2024 print edition of The Dorchester Review, now a quarterly. Subscribe to try out the superb print edition!