Conrad Black and the rights of the convicted

Conrad Black has been a strong critic of the federal government’s criminal justice reforms. He makes several good points in this National Post op-ed, but the most important point is found in these two paragraphs:

I believe in the exercise of liberty by apparently responsible people up to the limit that their exercise of liberty does not compromise the right of others to the same liberty. In a statutory framework, such a principle argues that judges must have reasonable discretion to assess guilt and balance punishment with the desire to encourage, where practical, the swiftest possible successful return to normal life of convicted people who are judged to be a threat neither to society nor the physical safety of anyone.

In the case of all but the most dangerous, repulsive and sociopathic criminal acts, places of detention should aspire, if they are not just transitory holding tanks, to be repair shops and not garbage dumps. Accused people must genuinely be presumed to be innocent, and convicted people who have served their sentences must genuinely be presumed to have paid for their misconduct.

I can sum up his point by saying that in a free society both the accused and the convicted still have rights. True justice is not merely the punishment of someone who has done wrong. Justice is a balancing act between compensating for the victim’s rights that have been violated and the guilty party’s rights.

To recognize that someone has rights is to recognize their basic humanity. For all those that think I am merely being a “bleeding hear libertarian,” consider the estrangement from society that a convicted man would feel if we deny his humanity. Do you think that this will cause him to have a greater respect for others once he has served his time? Society will not be safer by mistreating convicts.

Of course at the same time a convict should be penalized for the harm that he or she has done. A proper legal system would ensure that the punishment is appropriate for the amount of harm that has been done. We have two basic mechanisms to ensure that competing rights are balanced in a criminal case. The first is precedent and the second is the person of the judge.

Mr. Black correctly claims that a judge is generally more able to make just sentencing decisions than a distant legislator:

The roadmap’s ambition to take sentencing latitude away from judges (which already has been partly enacted) is a usurpation by the legislators of the judicial function. The judge administers the evidence and monitors the case and knows the facts.

Of course, the intelligence and fair-mindedness of judges vary widely, and some are hopelessly miscast (I know something about that, too, in both the United States and Canada). But they are virtually all better qualified to try a case and bring down a sentence than uninvolved legislators shooting arbitrarily from the hip before the fact.

Legislators may establish a range of sentencing that faithfully reflects an enlightened public level of concern at certain offenses, and these fluctuate over time. But it is not the role of the legislator to impose an iron-clad prejudgment of penalty of every convicted person, regardless of the detailed facts and of considerations of tempering justice with mercy.

As Mr. Black points out putting trust in judges is not a perfect solution. The degree of justice received can greatly depend on the capabilities of a particular judge, thus creating an imbalance of justice in the system. Still the one size fits all sort of solutions that can be offered by Parliament would do nothing to help this problem. If anything it creates even more injustice by not being tempered by the particulars of a case.

There are plenty of ways to improve our justice system, I am sure. But taking sentencing out of the hands of judges is most certainly not one of them.