FFWD Weekly - May 19, 2005

Public anger and alarm have been fuelled recently by the prospect of Karla Homolka’s release from jail, either in late June or early July. Having served in full a 12-year sentence for her part in the confinement, torture and murder of teenagers Leslie Mahaffy and Kristen French in 1991-92, Homolka will be freed to re-enter society. She returns unrepentant, having shown no evidence of either remorse or reform, a fact that influenced the National Parole Board’s decision to deny her early statutory release, usually available to prisoners once two-thirds of their sentence has been served.

Homolka’s release therefore presents us with two scenarios: (a) she reoffends and, presumably, is recommitted; or (b) we watch and wait, perpetually, for her to reoffend. Each day that passes without Homolka selecting another victim cannot be taken as a sign that jail succeeded in reforming her – all it means is that she has yet to pick up where she left off more than 12 years ago.

How do I know this? I don’t, of course. I do know, however, that Homolka’s denial of parole removed any chance for the system to monitor or manage her re-integration into society, keeping her actions under scrutiny at least in the short run. Ontario Attorney General Michael Bryant’s attempt to invoke Section 810 of the Criminal Code, which would limit Homolka’s freedom of movement, may or may not be granted. But even if it is, this will only serve to underline the greater failure of the criminal justice system in responding to the challenge she presents. In short, jailing Homolka has been largely a pointless exercise.

In modern industrial societies, jails serve three basic purposes. First, they remove dangerous offenders from society, thereby ensuring public safety for the period of incarceration. Second, by imprisoning publicly tried and convicted individuals, others are deterred from committing similar crimes for fear of similar retribution. Finally, time spent in jail is supposed to reform and rehabilitate offenders, rendering them fit for release back into society once their sentence has been served.

How do these aims apply in the case of Homolka? True enough, her isolation from society for the past dozen years has been a temporary guarantee of public safety, even if the length of her sentence reflected more the deal struck to secure the prosecution of her former husband, Paul Bernado, than it did the true magnitude of her own role in the deaths of Mahaffy and French.

As for the deterrent effect, it’s impossible to assess if – or how many – other such offences have been prevented. However, criminology studies suggest that the perceived likelihood of detection and arrest is a more significant deterrent at the time of offence being committed than any fear of jail time. At the very least, we know that the threat of imprisonment failed to deter either Homolka or Bernado.

That leaves rehabilitation and reform. For the past two centuries, Canada’s penal system has been based on the notion that it is possible to transform inmates into productive citizens. This was true of Kingston Penitentiary when it was established in the 1830s – its very name reflects the idea that through "penitence" a convict would come to realize the error of their ways. It’s also true of current terminology – "Corrections Canada" implicitly holds faith in the redemptive power of incarceration. As Stephen Duguid argues in Can Prisons Work? (2000), under Canada’s penal system "prisoners are in their own way conceived as ill, as suffering deficits in key areas of either personality or mental structures, or as victimized by thinking or reasoning errors stemming from deprived circumstances." In short, hate the crime, love the criminal typifies Canada’s modern penal ideology.

Compare this to the prevailing approach towards crime and deviance in the United States over the past 20 years or so. South of the border, notes Duguid, a "nightmare world of massive prison construction, lengthened sentencing, rampant executions, and an ever-expanding definition of deviance" amounts to a virtual "war on crime" that does not even pretend to aspire towards prevention or cure, only containment.

This national difference is reflected in the relative rate of incarceration. In Canada, the rate is 116 per 100,000, whereas in the U.S., the figure is more than 700 per 100,000. Between 1980 and 2000, the actual number of prison inmates in America jumped massively from 475,000 to more than two million, a total that now accounts for a staggering quarter of the entire world’s incarcerated population. The cost of maintaining all state and federal penal institutions? More than $40 billion dollars per year.

So far, Canada has resisted calls for a similar "lock ’em all up and let God sort ’em out" approach to crime, harmful as it is to the nation’s longstanding commitment to reform and rehabilitation. Yet the imminent release of an unrepentant and unreconstructed Homolka should and may well force renewed debate on what to do with prisoners who defy that commitment.

"If a person is a dangerous sexual predator and they represent a clear and present danger," said the lawyer for the Mahaffy and French families recently, "they should never be released." Perpetual confinement is one option, perhaps. Others – including a return of the death penalty – may be even less palatable. But as Homolka walks free this summer, calls for capital punishment to be restored are likely to be heard once more.

And those who oppose the idea, I suspect, are going to have to work hard to argue why Homolka should be allowed to live.

(This is Part 1 of a two-part series to be completed June 2.)