Attorney-General Vic Toews may dream of hitting a home run with his "three strikes and you're out" legislation unveiled yesterday, but the U.S. experience suggests he is more likely to be thrown out at home plate.
Three-strike laws have ended up costing enormous amounts of money south of the border, but they produce very little change in crime rates, legal experts say.
"A large amount of research in the U.S. has been overwhelmingly consistent in showing that these changes in sentencing have no effect," said Tony Doob, a professor at University of Toronto's Centre of Criminology.
"In terms of deterrence, it's just nonsense."
Under the proposed legislation, anyone convicted of three serious violent or sexual offences would have to convince a judge why he or she shouldn't be classified as a dangerous offender. If they are unable to do so, they would receive an indefinite jail sentence with a minimum seven years before being eligible for parole.
Prof. Doob said about half the U.S. jurisdictions that embraced three-strike laws over the past decade saw a decrease in crime rates, but the other half saw an increase. He said researchers are nearly unanimous that the fluctuations have no connection to the laws.
"Whether you bring in three-strike laws, or jump up and down and say 'Rumpelstiltskin' three times, it has the same effect," he said. "The fact is that crime will sometimes go down. It has nothing to do with legislative changes."
Most experts instead attribute decreases in the crime rate to factors such as improved policing and the aging process. As the baby-boom generation passes out of a demographic period where crime is most prevalent, crime rates naturally fall.
The government's proposed bill has already been dubbed the "reverse onus bill" on account of the provision that would force defendants to prove they are not too dangerous to be released.
University of Ottawa law professor David Paciocco said this twist may doom the legislation to an early death in the courts. Reverse onus clauses invariably excite suspicion among judges, he said, since they run counter to the presumption of innocence.
"I think that any responsible adviser would have told the Attorney-General and government that this is the soft underbelly of the legislation -- and it is going to be challenged," Prof. Paciocco said.
Prof. Doob warned of another hidden cost of three-strike laws -- defendants who face the prospect of an indefinite prison term will rarely plead guilty, forcing the court system to absorb the cost of lengthy trials.
Prison populations are also bound to swell, said Rosemary Gartner, another U of T criminologist. "After they tried three-strikes in Florida and California, prison rates skyrocketed," she said.
The bill was supported yesterday by police spokesmen, victims groups, B.C. Solicitor-General John Les and Saskatchewan Justice Minister Frank Quennell -- all of whom said they anticipate a greater rate of imprisonment for repeat offenders than is currently the case.
(Under existing dangerous offender provisions, the Crown must apply for a criminal to be deemed a dangerous offender.)
"It absolutely will act as a deterrent," Mr. Toews told reporters yesterday. "It is not unconstitutional, and we have considered it very carefully."
California passed a three-strike law in 1994 and quickly achieved notoriety for throwing shoplifters and small-time fraudsters in jail for life. The Justice Policy Institute -- a U.S. think tank -- later found that in two-thirds of the cases, the offence that triggered indefinite imprisonment was non-violent.
Researchers also found no difference in the crime rate between counties that opted to use three-strike laws and those that did not.
Mr. Toews has avoided the excesses of the California law by focusing on serious third offences. However, Prof. Paciocco predicted that Canadian judges will nonetheless insist on a reasonable connection between any offence listed as a "third-strike" offence and prosecutorial claims that the defendant presents a grave, future danger.
The law will fare better if the list of third-strike offences is short and if they involve a considerable degree of violence, Prof. Paciocco said.