Tag Archive | "Canada"


Mass Incarceration at Home and Decarceration Abroad


Around the world, there are around ten million people in prison at any given time. While the world’s criminal justice systems struggle to ensure access to legal representation, a fair trial, and freedom from torture, some countries have been more successful than others. Other western countries are moving toward decarceration,[1] but politicians in the United States have been slow to recognize the devastating effects of the United States criminal justice system.

In the United States, over the last 40 years there has been incredible growth in the prison population. In 1972, United States prisons contained nearly 170,000 inmates; by 2012, prisons housed 1.5 million inmates. This 705 percent increase resulted from tough on crime laws and an increase in the number of criminalized activities. Michelle Alexander, author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness, explains that not only have prison rates increased, they have disproportionately affected people of color, particularly black men. Not only is the United States quickly becoming famous for its “mass incarceration,” as Professor Alexander points out, it has stunted the social and economic wellbeing of low-income communities and communities of color. Ironically, studies have actually found that mass incarceration has not enhanced public safety.

Recently, there has been a shift in public opinion around incarceration. In 2012, a plurality of the United States public believed that too many people were in prison. In an effort to reduce the prison population, last October the Justice Department committed to releasing 6,000 inmates through reducing sentence lengths. President Obama has also commuted the sentences for the most individuals in recent history, a total of 348. Currently, mass incarceration is a leading issue in the presidential race as both republicans and democrats have criticized incarceration rates.

The rate of incarceration in the United States, compared to other nations, is more than five times higher. However, similarly industrialized nations have comparable crime rates.  A fundamental difference is that the United States interprets punishment to mean incapacitation and retribution, whereas other jurisdictions focus on resocialization and rehabilitation.

Germany and the Netherlands are examples of countries that focus on rehabilitating offenders. In the United States, the average rate of incarceration is 716 per 100,000 residents, whereas Germany’s rate is 79 per 100,000 residents, and Netherlands’ rate is 82 per 100,000 residents. Both countries primarily utilize non-custodial sanctions and diversion. Generally, other Western democracies use fines as the primary sanction. Compare this with the United States where 70 percent of convicted offenders are sentenced to a prison term for at least part of the sentence.

The German Prison Act states that the “sole aim of incarceration is to enable prisoners to lead a life of social responsibility free of crime upon release.” While the Netherlands’ 1998 Penitentiary Principles Act focuses on re-socialization. Notably, “prisoners are encouraged to maintain and cultivate relationships with others both within and outside the prison walls.” While prison sentences are utilized in Germany and the Netherlands, the length of prison terms are also generally much shorter than those in the United States. There are also fewer mandatory prison sentences. The United States sentences offenders to lengthy prison terms and makes more use of the death penalty compared to other Western democracies.[2]

While incarcerated, prisoners in Germany and the Netherlands are treated differently than United States prisoners. Because rehabilitation is the primary goal, prisoners are allowed to wear their own cloths, prepare meals, learn job skills, and continue their education. The prisons themselves are designed with a lot of windows, lights, and wide hallways. Prison staff are trained similar to social workers and behavior specialists. Whereas the United States’ imprisonment method is principally punitive. To a degree, the United States’ method has become an American export. The supermax model originated within the United States and by 1999, there were 57 supermaxes in 34 states. This supermax model has now appeared in nine countries, including Brazil, which has one of the fasts growing prison populations. Supermax prisons utilize solitary confinement, largely eliminate common areas, and restrict prisoner interaction.

While Germany and the Netherlands provide a useful example of what the United States could aim for, Finland demonstrates a change theory for decarceration. In the 1950s, Finland had a rate of incarceration of 200 per 100,000. For the time, this was three to four times greater than other Nordic countries and nearly twice the United States’ incarceration rate.[3] Finland experienced a cultural shift toward penal severity, minimum sentencing, and severe sentences for common crimes.[4] By recognizing the limited capabilities of traditional imprisonment, Finland initiated several legislative and policy reforms. Finland’s movement toward decarceration critically relied on an ideological shift. The implemented reforms included reducing penalties, using noncustodial alternatives, and sentencing options designed to reduce the number of offenders sentenced to prison.[5] By introducing more gradient-based sentences and increasing the use of community service sentences, Finland was able to reduce its prison population.

Finally, an issue related to the criminal justice system in the United States, beyond incarceration itself is the collateral consequences of conviction. Professor Alexander reported that these collateral consequences include restrictions on access to social services, housing, employment, and the right to vote. Collateral consequences contribute to the recidivism cycle that also plagues the United States criminal justice system. In Germany and the Netherlands, however, ex-offenders retain their rights to vote and access to certain social services. This is not surprising though, as the United States does not prioritize social services in the same way as other Western countries and spends less on these programs.[6]

Change will not come quickly to the United States criminal justice system, but as Finland demonstrated, change is possible. Incarceration rates in the United States have begun to slow, albeit they are not yet declining.[7] Further, a recent bipartisan publication, with contributors including Vice President Joseph Biden, Hillary Rodham Clinton, Marco Rubio, and Ted Cruz, proposes changes to address the problem of mass incarceration in the United States. In appeal to this attention, the United States should take the steps recommended by the Vera Institute of Justice. First, expand prosecutorial discretion to divert offenders. Second, reduce the reliance on incarceration as a first response and expand the use of community-based sanctions. Third, adapt the disciplinary structure and expand the menu of sanctions. Finally, normalize the conditions within prisons. These steps will require significant dedication to reform; however, it may yet be possible.


[1] Douglas B. Weiss & Doris MacKenzie, A Global Perspective on Incarceration: How an International Focus can Help the United States Reconsider Its Incarceration Rates, 5 Victims & Offenders 268, 270 (2010).

[2] Matthew B. Kugler, Friederike Funk, Judith Braun, Mario Gollwitzer, Aaron C. Kay, & John M. Darley, Differences in Punitiveness Across Three Cultures: A Test of American Exceptionalism in Justice Attitudes, 103 J. of Crim. L. & Criminology 1071, 1074 (2013).

[3] Weiss & MacKenzie, supra note 1, at 275.

[4] Id. at 276.

[5] Id.

[6] Id. at 273.

[7] Id. at 269.

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Canadian flag.

Critical Analysis: Canada’s Involvement in the War on Terror

When people think of Canada, they generally do not think of its intensive involvement with counter terrorism measures. In fact, most Canadians also do not consider Canada to be highly involved in the international “war on terror.” However, recent events have brought increased attention to Canada’s extensive involvement in anti-terrorism measures and have called Prime Minister Stephen Harper’s recently proposed anti-terrorism legislation into question.

First, on October 20th, 2014, Martin Couture-Rouleau struck and killed Warrant Officer Patrice Vincent with his car. He was pursued and later gunned down. Prior to the hit and run, Couture-Rouleau was placed on a terrorist threat list and his passport had been confiscated earlier due to fears that he would travel abroad to participate in extremist militant activities. Friends close to Couture-Rouleau stated that he had recently converted to Islam. Apparently, he was also going through an intensive bought of depression. As his depression deepened, Couture-Rouleau turned increasingly inwards and towards online networking sites. Although he was a recent convert to Islam, he did not appear to receive any direction from any extremist groups beyond a recent call for individuals to pose attacks on countries that have become more involved in the war on terror such as the UK, Canada, France, the US, Germany, and Australia.

Canadian flag.

Canadian flag. Image courtesy of Wikipedia.com.

Only two days later, Canadians were shocked and horrified when Corporal Nathan Cirillo was shot and killed at the National War Memorial in Ottawa on Parliament Hill. Michael Zehaf-Bibeau, a Quebecois native, next opened fire slightly north of the National War Memorial in the Centre Bloc of Canada’s Parliament Building. Some reports say that he fired as many as 50 shots before Sergeant-At-Arms Kevin Vickers took down the gunman. Michael Zahaf-Bibeau presents similar issues as Martin Couture-Rouleau. Although he was also operating alone and without any direct orders from Islamic terrorist organizations, Zahaf-Bibeau was also a recent convert to Islam, but as with Couture-Rouleau, there were other mental health factors at play. Zehaf Bibeau had a criminal record and had been staying at a homeless shelter prior to the shooting. He had apparently also been psychologically unstable, experiencing delusions relating to government surveillance and engaging in heavy drug use. These issues cause questions to arise relating to how an unstable individual was able to gain access to a firearm.

Prime Minister Stephen Harper has referred to these two unrelated attacks in a consolidated context. He is promoting a new piece of legislation, Bill C-13, which is similar to the U.S. PATRIOT Act. The House of Commons voted to pass the bill on the same day of Michael Zahaf-Bibeau’s attack. The bill is still subject to a vote from the Senate, but it is likely that the Senate will not impede its implementation. Bill C-13 is similar to the PATRIOT Act in that it calls for police to have increased pre-emptive detainment powers and the power to revoke passports of individuals to restrict their ability to travel internationally. These measures go directly against Canada’s Charter of Rights and Freedoms, which guarantees Canadians the right to “enter, remain in and leave Canada.” Bill C-13 also confers increased investigation powers upon police such that they may seize data related to all telecommunications. Many are angered at Prime Minister Stephen Harper’s decision to implement and fight for the bill given Canada’s extensive counter-terrorism safeguards and accuse PM Harper of using the recent attacks as a means to push his security agenda. Proponents of the bill argue that these measures are simply required in the face of modern terrorist tactics.

As with most controversies, the truth of the matter can likely be found somewhere in the middle. On one hand, the terrorist group known as ISIS likely partially motivated both of the attacks when they issued their call to action. On the other hand, these attacks were largely unrelated and executed by mentally unstable individuals. Likewise, the passing of the anti-terrorism bill may not be as bad as it has been made out to be, but it does appear to be somewhat inconsistent with the rights granted in the Canadian Charter of Rights and Freedoms. It remains to be seen how these controversies play out, and how Bill C-13 will operate upon its implementation.

Katie McAuley is a 3L law student at the University of Denver Sturm College of Law and Candidacy Editor for the Denver Journal of International Law and Policy.


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Critical Analysis: The 20-Year Anniversary of NAFTA

How did you ring in the New Year?  Did you raise a toast to the 20th anniversary of North American Free Trade Agreement?  Probably not, but January 1, 2014, marked the 20th year of NAFTA’s existence.  NAFTA is one of the largest trading blocs in the world and thus still remains a relevant point of discussion when evaluating United States (U.S.) trade policy.

In many ways NAFTA did just what a free-trade agreement is primarily aimed at accomplishing: increase trade.  Today, trade between Mexico, the U.S., and Canada has increased by 3.5 times the levels seen in 1994.  In 2010, the U.S. had $918 billion in trade with Canada and Mexico.  Mexico has become a major automaker.  It now produces 3 million vehicles per year, an increase of 50% since 1994.  Finally, the U.S.’s and Mexico’s investment in Canada has tripled since 1994.

In terms of trade liberalization, NAFTA is a success.  Yet, NAFTA still faces criticisms for perpetuating economic and social barriers and inequalities.  Some of the identified underlying economic and social goals of the signing parties to NAFTA are as follows: promote equitable wages, job growth, align environmental standards, and increase investment.

As NAFTA turns twenty, the agreement has accomplished what it was designed to do - increase trade. Image Source: The Economist/Dave Simonds

As NAFTA turns twenty, the agreement has accomplished what it was designed to do – increase trade. Image Source: The Economist/Dave Simonds

Although there has been an increase in automotive manufacturing in Mexico, the jobs in the industry are notoriously low paying (about 15% of wages paid in the U.S.).  The wage gap between Mexico and the U.S. and Canada exists in other industries as well.  However, Mexico has failed to strengthen its labor unions even though the competition (Latin American and Asian countries) has, keeping Mexican wages low and failing to reach the goal of wage equality.

Economists still debate whether NAFTA has led to net job growth or net job loss.  On one hand, more jobs have been created in Mexico and Canada in the manufacturing sector and more export related jobs have been created in the U.S. On the other hand, manufacturing jobs in the U.S. have been outsourced to countries, such as Mexico, where the wages are lower. In the manufacturing sector, it seems as though NAFTA members must first accomplish the goals of equitable wages before job growth is a possibility.

Upon the ratification of NAFTA, NAFTA members negotiated a parallel agreement focusing on environmental concerns: the North American Agreement on Environmental Cooperation (NAACE).  The NAACE aims to improve member nations’ understanding of the effects trade has on the environment and to align member nations’ environmental policies.  Although the NAACE has set forth an environmental agenda for NAFTA members, measuring its success has been difficult.  The body has not yet determined what data would produce high-quality environmental linkages to trade.  The connections the NAACE has made show that trade liberalization depletes specific natural resources and leads to increased air and water pollution.  The main reason for such impacts is that NAFTA member nations have failed to integrate trade and environmental policies that combat such negative impacts.

NAFTA has increased investments in all three signatories.  The binding arbitration panels for foreign investors allows “investors to bypass the courts with complaints that government regulation unfairly affects their businesses” and, therefore, are quite favorable to investors.  Those complaints brought before the panel deal with resource management or environmental rules.  In total, Mexico and Canada have paid about $350 million in damages to foreign investors.  What about the U.S. you ask? Well, the U.S. hasn’t paid a penny.  These panels overwhelmingly rule in favor of U.S. investors, exasperating yet another inequality where the U.S. ends up on top.

These failures cannot be overlooked, but is the correlation to NAFTA really as strong as critics seem to think?  NAFTA has done exactly what free trade agreements are supposed to do: increase and liberalize trade.  In order to accomplish the underlying goals, governments need to make broader policy changes. First and foremost, member nations need to align their policies in the areas that effect trade, for example, environmental and worker protection.  Second, members need to invest in themselves to get up to par with these policies.  Third, members need to let go of protectionist measures and let comparative advantage do its work. The U.S. continues to protect markets (namely agriculture) in which it does not have the comparative advantage, disallowing counties (namely Mexico) from holding a larger stake in those markets.

Using free trade agreements as motivation to make larger policy changes might work, but free trade agreements themselves will not fix broken policies.

Alicia Guber is a 2L and the Alumni Editor on the Denver Journal of International Law and Policy.

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Sources: CNN, NY Times, BBC, The Guardian, Wash. Post, Reuters

News Post: What About Kyoto? Canada’s Withdraw

By: Alexis Kirkman

“Kyoto, for Canada, is in the past,”[1] stated Peter Kent, Canada’s Minister of Environment.

On Monday December 12, Kent announced that Canada would withdraw from the Kyoto Protocol shortly after returning from South Africa.  The decision by Canada’s Conservative Party government has long been expected, as the Conservative government has never disguised its disdain for the treaty.  Kent cited numerous reasons for the country’s withdrawal, namely the possibility of huge fines for Canada’s failure to meet emissions targets.  Kent said that Canada’s failure to meet the targets under Kyoto would cost Canada $14 billion[2] in penalties, or $1,600[3] from every Canadian family.

Furthermore, extreme measures would be required by Canada’s population under the Kyoto agreement.  Kent said, “To meet the targets for 2012 would be the equivalent of either removing every car, truck

Sources: CNN, NY Times, BBC, The Guardian, Wash. Post, Reuters

Sources: CNN, NY Times, BBC, The Guardian, Wash. Post, Reuters

, AV, tractor, ambulance, police car and vehicle of every kind from Canadian roads or closing down the entire farming and agricultural sector and cutting off heat to every home, office, hospital, factory, and building in Canada.”[4]

Kent stated that despite this cost, greenhouse gas emissions would continue to rise, as the world’s largest polluters, the United States, China, and India, were not covered by the Kyoto agreement.[5] The Kyoto protocol, a 1997 treaty to reduce greenhouse has emissions, has been widely criticized for its failure to require developing countries like Brazil, China, and India to regulate greenhouse gas emissions.  Canada declared four years ago that it did not intend to meet its existing Kyoto commitments of reducing greenhouse gas emissions by 6%[6], and instead its annual emissions have risen by about a third since 1990.[7]

The Conservative government has called Canada’s ratification of Kyoto a legacy of an incompetent Liberal government, and has further noted that the former Liberal Party had agreed to the treaty “without any regard as to how it would be fulfilled”[8] or intention of meeting its targets.

Kent criticized the Kyoto Protocol saying that Canada produces “barely 2 percent”[9] of global emissions and the Kyoto Protocol itself presently covers only 13%[10] of global emissions. Kent stated that Canada would work toward developing an agreement that includes targets for developing nations, adding, “What we have to look at is all major emitters.”[11]  Kent insisted that Canada is committed to addressing climate change in a fair way that covers all nations.

Conversely, the Conservative government does not want to hurt Canada’s large oil sands industry, which is the fasting growing source of greenhouse cases in the country and the third-largest oil reserves in the world.[12]  Canada’s withdrawal from Kyoto has been associated with former President George W. Bush’s refusal to ratify the Kyoto Protocol in 2001.[13]

The Canadian economy and U.S. economy are integrated, with Canada being the largest supplier of oil and case to the United States, sending 75% of its exports to the U.S. each month.[14]  Bush’s move in 2001 gave U.S. competitors an unfair advantage and continuing to adhere to its targets would severely hinder the Canadian gross domestic product.[15]

Paul Heinbecker, a top diplomat who aided in Canada’s accession negotiations, stated, “In my judgment the person who really torpedoed this whole enterprise was George Bush.  Had the Americans participated…by now there would be enormous pressure on the Chinese and the Indians to be accepting Targets.”[16]

Canada’s decision to withdraw has been condemned at home and abroad as “irresponsible” and “reckless”[17].  Kent has been criticized as making extreme misrepresentations and misstating the figures.  In fact, Matt Horne, the director of climate change at the Pembina Institute, said the financial penalties would have been must less, around $6 billion,[18] with others stating there would have been no penalties for Canada under Kyoto.[19]  Canadian media has described the announcement as “shameful”[20] and a “total abdication of our responsibilities,”[21] and “more concerned about protecting polluters than people.”[22]

China, which agreed for the first time to legal limits on its emissions, criticized Canada’s decision as “preposterous”[23] in its state media and called it “an excuse to shirk responsibility”[24].  A UK government spokesman said, “It’s true that taking action to reduce emissions requires substantial financial investment but is far less expensive than the cost of inaction.”[25]

Under Kyoto, Canada must formally give notice of its intention to withdraw by the end of this year or else face penalties after 2012 and Kent indicated Canada’s intention to do so.

Canada’s announcement came at an interesting time, just hours after returning from a United Nations conference in Durban, South Africa aimed at reaching a new climate change agreement to come into effect in 2020.[26]  The 200 nations represented at the conference agreed to begin a long-term process of negotiating a new treaty, but without resolving the key question of whether its requirements will apply equally to all countries.  At the conference Canada was given the “colossal fossil”[27] award for its “reckless arrogance”.[28]  Christiana Figueres, UN climate chief, said, “I regret Canada’s withdrawal and am surprised over its timing.”[29]

Canada’s withdrawal also raises several questions about both the future of the Kyoto Protocol and the success of the future treaty initiated at Durban.  In reality, the Kyoto Protocol has very few enforcement mechanisms beyond international diplomatic censure, but many fear that Canada’s decision will jeopardize any gains made at the Durban meeting.

Kent assured the world that Canada is still interested in negotiating a new deal as long as it covers all major polluters.  Whether other nations are interested in talking to Canada is another matter.[30]  Although many no longer see Canada as trustworthy, many believe that Canada is still bound by what they agreed to in Durban and will still partake in working towards a new treaty.

Christiana Figueres said, “Canada has a moral obligation to itself and future generations to lead the global effort.”[31]

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University of Denver Sturm College of Law