Conventional wisdom tells us that Canadian society is founded on "the rule of law," but laws are administered by people and people are fallible.
Canadians got their first unmistakable warning that our legal system was less than perfect in 1966 when a best-selling book described how an innocent 14-year-old boy named Stephen Truscott was tried, convicted and sentenced to hang for the 1959 murder of a 12-year old girl near the small town of Clinton, Ontario. The book documented sloppy police procedures, public outcry and a prosecutor and judge who appear to have decided on Truscott's guilt long before the trial began.
The only evidence against Truscott was a small-town doctor's 'expert' testimony that the girl had died less than two hours after her last meal, and police evidence that she was known to have been in company with Truscott for part of that time. Since the trial other doctors, including one internationally-recognized expert, have set the time of the girl's death anywhere from three to ten hours after she ate.
Truscott's death sentence was commuted and he was paroled after ten years in prison, but he was not cleared of the charge of murder. In 2005, nearly 40 years after his innocence had been established, Truscott is still waiting for the re-trial that would clear his name.[1]
Since the Truscott case was brought to light Canadians have learned of at least a half-dozen other wrongful convictions, some of them gained by police who persuaded witnesses to change their testimony or by crown attorneys who ignored or suppressed evidence.
Guy-Paul Morin was charged, and convicted on his second trial, with the kidnapping and murder of nine-year-old Christine Jessop of Queensville, Ontario. He was 25 years old at the time of his arrest, and had no criminal record.
The girl disappeared some time after she got off a school bus in front of her home, about 3:50 pm on Oct 3/84. Her mother was not home at the time but she and Christine's brother arrived about 4:10 pm. By then, Christine was missing. Her body was discovered 56 km away, on Dec 31/84.
Morin lived with his mother, next door to the Jessops. On the day Christine disappeared he clocked off his job at a furniture factory at 3:32 and, if he drove normally, could not have arrived home before 4:14. This day, he said, (and his mother confirmed) he had done some shopping on the way and had reached home between 4:30 and 5 pm.
Police began to suspect Morin after Christine's brother described him as "weird" and said he played a clarinet. They decided that Morin and his mother had lied about the time he got home and that Christine's mother and brother were mistaken about the time they got home. The police decided that Morin must have been home by 4:30 and they persuaded Christine's mother that she had arrived home about 4:35, leaving a five-minute window in which Morin might have lured Christine out of her home and abducted her. (Christine's mother later reaffirmed her original belief that she had arrived home about 4:10.)
The provincial forensic lab said that a hair caught in a necklace Christine wore could have been Morin's, or either of two of her classmates, and that fibers found in Morin's mother's car could have come from Christine's clothes. It later turned out that employees of the lab knew that the fiber samples had been contaminated, apparently by fibers from their own clothing, but did not tell the police.
Cigarette butts, an empty cigarette package and a lighter found near the body were not mentioned at the trial. Morin did not smoke. The police sergeant who first arrived at the site where the body was found had two notebooks for the event, with different versions of what was found. This policeman was later charged with perjury, but the charge was stayed because of his health.
Police did not follow up, or introduce at the trial, a report that a man had been seen apparently forcibly keeping a child in a car.
The most damning evidence against Morin was presented by two 'jailhouse snitches.' One testified that Morin had confessed to the crime, the other that he had overheard the confession.
Both were known liars. The first wanted to be sent to another jail and the other told police that he would give them anything they wanted in return for assignment to a halfway house. He offered to implicate other inmates, if the police wanted him to.
Morin was acquitted at his first trial but convicted at the second, six years later, and spent three years in jail before he was cleared by DNA evidence in 1995. Ultimately, the provincial government paid Morin and his family $1.25 million dollars in compensation for his wrongful conviction.[2]
Jailhouse snitches have been responsible for several wrongful convictions. James Driskell of Winnipeg was convicted of murder on the evidence of three hairs found in his van and the testimony of two jailhouse snitches.
Twelve years later further investigation showed that the hairs did not come from the victim and that the snitches had been paid more than $80,000, and given immunity and housing deals, in exchange for their testimony.[3]
The use of jailhouse snitches is a vicious, even malicious, practice. A policeman willing to rely on a jailhouse snitch could arrest anyone, at random, and put him or her in jail beside the liar, thief or cheat of the policeman's choice. The snitch is already in the policeman's power, because he is in jail and, if he is a criminal, we can assume that he or she is willing to lie. In fact the snitch may be chosen for his or her talent as a liar.
Now the policeman tells the snitch what he wants to prove -- perhaps that the suspect murdered the man in the moon with a stolen ICBM -- and, for a price, the snitch will swear that the suspect confessed to him. The snitch may have a lot to gain and he has nothing to lose, because snitches are seldom prosecuted for perjury.
Some people have been convicted on the testimony of their own accomplices, who got light sentences in exchange for their betrayal. In some cases, the betrayers were actually the guilty parties and the persons convicted were innocent.
One classic example of that is Ethel Rosenberg, the only woman ever executed for espionage in the United States. She was electrocuted in 1953 after her brother, David Greenglass testified that Julius and Ethel Rosenberg had persuaded him to give them top-secret information about atomic weapons, which they sent to Moscow. This testimony, corroborated by Greenglass' wife Ruth, was almost the only evidence against Ethel.
Greenglass was jailed for seven years, and his wife was never charged. Both the Rosenbergs were executed.
But in 2001 Greenglass admitted, in a television interview, that Ethel had nothing to do with the affair. He had implicated her because he was willing to say anything to save his life and to protect his wife from prosecution, and because prosecutor Roy Cohn (later to be right-hand man to rabble rousing senator Joe McCarthy) encouraged him to lie.[4]
False accusations are no surprise but it is surprising that a considerable number of false convictions result from false confessions.
Some of these are by people with mental problems. When Charles Lindbergh's son was kidnapped in March of 1932, more than 200 people "confessed" to the crime. One who did not confess was Bruno Richard Hauptmann, who was convicted of the crime and later executed. Many people now believe he was not guilty.
But some confessions are produced by manipulative and sometimes bullying police questioning. After a white woman was beaten and raped in New York's Central Park in 1989 five black teen-agers were convicted and sent to prison. They had 'confessed' after 'interrogations' that lasted from 14 and 30 hours but in December 2002, after they had spent 13 years in jail, charges against them were dismissed because an older man confessed to the crime and was linked to it by DNA evidence. Apparently the boys had confessed because they thought (or were told) that if they did, they would be allowed to go home. Later they recanted their confessions, but were convicted anyway.[5]
On Aug 9, 1972 Leopold Roy of Ottawa was stabbed to death by a burglar. In 1972 Romeo Phillion was convicted of the murder.
While in custody Phillion confessed to the murder but in 2003, when he asked for a new trail, it was revealed that a police report -- not shown to the defence at the trial -- showed that Phillion was known to have been about 200 km away from Ottawa when the murder took place. In June of 2003 Phillion was released on $50,000 bail after 31 years in jail for a crime that, according to police evidence, he could not have committed.
Like a criminal caught in a lie, the justice system often tries to hide its mistakes. Toronto lawyer James Lockyer, working on the Phillion case, says that before he was allowed to see details of the case he had to sign a 'confidentiality agreement' that does not allow him to tell anyone what really happened. He says he has "relevant, new information" on the Phillion case, and on two other cases on which he is working, that he can not reveal. If he had not agreed to secrecy, he would not have been allowed to see the evidence.[6]
Some convictions may be the result of prejudice, or of a political need to convict somebody.
In 1971 Micmac Indian Donald Marshall Jr. was 17 years old when he and a teen-aged black youth named Sandy Seale met Roy Ebsary in Wentworth Park in Sydney NS. They may have tried to rob him but, for one reason or another, Ebsary slashed Marshall and stabbed Seale. Marshall was convicted of Seale's murder and spent 11 years in prison before he was cleared. His break came when Ebsary bragged, in public, that he had killed Seale.
Sixteen year-old David Milgaard was travelling through Saskatoon on Jan 31/69, when the body of a 20-year-old nursing aide was found. Milgaard was arrested and, on Jan 31/70, convicted of murder. The Saskatchewan Court of Appeal rejected his appeal, and the Supreme Court of Canada refused to hear it.
In May of 1988 Milgaard's lawyer applied to have the case reopened, with fresh evidence. In 1992 the Supreme Court ordered a new trial but, rather than allow a trial the province released Milgaard after 22 years in jail.
In 1997 DNA tests cleared Milgaard and in 1999 he and his family received $10 million in compensation from the federal government. Later that year another man was convicted of the rape and murder of the nursing aide.[7] It has since been revealed that the nursing aide was the third girl attacked in that area in a short period, and that Milgaard could not possibly have been involved in either of the first two attacks. Eventually, one man confessed to all three.
Some cases drag on, for one reason or another, and some appear to be malicious. From 1977 to 2001 Neville Hunter spent four years in jail and was tried four times on charges of attempted murder, using a firearm while committing an offence, aggravated assault and possessing a prohibited weapon.
He was arrested by three plainclothes Toronto policemen who said they chased him down an alley after a disturbance. When they found him, the policemen said, he produced a gun and pulled the trigger but the gun failed to fire.
Hunter said he was part of a crowd that broke up as the police approached, and that the police assaulted him. He said they planted the gun on him.
At the trial Hunter's lawyer noted that the police did not call for backup and did not draw their own guns, and that Hunter's fingerprints could not be found on the gun he was said to have carried and tried to use.
The jury at Hunter's first trial was deadlocked and a mistrial was declared. At that point Hunter's lawyer removed himself from the case but the judge of the second trial refused to allow Hunter time to find a new lawyer. Later, the same judge declared another mistrial because he decided that Hunter was unable to manage his own defence.
Hunter stayed in jail until October of 1997, when the third trial began and was aborted because two jurors were forced to drop out. In the fourth trial, soon after, he was convicted and sentenced to eight years in prison. In June of 2001 the conviction was overturned on the grounds that it had accepted evidence that was not admissible, and the Ontario Court of Appeal refused to allow a fifth trial.
Conventional wisdom tells us that the policeman who arrests a suspect and the crown that prosecutes him are neutral, and they should be. We pretend that the policeman has nothing to gain by arresting an innocent man and the crown nothing to gain by a conviction, but that's a convenient fiction.
The fact is that it's a policeman's job to find the perpetrator of every crime and, though he may not be directly punished, he is liable to be criticized for failing to make an arrest. Because of that he may arrest a suspect he thinks is guilty rather than do nothing until he knows someone is guilty.
Once the arrest is made he has to support it. His reputation is invested in it, and the crown attorney will respect that investment. The crown is supposed to be dispassionate but he or she is an ally of the policeman and will be inclined to believe the policeman's testimony and disbelieve any testimony that counters it.
When the case goes to trial the Crown Attorney's reputation depends on getting a conviction, not on finding the truth. For the Crown Attorney, a false conviction is preferable to a justified acquittal.
The policeman's part in a wrongful conviction may include giving false testimony on a witness stand, but in most cases the false testimony will be BS rather than lies.
A lie is deliberate. If I know the truth and deliberately mis-represent it, that's a lie.
BS (short for bullshit) is different. If I don't know the facts but assert that what I think may be true is in fact true, that's BS. This is very common behavior, perhaps more common among people in authority than among the general population.
If a policeman thinks a suspect is guilty and adjusts his testimony to compensate for evidence he was not able to find or that appears to clear the defendant, or for something that he did not actually see, or to compensate for what be believes to be false testimony by a witness or a suspect, that's BS. He does not think he is lying because he is stating what he thinks should be the truth.
The problem is that a policeman is necessarily a man of action. In his work he often has to make snap judgments and he must have confidence in them because if he did not he would be at a disadvantage in any potentially violent confrontation with a criminal.
His confidence is both shield and weapon in the field but it is a serious danger in a court of law, where he may have to justify actions and decisions that he did not have time to think about at the time.[8]
Suspects may also lie, of course, and many policemen think they have a special talent for detecting lies. In fact, experiments show that most of them do not. Among all people tested older people did better than younger but, among police officers, experienced policemen did no better than rookies.[9]
A recent study in Canada shows that even children can successfully lie to judges, policemen and social workers. Watching videos of children telling stories judges, policemen and social workers all averaged about 56% success at spotting lies.[10]
Technophiles think polygraphs can detect lies, but the evidence does not back them up. In 1986 the CBS TV show 60 Minutes set up an experiment in collaboration with Popular Photography magazine.
Four polygraph 'experts' were told that camera equipment had been stolen. They were called in separately and asked to test four employees of the magazine to find the thief. In fact no equipment had been stolen but each 'expert' was told that a different employee was the most likely suspect. The employees were volunteers who had been promised $50 if they could convince the 'expert' that they were innocent.
That should have been easy because in fact they were all innocent, but each 'expert' found a 'thief,' and each one found that the 'thief' was the suspect he had been told was most likely. Other experiments have shown that when people believe in lie detectors an 'expert' can detect all 'guilty' suspects, but will also find that some innocent suspects are 'guilty.' When people do not believe in lie detectors the polygraph is not likely to detect lies, but may interpret truthful statements as lies.[11]
Most of the false convictions we have cited so far have been Canadian, but this is not just a Canadian problem. In 1932 Yale Law Professor Edwin Brochard documented 65 wrongful convictions in his book Convicting the Innocent and in 1992 authors Michael L Radelet, Hugo Adam Bedau and Constance E Putnam listed more than 400 cases, in the 20th century alone, in their book In Spite of Innocence. In January 2000 Illinois Governor George H Ryan declared a moratorium on executions, largely because 13 men who had been condemned to death had been exonerated and released in the last 15 years.
By early 2003 The Innocence Project at the Benjamin N Cardozo School of Law in New York City had cleared 123 people who were convicted of serious crimes. More than 30 of them had confessed, under police pressure, to the crimes they had not committed but had been convicted of.[12]
In the 1999-2000 academic year the Northwestern University School of Law launched the Center on Wrongful Convictions, which is now linked with the Innocence Project at the Cardozo School. Both are also working to foster wrongful conviction projects in other states.
The Northwestern center receives and screens roughly 200 requests for representation per month but on average it can accept only one of them, even though workers at the center believe that many of the cases they must reject are valid.
In Canada the Toronto-based Association in Defence of the Wrongly Convicted has cleared about 20 convicts since 1993.
The numbers suggest that the United States has a higher rate of wrongful convictions that Canada, but that may be an illusion. More wrongful convictions have been exposed in the United States than in Canada but that may be because more Americans have taken the trouble to check up on their police and courts. Some of them have turned up some horrifying cases.
Shirley Kinge of Ithaca, NY, was convicted after a man and his wife, son and daughter were blindfolded, shot and set on fire. The case was "solved" by New York State Trooper David Harding, who testified that he found Kinge's fingerprints on a gas can at the scene.
That was the only evidence, but it was enough to convict Kinge of arson and burglary. She was sentenced to 22 to 60 years in prison before it was discovered that Trooper Harding had lied. He had found Kinge's prints somewhere -- possibly at a nearby restaurant -- but not on the gas can or anywhere else at the scene of the crime. After two and a half years in prison, Kinge was freed.
Harding and his partner and his supervisor are now in prison and three other troopers went to trial on other charges. Together they are said to have faked fingerprints in 40 cases involving murder, burglary, rape and drugs. Their motive, apparently, was that they wanted credit for solving crimes.
According to an ABC News story police have been caught faking fingerprints in New York, California, Alabama, Arizona, Oklahoma, Tennessee and Georgia. One Georgia policeman admitted to faking fingerprints in 29 cases.[13]
Conventional wisdom tells us that the evidence of forensic labs is dependable, but that is not always true. In Oklahoma, police chemist Joyce Gilchrist was fired after a man who was convicted of rape on her testimony was freed after 15 years behind bars. Gilchrist had testified that his hair matched hair found at the scene of the crime, but further testing indicated that his DNA did not match.
Gilchrist's testimony has contributed to more than 1,150 convictions, including 11 that resulted in executions, and the FBI recommended a review of all her cases. By Sept of 2001 investigators had reviewed 583 case files and marked 99 for further review. At that point there were 574 case files left to review.[14]
In Montana Jimmy Ray Bromgard was 18 years old when he was convicted of the rape of an eight-year-old girl, mostly on the evidence of the state's crime laboratory. He got three 40-year sentences, to be served concurrently.
Fifteen years later the state discovered that the director of the lab had used an invalid system of hair analysis. He told jurors that head and pubic hair taken from the crime scene matched samples obtained from Bromgard but, even by the standards of the day, the FBI lab says that the hairs found in the eight-year-old's bedding were not similar to Bromgard's. Bromgard was freed after DNA analysis proved his innocence, but some jurors from the trial said they still thought the hair evidence proved he was guilty.
The former director of the Montana state lab moved to Spokane in 1989, to work as a drug analyst for the Washington State Highway Patrol. He wanted to work as a forensic hair analyst, but he failed the qualifying exam.
Society as we know it could not exist without laws and people to enforce them but, for society to work well, those laws must be fair and the enforcement just.
The Canadian police sergeant whose fake notes helped send Paul Morin to jail was not charged because he claimed to have a health problem. If I commit a crime that costs a man several years of his life, would the police drop charges because I complain of poor health?
In some cases crown attorneys have gained false convictions by malfeasance of one sort or another. If the law is to be respected, such malfeasance must be punished in a way that would probably horrify crown attorneys but would satisfy the rest of us.
Canadian law generally protects public servants from private lawsuits for their decisions and actions on the job. That's reasonable in the case of an honest mistake but where a policeman, crown attorney or any other civil servant has lied, faked or suppressed evidence to achieve a wrongful conviction, the victim should have the right to sue both the individual and the government in civil court.
The law should also provide serious penalties for jailhouse snitches who lie, and for police and crown attorneys who encourage them to lie. The law should specifically forbid any kind of reward for jailhouse snitches.
Further, we need a law to protect Canadians from "double jeopardy." If a defendant is cleared of a charge in the United States, the law does not permit a second trial for the same offence. Canadians should have similar protection.
Years ago British jurist Sir Gordon Hewart said, "it is of fundamental importance that justice must not only be done, but should manifestly and undoubtedly be seen to be done."
I say that it is not enough that justice be seen to be done, it must also be done. Unfortunately, some policemen and some courts of law don't seem to care much whether they convict a criminal or not, as long as they can convict somebody.
THE WAR ON DRUGS
Probably the world's most extreme example of law gone wild is the American 'War on Drugs' -- a multi-billion dollar-a-year campaign to control a problem that is in fact created largely by the attempt to control it.
Police officers and public officials who wage the War on Drugs pretend that they want to prevent or reduce the use of illegal drugs but, if that was the intention, the Netherlands has already shown the way.
Nearly 30 years ago the government of the Netherlands virtually destroyed the Dutch drug trade by relaxing laws. Tolerant drug laws brought thousands of American drug users to The Netherlands as tourists but, in spite of that, the country now has one of the lowest usages of hard drugs in the developed world.
If it were not tragic it would be amusing to compare drug usage in the USA -- where hundreds of thousands of policemen and civil servants are paid to suppress the drug trade -- with drug usage in the Netherlands, where marijuana is tolerated.
In 1997 32.9% of Americans 12 years old and older but only 15.6% of Dutch citizens in the same age group had used cannabis at least once. Nine percent of Americans but only 4.5% of Dutch citizens had used cannabis in the year before the survey. More than 5% of Americans but only 2.5% of Dutch citizens had used cannabis within a month before the survey.
Use of hard drugs is also lower in The Netherlands than in the United States. More than 10% of Americans but just over 2% of Dutch citizens have tried cocaine at least once. Within the month before the survey 0.7% of Americans but only 0.2% of Dutch had used cocaine. More than three times as many Americans as Dutch have used heroin at least once.[15]
American lawmakers must know that the War on Drugs actually promotes drug use and we have to assume that it is sustained because it creates work for thousands of agents and employees of the United States federal Drug Enforcement Administration, the Coast Guard, large segments of state and local police, court and prison systems and tens of thousands of criminals -- all of whom depend on a flourishing trade in illegal drugs for their living.
The campaign costs the United States nearly 70 billion dollars a year and economist Milton Friedman estimates that it causes 5,000 homicides a year.[16]
It also gives the "land of the free" the distinction of having by far the largest number of prisoners, as a percentage of the population, in the world. Jack Cole, a retired Detective Lieutenant in the New Jersey State Police now executive director of Law Enforcement Against Prohibition (an association of more than 2,000 active and former policemen who oppose the war on drugs) says the United States has 4.6% of the world's population and 22.5% of the world's prisoners. Author Jeremy Rifkin says that 685 of every 100,000 Americans are in jail. In Europe, 87 people of every 100,000 are in jail.[17]
Cole argues that the war on drugs is racist and he cites numbers to back his claim. According to the 1998 Federal Household Survey, he says, 72% of American drug users are white and only 13.5% are black, but 37% of the people arrested for drug use are black. More, 42% of federal prisoners and 60% of state prisoners serving time for drug offences are black.[18]
Before US president Nixon declared the "war on drugs," Cole says, the New Jersey State Police had a 7-man anti-drug unit and the state had no drug problem. With federal funding the unit was expanded to 76 members.
This was in the era of the Vietnam war, when American soldiers were encouraged to inflate the "body count" of Viet Cong guerrillas they fought and killed. In the same way, Cole says, anti-drug policemen were encouraged to produce numbers that would justify the federal funds their departments used.
But as the war on drugs progressed the drug squads found less and less need to inflate their numbers because the problem that did not exist before soon became very real. It's still not that bad in Canada but it is leaking over the border and Canadian police are taking advantage of it. We need to do something before it develops to the scale of the American drug problem.
My personal choice would be to legalize marijuana and continue to outlaw other drugs but in this I defer to Cole.
He wants the United States to legalize soft drugs with laws -- as there are with alcohol, beer and tobacco -- that prohibit their sale to minors. He points out that while street dealers will sell drugs to anybody the legal merchants who sell tobacco and alcohol are reluctant to risk their business by selling to minors. As a result, he says, most teenagers find it easier to buy drugs than to buy beer.
Cole would also have the government produce drugs and control them for quality, potency, and standardized measurement. He would distribute free maintenance doses of hard drugs to any adult who requests them.
That is not a radical idea, he says, because several states already give free methadone to drug addicts and Switzerland and Holland provide free heroin to addicts. This destroys the market, and drives illegal drug dealers out of business.
The free drug policy also eliminates most drug-related crime, because addicts don't have to commit crime to obtain drugs. Cole says it has reduced unstable housing situations by nearly two-thirds; virtually eliminated homelessness, reduced drug-caused deaths by 34 percent between the years of 2001 and 2002 and given Switzerland and Holland the lowest per capita rate of AIDS and hepatitis in Europe.
And -- of particular interest in Toronto and Vancouver where shootings the police attribute to the drug trade are distressingly common -- legal distribution of drugs eliminates competition by and among criminals. In Cole's words ....
"When was the last time you heard of two Budweiser distributors shooting it out over who was going to supply this restaurant with beer? One would reach in his pocket and pull out a piece of paper and say, "I have a contract for this territory. I'll take you to court." Not so with the distributor of prohibited drugs. If you were to encroach on his territory he would reach in his other pocket, pull out a gun, and shoot you! Or he might miss you and hit some little child behind you."
The war on drugs is an obvious mistake but it is maintained because the need and justification for it have become conventional wisdom and may not be questioned. This conventional wisdom, of course, is supported and continually renewed by people who make their living from it.
BARNUM'S LAW
The plague of illegal drug use in the United States is an example of the phenomenon I call 'Barnum's Law,' in honor of Phineas Taylor Barnum of the Ringling Brothers, Barnum and Bailey Circus which was billed as "the greatest show on earth."
Barnum was one of the great salesmen of history, and he was famous for the way he cooperated with the press. Most businessmen will cooperate on a story that reflects credit on them but Barnum would help reporters on any story, good or bad. When people asked him why he would help reporters with a story that made him look bad he stated his principle -- which I consider one of the great laws of salesmanship -- "There is no such thing as bad publicity." He knew that whatever the story and whatever the public reaction to it, publicity is valuable.
In 1866 the American Society for the Prevention of Cruelty to Animals received a complaint that snakes in Barnum's New York museum were fed live rabbits.
ASPCA president Henry Bergh took up the question with letters to Barnum that somehow found their way into the New York World and, as the controversy developed, other newspapers in the United States and even in England. Barnum's answers were also leaked to the press and the public correspondence continued from December of 1866 to June of 1867.
Bergh's florid descriptions of the terror of the rabbits and the hypnotic gaze of the snake were overdrawn, to say the least, but they were wonderful advertising. Visitors flocked to the museum, and Barnum made a fortune.
A friend of mine saw Barnum's Law in action when she worked for a driving school in Hamilton, Ont. One of the school's instructors got drunk and drove one of the school's cars off Hamilton Mountain. The local press named the school in their stories, and business dropped for a couple of weeks.
Then it came back, and it boomed for a couple of months.
When an instructor gets drunk and wrecks a car it's not good publicity for a driving school, and while people remembered the accident they stayed away from the school. But after they forgot the accident they still remembered the name of the school and, when they looked for a driving school, one name was more familiar than others.
New York real estate developer Donald Trump wrote about his experience with Barnum's Law in The Art of the Deal.[19] He had to tear down the old Tiffany Building to build the Trump Tower and some people wanted him to save the Art Deco sculptures from the facade. Trump didn't think they were worth much and he knew it would cost a small fortune to save them, so he had them destroyed.
The next day the
"Even though the publicity was almost entirely negative," Trump wrote, "there was a great deal of it, and that drew an tremendous amount of attention to Trump Tower. Almost immediately we saw an upsurge in the sales of apartments."
He found that "good publicity is preferable to bad but, from a bottom-line perspective, bad publicity is better than no publicity at all."
Because of Barnum's law the American government's propaganda against drug use is, for practical purposes, an advertising campaign promoting the use of illegal drugs.
BETTING ON BETTING
We also need to talk about our government's addition to gambling.
Like drugs, gambling was illegal and considered immoral for years. I can remember my mother telling me, about 60 years ago, that Mexico needed a national lottery because the country was poor and the lottery gave people something to hope for. We didn't need it because in those days Canada was a developed and wealthy country. Few individuals were rich, by modern standards, but most of us had enough and we had little crime and few homeless people or beggars in Toronto.
Times have changed and, after decades of telling us that gambling was a criminal activity, our federal government got into the gambling business itself with the launch of Loto Canada in 1976. Now legal gambling turns over tens of billions of dollars a year and contributes billions to government revenue, but the cost is unacceptably high.
In fact studies show that the cost is much higher than the returns. Profs. Earl Grinols of the University of Illinois and David Mustard of the University of Georgia found that the social costs -- due to crime, disease, job loss and other problems -- of casino gambling in the US add up to at least $27.5 billion a year and may be as high as $43 billion. That's a range of from $140 to $221 per capita, for gamblers and non-gamblers alike. At the low end of the scale the social costs are 1.9 times greater than the revenue governments collect from gambling.[20]
One of the highest costs was due to the increase in crime. In an earlier study Prof. Grinols found that, on average, 12.4% of the crime in American counties with casinos was due to the casinos. In most cases the crimes were committed by two or three percent of the population who are compulsive or problem gamblers and who turn to crime to cover their losses.[21]
We have a classic example of that in Ontario, where one of the civic leaders who helped promote a casino near Orillia got hooked during a tour in which he saw the 'benefits' that casinos brought to other towns. By the time Casino Rama opened he had lost $25,000. Three months later his losses totalled $90,000 and he embezzled $80,000 from civic funds to pay his debts.[22]
Toronto police believe that the visa student who kidnapped and murdered nine-year-old Cecilia Zhang in October of 2003 had gambled away his tuition money and hoped to collect a ransom to cover the loss.[23]
The connection between casinos and crime is close, and there is evidence that it is a cause and effect relationship. Grinols, Mustard, and fellow economist Cynthia Hunt Dilley analyzed crime rates for every US county between 1977 and 1996 and concluded that casinos increase crime in their host counties and surrounding jurisdictions. In 1996, the last year for which statistics were available at the time of their study, casinos accounted for 10.3 percent of violent crime and 7.7 percent of property crime in casino counties. Robberies increased by 20%, despite increased expenditures by law enforcement agencies after the casinos opened.
The data shows a time-lag between the opening of the casino and the increase in crime, which typically begins a few years after casinos open and increases over time. The researchers suggest that this time-lag reflects the addictive processes of problem and pathological gamblers who, according to clinical research, take two or three years to exhaust their own resources before they turn to crime.
In fact the problem is probably greater than numbers suggest because, as Grinols notes, many problem gamblers steal from friends and relatives who don't report the thefts. This has also been reported in the Canadian daily press.[24]
Grinols cites an American study of nearly 400 members of Gambler's Anonymous who had between them stolen more than $30 million -- an average of $135,000 each -- to cover their losses.
Considering the costs of police, of treatment and other factors, Grinols estimates that the average problem gambler in the United States costs society $10,112 per year.
Only about two percent of people become problem gamblers but Grinols found that the percentage of problem gamblers in a given area doubles soon after a casino is opened.
And it seems to be problem gamblers who support the business of gambling. Grinols estimates that anywhere from two thirds to 80% of gambling revenue comes from problem gamblers. In a Canadian study, reported by CBC news on Nov 2/04, Profs. Robert Williams and Robert Wood of the University of Lethbridge calculate that in Ontario 60% of the revenue of gaming machines, 53% of the revenue of horse racing, 22% of the take from casino table games, 22% of the take from bingo and raffles and 19% of the take from lotteries, instant win and sports select comes from problem gamblers.[25]
The Canadian study found that in 2004 the Ontario government collected about $1.4 billion dollars from gambling and spent about $36 million on the treatment and prevention of problem gambling.
Grinols' paper cites studies that found that about one percent of gamblers laid about 50% of all bets in Minnesota, and that 10% of gamblers laid 80% of all bets. He cites a 1998 report that 48.7% of casino revenues in Nova Scotia come from compulsive and/or pathological gamblers. An Australian study found that 2.1% of the population were compulsive gamblers, but they produced one third of all gambling revenue in the country.
Promoters argue that casinos provide employment but Grinols found that they also destroy other businesses. In one case, after a study sponsored by gambling interests showed increased employment in eight counties after casinos opened, Grinols and Mustard compared statistics from the gambling counties with 38 other counties that had similar unemployment to the casino counties in the year before the casinos opened. In the following year 19 of the 38 gained more jobs than the casino counties.
And whether jobs are gained or lost, it is obvious that casinos produce nothing. They can move money from one person or one town to another but, because nothing is produced, society as a whole gains nothing. Promoters of border-town casinos argue that they attract tourists and revenue from the United States, but that is open to question. When Loto-Quebec opened a casino in Montreal it was expected to bring tourist revenue but studies show that up to 80% of the annual $200 million profit comes from within the province.[26]
It also appears that even the short-term benefits of casinos are disappearing. According to a news report net income from three Ontario casinos declined from a peak of $756 million in 1999 to $261 million in 2004. That appears to be mostly because several US border states have opened their own casinos in the past five years.[27]
In a classic example of Spencer's law -- that when a program fails government will enlarge it -- in February of 2005 Ontario Premiere Dalton McGuinty announced a plan to invest another $400 million in a casino complex in the border city of Windsor. He said the increased investment in a losing business would "generate still more money for our public services."[28]
We can't shut casinos down because they are too powerful, but a responsible government would shut down government-owned casinos and refuse to license new ones or allow expansion of existing private ones. Government should also undertake a detailed study of the social costs of gambling. Good government demands that the casinos pay taxes to cover this cost, and Grinols and Mustard estimate these taxes will take between 60% and 96% of the casinos' total revenues.
It might not be fair to casinos to impose such taxes without warning but it is certainly not fair to the general public, or to the victims of casinos, not to impose them. A relatively low level of tax could be introduced immediately and increased to cover costs over a period of, say, ten years.
The owners and operators of casinos won't like that, but any other course of action smacks of callous indifference to a serious problem.
THE GUN REGISTRY
In Canada, the most tragic example of Barnum's law (so far) is the gun registry. The people who proposed it may have thought they could prevent crime by making it illegal, but that was obviously not a possibility.
If all criminals obeyed the law, and if no-one found a way to smuggle guns across the notoriously porous US border, the gun registry might have reduced the use of guns in crime. Instead, Bill C-68 -- which established the gun registry -- offered a bonanza to several groups of people.
First in line for benefits was the civil service. The registry was supposed to cost $119 million to establish but in December 2002 Auditor General Sheila Fraser estimated that by 2005 the cost would be more than $1 billion. Then a study by CBC News found other costs that had been concealed and, in February of 2004, it published a new estimate of $2 billion. The gun registry has certainly provided a lot of money for the civil service, and we can assume that the money bought jobs and perks.
Criminals have also profited two ways. One -- a minor consideration -- is that the gun registry makes it less likely that the criminal who breaks into a house might face an armed householder. More important, the registry made guns a prestige item for small time and wannabe criminals. With guns readily available in the United States and a virtually wide-open boarder, this created a multi-million-dollar smuggling industry.
Even some policemen benefit. Not working policemen, of course -- the proliferation of guns means they have to face more armed criminals -- but guns and gunfights are very good for police chiefs and senior officers.
If Canadian criminals are armed and if there are gunfights in Canadian cities, police budgets have to be increased and with them the power and influence of police chiefs.
Twenty years ago it was difficult to find an illegal handgun in Canada but now pistols and even sub-machine guns are available on virtually every street corner of most cities and many small towns.
And criminals use them. The total number of murders in Canada has not increased significantly but the number of shootings has, and gun fights on Toronto streets are no longer rare.[29] With the obvious threat, police forces have a powerful argument for increased budgets. The day after I wrote the first draft of this section a front-page story on the April 25, 2005 Toronto Star was headed "Terrified patrons flee as bullets spray crowd."
The gun registry has put tens of thousands of guns in the hands of Canadian criminals and it is a nuisance to hundreds of thousands of Canadians who have a valid need for guns. Many farmers need guns to protect their crops and livestock from pests and predators and tens of thousands of Indians, Inuit and whites depend on guns to provide some, if not all, of the meat they eat. Most of these people are of not much concern to our government, but they should be.
The registry should be scrapped, if only to save the money it costs. That will not get the guns off our streets but it will make life easier for people who need guns and it will reduce the prestige value of guns for wannabe tough guys.
And somehow, our government must learn how Barnum's law works. Then, perhaps, it will refrain from passing laws that create, rather than reduce, crime.
THE WAR ON TERROR
In the 21st Century, the "War on Terror" is the growth segment of the law and order industry.
The destruction of the World Trade Center was a serious incident but there is little question that the American response to the attack has done more harm to "the American dream" and to America's standing in the world than the attack itself.
The attack itself created worldwide sympathy for the United States. The American response has created enmity, and started a chain of wars that will probably last at least fifty years and that threatens to plunge the world into a new Dark Age.
The multi-billion-dollar "War on Terror" has already abrogated freedoms that Americans used to take for granted, created new and powerful bureaucracies, justified two wars of aggression, put the United States in violation of the Geneva Convention that used to 'govern' the conduct of wars and motivated a nuclear stand-off with North Korea. The effects on terror are hard to assess but common sense and the National Commission on Terrorist Attacks Upon the United States (also known as the 9-11 commission) suggest that, because the War on Terror has provided new motivation for terrorists, it will probably spur a significant long-term increase in terrorism.
It also, as Brandon Mayfield could testify, causes problems for some people who have no connection with terrorism.
Mayfield is a lawyer from Portland, Oregon, who was arrested and held for two weeks as a material witness to the March 11/04 bombing of the railway station in Madrid, Spain.
His problem began when FBI fingerprint examiners used a computer to search for possible matches to a digital image of a fingerprint found on a bag of detonators in Madrid. Mayfield's prints were in the computer because he had been arrested as a teenager, and his were one of 15 possible matches the system returned. Three FBI examiners confirmed the identification, and a court-appointed fingerprint expert agreed.
The FBI began surveillance of Mayfield. After a sneak inspection of his house -- illegal in most free countries but allowed in the United States under the Patriot Act -- they raided it and took Mayfield's computers, modem, safe deposit key and assorted papers including some "Spanish documents" which turned out to be his son's school homework.
But Spanish police said the fingerprints did not match and, further, they had matched the sample fingerprint with an Algerian man. After FBI agents flew to Spain and compared Mayfield's fingerprints directly with those on the bag, they agreed and Mayfield was released.[30]
Mayfield was lucky because he was an American citizen, a lawyer and -- mostly -- because he was held on a crime that occurred in Spain and the Spanish police cleared him. Maher Arar was not so fortunate.
Born in Syria, Arar is Canadian citizen. He was stopped by American authorities when he changed planes in New York, questioned by Americans for two weeks and then flown by private jet to Jordan for delivery to Syria for a year of torture that would not have been legal in the US.[31]
The action was illegal on several counts. One is that, as a Canadian citizen, Arar could legally be deported to Canada but could not legally be sent to Jordan by US authorities. The other is that by sending him to a location at which they knew he would be tortured, on American instructions and for American purposes, the US deliberately violated Article 3 of the Convention Against Torture, which it pretends to support.[32]
American law does not allow torture by American officials within the United States but the American-based organization Human Rights Watch has identified 24 prisons operated by or for the American government on foreign soil where US law can be and presumably is ignored. In the year after the attacks of 9/11 George Tenet, then director of the CIA, admitted that 70 people described as terrorists had been moved from one country to another, presumably for torture.[33] In May of 2005 Amnesty International listed the United States as a country in which human rights are routinely violated.
The International Red Cross also suspects that the US government maintains secret prisons around the world. The Red Cross also alleges that some prisoners in Baghdad's notorious Abu Graib prison were moved around the prison to hide them from a visiting Red Cross delegation.
Most Canadians think we have escaped the worst excesses of the War on Terror but, like the War on Drugs, it is leaking over the border. As this is written Canadian police can jail anyone, indefinitely, without charge or public trial if they are considered a security risk. The day this is written, (July 20, 2005) CBC News reported the law's refusal to grant bail to one man who has been held, without warrant, in solitary confinement for four years. The police say he is guilty of something but they won't tell him or his lawyer what they think he is guilty of, or what evidence they have against him.
This man and another who has been held for five years are not citizens but, as Maher Arar discovered, Canadian citizenship does not offer much protection.
The Canadian Security and Intelligence Service and leaders of the Conservative party -- both of whom often seem to identify more with George Bush than with Canadians -- frequently warn of dire plots against us.[34]
The American War on Terror has already given the "land of the free" many of the trappings of a police state, and Canada's wannabe secret policemen are gleefully jumping on the bandwagon. As I was writing this the Canadian government announced plans for a Canadian "no-fly list" which will allow whoever controls the list to ban anyone from flying on a commercial airplane. If people on that list are also considered enemies of the state in the US they will be stopped at the border, and they will not be able to leave Canada.
That will be no problem for terrorists, because they have access to false identification and have contacts to get them aboard ships, but it means that Canadians who do not toe the government line will be trapped. That's a frightening thought.
The War on Terror is real and is a serious threat to Canada and to freedom around the world. Because the US dominates us there's not much we can do about it, but we can at least insist that human rights be recognized and enforced within Canada, and we can make it very plain to politicians that we do not want to enter a new dark age.
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