Don’t Do Mandatory Drug Sentences

By: Omar Ha-Redeye · June 5, 2009 · Filed Under Criminal Law, Legal Reform, Politics · 13 Comments 

Context is always important in criminal law matters, drug-related crimes especially.

There are a number of reasons why people get involved in drug use and trafficking, including poverty, discrimination, mental illness, depression, chronic pain, sexual abuse, and general desperation.

Although these factors are never an excuse for criminal activity, a judge can take them into consideration in exhibiting some leniency, especially if it is a first time offence or the offender has demonstrated rehabilitation.

Bill C-15, which the House will vote in this week, will establish minimum penalties for drug-related offences by amending the Controlled Drugs and Substances Act.

Janice Tibbetts of The Gazette said,

The bill was lambasted by 13 of the 16 witnesses who appeared before the House of Commons justice committee during public hearings this spring.

Although it’s claimed that it is intended for gang-related activity, the reality is that the amendments will automatically apply to others as well, including general violent offenders, trafficking near schools, or those working with minors.

It’s not that these are commendable actions in any way, but the fact-specific nature of these crimes require review and application by the court, not blanket sentencing devoid of any analysis of the situation in which the offence took place.

The amendments are part of a broader Conservative strategy to get “tough on crime” that simply won’t work.

Perhaps they should consider getting tough on poverty and discrimination first, so they can have the credibility to even begin to address these issues.

MP Brian Murphy, the former mayor of Moncton, N.B,  expressed these reservations,

The Conservatives really have not been effective. If we want to get at the root causes of crime and if we want to do what we all want as parliamentarians, which is to have safer communities, we have to look at the beginning and the end. We have to look at the whole situation with respect to crime. We do not go to CTV or CBC, get on the news and say, “We’re doing something about crime. Look at the bill we’re introducing”. We do not have successive parliaments have their work interrupted by prorogations. That is what the government has done. It has denied justice by delaying justice.

Even when the government gets around to what it sees as its fix, its panacea, which is just legislation, it does not seem to get that its legislation alone will not solve the problems we have with organized crime, drug abuse and the drug culture and drug crime industry in this community…

Even proponents of the Conservative justice agenda, and I think primarily of the representatives of the board of trade from British Columbia who were here yesterday, recognize that the legislation alone is not enough. Even they would say that no one is born a criminal. One has to become a criminal and embrace a lifestyle that leads to incarceration. Unfortunately, time and time again the government has brought forward legislation that only talks about one of the pillars or, if we want to get technical, one of the principles of sentencing as found in the Criminal Code, which is the issue of incarceration…

What is missing in this crime prevention program is a more holistic approach. Why have we not heard the Conservatives talk about bringing forward other legislation that will be more effective?

The Bill will likely also disproportionately affect marginalized communities all across Canada,

It is so evident when we look at the statistics with respect to people who commit crimes and people who are recidivists. That is again something the Conservative government has ignored. The high incidence of aboriginal inmates has not been looked at thoroughly. We deal at the justice committee only with the bill du jour…
For women, youth and the mentally ill, our system is inadequate, and it should be addressed by the public safety minister. It has been a couple of weeks now. There has been no response, but we will be on it. We will continue. It is our job for Canadians and we will do that.

Michael Savage, MP for Dartmouth-Cole Harbour. also had some comments,

…we should be doing more to look at the causes of crime, addiction and what one might call the social ills of society… specifically about the impact that early learning and child care could have in making sure that kids get off to a better start so that they do not find themselves in trouble with the law..

…what kind of impact it would have if Canada had a real early learning and child care program that was based on quality, that was universally available, accessible to all and developmentally based. Canada is at the very bottom of the OECD nations in terms of how much we invest in early learning and child care.

I grew up for some time in Scarborough-Rouge River, where the MP for that riding, Derek Lee, stated,

I am personally very disappointed in the recent evolution of the criminal sentencing policy as put forward by the government. Some of the policy changes have been harmless. I do not think they will be effective. Much of it has to do with posturing, pretense and political stage play that I do not think will bring about many results at all.

Lee added that the new Bill did very little to change the existing sentences for drug-related offences, and that ordinary criminals wouldn’t even notice the changed sentences to the deterrent effect was minimal,

We have taken a sentence of life in prison, available to a judge in sentencing, and added in a one-year minimum. This is really going to have an impact on the street. All those would-be drug pushers out there are going to be shaking in their boots. The fact is they do not care about these laws. They would not be breaking laws in the first place if they did.

At the very least, the current Bill should undergo vigorous debate and examination.

Perhaps the greatest irony is that in the U.S. mandatory sentencing is being reconsidered. The Rhode Island Senate is currently reviewing a Bill that would eliminate mandatory sentences in that state,

Supporters of the sentencing bill said heavy mandatory sentences for drug offenses have not had an appreciable effect on reducing drug crime.

The specific reason for scrapping the law would be to give judges more flexibility.

Lea Carpenter Brokaw of New York recently shared her experience in America,

There is no evidence to suggest mandatory minimum drug laws have made our communities safer, or deterred individuals from drug crime. Delaware’s prison population has tripled despite these laws, and prison officials have estimated that less than half of the prison population struggling with substance abuse actually receives treatment.

Mandatory minimum drug sentencing is expensive. The cost to incarcerate one inmate in Delaware tops $30,000 annually. In a time when state employees face 8 percent pay cuts, public schools face budget cuts and families face unemployment and home foreclosure, we must consider ways to reduce prison spending so we can invest more in our communities. The time is now for legislators to reset the calculus, to observe what has worked, what has not worked, and to let choices reflect lessons learned.

The existing statutory provisions for drug-related offences are tough enough.  We can’t get tougher on crime than we already are without reintroducing the death penalty (maybe that’s next?).  Judges already have the power to impose maximum punishment in cases where necessary.

But occasionally a situation arises where leniency is required, depending on the context of the case, and a judge may impose a shorter or lighter sentence.  This is not a bad thing – it’s part of the role that courts play in the rehabilitation of criminals.

Let the courts do this job, without the intereference of mandatory sentences.

Comments

13 Responses to “Don’t Do Mandatory Drug Sentences”

  1. KC on June 5th, 2009 10:35 am

    “There are a number of reasons why people get involved in drug use and trafficking, including poverty, discrimination, mental illness, depression, chronic pain, sexual abuse, and general desperation.”

    Or with one particular drug, just for the heck of it.

    Who cares about their reasons? Maybe we should behave like a true liberal society and let people make their own choices/mistakes without the government getting involved.

  2. Omar Ha-Redeye on June 5th, 2009 10:42 am

    KC: At least your Libertarianism is consistent.
    Unfortunately some choices/mistakes, especially violent ones, do infringe on the liberty of others. Goverment has a role in getting involved, but should do so carefully and with a genuine interest in reducing crime at the front end.

  3. KC on June 5th, 2009 10:54 am

    Yes which is why I favour a nuanced approach to drug policy.

    I could support keeping those drugs that almost invariably lead to a violent reaction (i.e. crystal meth) nominally illegal (i.e. the cops can seize the drugs and give you a fine or something but as you demonstrate: mandatory minimums don’t work). Others need an addict licensing program with safe, available drugs(i.e. heroin) because addicts to these drugs can manage their addiction if they have a safe supply and don’t pose a risk to others. Pot should be straight out legal and treated the same way as alcohol (I’d probably include MDMA in the same category but would have to do more research). Others are a little more complicated because users are occasionally but rarely a public risk (i.e. LSD, Mushroons).

    We need a paradigm shift towards a public safety, rather than paternalistic, approach to drugs. If a drug is a bona fide public safety risk (like crystal meth) and some policy is demonstrated to reduce that risk then by all means. But otherwise people should be left to their own choices. Thats not libertarianism. Its liberalism.

  4. Omar Ha-Redeye on June 5th, 2009 3:38 pm

    The philosophical difference between our positions is probably best encapsulated by what I envision as the role of government.
    Drug issues are best addressed by properly funded treatment programs that do not require a criminal conviction to access.
    These minimum sentences do absolutely nothing to actually fight the cause of drug issues, or make it tougher on the hardest of criminals.

  5. KC on June 5th, 2009 5:07 pm

    So are you saying that you have no problem with policies rooted purely in paternalism?

  6. Omar Ha-Redeye on June 5th, 2009 5:16 pm

    It’s a matter of perspective, isn’t it?
    I see it more as a way to empower those who need a little help. Hardly paternalistic when speaking of sentencing.

  7. KC on June 5th, 2009 5:23 pm

    Its paternalistic to deny that at least some drug use is a valid exercise of individual free choice, and those people should be left to their own devices. I know you take an interest in the role of stereotypes, and one group that is endlessly stereotyped is the “drug user”. Not everyone who uses drugs is the down and out, “stereotypical”, Vancouver downtown eastside junkie. Many of them are educated, middle to upper class professionals who have made a choice to use various substances for recreation. Those folks don’t need jail OR treatment. They need to be left well enough alone to live their lives free from state coercion.

    I’m all for giving treatment to those who really need it, and accept that some regulation (even to the point of prohibition) of certain drugs is necessary in the legitimate interest of public safety. But the functioning individual who likes to smoke a joint on his weekend off or even indulge in something a little heavier shouldnt be hounded by government for his “own good”. That is the defition of paternalism.

  8. Omar Ha-Redeye on June 5th, 2009 6:07 pm

    And it has nothing to do with sentencing. Take your comments to the Insite threads and we might have a conversation on this instead.

  9. KC on June 5th, 2009 6:16 pm

    Sentencing presupposes an offense. A debate about the legitimacy of the prohibition and its efficacy in addressing the alleged harm is relevant to whether or not we should have mandatory minimums. It’s a debate over principles. Not a factum.

  10. Omar Ha-Redeye on June 5th, 2009 6:22 pm

    I’ve publicly supported harm reduction strategies many times, which are often consistent with decriminalization.
    You’re assuming I have an adverse position on this, whereas I really haven’t taken one.

  11. Lawrence Gridin on June 6th, 2009 10:19 am

    The Conservative government’s approach to criminal justice has been nothing short of appalling.

    Mandatory minimum sentences are just plain idiotic. I wish I could find a nicer way to say it, but I can’t. They make 0 sense from a criminological point of view and they are completely contrary to notions of justice.

    If you don’t believe me, ask any judge on the bench what they think of mandatory minimums.

  12. Annon on June 9th, 2009 7:10 pm

    Omar,
    With all due respect, this piece reads like partisan drivel. Not that I disagree with what you are saying, but please don’t quote a bunch of MPs from the official opposition and pass it off as facts. This article would have been nicely complimented by some subject matter experts from the US (where, without a doubt, the “tough on crime” approach has failed).

  13. Omar Ha-Redeye on June 9th, 2009 10:11 pm

    The official opposition actually supported the Bill despite the quotes above, which was part of the point.
    See this for more context.

    Their support was based on provisions in the Bill related to increases in treatment funding.

    However, I disagree with the manner in which these services would be accessed, and I think the mandatory sentencing is too big an issue to concede in return.