Pubdate: Wed, 26 Feb 2014
Source: Vancouver Sun (CN BC)
Copyright: 2014 The Vancouver Sun
Author: Ian Mulgrew
Bookmark: (Mandatory Minimum Sentencing)


Ottawa's Folly: B. C. Judges, U. S. See Flaws in Mandatory Minimum

B.C. Provincial Court Judge Joseph Galati has joined a handful of his 
colleagues in thumbing his nose at Ottawa's tough-on-crime legislation.

Along with their counterparts in Ontario and elsewhere, he and his 
fellow judges are finding it hard to stomach sending non-violent, 
chronic drug offenders to prison under recently imposed mandatory 
minimum sentencing guidelines.

In their opinion, when dealing with these by-and-large addled and 
addicted adults, compassion not incarceration is the answer, and to 
imprison them for at least a year constitutes cruel and unusual punishment.

On Jan. 24, Galati decided a 25-year-old, small-time Downtown 
Eastside drug dealer should serve only 191 days, despite his lengthy 
record and the statutory sentencing requirement.

While mandatory minimums make sense for offences such as murder, they 
leave no room for mercy and can produce significant injustice when 
applied to low-level drug crimes.

The victim surcharge fines raise their own issues for this cohort of 
poor, often homeless offenders.

There are two Orwellian-named laws causing much of the trouble - the 
Safe Streets and Communities Act, and the Truth in Sentencing Act. 
The imposes minimum sentences and fines, and restrict the credit a 
judge can give for the time an offender spends in pre-trial custody.

Last month, the Supreme Court of Canada heard the federal 
government's appeal of rulings that flouted the Truth in Sentencing Act.

Judges in those cases complained that the act caused inequity by 
restricting sentencing discretion because it eliminates the practice 
of giving offenders 1.5-times credit for time spent incarcerated 
under more onerous pretrial conditions.

That the government hasn't simply responded to the judicial concerns 
is odd as sentencing reform is happening across the continent.

U.S. Attorney General Eric Holder issued a memo in August to federal 
prosecutors, directing them to avoid triggering that country's 
mandatory minimum sentences unless there were exceptional circumstances.

The U.S. got seriously enthusiastic about this drift-net approach to 
sentencing 30 years ago - and the policy filled the country's 
prisons, primarily with minority offenders, while stripping state treasuries.

Today, Americans see the error of their ways, and recognize that the 
effect of such legislation was akin to the Jim Crow laws that 
buttressed segregation and discrimination from the end of the Civil 
War until the mid-20th century.

In January, the U.S. Sentencing Commission, which sets policy for 
federal courts, proposed a series of changes to reduce penalties for 
some drug charges. The reforms would reduce sentences by 11 months 
for around 70 per cent of federal drug-trafficking offenders, and 
reduce the federal prison population by about 6,550 within five years.

At the end of last month, the Senate Judiciary Committee put forward 
the Smarter Sentencing Act - it's also aimed at reducing mandatory 
minimum sentences.

It would allow judges to sentence nonviolent drug offenders below a 
mandatory minimum if the court finds they have no prior firearm, 
racketeering, terrorism or sex offence convictions.

There are opponents to these moves - for instance, the National 
Association of Assistant United States Attorneys warns they lead to 
"a crime-riddled future."

But such voices are a minority.

Mandatory minimums rob judges of valuable discretion that allows them 
to fashion an individual sentence to fit the specific circumstances 
of a crime. They push up judicial and corrections costs by removing 
any incentive for a plea bargain as incarceration is inevitable, and 
thusly increasing the prison population.

It is hard to understand why Ottawa has been so insistent on imposing 
and staunchly defending this discredited approach.

Other commonwealth countries have a general exemption that allows 
judges to make an exception in extraordinary cases.

Obviously, there needs to be a safety valve that allows judges a 
chance to prevent injustice - especially since our aboriginal 
population is so vastly over-represented in the prison system.
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