Pubdate: Wed, 04 Jun 2014
Source: Toronto Star (CN ON)
Copyright: 2014 The Toronto Star
Contact:  http://www.thestar.com/
Details: http://www.mapinc.org/media/456
Author: Lisa Kerr
Note: Lisa Kerr is a doctoral candidate in law at New York 
University, and a Trudeau Foundation Scholar.
Page: A13
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)

MINIMUM DRUG SENTENCES HAVE NO FUTURE IN CANADA

This week, the B.C. Court of Appeal hears the first major challenge 
to the latest symptom of a punitive plague: mandatory incarceration 
for a drug crime. The defendant, 25-year-old Joseph Lloyd, lives in 
the downtown eastside of Vancouver, where he struggles with addiction 
and regularly interacts with the court system. In the past, local 
judges could use their expertise to craft an individualized 
punishment for people like Lloyd. Community supervision, drug 
programming or specific amounts of jail time could target his 
specific circumstances.

New legislation compels judges to impose a minimum one-year prison 
term on all individuals who meet a handful of criteria. Judges can no 
longer consider whether it is in the public interest to incarcerate 
someone like Lloyd, or for how long. They can no longer consider 
whether a person will lose housing or employment. While one year in a 
chaotic jail is unlikely to help a struggling individual to recover 
stability, that is a judge's only option unless the law is struck down.

In the United States, the removal of discretion from sentencing 
judges is the central cause of its famously high rate of 
incarceration. There are nine million prisoners in the world. Over 
two million of them are in the U.S. The explanation can be traced 
back to the climate of the 1970s: high crime rates and a civil rights 
backlash, the fusion of race and crime in the Republican Party's 
Southern Strategy and a shift from offering welfare-state benefits to 
offering law-and-order policies to gain electoral support. The 
convergence of these factors led to hundreds of reforms - and 
eventually, the war on drugs - that expanded the scope, severity and 
cost of the prison system.

Remarkably, academics and politicians on both sides of the American 
political spectrum initially supported reform. Unlike the Canadian 
system today, before the 1970s there was very little appellate review 
and a dearth of legislative standards to guide the power of American 
sentencing courts. Liberals like Marvin Frankel argued that unchecked 
discretion allows judges to smuggle racist and classist attitudes 
into their decisions. Conservatives, by contrast, thought judges were 
unduly lenient.

Americans of all political stripes have since learned that stripping 
judicial capacity to respond to the individual in front of them has 
undesirable consequences. The U.S. federal prison system alone 
expanded from 24,252 inmates in 1980 to 208,118 by 2009. The fastest 
growing group has been women, because judges can no longer order a 
community sanction for the many non-violent female defendants who 
appear before them as the sole caretakers of children.

Canada has almost none of the social tension and insecurity of1970s 
America. In fact, Canada has experienced the same fall in serious 
crime as the rest of the industrialized world, due to widespread 
factors that experts are only beginning to unravel. This might 
explain why Harper's "tough-on-crime" agenda is not faring well in the courts.

The American "victims' rights movement" emerged out of a collapse of 
rehabilitative rationales and a sense that basic shared values were 
eroding. The notion of a similar Canadian movement is more a symbolic 
appeal to an electoral base than a grassroots movement grounded in 
current experience. The federal Conservatives are undoubtedly trying 
to mobilize voters, but it's difficult to understand why we would 
want to support costly incarceration at a time of peaceful streets 
and social stability.

The arrival of mandatory sentences does not herald the 
"Americanization" of Canadian crime policy. The deep principles of 
our criminal justice system cannot be dismantled overnight. Our 
prosecutors are not a bloodthirsty lot - they are largely anonymous 
and professional public servants. Unlike many of their American 
counterparts, they are not subject to elections and public scrutiny. 
They are better positioned to pursue a broad notion of the public 
interest, rather than just long prison sentences.

Canadian judges are also likely to resist interference by politicians 
who are detached from the daily reality of human misery faced in 
criminal courts. And they have the tools to do so. While Canada and 
the U.S. have identical language in the constitutional prohibition 
against "cruel and unusual punishment," the prohibition has been 
interpreted very differently in the courts. In 2003, the U.S. Supreme 
Court upheld a life sentence for a third offence of stealing golf 
clubs. In 1987, the Canadian Supreme Court struck down the only 
previous attempt at automatic incarceration for drug crime: a 
seven-year term for drug trafficking. So far, mandatory sentences for 
non-violent drug offences are unconstitutional in this country.

Canadian institutions are likely to resist this untimely American 
policy transplant. There is no collapse of faith in our courts, there 
is no crime wave and there is no Southern Strategy. Joseph Lloyd 
should encounter a court system that is free to encounter him.
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MAP posted-by: Jay Bergstrom