Thursday, August 11, 2011

Are Mandatory Minimum Sentences a Mandatory Necessity?

Don't do the crime,
If you can't do the time
It's said that it just don't pay.
But what good's working hard
When all they give you is your cards
And you know there's not much you can say.

UB 40, from the album UB44, released September 1982

But what is the time? Should it be a matter of: "steal one loaf of bread, get x sentence; steal three loaves of bread, get triple the sentence?" Or should our legislators only provide general guidelines to the public and courts about what that "time" might be, and leave it up to individual prosecutors, defence counsel and judges to hash out sentences custom crafted for each offender and offence?

Back in 1998, I was in the Ontario Court of Appeal in R. v. McDonald defending four-year mandatory minimum sentences for certain firearms-related offences. The claim was that they violated s. 12 of the Canadian Charter of Rights and Freedoms which protects against "cruel and unusual treatment or punishment." Lengthy seven year mandatory minimum prison terms for importing drugs had already been struck down in 1987 under s. 12 in R. v. Smith, the argument being that the harsh minimum didn't take account of someone like a first offender who was importing a marijuana cigarette for personal consumption. Although the Ontario Court of Appeal expressed discomfort with the sentence in my case, in the end they didn't find four-year mandatory minimum for serious gun crimes to be unconstitutional. 

A lot of the argument supporting mandatory gun minimums in the late 1990s revolved around guns being serious and somehow different. I didn't spend of lot of time contemplating that the same argument could be used for imposing mandatory minimums for virtually any type of offence.

In 2011 we now have a whole lot of mandatory minimums on the books, and a whole lot more headed down the legislative pipeline. Added to those firearms mandatory minimums, we have mandatory minimums for offences against children, mandatory minimums for impaired driving related offences, and of course that very longstanding mandatory minimum - life - for first or second degree murder. 

"Well, is that really all so bad?" you say. Those are, after all, some quite serious offences. The problem lies in the shape of things to come. Once you get addicted to mandatory minimums, there seems to be a great temptation to impose them everywhere. 

Shortly after I started serving as a Federal Prosecutor, Parliament codified sentencing "purpose and principles" in s. 718 of the Criminal Code:
 The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

There have been debates as long as there's been organized criminal law over which of these points to emphasize when it comes to settling on a "fit" sentence for an offender and offence.

While the term "retribution" may have largely disappeared from sentencing vocabulary, it still hides inside denunciation. Deterrence has always remained popular, but alas it seems to have a spotty track record among criminologists who study these things; there's some evidence to support that criminalizing conduct and prosecuting people for it probably has some deterrent effect, but not for the proposition that harsher sentences will make people think twice and thus reduce crime rates. Separation from society has been shown to infinitesimally lower the commission of some types of offences (by a few percent), but by that argument locking everyone up would achieve the best result. 

While rehabilitation became the flavour of the 20th century, it still faces lots of challenges - some offenders and offences respond well, and some don't. Reparations, responsibility and acknowledgment of harm are wrapped up in concepts of restorative and transformative justice, which I'm a big supporter of, but again they don't work for a number of offenders, offences and victims.

Centuries of evolution of legal rules of evidence and procedure means that the law is now pretty good at assigning blame: determining who should be held responsible for what. There will always be critics of unjust results on the blame front, but where the law really struggles is on translating that blame into consequences. For civil tort blameworthiness the law translates serious bodily, mental or property injuries into money - "lost an arm, and it was his fault, well - he's got to pay you x." But money can never equal an arm. 

Same with the criminal law: "So he beat you up and broke your arm. Well that's worth y punishment." But a fine or imprisonment is never going to be equivalent to a broken arm. 

The criminal law has even greater problems with offences where society as a whole is the victim, which is why sentences for offences like drug dealing are all over the map. How do you get from: (1) drugs are bad, to (2) we are going to criminalizes dealing drugs because they are bad, to (3) Bob is sentenced to three years and 27 days for dealing in drugs? Usually with a lot of soul searching on the part of judges, prosecutors and defence, who look at what others with similar backgrounds have received for similar offences.

Parliament already decides on what conduct should be criminal, and on what the maximum penalty should be. Trial judges are already kept in check on how low (or high) they can go on a sentence by Courts of Appeal overturning their sentences if they are unfit. So do we really need mandatory minimums? And if so, how many? And how harsh should those minimums be?

The Research and Statistics Division of our own Department of Justice Canada (who I can attest from personal experience employs some very skilled criminologists) released a study back in 2005 entitled Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models, which found: 

"There is clear evidence that even in the United States, where support is stronger for mandatory sentences, public support for the concept is declining. For example, in 1995 over half of the sampled public in the US held the view that mandatory sentences were a good idea (Roberts, 2003.) In 2001, this percentage had declined to slightly more than one-third of respondents (Peter D. Hart Research Associates, 2002; Roberts, 2003.) In fact, over half the polled public in the US now favour the elimination of “three-strikes” mandatory sentences (Peter D. Hart Research Associates, 2002.) The most recent polling on the issue of mandatory sentencing comes from the state of New Jersey. When asked whether mandatory jail or mandatory drug treatment was the  more effective approach to non-violent offenders, respondents chose treatment over imprisonment by a three to one ratio (Eagleton Institute of Politics Center for Public Interest Polling, 2004.) Three-quarters of the sample favoured allowing judges to set aside mandatory sentences “if another sentence would be more appropriate” (Eagleton Institute of Politics Center for Public Interest Polling, 2004.) Taken together, these results suggest that the impact and realities of mandatory minimum sentences are starting to be understood by the general public."

The report concluded "there is clear evidence that several jurisdictions are now either repealing or amending these punitive law" and that "the experience with mandatory sentencing legislation in a number of countries has shown that these laws do little to promote public confidence in the sentencing process."

And six years later, what's Canada up to? Take a look at a National Post piece from last May: Crime and Punishment: Inside the Tories' plan to overhaul the justice system. Or even better, check out the Legislative Summary of Bill S-10 (written by the amazing researchers at the Library of Parliament, THE place to go online for great detailed background info about any recent Canadian laws) which provides a great history of drug sentencing policy in Canada. 

Though the Bill S-10 is complicated (and it's not even the only proposed mandatory minimum bill out there), the bottom line is if passed it could lead to lots of minor drug dealers and growers (with as few as five plants) going to jail for a long time. Again, you say, not a bad thing. Well, it depends on what you're trying to accomplish. The Library of Parliament summary notes that S-10 likely won't cut down on drug use or trafficking and will cost great amounts of money. 

So what do you think? Are mandatory minimums a good idea? Frankly, I have mixed feeling about them myself. 

Perhaps some minimum fines for regulatory offences might be a good idea - like Ontario's mandatory minimum fine for driving without auto insurance which ensures that the cost of the fine is not cheaper than the cost of the insurance. And certainly for the most serious of offences and offenders - murder being the best example - a certain degree of denunication and incapacitation will always be required through mandatory minimums. But if, as is quoted in the Library of Parliament's Summary, "despite 25 years of harsh mandatory minimums, disproportionate numbers of the poor, the young, minorities and the drug addicted have been thrown in US jails with no impact on the drug business itself, which has flourished," then what's the point in these minimums? That we can all feel good that "bad" people are getting their just desserts?


  1. By and large, I think it's a bad idea although like you, I'm conflicted. On the whole, though, locking people in jail and throwing away the key has not solved the underlying problems in society that cause crime in the first place. Don't get me going. Maybe we should lock up more parents and throw away the key! ;)

  2. I agree with you Knatolee. My main question about young offenders, and repetitive sentences, always has been (not just in riot days): Where are the parents, in those stories? Do they know where their children are?

    Years ago, as a nurse, I worked in Ottawa,for a Street Clinic. I was horrified by the age of the kids dealing with drugs on the street. The stories I could tell....All I will say is the law and jail time never seemed to cure the problem. And the parents wre either absent, indifferent, or far too indignant, at us or the child.

    Claude (can't retrieve my ID on this comment page)

  3. I agree with Claude that our society does not take the responsibilities of child rearing seriously. Sadly, the stresses that children are dealing with are causing them to develop mental illnesses at younger and younger ages. Resources for helping them are scarce . And actually I don't think you can expect a few professionals to give children all the support they need. We need to look at the messages that we as a society send our kids: you need to be good-looking, hot, rich. And realize how toxic that is for our children. Some children are predisposed to certain mental illnesses, but I believe that environment is what usually tips them over the edge. Many prison inmates are mentally ill people. Minimum sentencing? I think for many criminals, there is no future on the outside either so, in or out of jail, they are in prison anyway.

  4. The reasons why people commit crimes are complicated. Sometimes it's poor parenting. However, I've seen very supportive and functional parents with kids who simply make poor choices. Also, some people are psychopaths and studies suggest that upbringing has no relation to that diagnosis.

    As a criminal defense attorney, I disagree with minimum mandatories. Each case is different as is each defendant. I've seen many cases where minimum mandatories tied judges' hands when they would have done something different because the facts warranted a different sentence.

    Just one example. I know of a defendant who suffered a frontal lobe injury as a newborn child because he was dropped and hit his head on a concrete floor. As a result he was cognitively slow, childlike, and had to live with his parents. He could not take care of himself sufficiently to live alone.

    He did not comprehend appropriate boundaries and he sexually molested a young female family member. The punishment was a min-man of 5 years in prison, not an appropriate sentence for someone who was likely to be victimized in prison and really needed therapy teaching him appropriate boundaries.

    Courts need to have discretion to impose a sentence that truly fits the crime and minimum mandatories don't allow that.

    Great post!

  5. Doesn't mandatory minimum sentencing take away much of the judge's discretion? Isn't it essentially saying, "Yeah, we said you could be judge, but we don't trust you enough to decide on the sentence without watching over your shoulder!" So I agree with Cognitive Dissenter (now that she's explained it all to me) and don't feel conflicted anymore. ;)

  6. I disagree with mandatory minimum sentencing because too often it is used for political ends, to appeal to an uninformed public and convince it that the government is "getting tough on crime." Also, when we use the word "criminal", most people think of young men, usually poor and uneducated, who commit crimes like break and enter, drug dealing, and sometimes really serious violent crimes. But what about the white-collar crime that takes place all the time in our world? We still have a two-tier perception of justice that labels some people as criminals and shuts its eyes to awful things done by wealthy and powerful people. So when some politicians talk about mandatory minimum sentences, they are not talking about the Bay Street bankers who cheat and steal and engage in shady business ventures. Crime and punishment is so complex, I agree with cognitive dissenter that each case needs to be treated separately.
    Thanks for this post. Great stuff.

  7. Canadian lawyers think it's idiotic, not that Harper gives a crap:

  8. Thanks for all your great, most thoughtful comments.