Pubdate: Mon, 09 Aug 2004 Source: Law Times (Canada) Copyright: CLB Media 2004 Contact: http://www.lawtimesnews.com/LawTimMain.html Details: http://www.mapinc.org/media/3095 Author: Gail J. Cohen Bookmark: http://www.mapinc.org/prison.htm (Incarceration) Bookmark: http://www.mapinc.org/racial.htm (Racial Issues) CRIMINAL LAW SYSTEM A BLUNT INSTRUMENT Two recent situations illuminate the problems with criminal law trying to deal with social problems. The first is David Fox, a man with an IQ of 45 who can't find a psychiatric facility to take him because he walks the fine line between "criminal and inmate." The story, on page 1 of this issue, illustrates how people with mental disorders often end up in the criminal justice system, which can't really serve them properly, because there are no other options. The second example is the Court of Appeal rulings in the cases of three women who were given, by justices Casey Hill and Nancy Mossip, lenient house-arrest sentences for smuggling cocaine because they were black, poor, and mothers. Appeal Court Justice David Doherty was highly critical of both lower court judges. "A sentencing proceeding is also not the forum in which to right perceived societal wrongs, allocate responsibility for criminal conduct as between the offender and society, or `make up' for perceived social injustices by the imposition of sentences that do not reflect the seriousness of the crime," he wrote in R. v. Hamilton and Mason. Mossip adopted Hill's reasons from Hamilton in another case where she sentenced a woman to 20 months house arrest. In his reasons in R. v. Spencer, Doherty says: "The sentence imposed on Ms. Spencer at trial was so manifestly inadequate that this is not a case where it can be said that the administration of justice would not be served by incarcerating Ms. Spencer at this time." He sentenced her to 20 more months to be served in jail. At trial, Hill had presented 700 pages of statistics and research on race, crime, and the justice system that he'd compiled himself. That was overstepping the bounds, assuming "the combined role of advocate, witness, and judge, thereby losing the appearance of a neutral arbiter," said Doherty. While Hamilton and Spencer both reject the idea that the women's race and financial hardship should lead to more lenient sentences, the Court of Appeal had opened the doors to the systemic-racism defence in 2002's R. v. Borde. In Borde, the appeal court dismissed systemic racism as a mitigating factor, but Justice Marc Rosenberg said systemic racism and the background factors faced by black youths could affect some sentences. But he rightly noted the severity of the crime outweighed other factors in determining the sentence. These cases all illustrate how the criminal justice system can't fix societal problems. The drug mules committed serious crimes and their financial and family situations were not enough reason for light sentences. David Fox and others with mental disorders who end up in prisons also won't find the solutions to their problems there. It's better social services not lawyers, judges, and prisons that are required to assist these people. - --- MAP posted-by: Larry Seguin