Pubdate: Thu, 19 Jun 2008
Source: Globe and Mail (Canada)
Copyright: 2008 The Globe and Mail Company
Contact:  http://www.globeandmail.ca/
Details: http://www.mapinc.org/media/168
Author: Kirk Makin, Justice Reporter
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)

MANDATORY SENTENCES BLAMED FOR BOOM IN COST OF PRISONS

Longer Sentences Blamed for Burden

Imposing mandatory minimum prison terms on criminal offenders is
adding approximately $80-million per year to the price of justice,
says an Ontario judge privy to correctional statistics and
projections.

"We have been told that federal correctional officials estimate they
will increase the sentenced population by 1,000 prisoners per year,"
the judge said in an interview.

It costs about $80,000 a year to keep a penitentiary inmate, so the
additional burden of those on mandatory minimum sentences multiplies
out to $80-million.

Even this figure, however, underestimates the amount. It does not
include the cost of holding people accused of crimes that bring
mandatory minimum sentences in provincial remand centres for longer
than they might otherwise serve before their trials.

"These [costs] inevitably go up substantially, because there is very
little percentage for a prisoner facing a significant minimum
mandatory penalty to plead guilty," the judge said, speaking on
condition of anonymity. "What judges are always concerned with is
that, when the occasional exception comes along, we cannot do the
right thing. There are cases where a mandatory minimum is simply too
harsh."

His sentiments appear to be shared by an overwhelming number of
lawyers, judges and legal academics. They call mandatory minimum
sentences ineffective, contradictory of bedrock sentencing principles,
and downright cruel in specific cases.

The Criminal Code currently contains about 45 mandatory minimum
sentences, and politicians regularly call for more.

"They just keep adding to them," said Alan Borovoy, president of the
Canadian Civil Liberties Association.

"It becomes their favourite panacea," Mr. Borovoy said. "I've stopped
counting them."

Critics claim that the Achilles heel of minimum sentences is the
infinite number of factors that vary from one offender and crime to
another.

Mr. Borovoy cited the case of an Ontario Provincial Police officer,
Constable Stanley Levant, who shot a fleeing suspect in 1994 during a
split-second, high-stress confrontation.

On account of his spotless record and the desperate situation he was
in, Constable Levant received just six months in jail.

Sentenced today, he would have automatically received four
years.

Mr. Borovoy said that he made the Levant case a central part of a
presentation in 2006 to a parliamentary committee that was examining
proposed new mandatory minimum sentences for gun crimes.

"I looked those guys in the eye, and said: 'If there is anybody here
who thinks this officer should have gotten four years, please identify
yourself,' " Mr. Borovoy said. "Nobody identified. I kept coming back
to it, because I knew it put them in a ridiculous position."

Nonetheless, politicians are tantalized by a get-tough measure that
seems to be such an easy fix, said Tony Doob, a professor at the
University of Toronto's Centre of Criminology.

"From a legislator's perspective, it's a dream," he said. "You don't
have to change any institutions. You don't have to hire anybody or
change procedures or anything else. You just say: 'We're going to
change the sentence.'

"But our maximum sentences are already high. Take robbery. The maximum
is life imprisonment already. So, all that's left in terms of lazy
legislation is mandatory minimums."

Critics cite several other factors that either push up the price tag
or defeat the point of mandatory minimum sentences:

Many accused people plead guilty to lesser charges, whether or not
they are guilty, rather than risking the harsh mandatory minimum sentence.

Defendants who cannot extract a favourable plea bargain insist on
having a full trial, using every technical argument available to
forestall a conviction. Trials stretch out longer, and courts become
overcrowded.

Marginal offenders are treated unduly harshly. They "suffer the
rigours of a penitentiary sentence, out of proportion to their
blameworthiness and without producing the desired deterrent benefit,"
said Queen's University law professor Allan Manson.

"Focusing on such an ineffective and costly sentencing strategy has
had the disastrous side effect of distracting legislators and
policy-makers from the actual causes of crime and modern,
crime-reduction techniques," Prof. Manson said.

Prof. Doob said that studies have repeatedly shown that mandatory
minimum sentences have no deterrent effect on prospective criminals
and crime rates.

Very few criminals have any idea what sentencing ranges pertain to
particular offences, he said, let alone being deterred by the prospect
of drawing a certain sentence.

"As though anybody contemplating a gun-related crime would not be
deterred by a four-year possibility - but would be deterred by a
five-year possibility," Mr. Borovoy remarked.

The federal government has taken to focusing its defence of mandatory
minimum sentences on the merits of avenging victims and keeping
offenders on ice. As for those who once looked to the Supreme Court of
Canada to combat mandatory minimum sentencing, there has been nothing
but disappointment.

Indeed, the court has stressed Parliament's right to use them to
express society's abhorrence for certain crimes.

*

When the law requires a minimum sentence

The 40 to 45 mandatory minimum sentences currently in the Criminal
Code fall into four basic categories:

Firearms offences

Introduced in 1995, they involve a list of violent crimes in which the
perpetrator used a firearm.

Sexual offences

Those involving children, enacted in 2005.

Murder

Murder in the first and second degree, enacted in 1976 when capital
punishment was abolished.

Breaking and entering

To steal a firearm, and robbery to steal a firearm. These came into
effect in May.

In addition, there is a long-standing grab bag of offences, such as
impaired driving, in which the defendant has a previous conviction for
the same offence, that have mandatory minimum sentences.

In contrast to many other countries, Canada has refused to leave a
narrow window for judges who want to deviate from the mandatory
minimum sentence in a truly exceptional case, according to Queen's
University law professor Allan Manson.

He said a recent Supreme Court of Canada decision - Regina v. Ferguson
- - also left judges without the power to avoid imposing a mandatory
minimum sentence by falling back on a "constitutional exemption."

"It is distressing that Canada continues to move further in this
direction, while other jurisdictions are starting to draw back from
this misguided and politically motivated penal policy," Prof. Manson
said.

"Judges in Canada can and do distinguish between offenders and
offences that require firm sentences," he added. "They can be heavy
hitters when the case warrants a harsh response." 
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