Tuesday, December 8, 2009

Mandatory minimum sentences and drug offences

Mandatory minimum sentences for drug offences continues to be a hot topic in the world of drug reform. (Yes, I admit it, I am a policy nerd and this stuff excites me.)

In Pennsylvania, a major new study suggests the state should alter its sentencing laws. The report found that mandatory minimums did not affect recidivism, although they did encourage plea bargaining. From the Delco Times:
A nearly 30-year debate on mandatory-minimum sentences recently got a another look with a new report from the Pennsylvania Commission on Sentencing.

The report was authorized by the state Legislature in 2007 and employed an advisory committee made up of legislators, judges, district attorneys and public defenders. Commission staff also worked with faculty and students of Pennsylvania State University in conducting interviews, surveys, extensive data analysis and studies to reach its conclusions.

The nearly 500-page report made three major recommendations to the General Assembly, according to a considerably shorter summary: Allow courts to use alternative sentencing options to satisfy lower-level, drug-trafficking mandatory-minimum sentences; amend the drug trafficking statute to increase the threshold for cocaine possession; and repeal Drug-Free School Zone mandatory legislation.

In Canada we are moving backward on this issue. Bill C-15 introduces mandatory minimum sentences for a variety of drug offences. Neil Boyd, a criminology professor in British Columbia, has an essay in The Mark about the internal contradictions found within this legislation. I've taken the liberty of highlighting my favourite points in bold:
Let’s assume that mandatory minimum sentences for the distribution of illegal drugs represents good social policy, sending a message to would-be participants in the commercial trade, frightening drug dealers out of the business, especially if they use weapons, or engage in any form of intimidation.

Unfortunately, Bill C-15, the government’s proposal to amend the Controlled Drug and Substances Act, has its own internal contradictions, regardless of whether one believes in its approach. The most significant contradiction is its relatively harsh treatment of cannabis production, in contrast to its treatment of the trafficking (or possession for the purpose of trafficking) in cannabis (and heroin and cocaine). Section 5(3) of the Controlled Drugs and Substances Act is to be amended to provide for a minimum term of one year imprisonment for trafficking in heroin, cocaine, or cannabis, provided that the convicted person commits the offence as part of a criminal organization, uses violence in committing the offence, is carrying or threatening to use a weapon in committing the offence – or has served a term of imprisonment for a designated substance offence (typically trafficking or importing an illegal drug). Somewhat surprisingly and quite inconsistently, these same caveats are not applied to the offence of marijuana production.

Granted, the minimum term of imprisonment is six months, rather than one year, but the irony is that the distributors of more dangerous drugs are to be treated less harshly than the producers of a less dangerous one (cannabis), irrespective of the actual amounts involved. And even more oddly, the distributors of cannabis are to be treated differently from the producers of cannabis, again irrespective of the amounts in question.

Additionally, consider section 1. (1) (a) (i) (D) of Bill C-15, the proposed imposition of a mandatory term of one year in prison, if the convicted drug distributor has served a term of imprisonment for distribution of marijuana, cocaine, or heroin at any point during the previous 10 years. Think of the user-dealer with longstanding addiction and mental health problems, convicted of selling a small amount of crack cocaine to his associates and having previously served a short jail sentence for this crime. Is this the kind of person that we want to lock up for a minimum of one year? It seems quite clear that if our politicians leave this section as it is, it will fill our jails with hundreds of individuals annually who are far from commercially driven by the illicit trade – individuals who might be better served by a range of treatment modalities than by a mandated term of imprisonment.

But back to the Bill’s most glaring inconsistency – its much harsher treatment of the production of cannabis (in contrast to the distribution of cannabis, cocaine, or heroin). C-15 will impose a minimum term of imprisonment of six months on any grower of six plants or more, regardless of the issues of violence, weaponry, or the presence of criminal networks. It scarcely needs to be said that marijuana growers are not uniformly violent; studies to date indicate that the industry is far from hierarchical, and, accordingly, is replete with a variety of unrelated grow operations.

The majority of growers do not use violence, do not carry weapons and are not part of any criminal organization, as defined by the Criminal Code (unless any individuals who conspire to grow marijuana are, by definition, organized criminals). In these circumstances, Bill C-15 will have the unfortunate consequence of annually jailing thousands of Canadians who do not threaten the social fabric any more than those who produce, in a regulated framework, drugs such as tobacco and alcohol. And if morbidity is our benchmark, it might be fairly said that the producers of alcohol and tobacco are imposing much greater harms upon our communities, even when rates of use of each of these drugs are taken into account.

This is a problem. Why does the Bill, which is purported to attack the commercial aspects of the trade, and the violence within it, nonetheless target addicted user-dealers? And why does it slam marijuana producers with minimum terms, but offer up a more lenient treatment for the distributors of the same drug, irrespective of the amounts in question? I have yet to find any good answers for these questions.

Note that since Boyd's article was published, the bill has been amended by the Senate Committee on Legal and Constitutional Affairs. The number of plants now required to trigger a mandatory minimum sentence has been increased to 200. However, the provision regarding rental properties has been left intact. So Canadians who live in basement suites and one bedroom apartments will receive a minimum sentence of nine months if they grow any number of marijuana plants - even one - for the purpose of trafficking.

In spite of the amendments, Bill C-15 will still cast a wide net. For example, it will snare university students as well as working folks who can't afford their own homes but still grow marijuana for themselves and a couple of friends. I'm sure police officers across the country are looking forward to dealing with the flood of tips about these micro-grows. They are so small that regular investigative techniques (eg. checking for abnormal power consumption) turn up nothing. And there is nothing more fun than putting real police work on hold in order to deal with voice mails from a shady landlord who is looking for an excuse - any excuse - to kick out his tenants and jack up the rent.

Great bill, eh? I am not a legal genius, but if I was writing legislation to target "organized crime" this is not how I would go about it.


  1. It's interesting (ie, frustrating) to watch Canada move in this direction at a time when policies like this are finally starting to receive a little resistance here in the US. Senator Webb from Virginia has proposed a commission to study our country's entire criminal justice system, with an eye toward mitigating what has become a runaway prison problem (this bill currently has substantial support). Also, it looks as though the incredibly racist sentencing disparities between powder and crack cocaine will be addressed. Faced with the disastrous ramifications of our 35 year-long crusade against reality, some of our public officials are starting to listen.

    Policies like those introduced in C-15 -- such as mandatory minimums, "three strikes" laws, lower "intent to sell" limits, etc -- have ruined the criminal justice system in America. We incarcerate people at a rate far beyond any other country in the world. We imprison more black men per capita than South Africa did during the worst years of apartheid. And, of course, we are still far and away the world's drug consumption capital, with marijuana ranking as our nation's most valuable domestic cash crop.

    Instituting policies like this in Canada will inevitably lead down the same dark, deadly path.

  2. Sad David, sad state of affairs that Prohibition has created.

  3. so if my buddies and i decide to grow some weed for ourselves, we can be a criminal organization? sweet!

  4. David, you are a nerd if you read 500-page reports! :-)


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