Con Job! Tories Ignore Justice Department Reports

CON JOB: verb-transitive ~ To swindle (a victim) by first winning his or her confidence; dupe.–noun ~ A swindle. –adjective ~ Of, relating to, or involving a swindle or fraud: a con artist.

ALARMIST: person or group/organization who needlessly alarms or attempts to alarm others, as by inventing or spreading false or exaggerated rumors of impending danger or catastrophe.

~Pic courtesy of FrankD

Are you scared yet?

In a cheap attempt to sway uninformed Canadians into voting for them, the Conservatives continue to be alarmist, trying to convince you that Canada is bursting at the seams with dangerous criminals lurking on every corner like a Boogeyman in your closet. Harper, Toews, Nicholson, Glover et al want you quivering, believing that no one can save you and your family from becoming victims except for the "Tough on Crime!" party! The kicker? Crime has actually been declining in Canada, in fact, crime rates fell by about about 3% in 2009 — 17% lower than a decade ago. Joseph Neuberger puts some context to this: "The last time Canada's crime rates were as low as Statistics Canada says they are now, The Sting and American Graffiti played at the movies; Pink Floyd's Dark Side of the Moon ruled the airwaves and M*A*S*H was tops on TV." (Please read the whole awesome article Tough on Crime Bill Is Tough on Us All)

The following is from a previous post I wrote called "Calling the Tories Out on Bill C-15 - "The Politics of Fear". This information is applicable to Bill S-10 and deserves to be highlighted as the Conservatives continue to attempt to label the opposition as *soft on crime and pull one over on Canadians who are unfamiliar with the consequences of Mandatory Minimum Sentencing from drug offenses:

On the Canadian Department of Justice website you can find the report: "Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models" by Julian V. Roberts With the assistance of Rafal Morek and Mihael Cole. Report prepared for the Department of Justice Canada © GOVERNMENT OF CANADA, 2006-11-09

Highlights from the 55 page report include:

The judiciary in Canada and elsewhere are opposed to mandatory sentences of imprisonment. The Canadian Sentencing Commission (1987) found in their survey of judges that slightly over half felt that minimum sentences impinged on their ability to impose a just sentence and that inappropriate agreement between defense and Crown counsel may result.

The future of mandatory minimum sentences in Canada remains unclear. There is some indication that minimum sentences are not an effective sentencing tool: that is, they constrain judicial discretion without offering any increased crime prevention benefits. Nevertheless, mandatory sentences remain popular with some Canadian politicians.

Where mandatory sentences do exist, they have been the object of considerable (and growing) opposition from a variety of parties, including advocacy groups, judges, academics and criminal justice professionals. This opposition has led to a number of Bills to amend or repeal the mandatory sentences legislation. While a number of countries have passed mandatory sentencing legislation within the last decade, there is evidence that jurisdictions with the most severe mandatory sentencing laws are beginning to repeal, or consider repealing, the most punitive sentences of imprisonment.

Trends in Mandatory Sentencing Legislation - After a decade in which a number of common law countries enacted mandatory sentencing legislation, there is clear evidence that several jurisdictions are now either repealing or amending these punitive laws. For example, in 2002 the Michigan mandatory sentencing laws were significantly amended. The effects of these amendments include the following:

• elimination of mandatory minimum sentencing for certain controlled substance
violations;
• creation of provisions that permit courts to consider important mitigating factors; and
• revision of the quantities of drug that trigger certain sentences.

This movement towards a more flexible, judge-determined sentencing scheme is a result of several factors with international repercussions including:

• a shift in public opinion away from supporting strict mandatory minimum sentencing (see above);
• the impact of Advocacy groups such as
Families Against Mandatory Minimums Foundation (FAMM);
• growing public disenchantment with the “War on Drugs” that initially triggered many of the most punitive mandatory sentencing laws (see Eagleton Institute of Politics Center for Public Interest Polling, 2004);
• news media coverage of “three-strikes” cases in which offenders whose “third strike” consisted of a less serious felony and stories of offenders receiving lengthy prison terms for offenses such as stealing a bicycle from a garage have undermined public support for this kind of sentencing; and
• growing concern among criminal justice professionals that mandatory sentences have played an important role in keeping prison populations from declining, even in an era of falling crime rates.

Mandatory Sentencing and Public Opinion - Although this report deals only with the statutory regimes with respect to mandatory sentences of imprisonment, it is worth noting that there is evidence from a number of jurisdictions that public support for mandatory sentencing has declined over the past decade. Mandatory sentences of imprisonment represent the most punitive sentencing reforms of recent years and are found in many western nations. Often justified by reference to public opinion, they have proved highly controversial in practice. Where do members of the public stand with respect to the issue? Few studies have addressed public knowledge of statutory minimum penalties; fortunately, the surveys that exist on this issue have generated the same findings: the general public has little knowledge of the offenses that carry a mandatory minimum penalty, or of the magnitude of the statutory minima. For example, in 1998, members of the public responding to the British Crime Survey (BCS) were asked if they were aware of the mandatory minimum prison term of three years for offenders convicted of burglary (see Roberts, 2003).

Even though this mandatory sentence had been the object of considerable media attention, less than one quarter of the sample responded affirmatively. This finding is consistent with earlier research in Canada that found that very few members of the public had any idea which offenses carried a mandatory sentence (Roberts, 1988 - It should not be surprising that public knowledge of mandatory sentences is poor. Opinion surveys conducted in several jurisdictions have shown that the public knows little about maximum sentences, sentencing options, alternatives to imprisonment, sentencing patterns, recidivism rates, or many other elements of the sentencing process (see Roberts and Hough, 2005, for a review). For example, respondents may overlook the fact that mandatory sentences of imprisonment violate important sentencing principles such as proportionality in sentencing. In addition, mandatory sentences of imprisonment may prove expensive by increasing the costs of the correctional system as more offenders are admitted to custody (and for longer periods of time).)

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).

The Future of Mandatory Sentencing - It would be overstating the case to say that the pendulum has swung away from mandatory sentencing to a model of sentencing that privileges judicial discretion. However, it is clear that public and legislative interest in mandatory sentencing laws has declined, and is likely to continue to decline in the near future. Although the public supports tough sentencing measures for violent offenders, 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.

This report has demonstrated that while mandatory sentences of imprisonment proved popular in the 1990s across a number of common law jurisdictions, closer examination of the laws reveals that many countries allow courts the discretion to sentence below the minimum when exceptional circumstances exist. This usually means that courts are permitted to consider mitigating factors relating to the offense or the offender, in some cases, as long as the judge provides written reasons for doing so. In addition, while the general public appears to favour the use of mandatory sentences for offenders convicted of the *most serious offenses and repeat offenders, there are important limits on public support for strict mandatory sentencing laws. When the public is provided with more information regarding the law and the circumstances surrounding the offense and the offender, the tendency is not to favour punitive sanctions such as mandatory minimum sentences.

*most serious offenses ~ s. 718.1 of the Criminal Code of Canada states: "sentences should be proportionate to the offense and reflect the degree of responsibility of the offender."

Another report on the Canadian Department of Justice Website is:
MANDATORY MINIMUM PENALTIES:
Their Effects on Crime, Sentencing Disparities, and Justice System Expenditures

Thomas Gabor, Professor
Department of Criminology
University of Ottawa
Nicole Crutcher
Carleton University
Research and
Statistics Division
January2002

An excerpt from section 5.4 Mandatory Sentences for Drug Offenses states:

Some of the most sophisticated research in this area has
been undertaken at the Rand Corporation (Caulkins et
al., 1997). Through various mathematical models, Rand
researchers compared the cost effectiveness of various
drug prevention/control strategies, including lengthy
MMS. Their analysis considered the cost of each
strategy and the expected yield in terms of both drug
consumption and crime reductions. Their conclusion
was that conventional sentences imposed on dealers are
more cost effective than long MMS reserved for fewer
offenders and that treating heavy users is more cost
effective than either approach in lowering drug use or
drug-related crime. MMS were found to be the most
cost effective strategy only in the case of the highest level
dealers; however, the low thresholds at which MMS
tend to kick in means that these laws are more likely to
ensnare low-level offenders. Also, high-level dealers are
more likely to avoid MMS, as they are in a better position
to have information to trade for an exemption from
these penalties. Finally, these investigators note that the
time horizon of evaluations is critical, as MMS become
less cost effective over time.

Hansen (1999) asserts that the tide is turning against
MMS for drug infractions. He notes that they have done
little to reduce crime or to put large-scale dealers out of
business. Rather, they have filled prisons with young.
low-level, non-violent individuals at great cost to
taxpayers. Hansen points out that, in Massachusetts,
84% of inmates serving mandatory drug sentences are
first-time offenders.

...MMS fail to discriminate between these hardcore drug
dealers and those who feel compelled to sell due to an
addiction or difficulties encountered in participating
steadily in the work force. The implication is that
employment opportunities, more accessible drug
treatment, and alternative sentences would be
preferable to the “iron fist of the war on drugs.”

Harsh MMS and the “drug war” approach in general
show little effect in relation to drug offense. Judges
routinely circumvent the “mandatory” death sentences
for drug trafficking in Malaysia and the tough MMS in
the US have imprisoned mostly low-level, nonviolent
offenders. MMS do not appear to influence drug
consumption or drug-related crime in any measurable
way. A variety of research methods concludes that
treatment-based approaches are more cost effective
than lengthy prison terms. MMS are blunt instruments
that fail to distinguish between low and high-level, as
well as hardcore versus transient drug dealers.
Optimally, it would appear that tough sentences should
be reserved for hardcore, high-level dealers, while
treatment may be more appropriate for addicted dealers
and employment opportunities may be more cost
effective in relation to part-time dealers who are
underemployed.

Conclusion: 9.5 Mandatory Sentences for Drug Offenses

Severe MMS seem to be least effective in relation to drug
offenses. Studies using a variety of methodologies
seriously question the value of the “drug war” approach.
The draconian penalties in Malaysia are routinely
circumvented by the judiciary and the tough MMS in the
US (both at the state and federal levels) have imprisoned
mostly low-level, nonviolent offenders. Drug
consumption and drug-related crime seem to be
unaffected, in any measurable way, by severe MMS.
Both mathematical modeling techniques and field work
arrive at the conclusion that treatment-oriented
approaches are more cost effective than harsh prison
terms.

9.9 Concluding Remarks

From a utilitarian point of view,
incarcerating occasional, non-violent offenders, for
substantial periods, constitutes a colossal waste of
justice system resources.

...Therefore, MMS should not be
introduced merely to placate a political constituency or
without regard to a thorough understanding of the
infractions or offenders for whom they are intended. ~ Fin

*****

"Discretion is a science of understanding, to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretenses, and not to do according to their men's will and private affections." ~ Justice Edward Coke

*****

What purpose does it serve the Conservatives to quash judicial discretion? To disregard evidence and research that clearly demonstrates that Mandatory Minimum Sentencing is ineffective, expensive and a fallacious approach regarding drug policy and criminal legislation? I ask my fellow Canadians, "Are YOU comfortable with the knowledge that your government blatantly ignores the findings of our very own Justice Department?"

Please also be aware that the Conservatives keep cost of crime measures a secret and these ideologically driven bills will criminalize and imprison large numbers of young Canadians. The legislation is also opposed to by all other Canadian political parties, (Liberals, NDP, Bloc, and Green) the Church Council on Justice and Corrections, a 39-year-old coalition for justice reform that represents 11 of the largest Christian denominations, the Canadian Bar Association and well over 500 Health researchers slam Tory mandatory-minimum-sentence proposal for drug crimes.

Prevention. It's worth more than a pound of Tory rhetoric for Canadian families and hard working taxpayers. Lets ignore the Con Job, Canadians, of course we are all concerned about crime, but lets be brave and approach solutions to keeping our kids and communities safer by being smart, logical and realistic about crime policy.

Ignoring evidence that clearly proves that Mandatory Minimum Sentences escalate crime and violence in our neighbourhoods? Now that's scary!




Fortunately, we can see what has happened in the
United States when a government is "Stupid on Crime"
because they don't want to be labeled "Soft on Crime".

*****

“Still, my own personal view is that it’s a mistake to take away discretion from judges, In the last couple of decades, the U.S. has gone the way of mandatory sentencing for a whole bunch of crimes and the result is their prisons are jammed.

I find it hard to understand how the richest country in the world has one of - if not the - highest prison population in the world. There’s something wrong there, and the problem is mandatory sentences. I’m disappointed to see Canada drifting in that direction.” ~ Retired Quebec judge John Gomery

*****

*soft on crime ~ From: It's a 'myth' Canada is soft on crime
It is a myth that Canadian courts are soft on crime and that the Charter of Rights is responsible for criminals escaping conviction or receiving light jail terms, says Canada's chief justice, Beverley McLachlin.

The Charter of Rights, signed on April 17, 1982, as part of the repatriated Constitution, gave judges the power to not merely interpret laws, but to strike them down if they were found to violate any of the established rights.

They include freedom of religion, expression and association, the legal right to life, liberty and security of the person, and the right against unreasonable search and seizure. Equality guarantees, including freedom from discrimination based on age, sex, race, or disability, came into effect in 1985.