Mandatory minimum sentences: Will they work?

Mandatory minimum sentencing is not new. It has been used for habitual felons in most states in the US for decades and the idea can be easily traced back to eighteenth century England and perhaps, even earlier. The difference, if any, lies in the fact that modern mandatory sentences often purport to eliminate the discretion given to soft-hearted judges who are prone to giving a slap on the wrist to criminals who committed serious crimes.

When someone is convicted of an offense punishable by a mandatory minimum sentence, the judge must sentence the defendant to the mandatory minimum sentence or to a higher sentence. The judge has no power to sentence the defendant to less time than the mandatory minimum. As examples, in Canada, the sentence for first degree murder is a mandatory minimum of 25 years in jail. The sentence for a third conviction of impaired driving is automatically three months in jail.

Many years ago, a judge was faced with the dilemma of having to sentence a young man to the mandatory minimum sentence of seven years in prison for importing an illicit drug into Canada. The man confessed to having put the drug in his girlfriend’s luggage before they returned to Canada. She was sentenced to the mandatory sentence of seven years because it was her luggage where the drugs were found. The young man felt so bad that she was serving a sentence in prison in which she was entirely innocent so he confessed to the police that it was he who was smuggling the drugs into Canada, not his girlfriend. The judge apologized to the young man saying that he had no other choice but to sentence him to the mandatory seven-year sentence. The girl was released.

The U.S. Supreme Court upheld a Texas mandatory three-strikes law when it required that life imprisonment be imposed on an offender who had committed three minor thefts. In my opinion, this is stretching the law too far. In any case, soon after the Texas decision was decided in 1980, political campaigns and popular sentiment in favor of mandatory sentencing laws became widespread throughout the nation. In the 1980s and 1990s, demands for harsher and more certain sentencing became extremely popular. A grassroots campaign by Mothers Against Drunk Driving in the early 1980s, which successfully changed laws nationwide so as to require mandatory jail terms for drunk drivers, began the trend. Marijuana smokers in Washington State who are sentenced to a mandatory minimum sentence of life in prison must serve the full sentence with no chance of parole. A prisoner serving such a sentence for most state offenses will not be eligible for parole.

Some crimes in the United States had not previously been regarded as sufficiently serious as to deserve lengthy imprisonment, and these are the most controversial. A prime example is the federal requirement that a person convicted of possessing a half kilogram (500 grams) or more of powder cocaine will be automatically sentenced to five years in prison with no parole eligibility. In comparison, just five grams of crack cocaine qualifies for the five-year mandatory term, and this increases to ten years for 50 grams of crack. With respect to these minimum sentences, I don’t take issue with them since trafficking in illicit drugs is a scourge upon society. Repealing these penalties is almost impossible politically. Any politician who would do so would immediately be attacked as being ‘soft on crime.’ As an extreme, some countries such as Iran, death is the minimum sentence for importing or exporting illicit drugs. There as a time when the State of Colorado had a law that said that anyone found with more than five ounces of marijuana could be sentenced to death but that law went the way of the dodo bird.

The current Canadian government has a new crime bill before Parliament imposing more mandatory minimum sentences in Canada. With respect to gun laws in Canada, the government wants to amend the Criminal Code so that every person commits an offence who, in any place, possesses a loaded prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together with readily accessible ammunition that is capable of being discharged in the firearm, unless the person is the holder of a licence to possess firearms; to a minimum term of imprisonment for the first offence of three years and for a subsequent offence, five years. The same sentence applies also to persons in possession of ammunition without a permit. Currently, it is one year for first offence and three years for subsequent offences.

Many years ago, I addressed a large body of citizens in the city hall in North York, Ontario on the issue of sentencing with respect to gun-toting thugs. I recommended five years imprisonment for the first offence of possession of an illegal firearm and subsequent offences involving the poossession of firearms. At the end of my speech, I said, “There is a saying that we should put these gun-toting thugs in jail and thrown the key away. That is wrong. What we should do is throw them in jail and then throw the damn jail away.” The place exploded. The applause and whistling of these people, who were by then standing, went on for almost a minute. I had hit a nerve and then gave them the pain killer needed to ease the pain.

Eddie Greenspan, a noted Canadian criminal lawyer says this of mandatory minimum sentences; “This is remarkable considering there is no, nor has there been any, satisfactory empirical evidence to conclude that the implementation of a mandatory minimum sentence has ever deterred crime.” He added that in the past 50 years in Canada, no responsible Canadian commission or study has called for the expansion of the use of minimum sentences. In fact, opposition and indeed the abolition of minimum sentences has been the persistent and universal recommendation. I should add however that most of those persons who have voiced their opposition to the awarding of automatic minimum sentences have been criminal defence lawyers.

In 1952, a Royal Commission on the Revision of the Criminal Code concluded, unequivocally, that all minimum punishments should be abolished. The report quoted the Attorney General of England who referred to minimum penalties as ‘a great evil.’

On March 31, 1969, following a three-and-a-half-year study, the Canadian Committee on Corrections (the Ouimet report) emphasized the danger of over-estimating the necessity for and the value of long terms of imprisonment, except in special circumstances.

The Ouimet report recommended that "existing statutory provisions which require the imposition of minimum mandatory sentences of imprisonment upon conviction for certain offences other than murder be repealed." The committee found minimum sentences to be an unwarranted restriction on a judge's sentencing discretion.

The Law Reform Commission of Canada in 1975 called for the abolition of mandatory minimum sentences, stating: (1) There are no available objective measures on the effectiveness of these kinds of sanctions; (2) Experience does not show that they have any obvious special deterrent or educative effect; (3) Circumstances vary so greatly from case to case that an arbitrary minimum may be seen as excessive denunciation or an excessively long period of separation in the light of the risk and all the circumstances.

The Canadian Sentencing Commission's report (of which it also considered my own paper on the subject) said in part that ‘existing mandatory minimum sentences, with the exception of those prescribed for murder and high treason, serve no purpose that can compensate for the disadvantages resulting from their continued existence.’ I didn’t comment on minimum sentences in my paper.

On Dec. 4, 2006, the Canadian Bar Association stated that mandatory minimum sentences will not improve public safety and was an unwarranted removal of the trial judge's discretion to impose a fair and appropriate sentence. Eddie Greenspan said that mandatory minimums are nothing more than feel-better placebos, but like placebos they do nothing. It is his belief that it is wrong to play into the fear of people by offering a solution that is no solution - window dressing to demonstrate the government is tough on crime.

London police Chief Murray Faulkner said that the courts must get tougher on gun-toting criminals. He said "There should be mandatory minimum sentences for gun-related offences, whether those convicted use them or not, but our laws say you have to use them first. When you're carrying a loaded handgun, it's dangerous."

I agree with his thoughts in this issue. The present sentences for carrying and using illicit guns simply isn’t working. Many gun-toting thugs after serving time for being in possession of guns are back on the streets using them again. When OPP Police Chief Julian Fantino was the chief of police for Toronto, he called for a complete overhaul of the justice system. He said in part; Cops can't do it alone. Too often they arrest young thugs and our revolving-door courts put them right back on the street.”

What he was saying was that the sentencing options given to soft-hearted judges should be taken out of their hands when it comes to the sentencing of gun-toting thugs and put in the hands of Parliament.

That is what the current members of the House of Commons has said must be done. They gave their approval. At the time of this writing, the passing of the bill is being held up by the Canadian Senate.

Paul Culver, Toronto’s chief Crown attorney said to Julian Fantino in 2004, "There's no point in me standing up and demanding a sentence of 20 years for a first-time offender, because even if a judge did grant it, it would be overturned on appeal.”

I don’t see the logic of that statement. First of all, who would be eligible for a twenty-year sentence of imprisonment? In all likelihood, it would be someone who was convicted of second degree murder. In that case, it wouldn’t matter if the person is a first-time offender.

I think we should keep in mind that between 50 to 60 percent of inmates in prison are suffering from some form of mental illness so it follows that mandatory minimum sentences won’t necessarily act as a deterrent with many of them but if it deters some of them, then I think that we should have mandatory minimum sentences for some forms of criminal offences.

For example, I would like to see minimum sentences awarded to persons found guilty of home invasions. If course, to award that kind of sentence for home invasions, you have to have on the books the crime of home invasions. Unfortunately, in Canada, such a crime doesn’t exist in our Criminal Code. Years ago, one of the southern states in the US had on their books the sentence of death if you illegally entered a home after dark. That is stretching the law a bit. However, there are far too many home invasions taking place in Canada with many deaths being the end result.

I remember a Toronto case many years ago in which thugs entered a home, tied up the four inhabitants and then slit their throats. If home invasions finally get entered in the Criminal Code, I hope there is a minimum sentence of five years attached to it if no one is hurt and an automatic ten years if anyone is hurt and that those sentences to be served consecutively to any other sentence awarded to the thugs.

Monte Kwinter, when he was Ontario's Community Safety Minister, rightly observed that tough sentences for violent crimes are on the books, but "for some reason or another, the courts aren't enforcing them." He was right and that’s why soft-hearted judges should not have the option of sentencing violent thugs to lesser sentences than what they should get. That’s why mandatory minimum sentences will serve such a useful purpose.

I don’t intend to get into the issue as to whether or not deterrence will be a prime factor in this issue. It certainly will deter some violent criminals but not all of them. As an example, there was a hanging judge in England centuries ago who had just sentenced a man to death by hanging because he stole a sheep. The man said to the judge, “M’Lord. It was only a sheep. Why should I hang for that?” That was a fair question but the judge had an answer for it. He said, “I have not sentenced you to death simply because you stole a sheep. I have sentenced to death because I want your death to be a deterrent to others who are likewise so inclined to steal a sheep.” Unfortunately, the death penalty wasn’t a very good deterrent then because even small children would steal the purses from the pockets of bystanders watching a public hanging of other children who were hanged for the same thing.

It is my belief that mandatory minimum imprisonment should be awarded to those criminals where the prime purpose of imprisonment for them is the protection of society. Let’s face it. Any thug who carries a gun on his person or in his car is doing so for the purpose of using it. He is either intending to use it in a robbery or car jacking or he intends to kill someone with it. Do we really care if he is sent to prison for a minimum of five years because he was stupid enough and criminally minded to have an illegal gun in his possession since he obviously intended to use it against an innocent person when it suited him?

Now I realize that the sob sisters are going to say as an argument against such sentences, “But I don’t want to have to pay out my good money to house these people in jail for such a long time.” Let me give you my response to that kind of sobbing.

In 1972, I was invited by the University of Manitoba to give an address on capital punishment. I knew that someone in the audience would ask the question as to why he or she should have to pay a lot of money to keep murderers in prison for so long a period of time so I did some research to see if there was an appropriate answer to that question. I created a formula that made it possible to determine what each taxpayer would pay towards the support of one inmate in prison for 25 years. Brace yourself for it. Five cents. It follows that if a convicted thug is sentenced to prison for five years for his second offence of being in possession of an illegal gun, each of us taxpayers will only have to pay one cent towards his upkeep in prison for that period of time.

Is that such a high price for each of us to pay in order to ensure that the thug is off the street for five years? Actually, he will probably be released earlier considering mandatory early release but while he is in prison, we are free of him and his guns.

LATEST NEWS
After I published this article in my blog, the Supreme Court of Canada upheld a four-year minimum sentence given to a police officer who shot and killed a man in custody. The court said in part; "Unless the penalty is found to be unconstitutionally harsh, a judge should not circumvent Parliament's will by handing out exemptions to the punishment." What that meant was that if a person commits a crime in which there is a minimum sentence, a judge must award the minimum sentence or a sentence that is greater but the judge cannot make an exception and make the sentence less than what the minimum sentence is. The new Crime Bill was passed after this article was published so the minimum sentences for possessions of guns etc is in effect. Most importantly, mandatory minimum sentences - which are steadily creeping into the Criminal Code - cannot be handed out on a selective basis, but must either be enforced, or struck down, for all.