Copyright: 2005 The Ottawa Citizen
Contact: letters@thecitizen.canwest.com
Website: http://www.canada.com/ottawa/ottawacitizen/
Details: http://www.mapinc.org/media/326

LET JUDGES JUDGE

The provinces went after federal Justice Minister Irwin Cotler this
week, demanding he expand mandatory minimum sentences. Unfortunately
he agreed, even though he knows that mandatory sentences are a crude tool.

The U.S. experience has shown that what sounds promising in theory
can fall apart in execution. Rather than reducing crime and creating
a more just society, mandatory minimum sentences can lead to
miscarriages of justice. Consider California's "three strikes and
you're out" law, which mandates 25-year-to-life sentences for
multiple offenders. Within weeks of its enactment in 1994, a young
man was sentenced to life for conspiring to steal bed sheets.
California prisons were soon jammed with an additional 7,300
"three-strike" lifers, raising the annual cost of the state's penal
system to $5.3-billion U.S.

Nor is the carnage limited to California, or to three strikes. A Utah
judge recently imposed a 55-year sentence on a Salt Lake City man for
carrying a handgun while dealing marijuana and committing other more
minor offences. The judge acknowledged that a prison term of more
than a half-century was "unjust, cruel and irrational," but minimum
sentencing laws prevented him from imposing a more appropriate punishment.

Could increasing mandatory minimum sentences for drug or firearm
offences in Canada lead to similar injustices? The risk is there.
Moreover, the putative benefits of such rigid sentencing laws are
unproven. Whereas crime did fall in California in the decade
following the implementation of three-strike legislation, the largest
decline by far was in San Francisco, where the law was seldom
invoked, and crime declined faster yet in New York, where no such
legislation existed.

Even Mr. Cotler, appearing before a Senate committee earlier this
year, has said that research shows "mandatory minimum penalties are
not a deterrent, nor are they effective" -- all of which suggests
that he is going ahead with the legislation for purely political
reasons. Anyone approaching the issue in good faith will see that the
damages associated with mandatory minimum sentences as experienced in
other jurisdictions, combined with the uncertain benefits, tips the
risk-benefit equation in the direction of skepticism.

We agree that the system needs tougher sentences. But nothing is
stopping judges from handing down stiff sentences -- where merited --
now. We think dangerous offender legislation should be invoked more
freely, for example.

We also believe that judges should have discretion to treat the
"cook" who manufactures a hundred thousand doses of methamphetamine
in a basement lab more harshly than the kid caught selling a handful
of pills on a street corner. Judges should have the right -- indeed,
the duty -- to craft sentencing decisions out of the facts before
them: the severity of the crime, the character of the offender, and
the extenuating circumstances, if any, relevant to a case.

Mandatory sentences hamper the ability of judges to weigh the
totality of evidence, to parse not only guilt but degree of guilt. If
that prerogative vanishes, so will the fair dispensation of justice.