Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 17 - Evidence, October 28, 2009
OTTAWA, Wednesday, October 28, 2009
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:03 p.m. to study Bill C-15, an act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other acts.
Senator Joan Fraser (Chair) in the chair.
[Translation]
The Chair: Honourable senators, welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs.
[English]
We pursue our study of Bill C-15, an act to amend the Controlled Drugs and Substances Act, and to make related and consequential amendments to other acts.
Today, through the wonders of video conferencing, we are delighted to have with us, from Washington, D.C., Ms. Mary Price, Vice-President of Families Against Mandatory Minimums, FAMM; and Mr. Marc Mauer, Director of The Sentencing Project.
Honourable senators, I should tell you that the witnesses in Washington will be able to hear English translation of any questions that are put in French, so you may proceed as you normally would with witnesses here around the table. Ms. Price and Mr. Mauer, thank you very much for agreeing to do this. Can you hear me?
Marc Mauer, Executive Director, The Sentencing Project: Yes, and we are delighted to be here.
Mary Price, Vice-President, Families Against Mandatory Minimums (FAMM): Thank you so much.
The Chair: A word of warning to everyone: We do not have much time. We have at most an hour, so everyone needs to keep their questions and their answers as concise as possible, not distorting the truth, but with due respect for the clock.
Mr. Mauer: Thank you for inviting us here. This is a very good opportunity. Those of us in the U.S. who look at sentencing and corrections policy often look to Canada for what we think is a more rational way to approach some of these issues. Therefore, I hope what we have learned here may be of some use to what you are thinking about.
I will start briefly with one story of a recent case involving federal mandatory sentencing in the U.S., and this is about a young man named Weldon Angelos. Mr. Angelos was a 24-year-old music producer in the State of Utah. He was also a mid-level marijuana dealer. On three separate occasions, he was charged with selling marijuana totalling about $300 or $400. He also possessed a weapon in the course of the drug transaction. There was never any allegation that he used or threatened to use the weapon, but on at least one occasion he had a gun hidden inside his sock. He was convicted in federal court after going to trial.
Under our federal mandatory penalties, the judge, who is a self-described conservative judge, was obligated to sentence him to five years in prison on the first count. The judge basically pleaded with the defence attorneys to come up with a rationale for why he did not need to impose the additional penalties, which were, for a second and third charge after having a prior conviction and for possessing a weapon, 25 years each. Therefore, Mr. Angelos received 5 years plus 25, plus 25 and is now serving 55 years in prison for selling marijuana on three occasions.
I do not want to suggest this is a typical case, but it does illustrate what mandatory sentencing has produced, at least in some cases in the U.S.
I will speak briefly about a couple of issues, to the extent of which mandatory sentencing has promoted public safety in the U.S., and then a word about the racial disparities used by mandatory sentencing.
If we think about public safety being presumably the goal of mandatory sentencing in these policies, much of the penalties apply to drug offences, certainly in the federal system but in many states as well. Just on the surface, if we look at the numbers, in 1980 we had about 40,000 people in our prisons and jails for drug offences. Today, that figure is 500,000 for drug offences alone.
If one assumes that mandatory sentencing should somehow deter illegal conduct and send a message, it is hard to see it in the overall numbers. I think it is mostly not surprising, given that mandatory sentencing fails to take into account how things work in the real world. If we know anything about deterrence in the criminal justice system, it is that any deterrent effect is more a function of the certainty of punishment rather than the severity of punishment. In other words, if we can increase the odds that a certain offender may be apprehended, then some people may think twice about committing a crime, but merely increasing the severity of a penalty where people do not believe they will be caught does very little. That is exactly what mandatory sentencing does: It increases the penalties, and only that.
Mandatory sentencing, particularly in the case of drug crimes, has also just been another hammer on supply side while ignoring the demand side of drugs. All the research tell us that if we reduce the demand for drugs, then the supply will eventually dwindle away, if people do not want that.
We know from the supply side that a seemingly endless number of people are looking to try to get rich quick by selling drugs. Therefore, we take people off the streets for selling drugs. In most communities, they are replaced very quickly by other people looking to make money as long as the demand is there.
The other aspect of public safety is that, of course, we already have no shortfalls on the books that permit judges to impose very harsh sentences when the case circumstances warrant it. When we have a true drug kingpin who comes before the court, judges are generally quite pleased to impose a harsh penalty. It does not require a mandatory sentence to make them do that. Mandatory sentencing has essentially cast a very wide net and brought under its control people who, by all accounts, are not the so-called kingpins or major players in the drug trade.
I would like to say a word about the racially disparate effect of mandatory penalties. Of course, on the surface, they are race-neutral; there is no stated intent to have a racial effect. However, that is precisely what we have seen in the impact. Much of this involves the transferred discretion that mandatory sentencing brings; a transfer of discretion primarily located with the judge to enhanced discretion by the prosecutor.
A major study done by the United States Sentencing Commission in the early 1990s found that in cases that could have warranted a mandatory sentence, the prosecutors were more likely to permit White defendants to agree to a plea negotiation that did not carry a mandatory sentence than they were for Black or Latino defendants.
Also, in our sentencing policies, many of you may be familiar with the distinction in federal law between crack cocaine and powder cocaine whereby crack cocaine offences are punished far more harshly than powder cocaine. Whether intended or not, more than 80 per cent of the people prosecuted for crack cocaine are African-American, and with powder cocaine, they are far more likely to be White or Latino. Therefore, the combination of law enforcement practices and mandatory sentencing has exacerbated racial disparity.
One other type of mandatory sentencing that we found in study after study, as well, that also has racial effects that may not have been intended are the so-called school-zone drug laws, whereby a drug offence committed within a certain distance of the school — typically 500 or 1,000 feet — is subject to harsher penalties than a non-school-zone drug offence.
You may wonder why this makes a difference in terms of racial outcomes. It does largely because, in urban areas, which are far more densely populated than rural or suburban areas, any given street corner is more likely to be within the geographical boundaries of the school zone and, therefore, subject to harsher penalties. Generally speaking, African-Americans and Latinos are more likely to live in urban areas than Whites who are more likely to live in rural or suburban areas. Therefore, the same drug offence is treated far more harshly for Blacks and Latinos than for Whites, overall. A recent study in New Jersey found that 96 per cent of the people prosecuted for school-zone drug offences were Black or Latino in that state.
Let me close by saying that your hearing comes at an interesting time for us. I believe that we are at a point in the U.S. now where there is actually a fairly significant reconsideration of the wisdom of mandatory-sentencing policies after the last 30 years or so of this new generation of mandatories. In the United States Congress, legislation is currently pending that would eliminate the disparity in sentencing between crack cocaine and powder cocaine. At the state level, New York State this year scaled back significantly the so-called "Rockefeller Drug Laws" that represented the first obvious generation of mandatory-sentencing laws going back to the 1970s. Other states are reconsidering this, as well.
There is recognition that the policies have been over-broad; they have been unnecessary because judges already have the tools they need; the policies have not promoted more public safety; and it has come at a great loss.
I will conclude there and turn it over to Mary Price. We can discuss some of these issues after that.
Ms. Price: Thank you so much, senator, and thanks to the members of the committee for inviting me to testify at this important time. We certainly agree and endorse much of what Mr. Mauer has said. I want to add a few additional observations that FAMM has had about the costs and the operation of mandatory minimums in our country.
We found that mandatory minimums have proven to be a particularly politically popular tool. Some of your witnesses later may talk about how important it has been for some legislators in this country to talk about being tough on crime by adopting mandatory minimums or pointing their fingers at legislators who do not want to and calling them soft on crime. We are concerned with coming up with a sentencing system that is, in fact, smart on crime and does not involve mandatory minimums.
For a long time in our country, we have recognized that a healthy system of justice requires healthy judicial discretion. The problem with mandatory minimums, as Mr. Mauer pointed out, is that they remove the discretion from judges. It seems beyond remark that the judge, with the defendant standing before him or her, is in the best position to determine what the appropriate sentence is in light of the severity of the crime, the circumstances of the offender and the various aggravating and mitigating factors that are available. Instead, mandatory minimums put in the hands of legislators and, more immediately, in the hands of prosecutors to determine the sentence.
Some concerns we have include the following: Mandatory minimums are the cause of insupportable disparity in sentencing as well as unwarranted uniformity in sentencing among defendants. Mr. Mauer described a very pointed racial disparity in sentencing caused by mandatory minimums. The flip side of that has to do with uniformity, where people in dissimilar situations are treated nonetheless the same.
For example, a crack cocaine defendant who is convicted of cooking and selling 50 grams of crack cocaine is subject to a 10-year mandatory minimum sentence, while the drug kingpin who supplied the powder cocaine for that cook, who reaps the rewards and benefits, is not subject to the same mandatory minimum sentence, unless convicted of handling 100 times that amount of powder cocaine. In fact, under our laws, if that cocaine drug dealer provides substantial assistance by turning in the cook, he or she may receive a lower sentence than the crack cocaine defendant handling smaller quantities of drugs.
Mandatory minimums distort traditional roles of judge and prosecutor. We talked about discretion residing somewhere at sentencing. Mandatory minimums, as Mr. Mauer pointed out, put discretion squarely in the hands of prosecutors. It is not that prosecutors are bad. The problem is that the discretion is then carried out at an unreviewable level in the prosecutor's office and not in the court records. One of the big concerns we have about prosecutorial discretion as a consequence of mandatory minimums is the influence it has on plea-bargaining policies.
Mr. Mauer talked about Weldon Angelos' case. Weldon Angelos, before he went to trial, was offered a plea bargain of 16 years. In other words, the prosecutors — the U.S. government — determined that Mr. Angelos' culpability warranted no more than a 16-year sentence. He elected to exercise his constitutional rights to go to trial, as he has the right to do. The prosecutor said, "If you do that, we will charge you with many more of these 25-year stacked mandatory sentences." He was undeterred, and they did, and he was convicted and sentenced as Mr. Mauer has described. It is not an unusual situation because the threat of mandatory minimums drives a 96-per-cent plea rate in mandatory minimum cases. It is absolutely appalling.
Mr. Mauer discussed drug-free school zones. We can talk more about that later, if you want. We have projects in several states to work on the drug-free school-zone problem. Mandatory minimums drive enormous prison costs. I will read the numbers: Ours is a country with 171 statutes that bear mandatory minimums in the federal code alone. In 2008, 21,000 people were sentenced to 31,329 counts of conviction carrying mandatory minimum sentences. If every person were sentenced to the lowest mandatory minimum, which is 5 years, and many of them can run much longer from 10 years to 25 years or life, they would serve cumulatively 105,115 years at a cost to our country of almost $26,000 per person per year — I believe we spend a good deal less than you do on federal sentencing.
Not surprisingly, mandatory minimums have also led to over-incarceration and that over-incarceration is fed by the unduly long sentences that mandatory minimum sentences prescribe. Today, our federal prison population stands at 208,909 as of last week, which is a five-fold increase, as Mr. Mauer pointed out, from the 1990s. The federal prison system is close to 40-per-cent overcapacity, which puts extraordinary strain on the resources of the federal prison system to protect guards and feed, house and medically care for inmates, much less get them ready to return to society.
Of the 24,321 people convicted of drug trafficking in 2008, the majority — 16,787 — were subject to mandatory minimums of 5, 10 or more than 10 years. That is notwithstanding the fact that 83 per cent of those defendants had no weapons and no violence, and fully 63 per cent had limited or no criminal history. About 75 per cent of the increase was due to mandatory minimums, and 25 per cent was due to guideline increases caused by mandatory minimums.
Thank you for considering our views. I know we both welcome your questions and our discussion that will follow.
The Chair: We thank you enormously for being with us today. Of course, senators are lining up to put questions.
Senator Nolin: Although we have different judicial criminal systems, we are dealing with the same phenomenon: drug use and drug trafficking.
Mr. Mauer, you referred to various studies and reports. Would it be possible for you to email the reference to those reports?
Mr. Mauer: I would be happy to provide those to the committee following this meeting.
Senator Nolin: In Canada — and it is probably the same in the U.S. — minimum mandatory sentences are introduced for two main reasons: First, to put the traffickers — the real criminals — behind bars, not the university students; second, to better secure our streets by putting those people behind bars for a longer period of time. In the U.S., have you faced a similar intent by the various governments who introduced mandatory minimum sentences? Have you succeeded in reaching those goals?
Mr. Mauer: You are correct, that is often the rationale presented in the U.S. as well. Underlying that is often a mistrust of the judiciary — a belief among some political people and some members of the public — that judges do not want to impose appropriate sentences. Unfortunately, this often comes from a newspaper headline or an incomplete examination of the facts. Are judges out of line sometimes? Of course, but, by and large, most judges take serious drug cases very seriously. Once one knows the facts, it is hard to argue with many of the sentences imposed. Nonetheless, the political climate has been such that the argument has arisen: We do not trust judges and, therefore, we will require these mandatory sentences in these cases.
Whether this has made the streets safer, a distinction has to be made in terms of who we incarcerate in our prisons. If we had a serial rapist terrorising a neighbourhood and put that person behind bars for a long time, then we have made that neighbourhood a little safer as a result. When we have a drug seller standing on the corner selling drugs to children and other people and put that person behind bars, we have not necessarily done anything about the drug problem because those people are so easily replaced. A serial rapist is not replaced on the streets but a drug seller is generally replaced. Therefore, in the U.S., we have very much short-changed efforts to deal with prevention and treatment of substance abuse. As long as we do that, then there is almost an endless supply of potential sellers.
Using incarceration and mandatory sentencing has not brought us much in the way of results, and it has come at great financial cost and human cost as well.
Senator Nolin: Ms. Price, would you like to add something?
Ms. Price: Mr. Mauer said it all.
Senator Nolin: Mr. Mauer, you alluded to the fact that many traffickers are waiting to replace those who go to jail. Ms. Price, perhaps you could help me with that. Even though the intent is to put the real criminals behind bars — those who head the criminal organizations — we usually capture the small traffickers. Can you comment on that?
Ms. Price: I agree with you. Certainly, in many cases we use one or two factors to describe culpability. If someone is captured going across a border carrying pounds and pounds of drugs, for example, it does not matter what his relationship is to that transaction if he is simply carrying back. Your only way of judging his blame worthiness is to say that he has been caught with 5,000 grams of cocaine or 5,000 pounds of something else, and, therefore, he is a major trafficker. He might be simply the mule, or she might be the girlfriend helping out her boyfriend by taking a phone call. The problem with mandatory minimums is that they do not allow a judge to take mitigating factors into account to understand the role in the offence, and the background and circumstances of the offender. I will tell you about a school-zone case in Massachusetts.
You think that going into a school to sell drugs to children is a very serious offence and ought to be punished severely. Massachusetts agrees, and they have mandatory minimum consecutive sentences of between 2 years and 15 years for selling drugs within 1,000 feet of a school, which is called a school-zone offence. This was a young man, 17 years of age at the time, who sold a marijuana cigarette to an undercover police officer. In this case, it was manipulation because the undercover officer actually walked this young man over into the school zone. It occasioned a great outcry, but, by simple description, this person committed a crime and so should do the time and be taken off the streets. However, he was a 17-year-old kid selling a joint. I am not saying that someone such as that should not be punished, but he clearly does not fall into the parameters of what I and many of my colleagues think is descriptive of a true offender who we really want to lock up for a long time.
It is better to give the judge the ability to make distinctions. Forgive me, but I do not understand if you have review of sentences in Canada or if there is a way to create a common law of sentencing. In any event, other things outside of mandatory minimums can help judges to sentence appropriately without tying their hands in such a way. I do not think the injustices that are resulting are what you intended to have happen.
Senator Wallace: Thank you very much for your presentations. I take from what you have told us — and it is fairly obvious when I look at your CVs — that it reflects your experience in the United States. I am sure that we can learn lessons from those experiences.
First, I would like to know how knowledgeable you are about Canadian law and the Criminal Code. I will not ask you to recite each of the provisions, but I am wondering, for example, if you are familiar at all with the Canadian experience of mandatory minimums. Are you aware that we have had them for a number of years and that this is not the first piece of legislation that deals with mandatory minimums in Canada?
Mr. Mauer: I am not terribly familiar myself, no.
Senator Wallace: Ms. Price, do you have any knowledge about our experience in Canada?
Ms. Price: I do not have any in-depth knowledge. I tried to look for some of the studies and research that were cited in the review that we were given of the bill, but I do not have in-depth knowledge.
Senator Wallace: As to how effective we would consider the mandatory minimums to be in Canada, you could not comment on that, I take it?
Ms. Price: That is right. You are probably in the best position to do so.
Senator Wallace: A major focal point of Bill C-15 is dealing with organized crime and its involvement in the drug trade in Canada. Again, I am wondering how familiar, if at all, you are with the situation of organized crime in this country and, in particular, as it relates to the production and trafficking of drugs. Do you have any knowledge? Have you done any studies on that?
Mr. Mauer: No, we have not. Our experience in the U.S. is across a good number of jurisdictions. It may translate into findings in Canada or it may not, but we do not pretend to be experts on the Canadian experience.
Senator Wallace: Finally, I noticed in your written submission, Mr. Mauer, that you referred to the deterrent effect of sentencing. Obviously, that is one of the key principles of sentencing. I think we are all well aware of that. However, in the Criminal Code in Canada, six principles are set out, and these are again the objectives that we as legislators are to consider in dealing with these types of sentencing issues and that the courts are to deal with when dealing with the offender situations in front of them.
Do you have any familiarity with Criminal Code provisions here in Canada that relate to our principles, not the American, but our principles of sentencing?
Mr. Mauer: Just in general terms. I would add that in the U.S., we have other principles of sentencing as well. The only reason I discussed deterrence in my testimony was because of the public safety issue. That is one of the key ways in which mandatory sentencing theoretically might have an impact on public safety. I recognize there are other goals that we have in mind for individual cases as well.
The Chair: Senator Wallace, we should perhaps note, in defence of these witnesses, that not a whole lot of Canadian material is available on mandatory minimums, as this committee has been learning, so we cannot blame them if they have not found it.
Senator Wallace: No, absolutely not.
Ms. Price: We did not feel blamed.
Senator Wallace: No, you are trying to help us. That is not at all the point of my question.
I am trying to establish the weight that we can give to the evidence you are providing us. Of course, to me at least it is relevant — perhaps to others it is not as so — how much of what you have had to say is based upon a knowledge of the Canadian code and the situation here in Canada as it relates to the drug trade and organized crime. That was solely the purpose of my question, and I think from your answer I understand quite clearly the level of your understanding. Thank you for your evidence.
The Chair: Thank you, and forgive me if I am putting words in your mouth, Senator Wallace. It is the last thing I would ever want or dare to do.
Senator Baker: Thank you to the witnesses for your interesting presentations.
My question is technical. It relates to prosecutorial discretion built into your laws in the areas of minimum sentences and if, in fact, there is much prosecutorial discretion. Since we are visiting mandatory minimums to a far greater extent than we ever have before in this legislation, what recommendations would you make if you were to rewrite the laws on mandatory minimums and the discretion that prosecutors have regarding same?
Ms. Price: The prosecutorial discretion enters early, certainly at pre-trial or pre-plea, when a prosecutor decides whether to charge a crime that carries a mandatory minimum or a crime that does not.
In the case of gun offences, Weldon Angelos, whose case is so convenient now for these questions, was convicted of possessing a gun in connection with a drug trafficking offence that carries a first minimum sentence of five years. It is consecutive to every other sentence imposed on him for the underlying offences.
The government could have chosen not to charge three, four or five of those as they ultimately did charge when he refused a plea bargain. They could have also chosen to not charge him with a gun offence at all but rather allow the court to take the gun into consideration under what we have in our sentencing guidelines, which would have resulted in what is called a two-level increase of his underlying sentence. It would have resulted in a much lower sentence for Mr. Angelos, who was after all a first-time offender who had never used a gun. He grew up with guns, in a family that had guns around the house. It was not unusual for him to possess guns. I am not saying that it was right for him to do this, but the prosecutor had discretion at that point. Similarly, prosecutors can fact-bargain and charge-bargain in the plea arrangement; all of this happens out of the eyes of a review in court.
I do not know what standards you have for prosecutors for what they ought to follow. Certainly my recommendation is to not adopt the mandatory minimums to the extent that I can encourage you to do anything, and that is a good start to restore the balance of discretion properly at the judicial stage.
Mr. Mauer: I will add briefly that obviously prosecutorial discretion has always been a part of the justice system and should be a part of it. Just as other actors use their discretion, we hope they use it appropriately.
One problem that mandatory sentencing brings is that the outcomes of the use of that discretion become so much greater now, with great significance, that it has a strong possibility of distorting how sentencing should look.
With respect to a quick example, you may be familiar with the three-strikes-and-you're-out law that we have in the U.S. now. California has, by far, the broadest policy in this regard: After you have two felony convictions for what are defined as serious or violent offences, your third felony conviction can be any felony in the State of California for which the judge will sentence you to 25 years to life.
Two cases came before the United States Supreme Court challenging this policy. In the first case, the defendant's third strike involved stealing three golf clubs from a sporting goods store, and the second case involved a man who stole $153 worth of videotapes from a department store. The court rejected the challenge, so the golf-club thief is currently serving 25 years to life, and the videotape thief is serving 50 years to life. In addition to the sentencing policies, this is in part the result of prosecutorial discretion and whether or not they charge a case as a three-strike case. While prosecutorial discretion has always been an element of the court process, the consequences of its use in producing excessively long sentences or variations in sentencing due to mandatory minimums is now quite dramatic.
The range of sentencing now is so much greater than it would be without mandatory sentencing that I think it can really distort how these outcomes look.
Senator Baker: You are saying that any discretion the prosecutor has is exercised prior to plea. In Canada, we do have mandatory minimums in the Criminal Code, and a couple of them relate to whether, and it is the prosecutor's discretion, to enter someone's previous criminal record upon being found guilty. In other words, when we come to the sentencing stage, there is discretion in the hands of the prosecutor. Do you have that same discretion in United States?
Ms. Price: There is a notice requirement in the drug statute.
Senator Baker: Yes, I know that.
Ms. Price: Therefore, there is an automatic doubling of the sentence if there is a prior drug conviction at the federal level, but the government is required to notify the defendant if they will invoke what they call the 851 charge.
In certain gun cases there is no notice requirement. You will not plea necessarily to something that automatically you do not know what is happening, but we do know of cases where defendants have not been properly advised.
Senator Baker: Even where there is a notice requirement, that is notice that is given. Does the prosecutor under your system then have discretion whether or not to enter that person's prior record upon conviction?
Ms. Price: Yes, I assume so.
Senator Baker: Thank you.
Senator Joyal: Thank you for your input into our work.
I would like to take you maybe beyond your statement and written notes that you have provided to us.
In your presentation, Ms. Price, the bolded headings refer to the impacts of the mandatory minimums as follows: reduce culpability to one or two factors; cause unwarranted disparity and insupportable uniformity; distort traditional roles of judge and prosecutor; lead to over-incarceration fed by unduly lengthy sentences; fail to live up to their promise to reduce drug crime — I would like to take you beyond those statements and ask, more generally, what the impact is of longer sentences on the level of recidivism.
We have very few studies in Canada about that. We were told that Professor Paul Gendreau investigated that issue, but would you on your own account provide us with information on the impact of longer sentences generally with the level of recidivism? It is good to put people in prisons because it satisfies the quietness of everyone, but when you release those people, are they a greater danger to society than before? With a good intention, we have a short-sighted view of the impact of those sentences. Could you comment on that?
Ms. Price: I can comment a bit, but I will let Mr. Mauer talk more about it because this is one of his areas of real expertise.
Length of sentence has a great deal to do with recidivism and partly because of the tremendous collateral consequences of sentencing and how we spend the time of prisoners while they are being sentenced, what programming, drug treatment and the like is available to them. A good recidivism study was done by the United States Sentencing Commission a few years ago, and I will make that available to you.
I will turn it over to Mr. Mauer.
Mr. Mauer: The best data we have from studies by our United States Department of Justice look at recidivism rates by length of time in prison. Some people would argue that if we keep people in prison longer then this will send a message, teach them a lesson and that sort of thing.
Basically, up to and through five years in prison there is no reduction in recidivism that we achieve by keeping people in longer. In other words, each successive year after one or two years, the recidivism rates are still unfortunately high. After five years in prison, a bit of a decline occurs. Most people believe that is due to the aging process, not something that necessarily happens within the prison system, and the vast majority of people who go to prison are serving no more than five years anyway.
Therefore, we do not see any reductions achieved in recidivism by keeping people longer, and, of course, significant fiscal cost is incurred for each additional year of incarceration as well as the collateral effects to which Ms. Price referred.
Senator Joyal: Was that study was conducted by the United States Department of Justice?
Mr. Mauer: Yes, and we can make those references available to you as well.
Senator Milne: I believe, Mr. Mauer, you spoke of the increase from 40,000 to 500,000 people in jail because of these mandatory minimums.
Was this enormous increase due to large-scale drug offenders going to jail, or was it mainly lower-level offenders being charged?
Mr. Mauer: Just to be clear, the numbers I gave are for drug offenders overall, both those awaiting trial and those serving a sentence, not all of whom were subject to a mandatory sentence, although many were; and the deterrent theory applies to anyone committing a drug offence.
We have good data both at the federal and state levels about the composition of drug offenders in prison. At the federal level, a good deal of attention has been given to the crack-cocaine as well as the powder-cocaine offenders. The United States Sentencing Commission, the federal agency that studies these things, has data that consistently shows that a majority of both crack-and powder-cocaine offenders are in the lower levels of the drug trade: the mules, couriers, lookouts and such.
Analyses of the state prison population for drug offences, published in academic journals and by organizations such as ours, generally find that a majority of those as well have no history of high-level involvement in drug offences, no history of using a weapon in the current offence.
It is true that a number of the people in prison for drug offences may have multiple charges and convictions in the past, either for drug offences or others. I think often that reflects our failure to appropriately deal with the underlying contributors to crime, either in a community sentence of probation or in a previous sentence of incarceration. The overall level of the offenders is not one of being the so-called kingpins of the drug trade.
Senator Milne: Therefore, it is not taking the big boys off the street or reducing the trade at all.
Mr. Mauer: No. If you think of the drug trade as a pyramid, you have the kingpins at the top and a larger group of mid-level people but then enormous numbers at the street level. If you expand as dramatically as we have in the U.S., it is far easier to find the street-level players than the guys at the top of the drug trade.
Ms. Price: It is appealing to law enforcement to go after those low-level drug dealers. They are easy to catch, and they have an immediate benefit of being able to sentence them to long terms. There is sort of a reward right away, whereas going after big operations takes more resources and a great deal of time. When we look at the chart, we see the importers and the wholesalers down here and a huge and immediate rise when you get to the street dealers and the cooks, and it slides down again. That is what really drives those sentences, particularly with crack cocaine. It has been most dramatically demonstrated in those studies.
Senator Milne: You spoke, Mr. Mauer, of someone being sentenced to 5 years plus 25 years, plus 25 years. On an average across the states — because I believe it probably differs in different states — how quickly would someone sentenced to 55 years be released, or would they ever?
Mr. Mauer: In the federal system, a mandatory sentence is a mandatory sentence. Generally, one serves 85 per cent of the sentence and you are not released unless extraordinary circumstances exist and you would get a commutation from the president, actually.
The state system has a broad range. Some people are sentenced under mandatory terms and some under more traditional, indeterminate sentences. It is really across the board.
Senator Milne: How long would someone be sentenced for murder?
Mr. Mauer: It could be anywhere from a death sentence to, perhaps, as little as 10 years, depending on the circumstances of the offence.
There is no question that people sentenced for drug offences, in very many cases, have received considerably harsher sentences than people convicted of serious violence.
Ms. Price: On page 7 of my testimony, at the bottom of the page, you will see a discussion by Judge Cassell when he sentenced Weldon Angelos to 55 years. He does a comparison of Weldon Angelos' 55 years as a first-time drug dealer with an aircraft hijacker who received 293 months; someone who rapes a 10-year-old child, 135 months; and it goes on and on.
I included some of it in to show how distorted our mandatory sentencing is when considered against the sentences that other defendants are receiving. Those sentences, by the way, to which Judge Cassell was comparing Mr. Angelos' sentence, are not mandatory minimum sentences. Those were guideline sentences.
The Chair: I will ask you to add to the list for which you promised to give us references.
Given the number of mandatory minimums in American law, I have to assume that this question has gone to the Supreme Court of the United States more than once and been upheld.
Therefore, I wonder if you can provide us with what you would consider the two or three key decisions upholding mandatory minimums. If you want to throw in any two or three that might go to your position, as well, that would be good.
Given, in particular, the strength of the arguments you are making here today, I would like to know why the law, as it stands, so often does not reflect the position you are advancing.
Ms. Price: We will collaborate and put something together for you from both of us.
The Chair: Senator Nolin, before I go back to you, Senator Watt would like to put a question.
Senator Watt: Thank you for your presentation. I am from the North, from the Arctic, and I have a couple of questions that I would like to put forward. I have been following what is happening on the American side for quite a number of years on the related subject with which we are dealing.
Have illegal drugs become more difficult to purchase in the United States since the war on drugs began? Have any changes taken place that you are aware of since the Americans decided to take this matter seriously?
Mr. Mauer: I think the short answer is no. Other witnesses you will hear from later today will probably speak to that in greater detail. Much of it has to do with the economics and the international drug trade. Even with a significant numbers of drug seizures, at best, it is a small fraction of drugs that are interdicted coming into this country. It has not been terribly difficult to meet the market demand, given the potentially lucrative nature of the drug trade.
We have seen virtually no change in availability. The price of drugs has not gone up as a result of these policies, either.
Senator Watt: Have they had a greater impact on the lower-level dealers or on the kingpins? Could you give me some indication as to whether you are succeeding with the people you are targeting, or are you only apprehending more of the lower-level people that are involved in trafficking?
Mr. Mauer: If you had some prosecutors from the U.S. sitting here, hearing our testimony, some of them would say, "Well, you know, the reason why it looks as though we are apprehending or prosecuting so many low-level sellers is because we want to use them to get at the high-level sellers. We want to flip them; get information from them in exchange for a better plea, and that is why we have so many."
There is no doubt that, in some cases, that may be an effective strategy for going after higher-level people and convicting them. However, with the sheer numbers of what we are looking at, as I mentioned before, namely, 500,000 drug offenders in prison, the vast majority of whom are not the kingpins, we have seen an unprecedented increase, overall. One would have thought that, after 25 years of the drug war, if this was a good strategy, our prisons should be filled with drug kingpins and nothing but that. However, we do not have much evidence to support that.
Ms. Price: I will add an observation. Frequently, we hear that it is necessary to have mandatory minimums, as Mr. Mauer described, so that underlings and lower-level people involved in the drug trade will flip and give up the names of higher-level people, and, thus, the mandatory minimums are necessary to make important cases.
We have very good examples in this country of huge prosecutions for fraud, for example, or white-collar crimes. All of those cases are made. Those are cases where high-level fraudsters are put away for many years, Bernie Madoff among them. None, or very few, of those crimes carries anything like a mandatory minimum.
Therefore, I do not think the argument that it is necessary to make the cases with mandatory minimums pointed at lower-level people follows because, otherwise, we would have them across the board, and they would all be working very well.
Senator Nolin: First, the effect of the U.S. experience amongst the state and federal legislators. Can you testify that a trend exists distance themselves from using such a scheme as mandatory minimums sentencing because it does not work?
Mr. Mauer: I think we see the beginnings of a trend. Much is brought about by the fiscal crisis: States are having to decide how to support vital state services and recognizing that, in many cases, prison populations are much higher than public safety demands would require.
Therefore, people are beginning to question and turn away from this. I would not suggest it is a wholesale abandonment of it, but we have seen a significant change in the last several years.
Senator Nolin: In the U.S., you are using drug courts. Can you testify to the effect of those courts and to what extent they are being used? We are doing that, as well, in a limited number of urban areas. The bill we have in front of us tends to expand this experience.
What can you tell us on that?
Mr. Mauer: Very briefly, drug courts have expanded tremendously in the last 20 years in the U.S. We now have some 2,000 drug courts around the country. We cannot say that we have comprehensive evaluations because many of them have not been evaluated. Generally speaking, in good evaluations, they find that there is some reduction of recidivism and reduced use of drugs for people completing the program successfully. They generally find there are some cost savings because of reduced incarceration also.
The drug courts have potential problems, as well; two, in particular. One is the criteria for admission to drug court. A concern is that, when a large network of drug courts is set up, the people coming in being processed in the court are not necessarily the ones who would otherwise be sentenced to prison. The question arises about whether a diversionary effect is achieved.
Second, should the criminal justice system be the focus of providing drug treatment and other social services? Would we not be better off, at least in some cases, to expand the range of drug treatment services in the community setting? At the moment, in many low-income communities, we have a bizarre situation whereby those with a drug problem would actually be more likely to receive treatment if they are arrested. They can go through drug court rather than wait in line for a publicly funded treatment slot. Certainly, that does not seem to be a good way to structure things.
Ms. Price: At the federal level, there is no provision for drug courts. We have post-release supervision courts. When people are released from prison, they are under court supervision for a number of years. If they fail court supervision, often they are re-incarcerated. This is a pilot program in some districts to experiment with trying to keep these people out of prison and reduce the recidivism rates because some are run up by technical violations and so forth.
The National Association of Criminal Defense Lawyers recently published an extensive review of drug courts in the U.S. that this committee might find useful. It stems from their concerns that, in some cases, defendants are required to give up certain constitutional rights or to plead guilty before adjudication and then go to drug court. If they are successful, they will be handled in a variety of ways. Some defence attorneys believe that although this is a promising trend, it raises constitutional concerns.
Senator Nolin: We will look into their study.
The Chair: Your testimony has been extremely interesting and helpful.
I welcome our next witnesses, Mr. Eric Sterling and Ms. Sharon Dolovich, by video conference, as we continue our study of Bill C-15.
Mr. Sterling, please proceed.
Eric E. Sterling, President, Criminal Justice Policy Foundation: Thank you for distributing my prepared statement. I will pick up on Senator Wallace's point. I had the privilege of hearing the testimony of the previous witnesses. I acknowledge that those of us who look at the drug problem are aware of how serious the organized crime drug problem is in Canada at this time. We are aware of the violence of the criminal gangs, the profits and the way in which people in Canada are justifiably disturbed by what seems to be a situation spiralling out of control. Therefore, it is understandable that the Canadian government has proposed new measures to attempt to deal with this. I am so delighted that you are taking the time to decide whether the proposed measures are appropriate to being successful in restoring peace and tranquility to Canada.
As you might be aware, I was counsel to the U.S. House of Representatives Committee on the Judiciary in the 1980s working on the drug issue. I came to that position when Jimmy Carter was the president and remained during the term of former President Ronald Reagan. As the drug problem in the United States grew, the violence in Florida escalated, the cocaine problem developed and the explosion in crack cocaine use and traffic developed in the United States, I was sitting at the table assisting men and women such as you who were very concerned about the problem.
Senator Watt asked about low-level dealers and kingpins. This is an extremely important conceptual issue you need to grapple with. What is a low-level dealer? What is a kingpin? When U.S. legislation was being developed and we picked quantities, the first quantities that I proposed for high-level traffickers were rejected by then Congressman Romano — or Ron — Mazzoli, from Louisville, Kentucky. He said that if we adopt these definitions as high-level traffickers, they will not use these mandatory minimums in Louisville. No one around the table had the wisdom to say that Louisville is not a centre of the drug trade in the United States. They do not have any real kingpins in Louisville. They have big drug dealers in Louisville, that is true, but the biggest drug dealer in Louisville is a state offender, and it does not merit a federal case.
Well, no one had that conversation in the haste of our enactment and, therefore, our quantities are trivial. We have not been able to focus on high-level offenders. We have 96 U.S. attorneys in different districts around the country, each one of whom is aggressively going after the biggest drug dealers in their respective jurisdictions. The consequence is that vast resources are being wasted in West Virginia, Kentucky, North Carolina and North Dakota when the drug dealers and national- and international-level drug traffickers are focused in New York, Miami, Houston, Los Angeles and Chicago. Instead of focusing our resources in the way that we should, we have dissipated them around the country.
When a dealer sells drugs to kids, I do not care whether he is a big dealer or a little dealer; I am concerned about it. However, is it a federal case? Those of us in the U.S. are ignorant about the Canadian federal system. Are all cases federal cases? What is the role of provincial law enforcement? In the U.S. in any given year, there are 25,000 federal drug cases and 1.5 million state and local drug cases. We are talking about very different kinds of allocations of resources, at least in the United States.
Briefly, our perception has been that mandatory minimums have led to injustice, and they have been ineffective. We have not focused on the high-level traffickers but on the low-level traffickers. Drug traffickers today are more efficient than they were 25 years ago. They deliver a purer product at less cost to them per gram. In effect, drug enforcement has picked off the unlucky or the not particularly smart drug traffickers, while the more aggressive, more violent, more intelligent traffickers have thrived; so we have not succeeded in those terms.
Drug treatment courts are fine. In my written testimony, I talk about going to a drug court graduation in the U.S. just a few weeks ago. Four graduates attended a large ceremony in the courthouse. There is a problem of scale that is completely inadequate. I recommend that the committee think about the H.O.P.E. program from Hawaii and different ways to deal with the offenders who are drug users and who end up in Canadian courts.
The committee is focusing on cannabis, to some extent. I would suggest that cannabis offenders should not be punished. When my friend Ms. Mary Price says that a 17-year-old should be punished for selling one joint, I say, no. A 17-year-old should not be punished for selling a joint, certainly not by imprisonment.
Those are a few of my thoughts. You have my prepared remarks. I am eager to try to answer your questions as best I can. I would like to turn the microphone over to Professor Dolovich.
The Chair: Before we get there, I failed to introduce you to our viewers. Mr. Sterling is the president of the Criminal Justice Policy Foundation and Ms. Dolovich is a professor of law at Georgetown University. You are both very welcome, and now please begin, Ms. Dolovich.
Sharon Dolovich, Professor, Georgetown Law, Georgetown University, as an individual: Thank you. Madam Chair and members of the committee, thank you for the opportunity to speak with you today. As you mentioned, I am a professor of law at Georgetown Law. I should say that I am ordinarily a professor of law at UCLA and am spending this year as visiting professor of law at Georgetown Law. I teach courses in criminal law and prison law, and the primary focus of my research and teaching is on the law theory and policy of incarceration.
For the past decade, I have been a student of the American criminal justice system and its penal system in particular, and from everything I have learned and observed, it is clear to me that the American experiment with mandatory minimums and other inflexible sentencing schemes, an experiment that was initially driven by the so-called war on drugs, has been an unmitigated policy disaster. Not only has it done little to curb the drug problem, but it has fuelled a massive incarceration explosion that itself has created a host of social problems that have only further undermined the safety and security of ordinary citizens.
Were Canada to follow the American example in this arena, it would, in my view, be making a terrible mistake. This mistake, moreover, once made may prove extremely difficult to remedy because, as the American example teaches, once mandatory minimums are adopted, it can be hard to reverse course.
The reason is politics. Mandatory sentencing puts the task of fixing particular sentences for specific crimes in the hands of legislators through a process that is necessarily removed from the sentencing of individual offenders. In the legislative context, in the United States at least, all the political pressure goes in the direction of ratcheting up criminal penalties. Politicians almost never pay a political price for being more punitive. However, at any sign that the severity of the sentencing is being eased, legislators can readily be branded as soft on crime, a charge that typically comes with a high political price. Practically speaking, therefore, a mandatory-sentencing scheme has served as a one-way ratchet toward stronger penalties. Moreover, the adoption of a mandatory-sentencing scheme, even as to limited number of cases, as in Bill C-15, may serve as the thin edge of the wedge signalling the advent of a far more expansive use of this sentencing form. Therefore, once it has been adopted in one context, in other words, it becomes easy to adopt it in another. At least, that has been the experience in the United States.
However, the profligate use of fixed sentencing in the United States has also contributed in a significant way to massive expansion of the prison system, which has brought about a set of serious social problems that I just want to touch on briefly.
I want to be clear that in identifying these problems, I do not mean to suggest that incarceration is never justified. However, punishing people with prison time is not free — to the contrary. It imposes all types of serious and harmful social costs. If it is to be done, therefore, it should be done thoughtfully and only to the extent that is absolutely necessary. Unfortunately, in recent decades in the United States, this has too often not been the case.
Over the past 40-odd years, as some of you will know, the prison population in the United States has exploded. Just to give you some idea of the numbers, in 1970, approximately 360,000 men and women were in state and federal prisons and jails. Today, more than 2.4 million are incarcerated. The United States now incarcerates significantly more people per capita than any other country in the world, more than Russia, Rwanda or Cuba, which are themselves world leaders in this area. In fact, it has become commonplace to refer to the existing American regime as one of mass incarceration.
This dramatic change corresponded to a major rightward shift in the American political culture. No doubt many factors contributed to this shift and to the increasingly harsh penalties that it brought, but if we focus on the question in a narrow sense, the legal changes that made this expansion possible, the answer is a national embrace of determinant sentencing, for example, mandatory minimums in a variety of forms, including the truth-in-sentencing law, three- strikes-and-you're-out law and straight mandatory minimums, which, as I mentioned, began in the context of drug offences but quickly spread beyond this point.
In combination, this set of policies sent the American prison population soaring. The result has been the emergence of a massive carceral system that has exacted social costs that are almost impossible to overstate. Most obviously, mass incarceration is extremely expensive, diverting funds that could otherwise be used on more socially productive enterprises. Operating costs can be as much as $44,000 per inmate per year, depending on the security level of the facility; and building new capacity, an ongoing necessity in an era of prison overcrowding, can cost as much as $65,000 a bed. In 2008, states spent a total of $52 billion on their prison systems.
There are also other costs to mass incarceration besides the financial. Incarceration tears families apart, generating material and psychological stresses that make the children of incarcerated parents more likely to be incarcerated themselves. Additionally, for the people who are incarcerated, the experience can be deeply damaging physically as well as psychologically and can systematically erode the possibility that they will lead law-abiding, socially productive lives upon release.
This is, to some extent, the inevitable result of imprisonment, and as experts have shown that the experience of long- term incarceration instills a learned passivity that can undermine a person's capacity to function in a healthy pro-social way on the outside.
However, even more troubling are the dangers incarceration holds for the people inside when facilities are overcrowded. In the United States today, prisons and jails are chronically overcrowded, the result of decades during which the state's appetite for imprisonment, expressed through the adoption and ratcheting up of mandatory sentences, outpaced the ability to build new prison capacity. As a consequence, in correctional facilities across the country, prisoners are jammed into dormitories or doubled up in tiny cells designed for a single person, under conditions that increase volatility and the risk of violence while decreasing the amount of control prison officials have over the institution.
In short, crowded prisoners are dangerous in many different ways. In such circumstances, for example, even prisoners not otherwise prone to violence must be prepared to fight to defend themselves. The imperative in such environments for people to seem hard and tough can foster a range of tendencies, such as belligerence, insensitivity and a hair-trigger temper, that can only perpetuate a volatile and unhealthy atmosphere in the prison and are sure to create the same problems in society in general once prisoners are released.
That is one set of problems that arise with overcrowding. A different set relates to public health concerns. Put simply, in such circumstances, it can be difficult to maintain adequate levels of hygiene, and in crowded and unsanitary conditions, infectious diseases are more readily spread. Indeed, I would suggest to you that the risk of infectious disease and the promotion of violence one finds in crowded prison facilities have much in common. They are both corrupting conditions that threaten not only the health and well-being of the prisoners but also the health and well- being of society in general since most people who are sent to prison will at some point be released back into society.
There are other socially dangerous aspects of an expanded carceral system. The bigger the system and the more crowded the prisons, the harder it can be for officials to maintain order and security, and under such conditions, prison gangs grow and thrive. Under such conditions, rape and sexual coercion among prisoners will be more common, and it becomes difficult to maintain even minimally adequate levels of inmate medical care and mental health care.
I offer this laundry list of the social costs of mass incarceration not to suggest that this is necessarily Canada's future if Bill C-15 passes, but to simply indicate some the serious problems that have taken hold in the United States after years of allowing emotion and fear-mongering to substitute for wisdom and reflection in the development of crime policy.
To repeat, the American experience teaches that it is much easier to get political traction for tough-on-crime measures such as mandatory sentencing than it is to retreat from those policies once their harmful effects have become obvious. Sentencing policy tends to be created in the abstract, against some mythical evil criminal; and it is easy to be against such people. However, not all criminal offenders are evil. In the United States, with respects to a very large number of people, an argument can be made that the cost of their continued incarceration far outweighs the benefits.
The problem with mandatory minimums is that we foreclose individualized determinations as to which people need to remain behind bars and which people society can safely and productively release. They are, therefore, at odds with the demands of justice and fairness, which require that individual circumstances are taken into account when imposing punishment. They also undermine society's strong interest in incarcerating only when and for as long as absolutely necessary.
Again, it is not that criminal offenders should never be incarcerated. However, we should keep in mind that the state is not required to answer all crime with extended imprisonment. You often hear it said that "those who do the crime must do the time," but this slogan entirely misses the fact that the time that is prescribed for any given offence is not preordained; it is a political decision.
Due to the serious consequences of keeping people behind bars, we should only do it when we are absolutely sure that there is no other way to protect society from harm.
Senator Nolin: Good afternoon and thank you for accepting our invitation. We are quite thankful to hear your experience. It may help us evaluating our own Canadian proposal.
Mr. Sterling, I am looking through your brief. Madam Chair, will we wait until the end to move that those documents be part of our proceedings, or do you want me to do that now?
The Chair: We should not waste our available time for video conferencing, but rather do it all at the end.
Senator Nolin: Mr. Sterling, I want to explore what you wrote at pages 15 and 16 when dealing with public fear.
On page 16, in the first sentence of the second paragraph, you bluntly say, "Our cultures are fascinated, if not obsessed with crime." In your opening remarks, you referred to the real intent behind all this as being politics. Could you expand what you were trying to convince us of?
Mr. Sterling: It is important not to overplay this critique of the way in which the political process can take advantage of crime. We did that in the United States. The point I am making is that policy around crime is widely reported. The public pays attention to it because these are areas of which we can be fearful; we do focus our fears on this because of the way our culture sets it up.
Another culture might be more fearful of natural disaster; every instance of some type of storm might bring a headline, there was a flood here, or there was a hurricane there. People will be afraid of that. Alternately, we might be more afraid of disease or these might be the themes of our television shows.
Consider songs, music, motion pictures, the entertainments and novels — the very genre of the crime novel for instance. In our culture, we find a tremendous fascination and, therefore, a concern about this.
In Washington, I remember a member of our committee who was famous for being a crime fighter; most of the work he did in Congress was behind the scenes on behalf of financial institutions. However, he would not go back to his constituents and say, "I just did a big deal for the banks. I just screwed the consumer because I did something for the banks." Rather, he would say, "I was in there fighting crime for you."
If members of Congress go to a town hall meeting, they will not talk about what they did on a particular tax rate of some imported widgets from South Korea. They will talk about what they are doing to protect the public from what the public is afraid of.
I do not want to spend too much time on this, but I saw this in Washington. I am not suggesting that is what is happening at all in Canada. I know you have an organized-crime problem that you are concerned about.
Ms. Dolovich: I said a bit about this in my remarks. It is very true in the United States, but I do not think it is as true in Canada, that the fear of crime has a great deal of political traction.
Therefore, as Mr. Sterling suggested, it can be easy to rally voter support for a measure that looks tough on crime. As a result, you see systematic ratcheting up of sentences in many places in this country. I am from California; that is where I have been for the past decade. There you see a sort of systematic ratcheting up of sentences when it becomes politically efficacious for politicians to do so, without really thinking about the efficacy of a particular sentencing scheme.
The challenge is to insulate the analysis from politics enough to be sure the scheme you are passing is really a wise one.
Senator Nolin: You are two social witnesses. I will offer you an analogy with the insurance business. If you want to sell insurance, you promote the possibility of a risk. Suddenly, your insurance business will grow. Do you agree with me?
Ms. Dolovich: The analogy sounds persuasive.
Senator Nolin: Thank you very much.
The Chair: Ms. Dolovich, if memory serves, you originally come from Canada, do you not?
Ms. Dolovich: That is correct. I was born in the United States, but I grew up in Hamilton and went to Queen's University in Kingston, Ontario.
The Chair: You are welcome back any time.
Ms. Dolovich: Thank you. I come back frequently, actually.
Senator Angus: I will add my words of welcome to you both. We appreciate the work you have done and the time you have devoted to our study.
I want to ensure that I understand the situation. I can remember during the time of former President Nixon, I think, when we declared an all-out war on drugs. Was that about when it started?
Mr. Sterling: There was some of that, and then it came in in a huge way during the Reagan administration. During Nixon's time, the crime rates had grown dramatically. There was a great deal of concern about drug abuse among American servicemen in Vietnam.
That was a time of political assassination in the United States. It was a time of tremendous social upheaval, and drugs were symbolic. Young men were wearing their hair long; women were burning their brassieres. This was part of a very intense period of social unrest in the United States.
Senator Angus: I remember that. I am a lawyer. I went to law school in the late 1950s and early 1960s, and I can remember being in the U.S. frequently during the Nixon administration.
Some friends of mine on the American Young Lawyers Conference were summoned to Washington, D.C., to work on the all-out war on drugs, and they introduced zero tolerance. Now, we are in 2009. Has the war on drugs had any effect in deterring, curbing or dealing with the problem?
Mr. Sterling: I would say that is it has had some effect. However, it is hard to sort it all out because the problem is much worse than it was in the time of President Nixon. There is no question that drugs are more readily available today. During the Nixon administration, the first national data surveys were developed. Repeated annually, they show that drugs remain highly available to young people and that the number of drug users today would be unimaginable in the days of the Reagan administration. The prices of drugs today are inconceivably low. At the first congressional hearing I set up, the head of the Drug Enforcement Administration, DEA, was bragging that the purity of heroin had gone down from 5 per cent to 3 per cent and that we were making progress. Today, the average purity of heroin is 30 per cent to 50 per cent, which would have been inconceivable 25 years ago.
Ms. Dolovich: You asked whether the problem continues. I will answer the question by suggesting that whatever the current situation might be, and I agree with Mr. Sterling that it might be better in some ways, the medicine that was adopted is worse than the cure. In my remarks, I talked about the effects of mass incarceration. The number one driver of mass incarceration in the U.S. has been the war on drugs. The problems are affecting families in various ways, such as driving kids into poverty and making it difficult for people who want to return to society in a socially productive way. I suggest that a sort of inevitably exists between the drug problem and incarceration. I urge that those two things do not necessarily have to go together and that healthier, more creative solutions might be adopted that do not involve incarceration.
Senator Angus: The reality is that you have some draconian laws in the U.S. relating to sentencing and other things. Some of the situations that we see in Canada shock us, such as middle-aged people today being stopped at the border because when they were sophomores in university, they were caught with a grain of marijuana residue in a left shoe or some such thing. They are refused entry to the U.S. forever. I have had many cases of clients spending a great deal of money to have such records expunged.
Recently, we had a bill before the committee that I found draconian and fought hard against its passage. It imposed minimum penalties in Canada for oil pollution from ships and criminalized the seamen involved. We have heard some of the major evidence given to support this proposed legislation, which went way too far in that the punishment would be far worse than the crime. They used examples of the American line of tough laws. The U.S. Coast Guard with automatic weapons can board a ship and arrest the captain and crew for a spill that caused a few birds to wash up on the beach.
Our minister appeared before the committee and said that the government is not looking for a couple of students with a couple of joints of marijuana but that they are trying to get to Mr. Big. You have indicated how tough that is to do. I have read your paper, Mr. Sterling, which is most interesting. One little phrase caught my eye. On page 3, you say, "I want to commend you for the modesty of your proposed mandatory minimum sentences. In the United States, our mandatory minimums are terms of 5, 10, 15, 20 and more." You have many mandatory minimum sentences on your law books in the U.S. Is that true?
Mr. Sterling: Yes.
Senator Angus: You are against that, and you have given the criminological academic reasons that you take a dim view of them. The reality is that you have them in a huge way in the U.S. The Canadian government is trying to find a way to deter and to get to Mr. Big.
I do not have a clue whether this is the right way, but it is a modest beginning. Are there any positive aspects with minimum sentences or fixed sentencing?
Ms. Dolovich: There are a few things. As your comments suggested, as soon as you establish the idea of a mandatory minimum sentence in even one area, two things happen, as the American experience suggests: The minimum penalties that you start with will be ratcheted up because it is easy to do; and you start with the minimum sentences in one context, which then move to other criminal contexts. I worry about that.
You asked if there are any benefits. I suppose what the previous witnesses talked about in terms of holding it as a threat over people who have information about other crimes might be suggested to be a benefit. However, my sense is that it often backfires because you end up with people who have more information serving less time than the people who have less information.
Mr. Sterling: If you want to go after the big traffickers, I would encourage the Royal Canadian Mounted Police to ask the Drug Enforcement Administration and the Federal Bureau of Investigation to work with them on high-level traffickers. The United States has the ability to monitor all kinds of international communications and financial activities. I suspect that working together you could find the people who launder money in the Cayman Islands, the Bahamas or Switzerland and who arrange for shipments from South America into Canada.
Part of my concern is that our effort is squandered on low-level cases by a lack of discipline by politically ambitious prosecutors who prefer to announce on television that they have busted a big organization, including the kingpin. However, they busted the kingpin of 33rd Street, not of the state or of the country. As much as possible, you want to have oversight of your investigative agencies and have them bring the evidence that they have a strategy. In New York City, former Police Commissioner William Bratton developed a strategy with his precinct commanders called Compstat. He went to the precinct commanders in the New York Police Department and said, "I want to know what your strategy is for reducing crime in your precinct and, if you do not have a strategy, you are out of here. If you do not have results, you are out of here."
Unfortunately, I see it many times in Congress, as a legislator, they want to make friends with the prosecutor. They want to be friends with the head of the law enforcement agency, and they do not hold their feet to the fire and demand effective strategies.
Senator Angus: In our system, at least, we are lucky that our prosecutors are not elected, our district attorneys are not elected and we do not have the same system as you do.
Sir, I am interested in all you are saying. You anticipated my third question when you asked what we will do if this bill does not help at all. Our minister said that it would not be a panacea, but it is another tool in the toolbox of our law enforcement agencies, and they have asked for this tool. Therefore, that is what this is about.
If you do not think Bill C-15 will help us get to these terrible people, what will? I think you said that you have to get at the high-level cartels and such that are outside our jurisdiction. Is that not correct? That is what you are really saying, and that is another ball game.
Mr. Sterling: In American law, it is a crime to conspire to bring drugs into the United States. We apply extra- territorial jurisdiction to crimes to be committed in the United States, so the drug trafficking organizations in Mexico, Nigeria, Thailand, Colombia or Afghanistan can be indicted in the United States. I do not know if your law provides for that.
Senator Angus: I think we have good cross-border cooperation in terms of Interpol. It is a terrible thing. These planes are coming in the middle of the night, into our country and yours. We have ships coming and dropping stuff off. We find people coming on the shore with huge volumes of these substances.
Mr. Sterling: These are ultimately economic activities. People do this because this is enormously profitable. Until recently, marijuana was far more valuable than gold. The price of gold has gone up so dramatically that it is more valuable, but it is still cheaper than cocaine and heroin on a dollar per gram basis.
Those drugs are so expensive because of prohibition. We do need to think about whether our whole approach of prohibiting people from using these drugs protects us, or if it empowers these criminal organizations to seek the profit where they can.
The Chair: That is a whole new area of debate. We only have a few more minutes. I can tell you in Canada, we are not big on extra-territorial jurisdiction.
Senator Milne: Ms. Dolovich, you mentioned that the children of incarcerated parents are more likely to end up in jail. Do you have any statistics to back that up?
Ms. Dolovich: I can get you those statistics. I do not have the numbers right in front of me. Studies support that, and a number of reasons are to blame. Some of them have to do simply with what happens to kids whose parents go away. Where do they end up? Do they end up with other family members or foster care?
Apparently, in the United States, the single biggest determinant of whether a child of an incarcerated parent will go to prison is whether they were in foster care, and a number of kids end up there.
I can get you the numbers.
Senator Milne: Please do that and send them to the clerk of the committee.
I heard you talk about the truth-in-sentencing law and how it is not working. Mr. Sterling talked about sending a message, which does not work because the criminals do not read that message. It sounds very much like the sort of message we are being bombarded with right now in Canada, so now you know where I stand on this particular issue.
Mr. Sterling, you talked about considering for a moment the message the enactment of mandatory minimums will send to the judges of Canada. You say that that is a very damning message for this Parliament and the people of Canada to send to the judges, and you think we want to be quite certain that this is a message that we want to send to our judges.
We have a strong and proud tradition here of an independent judiciary. They are not elected; they do not have to get elected. What message would you like to send to the judges of America?
Mr. Sterling: I have many friends who are judges, and they appreciate the work I am trying to do to end the mandatory minimums. I want to acknowledge that their training and experience, the judgment we believe they hold, which is why they have been named to that important office, can be applied in drug cases. If you give a judge the facts of the case, most judges will make an appropriate decision about what punishment is warranted.
I encourage you to study the evidence of sentencing in Canada to see if judges in serious cases impose serious punishment, as opposed to what may be a small handful of cases that are plucked out to suggest that the judges are acting improperly. If the judges are not acting improperly, then I cannot see the reason for taking this step out of their hands and sending the message that says, "These are the handcuffs, judge. You have to handle it this way. We do not trust you to impose proper judgment." That is a terrible message to send.
Ms. Dolovich: To be clear, in the United States, the federal judges are also appointed, not elected. They also have a proud tradition of independence. Until very recently — for the past two decades — their powers of discretion in sentencing have been extremely limited by the federal sentencing guidelines.
During the period of a couple of decades when the guidelines were mandatory, judges were only allowed to look at the offence committed and the criminal history of the offender. Those were the only two considerations that were to go into identifying the sentence. It was just a grid. You had "criminal offence" here and "criminal history" there and where they lined up was your sentence.
Senator Milne: Did the testimony before the judge mean nothing?
Ms. Dolovich: The testimony would have to go to establishing the criminal history. To get a conviction, the testimony mattered. However, then the question was on what basis we sentence. Under the federal sentencing guidelines, they were only allowed to take into account the nature of the offence — of which there are many aspects — and the criminal history. However, family history, for example, particular hardship, motive and any other elements were not being taken into account.
Under a more discretionary system, a judge — as Mr. Sterling said — who has had experience and seen cases such as this before and who might make a judgment about what is fair in the circumstances could make those judgements. However, a mandatory sentencing scheme really ties the hands of judges, and there is a great deal of objection that their experience and wisdom was not being taken into account at all.
Mr. Sterling: You understand, as an educator, that certain types of flexibility are appropriate. You are trying to teach judgement. That is what you are trying to do.
Senator Milne: May I just ask Mr. Sterling to respond in writing to something? You recommended a book to us called When Brute Force Fails: How to Have Less Crime and Less Punishment by Mark Kleiman. Perhaps you could send us a very short breakdown of the most important parts. We will not have time to read the book, unfortunately.
Mr. Sterling: I will do that.
Senator Wallace: Thank you very much for your presentations; they were very interesting.
Mr. Sterling, we have had many discussions around mandatory minimums and how effective they are and have listened carefully to what you have said.
I notice in your written material, in particular your references to cannabis offences, keeping in mind Bill C-15 targets cannabis production and trafficking as an offence and the mandatory minimums would or could apply to that in certain circumstances. It is one thing to debate mandatory minimums, but in the context of cannabis production and trafficking, I think we are not even at first base in your mind.
I say that because, as I read what you have presented, you seem to be standing for legalization of cannabis. You say that there does not appear to be much social harm in Canada as a consequence of cannabis use and that the principles that warrant state punishment of wrongful conduct do not justify punishment of use of cannabis.
Am I reading this correctly that anything you said about mandatory minimums would have no relevance to cannabis because you really stand for the legalization of it?
Mr. Sterling: I do not think that is correct. I think cannabis should be legalized.
In regards to mandatory minimums, I helped write the mandatory minimums for cannabis in the 1980s for the U.S. Congress. My comments about the effects of mandatory minimums apply across the board. Maybe I am misunderstanding your question.
Senator Wallace: You have answered it, maybe not realizing you had. Your comments on mandatory minimums have no relevance to cannabis charges, production and trafficking because you believe it should be legalized. I realize that there are different opinions on that, but I wanted to clarify that as it relates to production and trafficking of that particular drug which is earmarked in Bill C-15.
On this issue of legislators and tying the hands of judges and the suggestion that legislators — in particular with Bill C-15 — could be construed as having a lack of confidence in the judiciary, I take exception to that. Your assumption is that we, as legislators, do not have a responsibility or role to play in sentencing. I disagree with that. I believe we, as legislators, have the responsibility to create some definition around the laws and rules that we establish.
The role of the courts is to interpret our intention.
Mr. Sterling: Sure. I do not think you and I disagree. As you have stated, we do not disagree.
The Chair: Senator Wallace has not finished his comment.
Mr. Sterling: I beg your pardon.
Senator Wallace: The point of it is that discretion is required. Discretion still remains after mandatory minimums. Discretion exists between the level of mandatory maximum and minimum. I suggest that to you.
The fact that we have numerous examples in the Criminal Code where we have maximum sentences, as you would in the United States, I do not think you would have a problem with that or suggest that, as legislators, we are somehow infringing on the rights of the judiciary. I believe that they are there to interpret our intent. We should be clear on what our intent is. If we believe a mandatory minimum is appropriate, I do not think that infringes on the rights of the judiciary. What is your comment on that?
Mr. Sterling: I would say that there are better ways to the communicate to the judges the factors you want them to consider in imposing a just sentence than simply setting some number of years, limited to some quantity of drugs.
Ms. Dolovich: I do not think anyone disagrees that the role of the legislature is to set a range. The system that predated the rise of mandatory minimums in the United States was an indeterminate system where legislators would fix a range — say 5 to 15 years, 20 years to life — and then the judge would look at the facts of the particular case and make a judgment about where in the range the sentence would fall, with the idea that the offender could go to prison, behave well while they were in prison and show the parole board that they were ready to be released after a certain minimum time.
Mandatory minimum sentencing shrinks the scope. In the federal sentencing guidelines, for example, they give a range, but the range is much narrower, the minimum threshold tends to be much higher, and in some cases they give no range at all. In the case of truth-in-sentencing laws the laws typically say something similar to that you will serve 85 per cent of your sentence and only be able to earn 15 per cent for good behaviour.
Really it is about how broad the range will be and how much discretion will be provided for the judge to make a decision in an individual case, or the parole board at the other end.
Senator Joyal: Thank you for your input into our study. In your opinion, is there a causal link between the length of mandatory minimum sentences and the reduction of crime rates?
Mr. Sterling: No.
Ms. Dolovich: I would say that what Mr. Mauer said earlier is right. If you keep people in prison long enough, they will be, in some case, less likely to commit crimes because people may become less violent as they get older.
My own sense of the prison system, in the United States in any case, is given the conditions under which many offenders serve their sentences and the length of the sentence, what ends up happening is that people who go in convicted of non-violent offences may actually be more likely to commit violent offences when they come out.
Mr. Sterling: Here is the logic of it: The longer the sentence is, the fewer people you can punish. Therefore your punishment is ineffective. It is not a threat to many of your offenders.
If you believe in deterrence, you must make the threat a credible threat. If you put all of your punishment on a few of your people for a long period of time, many people will not be punished. If you punish for a short period, you may have more of an impact.
You have to think about the psychology of the people you are trying to punish as well and the impact that will have. I encourage you, particularly on this point, to think about the book, When Brute Force Fails: How to Have Less Crime and Less Punishment, and perhaps take evidence from Professor Kleiman who has thought about this in great detail.
Senator Joyal: In your opinion then the certainty of a sentence is more of a deterrent than the severity?
Mr. Sterling: That is correct.
Senator Joyal: The fear of being caught due to of the effectiveness of the police forces and the capacity of the investigation is a greater deterrent than to simply say that if you do this we will put you in prison for X number of years.
Mr. Sterling: That is correct. Let me raise another point. As you think about your drug problem, ask yourself who are the people consuming the greatest quantity of drugs. If your situation is similar to that of the United States, those are possibly people who are already known to the police and may be serving sentences of probation and parole. If you were to require them to be drug tested, and if they failed those drug tests and were punished immediately — not three months or six months from now — you could have the effect that Judge Steven Alm has had in Honolulu. He has dramatically brought down the percentage of people using drugs while they are on probation and parole, dramatically reducing recidivism of the crimes that they are committing, even with drugs as addictive as methamphetamine. Very few prison cells are required because the punishments are short and immediate.
The Chair: For clarification, this judge, when such an offence is committed while someone is on parole, just shoots him right back into jail; is that the way it works?
Mr. Sterling: He does not revoke the sentence of probation. They might serve a weekend or a week, and then they are put back under community control. In fact, very few of them are punished because they know the judge means business. When they give the drug test, they know immediately whether it is positive or negative, and if it is positive, they are taken into custody immediately. He has an arrangement with the U.S. marshals; if people do not show up, they will be arrested because he does not let people get away. Instead of teaching people to break the law, he teaches them to comply.
Ms. Dolovich: I wanted to say a word of caution. I do not know anything about the Hawaii example that Mr. Sterling is giving. However, in California, there is also a mandatory revocation of parole for people who have failed drug tests, and a really strong argument holds that that is a counterproductive way to handle the problem. I caution you not to generalize too much.
Mr. Sterling: It is very important. I am not talking about revoking parole; I am talking about someone being incarcerated briefly as a temporary modification of the sentence of probation, but parole and probation are not revoked. Revocation is not what I am proposing.
The Chair: We thank you both very much indeed. We are sorry about the rushed procedures here at the end. It is frustrating.
Mr. Sterling: We understand of course.
The Chair: I know you do understand because you are both experienced in this area. Mr. Sterling and Ms. Dolovich, we really are extremely grateful to you. To the witnesses in Washington, you have our thanks.
Mr. Sterling: Thank you again. I commend you for considering these matters so carefully.
The Chair: Honourable senators, we will continue with our hearings on Bill C-15, an act to amend the Controlled Drugs and Substances Act, and to make related and consequential amendments to other acts. We now have the very great pleasure of Mr. Michael Jacobson, Director of the Vera Institute of Justice, joining us by video conference from New York City.
Mr. Jacobson, I am Senator Joan Fraser, the chair of this committee, and all the other senators will be identified as they ask questions, but first you have an opening statement to make. We thank you very much for agreeing to join.
Michael Jacobson, Director, Vera Institute of Justice: Thank you for the invitation to testify before your committee. Previously, I ran the New York City jail system and probation system and wrote a book called Downsizing Prisons: How to Reduce Crime and End Mass Incarceration and several other pieces around these same issues.
I thought it might be useful to not repeat some of what you have heard today, especially from folks such as Mr. Mauer who is very eloquent on these issues, as you now know if you did not before. I know he has talked to you about the growing evidence and consensus in the U.S. about the limited public safety benefits and huge costs of mandatory sentencing, certainly in the U.S. context.
I should preface most of my remarks by saying that what most other countries can learn from the U.S. in terms of its prison policy is what not to do, certainly not so much what to do. All the consequences that I am talking about stem from our experience with mandatory sentences, especially for drug crimes. It diverts huge amounts of money from other programs that we know work to reduce new crime and recidivism far more than prison sentences.
We, especially in the big states that have second- and third-strike laws, keep people way past their period of risk in the U.S. and then huge numbers of them violate the conditions of their parole and keep cycling in and out of our prison system, specially for drug crimes, again, at almost no benefit to public safety.
Mr. Mauer talked about the racial disproportionality of the prisons in this country; in large measure that stems from our war on drugs and especially the enhanced penalties for living near a school. In the U.S. context, that tends to impact people who live in cities versus people who live in suburb and rural communities. In most cities, New York being one obviously, it is almost impossible not to have a school within the distance from where most people are arrested for selling drugs.
I know Mr. Mauer touched upon this, but I want to talk about some of the current trends among states in the United States. The Vera Institute has a great deal of experience here; we probably work in approximately 35 to 40 states now on a variety of criminal justice issues. The trend that we see and that has been brewing for a while is actually going in the opposite direction. States are now, for a variety of reasons that I can talk about later, really taking on and confronting how to shrink the size of their correctional populations and how to reinvest incredibly scarce resources into programs that we now know to be more effective in reducing crime.
As you look around the U.S. now, especially around issues of mandatory drug sentencing and drug sentencing generally, some huge changes have taken place in the last six to seven years and many just in the last couple of years. States such as California and Arizona have passed public propositions by overwhelming margins that require diversion from prison into treatment for drug offenders. They did that in two very conservative, tough-on-crime states by overwhelming margins.
New York, as I am sure you all know, just did a second round of revisions to its very strict Rockefeller drug laws, which eased up many of those mandatory minimum sentences and transferred discretion essentially from prosecutors to judges. Kansas has recently mandated treatment for entire classes of drug felonies in lieu of prison. Michigan recently rolled back most of its drug mandatory minimum sentences. Indiana and Delaware have done much the same thing. Massachusetts has essentially decriminalized less than one ounce of marijuana possession and made it a civil offence. Arkansas and Colorado have reclassified drug paraphernalia and possession crimes.
There is a big movement in the U.S. now — again, for a number of reasons that I can talk about — to create a justice reinvestment act, state by state; that essentially is about taking money that we had been investing in institutional corrections, mostly in prisons and some in jails, and spending that money instead either in prison or especially in community-based rehabilitation programs. Probably the most notable state that did that in a very big way was Texas.
That is an interesting one because Texas, in this country, as I am sure you know, is a metaphor for "as tough as you can get," a place that is as tough as you can get on crime. Texas recently, through a series of legislative reforms, re- purposed its prison system from one based on retribution and punishment to one based on rehabilitation. It took all planned prison building out of the budget and reinvested hundreds of millions of dollars into community-based programming with the hope that it will both divert new offenders from coming to prison and cut down on recidivism rates for people coming out of prison. However, in general, it is for the purpose of shrinking the size of their correction system.
States that have made similar moves also include Arizona, Alabama, Kansas and Illinois.
All of this action is happening in the U.S., clearly in our context, after 40 years of almost geometric increases in our prison population. The reason this is happening in the U.S. context now is because, at least here, there is a historical moment that is extant now and probably will be for another few years. The huge fiscal crisis that most of the world is experiencing, but certainly our states feel more profoundly than anywhere else, those fiscal crises; changes in public opinion in the U.S., which are much more favourable especially for non-violent and drug-related crimes; and using alternatives to prison, combined with all the research being done here — much of it very good research in Canada, indicates that in our context further increasing our prison system will get us only incredibly limited, marginal public safety benefits at huge financial costs, huge social costs.
We know, and even very conservative policy-makers in this country — Texas is probably the best example — have come to realize, based on the fiscal exigencies, on public opinion and on what we know works, that it simply makes more sense to invest money in programs that work versus programs that get us marginal benefits.
In the U.S., 52 per cent of everyone who leaves prison is back in prison within three years. A disproportionate number of those folks are people who are in for drug crimes. They continue to cycle through our prison system, and we know, from research at several levels, that we, in the U.S., buy ourselves almost nothing from continuing to incarcerate those groups of people, some for very long periods of time, when we know that we could make investments where the outcomes would be far better than that.
I believe it is an important lesson, certainly in our context, that we have gone through at least some of what you are considering and now here in the U.S., we are starting to roll these things back because we just cannot do it any more. States simply do not have the luxury to only make these decisions based on the political exigencies of these decisions. Money is so tight now. States are throwing kids off health insurance, laying off teachers and cutting police departments, and, in that context, the substance of prison reform is really rising to the fore.
It is surprising at some level that the country that is the poster child for increasing prison growth is actually having some of the most interesting reform movements that we see globally. In our context, it is clearly about time.
I will stop there, because I know you have heard a great deal of testimony today. I am happy that you gave me this opportunity and obviously happy to address any questions you might have.
The Chair: We have heard a great deal of testimony, but you are adding to it, and adding content that we have not already heard, so we are grateful to you.
Senator Nolin: Good evening, Mr. Jacobson. Thank you very much for accepting our invitation.
You wrote a book called, Downsizing Prisons: How to Reduce Crime and End Mass Incarceration. In your opening remarks your message is to invest more in rehabilitation than in mortar and bricks. You referred to public-opinion movements that are asking their local legislators to invest more in rehabilitation. Are they referring to drug court? Is that what they have in mind?
Mr. Jacobson: Drug court is certainly one form of rehab. Drug courts, mental health courts and a variety of problem-solving courts would fall under that rubric. We also know that many treatments, especially drug treatments, that do not necessarily seem overwhelming are more successful than relatively short stays in prison. One element that characterizes the U.S. system, especially for drug offenders, and is a relatively unintended consequence of what happened when we instituted mandatory sentences for drug crimes, is that people come into prison with all sorts of drug-use and abuse issues. I am sure the Canadian system is better and more sophisticated in this area, but in the American system, we do next to nothing to address those drug issues. When people are released from our prisons, they go back to using drugs, which is certainly not surprising even if it is low-level use. The U.S. systems are state-based, but when people come out of prison, they are under some form of community supervision, some form of parole. A standard condition of parole in the U.S. is to be drug-free. It is very easy to tell when someone is not drug-free with cheap and simple technology. We know when people have "dirty urine," as we call it, which is a violation of parole. We send people back to prison for drug use who have already gone to prison for drug use. They come out, use drugs again and we send them back for violations. This happens in huge numbers. In California, for instance, about 120,000 people are on parole each year. About 80,000 of them go back to prison for violating the conditions of their parole, most often for using drugs.
It is not only the first prison sentence, but also the back-end sentencing, as we call it. We continue to put people back in prison when we know that there are vocational programs, job-placement programs, drug-treatment programs and re-entry programs. If we were to use them in a targeted fashion, it would cost far less than prison costs. The Canadian and American systems have in common the fact that they are hugely expensive. We know that using those programs in a targeted fashion will create fewer victims and greater public safety. That is why, after so many decades, the United States is beginning to invest in those rehabilitation programs.
A rehabilitation program is a vague concept because it includes so many different aspects, including drug courts. Many people belong in prison for a long time; but we could achieve better results for many who are incarcerated by investing in those programs.
Senator Nolin: The bill before the committee is intended to deal more with traffickers, importers and growers than with users. Nevertheless, the bill also expands the option to a judge to use drug court treatment. I still need to be convinced how a trafficker, grower or importer can be rehabilitated through the drug-court system.
The bill promotes mandatory minimum sentences or drug treatment courts. You said that a trend exists in the U.S. and that you are working with 35 states where the people and the legislators are investing more in rehabilitation and less in mandatory minimum sentences. As I mentioned, this bill before us offers both. Why should we not agree to that?
Mr. Jacobson: That is a very good question. In the U.S., a trafficker encompasses everyone from serious, hard-core, organized-crime traffickers of huge quantities of drugs to the street-level drug dealers who sell small amounts of drugs, mainly marijuana and cocaine. In fact, it is that lower swath of traffickers or dealers who populate our prisons. Many of those people are youths, so, in that sense, drug treatment or drug courts might be fine. However, if they are trafficking just to make money and do not use drugs, then they will not be amenable to drug court or treatment-based rehabilitation programs. Certainly, they might be amenable to rehabilitation programs that address other issues, especially employment and education.
Putting that aside, a substantial body of evidence exists in the U.S. that deterrence, particularly for the lower-level offender, is one of the goals of any system of punishment. In the U.S., when we lock up a rapist or a murderer, that person will not be on the streets to rape and murder again. It is not as if someone is waiting in the wings to take their place. However, when a low-level drug dealer is incarcerated, certainly in our context, it presents an economic opportunity for another low-level drug dealer to take his place. Criminologists here refer to that as a crime that almost has a one-to-one replacement effect. The offence is not a crime of passion or of anger; it is a crime of economics. American prisons are full of people incarcerated for selling drugs, but at the lower level. Their jobs were taken the second they were taken off the streets. There might be other reasons to lock those people up, but it does not stop the activity. Certainly, it does not seem to stop drug use, which continues unabated in the U.S.
We have to ask ourselves if there is another way to spend the hundreds of millions — and probably billions — of dollars that we currently spend locking up low-level drug offenders, even for short amounts of time when they cycle back, as I said, on parole violations, in order to achieve better results.
I think the answer is, yes. That is my perspective on this.
I take your point that you are introducing both the possibility of mandatory minimums or drug treatment court. You need discretion built into the system. That is my own sense, as well as that of the other witnesses whom you heard from this evening. When you make a mandatory minimum sentence, you are not taking the discretion out of the system, rather you are essentially handing over discretion to prosecutors. That is who now has the discretion. Should they or should they not charge for a crime that has a mandatory minimum sentence? Should they drop the charge, increase it or charge on something else? There is always discretion in the system; it just depends who has it.
Our lesson in the U.S. is that when you introduce mandatory minimum sentences, you take away discretion, in my opinion, from the body of government that should have it — the judges — and give it to prosecutors. It is not that they should not have discretion. Obviously, everyone is fighting for the same cause. However, they have different goals and are different types of folks. I clearly err on the side of handing discretion to judges, who might well sentence to prison many of the folks who you want to go to prison anyway. I simply would not tie their hands to do it.
Senator Angus: Your namesake, David Jacobson, was just sworn in here as the U.S. Ambassador to Canada. Is he any relation of yours?
Mr. Jacobson: I was hoping he was. He could be.
Senator Angus: I want to congratulate you on your presentation. It was very helpful to us. It made the distinction between the low-level people with whom these principles that you have enunciated are designed to deal.
Have you had a chance to look at Bill C-15?
Mr. Jacobson: Yes, I have. It was quick, but I think I understand the gist of it.
Senator Angus: Our Minister of Justice came here to tell us what he was trying to accomplish, and, without pretending to be word for word, my understanding was that this is one tool that the government is trying to give to the law enforcement people to go after the big guys, the organized crime. Whether it will be successful, no one really knows.
Following your book, Downsizing Prisons: How to Reduce Crime and End Mass Incarceration, I like everything that you have said and personally agree in terms of the direction that Texas and other states are heading.
What about organized crime? Do you have any theories on how to reduce and deal with organized crime? I am talking about the people who are not users. They are the ones who replace the pusher on the corner of 5th and 56th Street, or wherever they are pushing it.
Mr. Jacobson: Correct. It is a very good question. Everyone in law enforcement — and this is certainly true here in the U.S. — always designs these things because everyone is interested in those big fish. People are not necessarily interested in the low-level street people. They are interested in big traffickers who are moving huge amounts of drugs.
If you could have a system that was nuanced enough that mandatory minimums are for those folks, specifically, I suppose you could try to do that. Again, your system may well have that sort of nuance in it. Ours is so much more plodding, expensive and inefficient than yours. That is very well known.
Again, in the U.S. context, the fact of the matter is that the people in law enforcement are very good at finding and arresting the street-level drug dealers. They are out in the open. You can do what we call "buy and busts," where you pose as a buyer and get the guy to sell it to you. You lock him up; the police make the arrest; that person will go to prison. It is a solid case. It is not that they are worse at finding organized traffickers; it is just so much more a resource- intensive operation.
Therefore, I agree with the principle that you want to target legislation at those high-level folks because no one is necessarily interested in over-punishing these kids who deal on the corners. It is just that, in my experience, at least here, even if that was the legislative intent in passing many of these laws that we have on our books, that is not what happened. Certainly we have traffickers and big traffickers in our prisons, but they are far outnumbered by the people whom law enforcement is very good and efficient in apprehending and convicting in huge numbers.
I, at least, have not figured out a way of making laws that clearly distinguish between those two sorts of criminals and punish the elements of organized crime more. I am not the brightest person in the room, so others might know a way. If you can do that, I applaud you. We, in the U.S., tend to fall to punishing everyone.
Senator Angus: It is a problem we are all facing.
Would it be fair for me to conclude that there is, within Bill C-15, the possibility for the prosecutor to exercise discretion as to whether to seek the mandatory minimum with only the more serious offenders?
Mr. Jacobson: Absolutely. Laws such as this, essentially, transfer more and more discretion to prosecutors. The problem for me is that, at the same time, judges have less and less discretion. I guess the larger theoretical or philosophical question is who should have the discretion; where the discretion in the system should lie.
Again, I default to believing it should lie with judges. They have a very good sense of who are the big fish and who are the little fish. At least in the U.S. context, politics are less involved in making those decisions. Judges do not have to worry about getting re-elected or increasing their conviction rates. Therefore, I argue for them having the discretion.
Regardless, you are correct: This gives the prosecutors the discretion to do exactly what I was talking about.
Senator Angus: Are you aware that, here, our prosecutors are not politicized?
Mr. Jacobson: I know that we do not share that exact same dynamic, but they still have a different public goal than do judges. Judges tend to be more senior, more experienced. I am assuming it is the same in Canada as it is in the U.S. Many prosecutors in the U.S. — certainly the ones making those initial charging decisions — tend to be those prosecutors with the least experience.
Again, as a matter of course, I would rather have a more experienced jurist making a decision than a less experienced prosecutor.
Senator Milne: Mr. Jacobson, did you hear the evidence that Mr. Sterling presented to us? Were you listening at that point?
Mr. Jacobson: No, I was not listening at that point. I read Mr. Mauer's testimony only.
Senator Milne: Mr. Sterling spoke about the experience of a judge in Hawaii. Does the Vera Institute of Justice work in Hawaii?
Mr. Jacobson: No. Was he talking about project H.O.P.E.?
Senator Milne: That is right.
Mr. Jacobson: No, we are not working with the judge on that program, but we have spoken to the people who are doing the evaluation of the program.
Senator Milne: Is it working?
Mr. Jacobson: I am hesitant to say things — because we are a research organization — before all the research is in. I do know the preliminary numbers look very encouraging, especially on reducing violations and the amount of prison that probation violators receive. It certainly seems to be, at a minimum, a very promising program.
Senator Milne: From your experience, as a research-based organization, do you think this bill we have before us right now in Canada will contribute to increased public safety? It will probably increase our prison population and our cost, as it has in the United States. However, will it increase public safety?
Mr. Jacobson: I certainly think it will increase your prison system. To what extent, I do not know. You folks would have a better handle on that than me.
I can say that, based on all the research I know of, and Canada has some very good research as well, to the extent that it might increase public safety for the amount of money you will spend locking up these folks and relocking them up when they violate — and they will — or commit new crime, I would argue that you would have better success, in pure public safety terms, doing a series of other targeted interventions as opposed to just mandatory minimums.
I am hedging a little here. I am not saying you will not increase public safety. To the extent that you lock people up, you always, in theory, buy at least some public safety. However, we know, from the American experience — which thankfully is not your experience — that as we increase our system marginally, we get more and more marginal benefits. We know, also based on some very good research in Canada, that if you over-punish people who are not a threat to public safety, you will cause them to be a threat to public safety. In that case, you are not only not buying public safety but also actually reducing public safety.
You might well increase public safety to some extent; I cannot tell you how much. However, I can be fairly certain in saying that you could reduce public safety more if you took all the resources you will devote to this — and they will be substantial — and did a variety of evidence-based interventions, which are not easy to do. None of this stuff is easy. These are all difficult substantive and political decisions, I know. To the extent that it increases your system and you will spend a large amount of your scarce dollars doing that, you can buy more for less.
Senator Joyal: If I can put what you just said in your presentation in a nutshell, you are advising us to be smarter in our approach by appearing less tough on the sentence and we will get a better result.
Mr. Jacobson: Yes. No one has been tougher on crime than the U.S. No one has grown its system to the extent that we have. A saying has become popular among policy-makers and elected officials in the U.S. is that you do not need to be tough on crime, you need to be smart on crime. That does not preclude you being tough, but we are at least trying here. Believe me, we are not an example of good practice in this area.
No one should look to us historically for what to do. We are now trying to be, after decades of not doing this, a little more nuanced, a little more sophisticated and a little more targeted. For at least the last 40 years, we have defaulted to prison for everything. It has been our form of sanction and punishment for every type of illegal behaviour.
It makes sense for much illegal behaviour, and some people do need to be off the streets. We increasingly know that not everyone needs to be off the streets. Even if you do need to be off the streets, as the project H.O.P.E. example tells us, you do not necessarily need to be off the streets for years. Sometimes it can be weeks. Sometimes it is a sure, certain punishment, and the duration does not have to be long.
One of the interesting examples in the U.S. happens to be New York. New York State is an interesting example because it has the fastest shrinking prison population in the United States. It is actually one of the few states that has any degree of a shrinking prison population. Our prison population has decreased about 15 per cent in the last 7 to 8 years.
The reason it is interesting is not just that that happened, but New York State, by far, leads all statistics in crime decline in the United States. We have had more crime decline than any other state at the state level, and our city jail system has also declined in size by 40 per cent. New York City leads the country in crime decline as well. We know it is possible to shrink the size of your incarcerated population and drive down the crime rate at the same time. It is not easy; it is all very difficult.
You are right. I am saying not to let simple toughness be your guide. We know in the U.S. context that toughness has worked politically. It has been politically popular. There is much political capital in being tough on crime, but we know we are at a point where simply being tough does not get us the benefits we want.
The Chair: Mr. Jacobson, can you send the clerk that long and fascinating list that you were running down earlier in your testimony about what is happening in various states, to the extent that you have it?
Mr. Jacobson: Yes. We have a memo that I was reading off that summarizes everything. I am happy to get it to you.
The Chair: My second question has to do with cost benefit. Let us assume, for the purposes of my question, that the goal is to increase public safety. It is fairly clear from what you have said that you do not think mandatory minimums and throwing everyone into prison is necessarily the best way to achieve that goal of public safety. Suppose we have a limited number of dollars to spend. In your experience, which is the most cost-effective to increase public safety? Is it getting more cops on the street, or is it putting money into programming, community-based programs, job placement, addiction treatment and so forth?
Mr. Jacobson: That is an excellent question. The Vera Institute of Justice does this cost-benefit work. There is an excellent place in the U.S., one of the few places that looks at this closely, called the Washington State Institute for Public Policy. It happens to be an arm of the Washington State legislature here. They spend huge amounts of time looking at precisely that question.
Washington State in the U.S. is one of those rare good-government states where they make decisions based on evidence. I do not live in one of those states; not many here do that, but they do.
The Washington State Institute for Public Policy— and you can have your staff look at this because they have an excellent website — compiles all the research that has been done globally exactly on those programs. What reduces crime the most for what populations: Is it increasing primary and secondary education; is it increasing high school graduation rates — which actually happens to be one of the most effective; is it job training and vocational placement; is it targeted police initiatives?
They summarize it in these annual reports, and they do a specific cost benefit. For every dollar you invest in, let us say, increasing high school graduation rates versus nurse-family partnerships for young kids, versus community policing activities, what gets you the most bang for the buck? They lay that out very specifically. It is complicated because they all deal with different populations; they do not all deal with the same thing.
This institute essentially presents portfolios to the legislature. For example, if you have $100 million to spend, you can have a conservative portfolio and do a little prison building and invest in these other programs; or you can do a more aggressive portfolio, not do any prison building at all and invest in these seven programs.
I would recommend that you look at that, and I will send you their website as well. They are used to working with policy-makers, so their information is clear, and their tables are easy to understand.
I think it would be, as you are saying, a mix of enforcement-related programs — such as targeted policing initiatives, real-time data collection in police departments — along with things such as targeted money in education, increasing high school graduation rates, targeted labour programs, vocational programs for low earners leaving prison and so on.
I say, again, none of this is easy. It is easier in some ways to build prisons and put people in them. It is more expensive, but we all know how to do that; it is very easy. Deciding what programs to fund and at what level to get who is not easy, but I would recommend exactly a number of programs that ties into what amount of money you have.
If you are willing to spend $100 million on increasing the size of your prisons, then I would say that, at a minimum, you should look at another portfolio of what you can get from spending even half of that, even $50 million, on some of these programs. The work of the Washington State Institute for Public Policy would be a good guide in helping you, as it does us, think through these issues.
Senator Wallace: Thank you, Mr. Jacobson. That was interesting and informative.
All of us, as legislators, and you with your experience, are trying to come to grips with a very difficult problem. We are trying to find the answers; and there does not seem to be a magic one out there, or one that would cover all circumstances, to provide better safety and security to our citizens.
I could go through numerous examples, but one comes to mind when I look at Bill C-15 — you were saying that you have read it. Trafficking and production of illegal drugs would attract a mandatory minimum if the trafficking or production occurred near a school. For any of us as parents, that highlights our worst nightmare, picturing a trafficker on the schoolyard property drawing our children into these drug issues. That is the one that puts the hair up on the back of our necks. We can debate academically and as legislators, but when it comes to our children, it takes it to another level.
What would your reaction be to the appropriateness at least of mandatory minimums in trying to — I realize not necessarily in all cases — eradicate that trafficking and production occurring in and around our children and our schools?
I have a hard time accepting that removing traffickers from the street who find themselves involved in that type of the criminal activity is somehow wrong. I am not suggesting you say that that is wrong, but you are very much driven by conclusions that are dollar-driven and whether it makes economic sense to have these certain remedies.
I would say to you when it comes to our children, and in particular, trafficking in and around schoolyards, you cannot put a dollar price on that. Whatever it costs, we have to do it. If we have to remove those involved in that type of illegal activity, incarcerate them and subject them to mandatory minimums, that is the price we pay to protect our children.
Mr. Jacobson: As a parent myself, I totally understand what you are saying.
Let me answer that in a couple of ways. I would not say any of what I am saying if it was just about the economics of it because you are right at some level. You cannot put a price on public safety, ultimately, and every country and society needs to do what it has to do to protect their citizens.
My argument, generally, and then I will go to your specific example of schools, is that there are things in pure public safety terms — forget about the fact they could be cheaper and save the government limited dollars — that will reduce more crime and result in fewer victims than will the overuse of prison. The side benefit is that most of them are cheaper than prison. I would not suggest doing something only based on economics. You can let everyone out of prison and save a ton of money, but obviously no one would ever do that. I am sensitive to the point that you are making that everything you need to be talking about has to have a very well-defined, specific public safety benefit — and a bigger benefit than prison, or else why do it? Then you are only doing it for the money.
On the school issue, it is the "in and around" part that always makes me nervous. For me, there is a very big difference for the "in" — in the school, on the school property — because I agree with you that that is frightening and unacceptable on every level. I completely understand the motivation to lock those folks up. However, the way most of these laws work — certainly here in the U.S. — it is with the "around" part. When you look across states and cities in the U.S., they take different forms, but the legislation is usually within X number of feet of a school. It could be 1,000, 2,000 or 3,000; it differs all over the place.
The problem of trying to quantify that amount of space — and I understand what the motivation for it is — is the impact it has in the U.S. context in that a huge urban-rural difference exists here. In New York City, Boston and Philadelphia, there is almost no place that is not within 2,000 feet of a school. You could be drug dealing five blocks from a school and you will fall within that enhanced penalty area. However, you could do the exact same thing in a rural town in upstate New York, where the school is five miles away, and you will receive a lesser penalty.
Therefore, the issue is about the point at which are you are on or not on the school property. When you start to talk about specific lengths of sentencing, again, in the U.S. context — this may be less of an issue for you — that has resulted, in greatly contributing to the disproportionality of minorities that are in our prison system. We know that White kids and kids of colour deal drugs proportionately in relatively similar numbers. For a variety of reasons many more of them will appear in our prisons; one reason is that the kids who live in the city are subject largely to those enhanced penalties. Very few of them are actually doing it on the school property or in the school itself or on the school playground. They may be doing it five blocks from the school, but they are still winding up in prison. I completely understand your motivation, especially for the acts on the school property. I would just caution you, as you are thinking it through, to think about that part. I know this is getting into a pretty specific part of the legislation. How do you define what offence receives the enhanced penalty and what does not? The school itself is an obvious one, but how far out do you go, and then how will that change enforcement as you think about your own suburban, urban, rural differences?
The Chair: Mr. Jacobson, I thank you enormously, as we all do. It has been extremely interesting, as Senator Wallace said, and helpful to us. We are grateful to you, and we look forward to receiving all the other material that we have asked you to send along.
Mr. Jacobson: Thank you, and good luck.
The Chair: We can now liberate you, with our thanks. You can hear the thanks from around the table.
Colleagues, I would like to ask you for motions in connection with two sets of documents. The first set of documents is responses to questions that we have put to witnesses that they have responded to in writing: a letter from Mr. Jamie Chaffe, correcting one portion of his testimony before this committee; the brief from Mr. Sterling, whom we heard earlier today; and a letter from Mr. Brian Saunders, also responding to the committee. These are proceedings directly related to actual hearings with witnesses appearing before the committee. There is also a document from the Criminal Intelligence Service Canada that will provide the source for the statistics that Senator Wallace cited about numbers of criminal organizations. We asked him to provide that, and this document does do that.
Would someone move a motion that those four documents be appended to the proceedings of the committee?
Senator Nolin: I so move.
Senator Angus: Does that include the written answers?
The Chair: That is the written answers to the extent that we have any at the moment. I will propose making this a routine part of our proceedings. We are getting there.
Senator Baker: I want to know, in one sentence, whether it was a correction in opinion.
The Chair: The letter has been circulated to everyone's office. You will recall he discussed a very recently announced freeze and, indeed, demotions. It does not apply to the prosecutors. It applies to the lawyers in the Department of Justice Canada, but not to the prosecutorial services.
Senator Baker: He was very successful before this committee. That was televised the same night. That is fast work.
The Chair: He very properly got in touch with us to say that he was sorry and that he was in error about that. The document should be, I think, appended to the proceedings.
Senator Nolin: I want to add the written brief of Mr. Mauer, from The Sentencing Project.
The Chair: Did he not basically read that into the record?
Senator Nolin: No.
The Chair: There is no point in doubling up, but you say that he did not. Senator Nolin has proposed an amendment to his own motion.
Senator Nolin: That includes Mr. Sterling, of course.
The Chair: Yes. Now we have the five documents. Are all in favour of the motion?
Hon. Senators: Agreed.
The Chair: No opposed or abstentions. We will routinely do this.
A second set of documents that I would similarly propose to do routinely — we will get used to the routine and it will be faster — is submissions that have been sent in by people who will not be appearing before the committee as witnesses, basically because they have declined the invitation. Sometimes they volunteer. In this case, for example, the Canadian Association of Chiefs of Police has sent a submission but has declined to appear. The Honourable Dave Chomiak, Minister of Justice and Attorney General of Manitoba, has sent a submission but has declined to appear. Similarly, we have a submission by the Toronto Drug Strategy Implementation Panel. I would propose that we adopt as practice that submissions of this nature be filed as exhibits with the clerk of the committee, and the exhibit numbers be signalled in the formal record. Anyone who wants to see that material can do so. Do I have a motion to that effect?
Senator Angus: So moved.
The Chair: In favour?
Hon. Senators: Agreed.
The Chair: No abstentions or opposed. Thank you very much. It has been a long and very interesting session.
(The committee adjourned.)