Mandatory reading on mandatory minimum sentences

TheGlobeandMail.com – news/opinions/editorials
Published Monday, Nov. 14, 2011. Last updated Tuesday, Nov. 15, 2011.

As Canada embraces mandatory minimum sentences for a multitude of offences, including growing as few as six marijuana plants (six months in prison), the United States Sentencing Commission has turned against that country’s obligatory penalties. “Excessively severe,” the commission says. It prefers sentencing guidelines that would allow judges some leeway.

It’s a message Canada should take to heart. Partly because of the frequent use of mandatory minimums, the size of the U.S. prison population has exploded. A mind-boggling one in every four people behind bars in the world is incarcerated in the United States. In 1985, there were 700,000 in jail; today, 2.3 million.

This is bad on many counts, but the one that has captured the attention of leading U.S. conservatives is cost. In Canada, the federal prison population rose by 1,000 to 14,500, in just 18 months, partly as a result of new mandatory minimums, a federal report found in August. At an average cost of $110,000 a year per inmate, the benefits would be questionable at any time – all the more so when economies nearly everywhere are at risk.

Judges, too, don’t like them. In a survey done by the U.S. sentencing commission last year, 62 per cent of federal trial-court judges said the mandatory minimums were too high; just 38 per cent found them appropriate (none found them too low). A federal judge in Utah, Paul Cassell, explained in 2007 that he’d had to give a longer sentence to a first offender who carried guns to several marijuana deals and illegally possessed guns at home (55 years in total) than to a man who beat a drinking buddy to death with a log – 21 years.

Mandatory minimum sentences have deep roots in U.S. history. As early as 1790, in the first Congress, the mandatory minimum of the death penalty applied to seven crimes, including forgery and rescuing a person from execution. (The death penalty was not the maximum penalty; dissection after death could be added to “intensify” the punishment.) But now the commission, judges, some conservatives and more than a few states are trying to reverse the trend to ever-more and ever-longer minimums.

A key recommendation is that Congress, if it considers new minimum penalties, should ask the sentencing commission what the impact will be on the prisons. “Early analyses of prison impact may assist Congress in focusing increasingly strained prison resources on offenders who commit the most serious offences.” That message, too, should resonate for the Canadian government, which seems intent on following the failed U.S. model, even as that country beats a retreat.

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