Canada's top legal group, the Canadian Bar Association, was not exactly kind to Harper's approach to crime in its recent annual conference. It identified many issues from overcrowding to the rates of mentally ill in the prison system. But the issue that seemed to be most inflammatory was the issue of a "safety valve" for Harper's expanded program of mandatory minimum sentencing.
The idea behind this is that one expects there to be rare cases where exceptional circumstances make the mandatory minimums not appropriate for various reasons that depend on the specific extraordinary case in question. This is not at all uncommon and other major countries with mandatory minimums such as the UK, US and Australia all have precisely such escape clauses that give judges the flexibility to deal with these rare cases. The proposed legislation sure to be passed by Harper does not despite expanding the scope of mandatory minimums considerably. An escape clause retains all the benefits of having mandatory minimums but evades a few of the negative consequences when the minimum truly ought not to apply but is forced to due to a rigid legal structure.
In a public hearing with the association, Justice Minister Nicholson flatly rejected the calls from Canadian judges and lawyers. Part of his wording was particularly special: “It is our job to give guidance to the courts."
This is surely true. But it isn't an answer to the criticisms raised and is, in effect, of the form "I have power and so what I want sticks". It is particularly ironic because government can only ever give general guidelines to the courts, it has always been the role of the courts to preside over specific cases and weigh the situation against the law. The issue here is that the government cannot and should not be expected to come up with a law that perfectly deals with 100% of cases, with no exceptions, and it is entirely the point of judges to be able to try and identify when a reasonable exception should actually occur in a specific case. When the bar association challenges the Harper government on this issue it is not questioning the appropriate division of powers or challenging the dominance of governmental oversight of the judiciary, it is precisely affirming that exact role. The government can only retain its legitimacy, however, if it is willing to consider adversarial views.
There is a larger question about the role of mandatory minimums in general. Take one of the new ones which makes it absolutely mandatory to receive a half year in jail if caught with a half dozen marijuana plants. Especially given the overcrowding in jails, the deteriorating conditions, the massive budget increases (and the Harper governments refusal to come clean about the true costs), can it really be maintained that such a punishment (not to mention the lifetime it stays on ones record) is valid? Note that if one wants to simply grow enough for ones personal use or within ones immediate friends or family then starting with six seedlings to see which succeeds is entirely reasonable. Note further that 80% of arrests for marijuana cultivation showed no guns, no stealing of electricity and no further criminal activity detected.
One can, of course, make a strong case for marijuana legality in general but let us focus just on the mandatory minimum side of it for an instance. Big grow ops full of criminality and everything else are already illegal. Being tough on crime is, I admit, a sentiment that many people desire. However in many cases, and in particular the marijuana case, it is not the typical picture of big crime bosses engaged in violent crime that one is being tough on. It is being tough on small time and individual growers with no other criminal activity.
But what if one actually succeeds with mandatory minimums and significantly reduces the number of small time marijuana grow ops? Is this going to lead to a better outcome. It is my contention that this will push more marijuana users away from otherwise peaceful and legal small time growers into the larger, organized growers with higher links to larger scale criminality. The mandatory minimums then manage almost the reverse effect of reducing crime by supporting larger crime over smaller, technically illegal, crime; it probably won't actually curb marijuana use much but will just transfer the "crime" from a relatively benign group to a much less benign one.
The larger mind set, which I reject to the extent that it exists, is one in which punishment is done for punishments sake because criminals deserve the punitive actions that they receive. It is a black and white view of crime that ignores both the nuanced greyscale in criminality that really exists and, further, ignores the larger goals of judicial actions which is about crime prevention and increasing desirable socioeconomic outcomes as its normative goal and not punishment for its own sake. Jail time, for instance, prevents crime as a deterrent to others and through preventing recurrence. The major problem with the mindset is that it means there is little point to considering the kinds of consequences on crime I justed sketched in the marijuana case because we are just declaring this to be a crime and, after all, criminals deserve punishment so punishing them is categorically the right thing to do. If there is some nuanced question about how much of a criminal one actually is, this gets lost in the mindset because regardless of any special circumstances, if they commit the crime they get the punishment. If one challenges this mindset, the Harper government can always just remind us that “It is our job to give guidance to the courts."