Harper's Mandatory Minimums
Today the Tories have promised they will bring in much stiffer sentences for violent crimes. While I agree that mandatory minimums should be expanded in some areas, I am concerned they may be going too far. There is no doubt this will be politically popular and the opposition would be best to amend rather than defeat it. Even though many studies have shown that mandatory minimums are not effective, at the end of the day it matters what the average voter thinks who are generally supportive of them. When one considers the United States has the highest crime rate of developed nations, I don't think the US is the nation we should look to in terms of figuring out how to combat crime. We also must include rehabilatation along with mandatory minimums.
In sum, I support tougher sentences in certain areas, but believe they are too broad. This bill should pass, but not without amending it. And it must comply with the Charter of Rights and Freedoms.
In sum, I support tougher sentences in certain areas, but believe they are too broad. This bill should pass, but not without amending it. And it must comply with the Charter of Rights and Freedoms.
posted by Monkey Loves to Fight at 11:34 PM
37 Comments:
"Studies have shown that mandatory minimums are not effective."
Those same studies show that nothing is effective to prevent recividism from those who are targeted by these mandatory minimums. Don't try a Tim's-vs-Starbucks holier-than-thou allusion.
I am not suggesting we shouldn't increase mandatory minimums, I am simply pointing out what the studies say. Yes you are right Jarrett that this will be very popular, however governing is not about doing what is popular, but doing what is right.
I agree that the longer they are in jail the less likely they are to commit crimes and I think if the Tories included more funding for rehabilatation programs I would be even more supportive.
I think they're a bad idea. Judges ought to have a great deal of expertise and experience in this area, and minimum sentences tie their hands in situations that do not warrant the minimum sentence (like California's three strikes law).
Other studies have also been done that show when a lay-person is given all the facts of a case (not just what's presented in the 3 minute news report), they on average come back with a jail sentence less than what the judge prescribed.
Another thing to consider is that Canada's correctional system is viewed around the world as a model system. Compared to the rest of the world we have a very low rate of re-offenders - i.e. we do an admirable job of rehabilitating criminals so that they may become productive members of society rather than economic drains rotting away in jail.
It's also interesting to note that crime has been on a decrease for the last 10-15 years.
This is yet another example of implementing a change which will appeal to the masses yet is a bad decision. A great example of Argumentum ad populum. Harper is getting people all excited about a non-issue for his own personal political gain.
I am not against mandatory minimums for all crimes, but I think this bill is too broad. For example I support mandatory minimums for first degree murder. People such as Clifford Olsen and Paul Bernardo should never walk the streets again. However for things such as drugs and street racing I think you need to look at the circumstances each occurred in. Certainly people should get punished if they break the law, but I don't think a blanket minimum works.
The problem isn't minimum sentences; it's a combination of the lack of feedback and accountability for judges... and the existance of feedback and accountability for Crown prosecutors. The popularity of minimum sentences is a clear sign of how desperately skewed our court system has become.
Once a judge gets on the bench, he/she becomes a god (in his/her mind) and wants to make their marque on justice. Protection of the public is at the bottom of the priority list.
The vast majority of judges were lawyers before being called to the bench (go figure!) and since there's more defence lawyers than Crown lawyers, naturally most of the judges are more experienced in protecting the scum of the earth from justice rather than trying to get justice for victims. They judge according to their experience.
Crown prosecutors are expected to perform and their measure of success is convictions. That's why they're always eager for a plea-bargain since this gives them an automatic "win" without going to trial.
The US elect their judges & prosecutors for a reason.
I thinking electing judges is a bad idea. It would politicize a court since judges would make decisions based on what is politically popular not what is right.
I think that plea bargaining as well as not serving the full sentences is more of a problem than lack of mandatory minimums. A lot of criminals serve only part of their sentence. Now I am all for early release, but you should have to earn it, not be granted it automatically. Otherwise if you are given 10 years, but you behave well and are rehabilatated, I have no problem with letting them out after 5 years. But if they aren't rehabilitated and were poorly behaved, I don't think it is appropriate to let them out before their 10 year sentence is up.
Do you have a suggestion for feedback and accountability mechanisms for judges?
Good point about the automatic early release policies (a very bad idea).
Another bad idea is the "dead time" provisions... time spent in jail prior to trial is counted as double. In other words, if a criminal spends 6 months waiting to go to trial for an offence (waiting time is referred to as dead time) before being convicted and sentenced, that six months counts as a year served.
Some unscrupulous lawyers delay trial to roughly half the "usual" sentence for a particular offence and then direct their client to plead guilty. Result? Unless the judge breaks precedent, the criminal is out in very short order.
I'm not the biggest fan of putting more people in jail for even longer terms, however this policy has definitely hit a chord with the voter.
I think we are all tired of the long-term criminal, with a string of prior convictions, getting off once again with probation.
I'm ready to see how this works.
I think judges are already pretty accountable. Sure the system has its problems, but it is better than the alternatives.
Walter I think you hit the nail right on its head here. Longer sentences may not work, but they are politically popular. The Conservatives at this point are concerned about one thing and only one thing: winning a majority government.
Can you please describe the accountability mechanism for judges?
I am not saying there is an accoutability mechanism, I am simply saying the alternatives are worse. When you elect judges you politicize the courts. Politicizing the courts is not the way to go.
You said "I think judges are already pretty accountable." and now you're saying you are unaware of any accountability mechanism. Therefore, may I ask by what means do you make your assessment?
I'm not a fan of elections for judges but I understand the rationale; holding judges accountable for their decisions.
There is currently no direct mechanism to hold judges accountable for their judgements. The indirect mechanism is to have the Department of Justice or the Attorney General appeal any judgements which are found unacceptable to the public or which bring the administration of justice into disrepute.
Judges like the status quo as it allows "judicial independence" as they like to call it. When the public complains about judgements, judges are very quick to point fingers, saying the government provides sentencing guidelines.
Do mandatory minimum sentences make a bit more sense now?
Anonymous the reality is the judges only have so much discretion in making sentences. The politicians ultimately set the sentences while judges follow them. It is true they have some leniency, but most judges are generally quite reasonable. The only reason most Canadians think we are too soft on crime is 99% of sentences are reasonable, but we never hear about those, while the 1% that are outrageously low are the ones that get all the media attention.
I don't know if you're addressing your remarks to me (Mac) or the anonymous posted. I realize I just jumped in on this, so excuse me if I intruded.
I'm know the court system a bit more than the average citizen. That's why I explained the accountability mechanism and asked what you're basing your assessment on.
The "bad" judgements are significantly higher than the 1% the mainstream media sensationalize.
Mac - Glad to hear you know the court system more. I'll admit I am a bit naive here, but I know most of the experts have argued that mandatory minimums generally don't work. The only benefit I can see to longer jail sentences as at least while a criminal is in jail they cannot re-offend, but in terms of acting as a deterrence they have been shown not work. While it doesn't make sense to me since the more severe a punishment is the least likely I am personally don't something. But I am not a criminal so I really don't understand the mind of a criminal.
In terms of accountability, there may be methods, but certainly electing judges is something I am dead set against. I think this is case of politicizing the judiciary which shouldn't be done or keeping it de-politicized and accepting their will be some bad decisions, but at least fewer than if politicized.
I find the notion of electing judges a bit bizarre but that's just me. The US justice system is very dissimilar to our system, from what I've seen in my interactions with US police agencies.
As a peace officer, my views of our judiciary, admittedly, are somewhat jaded. Most defence lawyers refer to the trial process as "the game" and that's all it is to them. Nowadays, most trials are more a test of police evidence collection than a search for truth of guilt or innocence. If the police did everything "right" then next step is to attack the credibility of the witnesses, especially the police witnesses.
Most of the "experts" are not actively involved in the justice system. They sit safely in their ivory towers and cluck their tongues, safe in the knowledge their attempts at social engineering will never affect them personally.
The current system teaches criminals to become better manipulators. Carefully coached by their lawyers, once convicted, they feign remorse in court and play up their horrific upbringing. If they end up with jail time, they know they need do nothing and they will automatically be released after 2/3 of their sentencing. There is no incentive for them to change the behaviours which lead them into criminal life.
Deterrence is supposed to be the goal but what could be a stronger deterrence than the knowledge that criminal behaviour will be punished, surely and swiftly? As it is now, the punishment is far from swift and far from sure. The pendulum has swung far to the left to avoid creating situations like David Milgaard and Donald Marshall but at what cost? Victims are revictimized by the judicial system while the rights of criminals are coddled.
Mandatory minimums aren't a complete solution and they're not intended to be but it's a first step. I expect every attempt at judicial reform will be fought at every step and stage by the supposed "experts" but I hope the government persists in trying to bring accountability at all levels.
Sorry to run on so long...
Well said Mac.
Mac - I think the problem here is we have weaker Crown prosecutors than defence lawyers if that is the case. The reality is for a trial to be fair you need a strong defence lawyer and a strong prosecutor lawyer so I have no problem with the defence doing everything to get their client off, that is their job.
While on the surface mandatory minimums should be a strong deterrence, study after study has shown they aren't. Lets remember it may work well for non-criminals, but criminals are people who aren't afraid of the law and punishment or else they wouldn't break it. I certainly agree that people should only get out after serving 2/3 of their sentence if they are rehabilatated and no longer a threat to society. The one advantage I do see with mandatory minimums is at least when people are jail they cannot commit crimes, but that is the only one.
I agree victims' rights are important, but I think when we talk about criminal rights we need to divide into two sections. The convicted and the accused. I agree the convicted are given too many rights, but that doesn't mean they shouldn't have any rights. However, for the accused I believe their rights should remain as strong as they are. I believe it is better to let 10 guilty men go free than convict 1 innocent man. Ever since the Magna Carta, the idea of innocent until proven guity has been an important part of our justice system.
Also the Charter applies only to governments, not individuals which is why it may seem like criminals get more rights since the Charter doesn't apply to individuals taking away others rights, it applies to government's taking away individual rights. Now I support the Charter being this way since naturally governments take away rights, not give them, so it is an important check and balance.
My experience with Crown prosecutors has been mixed. I've met some excellent prosecutors and some abysmal ones. Likewise with defence lawyers.
I have a problem with defence lawyers doing "everything" to get their client off. If their client has been wrongfully accused, fine- pull out all the stops but 99.99% of the time, that's not the case.
Each time a lawyer knowingly turns a criminal loose by successfully attacking the credibility of a police officer, society takes a step backward. As a progressive, how does that make you feel?
As far as mandatory minimums go, I've yet to see an unbiased study done. This isn't an exact science and the subjects of the study aren't the world's most consistent folks. As you said (and Dennis the Correction Officer before you) at least that keeps one more criminal off the street for a while.
I hate to break it to you, but the Charter applies to individuals and governments. It defines our rights as individuals and groups within Canada as well as defining the role of government within the dominion.
Mac, I disagree defence lawyers shouldn't defend their clients no matter what. That is their job. The reason we require them to do this is they would start cherry picking who to defend and not defend and it could mean some innocent people not being properly defended. Lets remember there have been incidents as rare as they are where police have planted evidence and there are cases of witnesses lying. Blaming judges for being too lenient, I can see the argument here, but blaming defence lawyers for doing their job is just plain silly.
All studies are usually biased, but I do know that not all these studies have been from leftist, but many have been by university professors with degrees in Criminology and they are peer reviewed. Even most supporters of mandatory minimums support them only because a criminal behind bars cannot break the law, not because they believe it is a deterrent.
Actually I have taken a law course at university and the Charter of Rights and Freedoms only applies to governments. If your rights are infringed by a non-government entity you can use the courts, but you cannot use the Charter. You are thinking of the constitution, which is different. The Charter of Rights and Freedoms is a component of the constitution, but it isn't the whole constitution. The part that defines the powers of governments is under the BNA Act.
A quick comment on the original post - I find that setting stiffer manditory sentences for violent crimes will not curb criminal activity nor violent crime. I believe if the population wants stiffer sentences then there should be more money going into rehabilitation process' aswell.
A friend of mine did his practicum at Stoney Mountain pen. and he said in an interview with an inmate, the inmate said that all longer jail sentences did for him was make him a better criminal.
Rehabilitation process' need to be funded from youth corrections programs on up. Many criminals fall into the cycle of violence when they are young and by the time they are in jail for the 2nd or 3rd time they are too far gone to be properly rehabilitated.
I would also suggest giving more money to victims rights that extends beyond gas money to and from the court house. The CPC is playing the right game with these initatives, but they are not playing with a full bench.
Dylan, I don't think anything has proven to be successful in reducing recidivism rates.
And quoting a criminal is hardly a reliable source with regards to sentencing.
Although I think rehabilitation is an admireable goal, I think we as a society need to recognize that rehab is a privelege for criminals, not a right.
Miles, about the 10 guilty to 1 innocent analogy. You end up in a tricky situation yes? If you release 10 guilty men who go on to create 10 more victims has society really benefited?
I'm torn on the issue in general, I believe we need to get tougher but I worry as well about rehab and miscarriages of justice.
I'm even more torn because a police officer was gunned down by two 18 year olds last Friday. I want them locked up for the rest of their natural lives, but I fear that they will slip through and get a slap on the wrist.
I agree with Dylan that we must do more to stop the roots of crime as well as rehabilitation. Now I do think that those who cannot be rehabilatated i.e. Clifford Olsen and Paul Bernardo should be locked up for the rest of their life, but those are extreme examples.
Southernontarioan - Murdering a police officer is automatically 1st degree murder under the criminal code and it carries a minimum sentence of 25 years to life.
Did I say defence lawyers shouldn't defend their clients? Not at all. I mean the lawyer's goal shouldn't necessarily be to get his client off. There's a whole world of difference.
Let me provide an example.
A person is charged with sexually assaulting a mentally handicapped adult who isn't capable of giving coherent testimony.
The drunken assailant was arrested. A few hours after being booked into cells, an investigator asks to search the assailant's body for DNA. The still intoxicated assailant chooses not to contact a lawyer and consents to the search.
The investigator collect damning DNA from the assailant's body. A possible Charter argument exists regarding whether the assailant was aware of the possible consequences of giving consent, meaning the assailant might not have given "informed consent" as it were.
The assailant has no criminal record and doesn't appear concerned the sexual behaviour is inappropriate. Psychological evidence shows the assailant is likely to re-offend if not treated, however the prognosis for treatment looks positive.
The lawyer has full knowledge the sexual assault took place and the assailant, if released, will likely have access to the mentally handicapped person again.
Should the lawyer pull out all the stops and possibly get the assailant off (which means the victim is forced to come to court and be subjected to the stress and confusion of testimony and cross-examination) or should the lawyer try to get the assailant into a treatment program with a restraining order to stay away from the victim?
No-one warned you there was an ethics test today?
I think the problem here is the fairest system is where both sides use whatever legal methods possible to their best of their ability to achieve their goal and you at least should get the right outcome. Also I would rather we too lenient on the accused then too strict. The system may not be perfect but once you start saying defence lawyers shouldn't do certain things, you run the risk of innocent people being convicted.
Also the reasons they have those rules is so the police won't abuse their powers. If the evidence was still admitted than officers wouldn't follow the proper protocol so I believe it is quite appropriate to exclude evidence obtained improperly even if it proves the person is guilty. This is not unique to Canada either, all countries that base their legal systems on English common law have these rules.
Since you've chosen to tap dance instead of speaking plainly, I will do so for you.
Your answer is the lawyer must re-victimize the victim and give his utmost effort to turn the untreated sexual offender loose because that is his duty as a defence lawyer to protect citizens from all those evil police officers who spend their days and nights hatching nefarious plots to ensnare the innocent.
Is it any wonder people feel our justice system is screwed up?
Mac - The job is the defence lawyer is to do whatever possible to get their client off. Police generally do follow the rules, but I don't think in the instance where they aren't (usually by accident I might add) that the evidence should be admissable. It is the job of the police and the prosecution to conduct the investigation properly. Lets remember the burden of proof lies in the crown, not the defence.
I would love to see the Code of Conduct under which lawyers conduct themselves... if it exists.
You're supposed to be "progressive" so why doesn't this lack of ethics bother you? How does it advance mankind to release criminals on technicalities? Do you think they'll spontaneously rehabilitate themselves because they got away with a crime?
Ah well, why should I care? It's job insurance for me.
Mac - I do support ethics and if an investigation is done properly, there is no reason for it to be thrown out on a technicality. The reason for those protections is they are necessary to prevent abuses by the police and crown. If they weren't there, there would be more abuses of people's rights. I don't think we should put the rights of accused who are sometimes innocent in danger by allowing this practice. Even if it proves the person is guilty in a particular case, allowing one's rights to be violated sets a dangerous precedent. When it comes to individual rights I believe it is better to give people too many rights than too few.
In the example I gave, the theoretical investigation was done properly but the possibility of a Charter argument exists. The bitter reality is defence lawyers will run Charter arguments where none exist in the hope of hitting a judge who likes to toss things out.
When it comes to individual rights I believe it is better to give people too many rights than too few.
If this true and you weren't kidding about supporting ethics, why are you playing around with the Liberals? They don't like individual rights since that gets in the way of their agenda of socialism and their record on ethics isn't exactly spectacular.
If an investigation is done properly a charter challenge cannot be used. Where you are thinking of is mandatory minimums. Section 12 of the Charter prohibits cruel and unusual punishment therefore any sentence that is seen as excessive could be struck down under this section
The Liberals are not a socialist party, that is the NDP. They brought in the Charter of Rights and Freedoms and have been very supportive of individual rights. Interestingly enough it is the right wing Liberals like Tom Wappel who are the least supportive of individual rights. Pierre Trudeau despite being left leaning was for putting property rights into the constitution, but backed down when the NDP provincial governments refused to sign if it was included.
Miles, you are mistaken. In order to use a Charter argument, defence needs to notify Crown prior to trial but it can be done on any case, not just a Section 12 appeal which is done after conviction. Crown developed the notification policy in consultation with Judges as Charter arguments are disruptive to the court schedule.
As for the Liberals being something other than socialist, I think we'll have to agree to disagree. You're wrong, of course, but you'll never admit it so why waste my time trying to convince you?
If evidence was improperly obtained they can use the charter argument, but they cannot use it unless a charter violation occurred. Also section 12 can be used if the charge is seen as unreasonable for the crime. For example if a street racer killed someone and the crown tried to charge them with 1st degree murder, it could be used.
The Liberals are not socialists if you compare them to socialist parties. I've lived under a socialist government here in BC and trust me there is a world of difference.
So what you're saying is defence lawyers can only make a Charter argument where there is a Charter violation. What do you think prevents defence lawyers from making spurious Charter arguments? Their "ethics"? HA!
I've been in BC since 1990 and I'm currently in Vancouver.
Mac - You obviously don't understand the role of the defence lawyer. The role is to give their client the best defence. It is the job of the prosecution to counter this and the job of the judge to apply the law fairly.
My understanding is complete. I've dealt with more defence lawyers in my career than I care to remember. So far, I've met one that I respect. One.
I started to draft a more complete response but, in re-reading your posts and mine... as well as some of the other threads on your blog... I can see it would serve no purpose.
Good luck in your future endeavours.
I guess there is no point in arguing further since our disagreement seems to be more over values than facts.
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