In an address to the American Bar Association in San Francisco in August, 2003, US Supreme Court Justice Anthony Kennedy called on Congress to end the practice of mandatory minimum sentencing.
A Ronald Reagan appointee, and a prominent conservative, Kennedy told the assembled lawyers and lawmakers, “our resources are misspent, our punishments too severe, our sentences too long.”
In 1973, the American prison population was less than 300,000. By 2003 it had topped two million, the highest in the western world.
The unprecedented rise was a result of the so-called War on Drugs and its mandatory minimum sentences for possession and trafficking in drugs and guns. The majority of those two million prisoners were black or Hispanic, a disproportion that had always existed but which had been greatly exacerbated by mandatory minimums — a net designed to catch the smallest fish in the greatest numbers.
Mandatory minimum sentences were introduced in New York in 1986. They took a huge leap forward in 1994 when California enacted the infamous Three Strikes law, which sends people to prison for life on any third felony conviction, no matter how minor.
One man, for instance, is serving three 25-year sentences for stealing two bicycles and a car. Thirteen states have since brought in similar legislation. As a result, 200 new privately run prisons have been built to accommodate the new inmates.
To finance these prisons, the prisoners work as industrial slaves, making everything from military uniforms to electronic consumer goods, for a token payment of 25 cents a day.
The result has been that the US economy has grown addicted to free labour. As crime rates drop, prison industry lobbyists in Washington push for tougher sentences and more stringent release conditions to maintain their labour force.
There is no evidence that harsh sentences have any effect at all on crime rates. States with and without mandatory minimum sentences have experienced a similar drop in crime, mainly because of an aging population and a booming economy.
What tougher sentences do have an effect on, besides corporate profits, is votes. Simplistic solutions appeal to the voters, so it’s no surprise that mandatory sentencing has reared its ugly head in Canada during a federal election campaign.
Mandatory minimum sentences already apply in Canada for certain gun-related crimes. It’s not clear why this is so, when Irwin Cotler, Justice minister, has stated in Parliament that “they have no effect, they do not deter and they result in unnecessary incapacitation and unnecessary costs to the system without protecting security”.
Despite this, not only have the Liberals failed to repeal mandatory sentences, they are promising new and increased minimums for gun related offences.
With feelings running high in vote-rich Toronto after the Boxing Day shooting death of a young, white, middle-class shopper, even the left-leaning New Democrats have jumped on the get-tough-on-crime bandwagon, calling for increased minimum sentences for the illegal possession, sale and importation of restricted weapons from one year to four.
But the prize for mindless, punitive, ineffective, and expensive crime-fighting ideas goes to the formerly-progressive Conservatives, who propose new mandatory prison sentences for drug trafficking, parole violations and for repeat offenders.
They would increase existing one-year minimums to five years, and four-year minimums to 10 years.
It’s dishonest enough to present these policies as a deterrent to crime; anyone in any of the parties who took the trouble to look up the figures knows that mandatory minimum sentences don’t work.
But it’s even more dishonest to make promises that can only result in increased prison populations, as all three major parties have done, and then present a five-year economic plan with no mention of new prisons.
It costs $110,000 to keep a man in maximum security for one year in Canada, more for a woman.
A prison can cost $100 million or more to build. Not one of the parties has factored in a cent for longer trials and new prisons.
Perhaps the Conservatives are least dishonest in this regard, as they are the most likely to introduce the American system of privatized for-profit prisons, financed by slave labour.
We all want safer communities. We know what works to make them safer: good community based policing, solid social programs, education, prosperity.
We know what doesn’t work — harsh, merciless sentencing and overcrowded prisons.
But in their eagerness to be seen to be doing something about gun violence in our cities, all our top politicians offer the useless solution at the expense of the useful one.
Every dollar spent on building prisons is one that could have been spent building schools, hospitals and housing, things that we know have an effect on crime.
If, knowing the facts, we still call for increased mandatory minimum sentences, then it’s clear we’re not interested in prevention, but only in punishment.
Let’s give the last word on this subject to an American, one who has seen the injustice that results when a nation takes sentencing out of the hands of judges and gives it to politicians — one who has seen first hand how difficult it is to repeal harsh, unjust, uselessly punitive measures once they are entrenched in law.
Back in 2003, Justice Kennedy told the American Bar Association, “A people confident in its laws and institutions should not be ashamed of mercy.”