Grits Should Be Wary Of Harper's "Law and Order"

To mark Parliament’s reconvention, Stephen Harper has been banging his chest in front of the Canadian Professional Police Association. His “law and order” platform is perceived as an uncontroversial one. But he has sent early overtures that suggests otherwise.

First, he seeks to illustrate just how serious the problem has become – “These incidents appear no longer limited to supposedly bad neighbourhoods!… Clearly, my friends, this cannot go on.” I would have thought that one who is truly tough on crime would be tough on it everywhere (even poor neighbourhoods). But nevertheless…

The crux of Harper’s “law and order” platform is a major increase in the number and length of mandatory minimum sentences. This is best understood in the context of three basic Conservative fallacies. They are as follows:

a) Judges are all mad, godless liberals who intend to rend the moral fabric of the nation.

b) The fathers of modern liberal democracy got the “division of powers, checks and balances”
thing all wrong – party politicians are the beginning and end of governance. The judiciary
is only a detriment.

c) Justice is retroactive. “Order” begins once someone has fired the shots and been
apprehended. “Order” is a punitive act, rather than a preventative one.

Wrong on three accounts. And that’s not where the problems with mandatory minimum sentences end. One needs only consult the experiences of others for the practical failings.
- Mandatory Minimums demolish our judicial budget. They are not a cost effective way of maintaining order. This is from a US RAND study:



Figure 1--Cost-Effectiveness of Alternative Cocaine Control Strategies
Those bars show the results of spending a million dollars[1] on additional enforcement against a representative sample of drug dealers. As shown by the first bar, if that money were used to extend to federal mandatory minimum lengths the sentences of dealers who would have been arrested anyway, U.S. cocaine consumption would be reduced by almost 13 kilograms.[2] If, however, the money were used to arrest, confiscate the assets of, prosecute, and incarcerate more dealers (for prison terms of conventional length), cocaine consumption would be reduced by over 27 kilograms. As a point of comparison, spending the million dollars to treat heavy users would reduce cocaine consumption by a little over 100 kilograms (rightmost bar).

This deals with drug crime, yes, but in place of “treatment of heavy users” read prevention through social programming. The results are very much applicable.

- Mandatory minimums often fail to act as a deterrent. This is from a study by Thomas Gabor at the University of Ottawa:

"Perhaps most disconcerting for proponents of firearm sentence enhancements was a study interviewing robbers in Western Australia. That study revealed that the majority of robbers who had used guns indicated they would continue to do so despite their awareness of sentence enhancements and concern about the consequences of repeating their offences.

… if an individual is prepared to commit a robbery – a crime carrying a maximum sentence of imprisonment for life – will he now be deterred by a four-year minimum penalty, assuming that it is usually imposed? Even if he is deterred from using a gun (a questionable assumption given some Australian research), he may substitute another weapon in the commission of the same offence."

- Mandatory minimums are incredibly inflexible, and they leave judges unable to react to individual circumstances. As such, they are disproportionately detrimental to minorities that are more likely to come in conflict with the law. Already in this country Aboriginal people and urban African-Canadians, are many times more likely to face arrest. The Aboriginal people of Australia, especially the Northern Territory, have felt the specific impact of mandatory minimums. Now, after the suicide of a 15 year old Aboriginal boy in prison for a month after stealing pencils and stationary, after a 21 year old Aboriginal man was sentenced to a year in jail for stealing $23 worth of biscuits, there is tremendous public pressure to repeal the mandatory minimums.

I think Irwin Cotler’s approach to mandatory minimums (philosophical opposition, a cautious case-by-case approach) is the right one. I don’t think that the Conservative “law and order” platform is one that we can easily jump on board with.