Counter-Rebellion: Judges of the Alberta Court of Appeal Question the Supreme Court's Jurisprudence on Mandatory Minimum Sentences

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"Last month the Alberta Court of Appeal issued an interesting decision that concerned the constitutionality of yet another mandatory minimum sentence, this one in section 244.2 of the Criminal Code... The mandatory minimum is four years’ imprisonment (or more if organized crime is involved). For fairly straightforward reasons given by Justice Antonio, R v Hills, 2020 ABCA 263, upholds the four-year mandatory minimum..."

But in separate concurring reasons Justices O’Ferrall and Wakeling go on to criticize the Supreme Court’s approach for dealing with such cases....

In this post, I summarize Justice Antonio’s lead opinion, as well as the common aspects of the two concurring ones, and explain why I think the Supreme Court is right and Justices O’Ferrall and Wakeling are wrong about section 12."

Supreme Court Further Dismantles Harper Government's Tough-on-Crime Agenda
"The Supreme Court of Canada has struck down as unconstitutional two more planks of the defeated Harper government’s tough-on-crime platform.

It struck down the mandatory minimum sentencing provisions for drug offenders who have a prior criminal record for drug offences as well as ruling that a person denied bail because of prior convictions should get credit for time served before sentencing.

It is not as if mandatory minimums or the Truth in Sentencing Act are gone, but elements of them, laid out in two decisions released Friday, have been declared in violation of the Charter of Rights and Freedoms."

View the Decisions:

R. v. Lloyd, 2016 SCC 13 

R. v. Safarzadeh-Markhali, 2016 SCC 14 
 

Mandatory Minimum Sentences are Bad for Communities
"In 2012, the Harper government made a number of changes to Canadian criminal law. These changes introduces a suite of new mandatory minimum prison sentences; changed how credit for dead time in pre-sentence detention is calculated, restricted parole and access to pardons; imposed new victim fines for all offenses; and put restrictions on who can get serve their sentence in the community rather than going to jail.

The government claimed these changes were necessary to protect victims of crime and to keep our communities safe. But even a minor scratch at the conservative logic reveals that the law and order agenda is, out of step with Canadian values, fundamentally unfair, expensive, unnecessary, and ineffective."

Push for consecutive mandatory minimum sentences may run afoul of Criminal Code

The Conservative government has tossed another challenge at the country’s judges, upping the ante on mandatory minimum sentences with U.S.-style “stacking minimums” intended to keep people who commit sex crimes against children in jail longer.

“There is an outcry for this, from police, from prosecutors, and most notably from victims,” Justice Minister Peter MacKay said in an interview, speaking about the tougher sentencing measures for child sex crimes in a bill tabled in Parliament this week. The bill must be debated and voted on before it becomes law.

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Can the Obama Admin Actually Fix Our Broken Criminal Justice System?

  On Monday, August 12, the day Attorney General Eric Holder announced “a fundamentally new approach” to the criminal justice system in his speech before the American Bar Association in San Francisco, US District Court Judge Mark W. Bennett was in his office in Sioux City, Iowa, drafting a sentencing opinion in a drug case. An outspoken critic of mandatory minimums [see “ Imposing Injustice,” November 12, 2012], Bennett is known for writing unusual opinions that criticize the sentences he must often hand down. “It’s about trying to make the system fairer,” he says, “not just for the defendant in front of you, but for others.”

The defendant in this case, a 37-year-old black man named Douglas Young, had caught a rare break. He’d pleaded guilty to two charges involving twenty-eight grams of crack cocaine—an amount sufficient to trigger two five-year mandatory minimum sentences. But he had previously been convicted on another crack charge, in Chicago, when he was just 20 years old. This single offense, seventeen years ago, meant not only that prosecutors could have doubled Young’s mandatory minimum sentence, but also that he could have received a maximum sentence of life without parole.

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Reversing Course, ALEC Supports Reform Of Mandatory Minimum Sentences

The American Legislative Exchange Council was a driving force behind moves to impose tougher sentences and inflate the U.S. prison population. But on Monday, the conservative, corporate-backed group adopted model legislation that would reform draconian mandatory minimum prison sentences, according to Families Against Mandatory Minimums, which sponsored the legislation.

The ALEC Board of Directors passed a version of the Justice Safety Valve Act, a bipartisan bill introduced in both houses of Congress to give judges discretion to reduce statutory minimum sentences that impose onerous sentences for a range of drug and other crimes, FAMM Florida Project Director Greg Newburn told ThinkProgress. ALEC Legislative Director Cara Sullivan did not return an email inquiry from ThinkProgress. She did, however, tell the Daily Caller in an email response that the bill would help “ensure lengthy sentences and prison spaces are reserved for dangerous offenders, allowing states to focus their scarce public safety resources on offenders that are a real threat to the community.” 

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Supreme Court Chips Away At Judges’ Power To Ratchet Up Mandatory Minimum Sentences

Mandatory minimum prison sentences, statutorily imposed by legislatures, are among the major contributors to the U.S. incarceration epidemic. Many federal judges have recognized the injustice of these sentences, and lament that acts of Congress have tied their hands to issue sentences below the mandatory minimums, particularly when it comes to low-level drug offenders. Nevertheless, judges often exercise their authority to hand down sentences above the floor set by law.
In a decision issued Monday, the U.S. Supreme Court held in a splintered 5-4 ruling that judges do not get to raise the floor itself when deciding a criminal defendant’s sentence:

Any fact that, by law, increases the penalty for a crime is an “element” that must be submitted to the jury and found beyond a reasonable doubt. Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact that increases the mandatory minimum is an “element” that must be submitted to the jury.

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Top Enron Fraudster Will Spend Less Time In Prison Than A Father Who Sold His Own Pain Pills

John Horner had no record of drug-dealing when he was sentenced to a 25-year mandatory minimum prison term for selling some of his own pain pills to an undercover informant who befriended him and told him he could not afford both his rent and his prescription medication. Horner, a fast-food restaurant worker and a father, had been prescribed the pain medication because of an injury in which he lost an eye, according to a BBC report.

If, as expected, he serves all 25 years, Horner will be 72 when he is released, and he will have spent more time in prison than the former Enron CEO who was convicted in one of the largest corporate fraud schemes in modern history. Last week, the Department of Justice said it is considering a deal to shorten Jeffrey Skilling’s sentence. But even if he serves every year, Skilling will still have fared better than Horner with a sentence of 24 years.

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How Mandatory Minimums Forced Me to Send More Than 1,000 Nonviolent Drug Offenders to Federal Prison

Growing up in blue collar Circle Pines, Minnesota, in the 1950s, raised by parents from the “Greatest Generation,” I dreamed only of becoming a civil rights lawyer. My passion for justice was hard-wired into my DNA. Never could I have imagined that by the end of my 50s, after nineteen years as one of 678 federal district court judges in the nation, I would have sent 1,092 of my fellow citizens to federal prison for mandatory minimum sentences ranging from sixty months to life without the possibility of release. The majority of these women, men and young adults are nonviolent drug addicts. Methamphetamine is their drug of choice. Crack cocaine is a distant second. Drug kingpins? Oh yes, I’ve sentenced them, too. But I can count them on one hand. While I’m extremely proud of my father’s service in World War II, I am greatly conflicted about my role in the “war on drugs.”

You might think the Northern District of Iowa—a bucolic area home to just one city with a population above 100,000—is a sleepy place with few federal crimes. You would be wrong. Of the ninety-four district courts across the United States, we have the sixth-heaviest criminal caseload per judge. Here in the heartland, I sentence more drug offenders in a single year than the average federal district court judge in New York City, Washington, Chicago, Minneapolis and San Francisco—combined. While drug cases nationally make up 29 percent of federal judges’ criminal dockets, according to the US Sentencing Commission, they make up more than 56 percent of mine. More startling, while meth cases make up 18 percent of a judge’s drug docket nationally, they account for 78 percent of mine. Add crack cocaine and together they account for 87 percent.

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"We can't afford it"

States across the country are revisiting three-strikes laws and other tough mandatory minimum sentencing laws, particularly for low-level drug crimes. Of the 24 states that passed three-strikes laws in the early 1990s, at least 16 have since modified them to give judges more discretion in sentencing or narrow the types of crimes that count as a “strike,” according to the National Conference of State Legislatures (NCSL).

At least 14 states in recent years also either eliminated mandatory minimum sentencing for low-level drug offenders, or gave judges more discretion to consider alternatives to incarceration, according to the NCSL.

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FEDERAL MANDATORY MINIMUM SENTENCING: AN OVERVIEW OF THE 2011 REPORT BY THE U.S. SENTENCING COMMISSION

Introduction
For over 25 years much of the controversy and debate around federal sentencing policy has focused on mandatory minimum sentences. The Anti-Drug Abuse Act of 1986 and the 1988 Omnibus Anti-Abuse Act established harsh mandatory punishments for drug and firearm offenses (including the infamous 100:1 crack/powder cocaine ratio).1 The establishment of these laws corresponds with the nearly 800% increase in federal incarceration since 1980. Until recently, limited information was available regarding the full impact of these sentencing policies.
Under a statutory directive, the United States Sentencing Commission (the Commission) in October 2011 submitted to Congress its second report in 20 years assessing the impact of federal mandatory minimum sentencing laws. The report concludes:
“Certain mandatory minimum provisions apply too broadly, are set too high, or both, to warrant the prescribed minimum penalty… This has led to inconsistencies in application of certain mandatory minimum penalties…”2
This paper highlights important findings in the Commission’s report and its recommendations for reform.

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In challenge to Ottawa, judge refuses to impose mandatory sentence

Legislation that would give police and spies easier access to information about Internet users threatens to turn Canada into a surveillance society, the Official Opposition says.

“We are against this bill and we will fight this bill all the way,” NDP MP Charlie Angus told reporters in Ottawa. “Canadians are not criminals.”

The bill tabled Tuesday in the House of Commons would allow authorities access to Internet subscriber information – including name, address, telephone number and email address – without first getting a court's go-ahead.

The proposed measures pit the desire of intelligence and law-enforcement officials to have ready access to information about people online against the individual's right to privacy.

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Mandatory reading on mandatory minimum sentences

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.

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This is a Globe and Mail editorial. Tom

Constitution Project Committee Member Testifies Before the U.S. Sentencing Commission on Mandatory Minimums

Thomas W. Hillier, II, federal public defender in Washington State, urges Commission to endorse a reduction in the number of mandatory minimum sentencing laws

WASHINGTON - May 27 - Thomas W. Hillier, II, the Federal Public Defender for the Western District of Washington and member of the Constitution Project's Sentencing Committee, will testify before the United States Sentencing Commission today that the number of federal mandatory minimum sentences should be dramatically reduced. The hearing is being held pursuant to a Congressional directive requiring the Commission to report to the House Judiciary Committee on federal mandatory minimum sentences. The Commission will hear from many relevant perspectives on the issue, including executive branch officials, sentencing practitioners, law enforcement officials, academics, policy analysts, and advocacy groups.

Mr. Hillier will appear on behalf of the Constitution Project's Sentencing Committee, which concluded that mandatory minimums are at odds with a federal sentencing guidelines system that is designed to allow for a proper balance between consistency and individualization of sentences. In prepared testimony, Mr. Hillier stated that, in his opinion, the most troubling aspect of these sentences is the inappropriate skewing of the balance of power, which gives a disproportionate amount of power to the prosecutor. He observed that, in his experience, mandatory minimums create the perception of injustice by both the public and individual defendants and thus erode confidence in our criminal justice system, and that they are commonly threatened to induce pleas in situation in which the penalty would be unfair and unjustified based on the facts of the alleged crime. As a result, he testified, the truth-seeking function of our criminal justice system is threatened.

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