Repeating Past Mistakes

“Those who cannot remember the past are condemned to repeat it.” George Santayana

Last week I traveled to Ottawa to give testimony to a Canadian Parliamentary Committee reviewing legislation to establish federal mandatory minimums for drugs and weapons offenses. The Committee on Justice and Human Rights heard testimony on Bill C-15, legislation introduced by the Conservative Party to enact mandatory minimum sentences for drug offenses in Canada.

Bill C-15 creates minimum prison terms for a variety of drug offenses (i.e., trafficking, possessing for the purpose of trafficking, importing or exporting, and producing) involving any quantity of controlled substances such as heroin, cocaine and amphetamines. If passed into law, Bill C-15 would, among its other provisions, impose mandatory sentences on people caught with one marijuana plant for a minimum of six months. If growing a single plant is done on a property that belongs to another person or in an area where it may present a hazard to children, minimum jail time is nine months. It also mandates longer sentences for persons convicted within 10 years of a previous offense.

I was one of the "expert witnesses" invited by the Committee to provide evidence to help inform deliberations. Along with six other witnesses we testified to the evidence demonstrating the ineffectiveness of mandatory minimum sentencing in addressing the problems of drug-related crime and violence. Yet, it seemed clear from the comments of the Committee members and public record of proceedings to date, that the Canadian Parliament will ultimately approve this misguided legislation in its desire to appear “tough on crime” and make constituents in British Columbia believe it is ‘doing something’ about the gang violence that has plagued communities, particularly in Vancouver as it prepares for the upcoming Olympic Games in 2010.

I was invited because of my involvement in the successful campaign to reform New York's infamous Rockefeller Drug Laws (RDL). The history of these laws, their conception and implementation, should serve as a cautionary lesson of how easy it is to enact bad criminal justice policy and how difficult it is to repeal it – even when there is strong consensus for change.

In 1973, New York Governor Nelson Rockefeller, frustrated about the perceived failure of his drug treatment initiative, angry over the inmate rebellion at the state prison in Attica and looking to improve his political image with conservative Republicans who thought he was too liberal – proposed legislation to make New York’s drug laws the “toughest in the country”. When Gov. Rockefeller first announced his new “get tough” approach to drug dealers and users, the proposal was decried by all including the states prosecutors and judges as ‘harsh, vindictive and unworkable’, however by taking such an extreme position Rockefeller accomplished his goal of moving everyone else to the right by forcing others to take a harder line on drugs than they ever had before.

The RDL enacted later that year, mandated prison terms for numerous drug-trafficking crimes based largely on the weight of the drug sold. A first-time offender convicted of selling two ounces or possessing four ounces of heroin or cocaine received a mandatory sentence of 15 years to life--the same as the penalty for murder. Possessing as little as half a gram of cocaine or heroin triggers a minimum sentence of at least one year. Also enacted in 1973, the Second Felony Offender Law (SFOL) required with some exceptions a mandatory state-prison term for persons convicted of a second felony offense within 10 years of the first. Under New York’s criminal statutes the sale or attempted sale of any amount of a controlled substance is a Class B felony punishable with imprisonment.

As a result of his newly tough stance on drugs and ‘welfare cheats’, Rockefeller was successful in rehabilitating his image among Republican Party leaders. By 1974 he had sufficiently reformed himself that there was little objection to his selection by Gerald Ford as his Vice-President when he assumed the Presidency upon Nixon’s resignation. His time on the national stage was short-lived, by 1977 his political career was over and he was back to private life. He died of a heart attack in 1979. That same year Governor Hugh Carey and the state legislature agreed to reform some of the harshest aspects of the law following the recommendation of a commission of lawyers and prosecutors that found:

“In too many cases the 1973 drug laws, because of their mandatory and inflexible nature, require penalties which are out of all proportion to the seriousness of the offense or the criminal history of the offender”.

The Rockefeller Drug Law: After 6 Years, Officials Question its Effectiveness – Carey and Legislative Chiefs Planning Changes,
Tom Goldstein, NY Times, May 14, 1979.

In their first 20 years, the SFOL, the RDL, and other anti-drug laws combined for a steep and steady rise in the portion of incoming prisoners whose last convicted crime was a drug felony. In 1980, a drug crime was the most serious conviction offense of 11% of the state's prisoners (886 people). By 1993, that fraction had risen to 44 % (10,939 people). The RDL came down hard on people who were not exactly kingpins. In a 1993 case, an appeals court reviewed the sentence of Jesus Portilla, an asbestos remover with a wife and small child. A first-time offender, he had received a sentence of eight and a third to 25 years for a $30 cocaine sale.

The assertion that mandatory minimum drug sentencing policies can be justified as an effective deterrent to crime has been discredited by numerous studies and analysis of the impact of such laws. This criticism has not been limited to those with liberal beliefs about politics and crime – conservatives, including some who previously espoused ‘tough on crime’ approaches have called for the repeal of mandatory minimum drug sentences. John J. DiIulio Jr., a criminologist is emblematic of this shift. DiIulio was initially skeptical of the notion that drug laws imprison large numbers of people who are not menaces to society. But by 1995 DiIulio became an outspoken critic of current sentencing policy and called for the repeal of New York’s RDL. “It seems to me that with respect to these drug offenders, the mandatory minimums have begun to go haywire.” He went on to say the following in a notable article in the National Review:

“There is a conservative crime-control case to be made for repealing mandatory- minimum drug laws now. That's a conservative crime-control case, as in a case for promoting public safety, respecting community mores, and reinstating the traditional sentencing prerogatives of criminal court judges. . . . To continue to imprison drug-only offenders mandatorily is to hamstring further a justice system that controls crime in a daily war of inches, not miles, and that has among its main beneficiaries low-income urban dwellers.”

After more than 35 years of harsh mandatory drug sentencing the political consensus for change in New York reached a tipping point. This year the New York State legislature finally did what the public has been requesting it do for years – it voted to repeal most of the remaining vestiges of the Rockefeller drug laws. It is ironic that Canada is considering enacting a law very similar to the one it took us so long to undo in New York. It would be a shame if Canadian politicians repeated our mistake; the harms caused by 35 years of bad sentencing policy will take a long time to repair.

For many years, drug policies have been shaped by public concerns and political pressures that have been indifferent to the need for proportionality. Many factors--the persistence of drug use and abuse, racial undercurrents, a fear of crime, and an unwillingness to tackle social inequalities, among others--encouraged politicians and public officials to embrace inordinately tough sentences for drug felonies. Canadians should not be taken in by those claiming the answer to the drug problem is to “get tough”. The evidence of the past thirty years clearly shows that we don’t need to be "tough on crime"; we need to be “smart on crime”. Being smart means investing in what has been demonstrated to work – evidence-based drug treatment; effective drug education; proactive family support programs and early and continuous support for ‘at-risk’ youth. In this way we demonstrate societal commitment to invest in people, not prisons, to show compassion, not indifference, to help, not punish. Right-thinking Canadian legislators must defeat Bill C-15!