Gilding the Lilley: Mandatory Minimum Sentences

In a recent column Sun Media personality Brian Lilley wrote about mandatory minimum sentences - his writing calls out for a response.

It is frustrating to read articles that don’t even attempt to address the important issues in the minimum sentence policy debate.  Unfortunately, Lilley’s latest article does little to add any reason or honesty to an evaluation of this important criminal justice policy.  

With this frustration in mind I will discuss Lilley’s column - a new exercise I call “Gilding the Lilley”.

In his recent article Lilley’s main thesis is that minimum sentences are good policy and he quickly points out that Justin Trudeau does not agree:

Justin Trudeau announced his call to do away with mandatory minimum sentences includes those aimed at child molesters.

The suggestion that Trudeau wants to do away with minimum sentences is a bit of a stretch, as Lilley later points out, Trudeau actually said:

No, I wouldn’t rule out repealing mandatory minimums for anyone. I’m looking at opening … listening to evidence, listening to experts, trusting the judiciary.

Given the complexity of criminal justice issues I should hope that those who make policy would listen to and be guided by the evidence.  

I wrote early this month about Trudeau’s position on minimum sentences.  There is good reason to question the use of mandatory minimum sentences.  Evidence indicates that: minimum sentences don’t do a good job at deterring crime, they do little to assist with rehabilitation or reintegration of an offender, and minimum sentences risk offending the Charter (A topic I wrote about after the Ontario Court of Appeal found parts of bill C-10 unconstitutional).  

Lilley says minimum sentence are about keeping people off the street.  This is the common refrain of those that support minimum sentences.  Minimum sentence make us safer.  Minimum sentence deter crime.  These purported benefits of minimum sentence are simply not supported by the evidence.  

Lilley goes on to mock Trudeau for listening to the opinion of experts.  It is Lilley who should be mocked for doing precisely the opposite.  

To be fair, Lilley does quote the evidence Dr. Van Gijseghem (who actually supports some minimum sentences).  The passage of the evidence Lilley quotes however is obviously meant to be sensational not empirical.  This type of dialogue does little to validate Lilley’s point.

What really calls into question Lilley’s position is the evidence he does not quote from the C-54 hearings.

Former Justice Minister Rob Nicholson was aware of the lack of evidence for minimum sentences, yet when questioned he was not able to answer this point or offer any evidence in support of minimum sentence.  In his evidence on Bill C-54 Nicholson stated:

Mr. Serge Ménard:

When you became Minister of Justice in 2006, I believe, the department had commissioned a study from Mr. Julian Roberts on minimum sentencing in other Commonwealth countries. His report came out in 2006.

Are you aware of this study?

Hon. Rob Nicholson:

I'm aware of it, yes.

Mr. Serge Ménard:

Do you acknowledge what Mr. Roberts concluded, as is reflected in the letter sent by the Church Council on Justice and Corrections? He concluded that imposing minimum sentences in Commonwealth countries has apparently had no effect in terms of reducing the number of

Hon. Rob Nicholson:

First of all, I didn't come to the Department of Justice in 2006. It was 2007, just a little over four years ago now.

I'm aware of a number of reports. Sometimes I'm told that the Americans have very tough mandatory penalties in this area. There are a number of Commonwealth countries that don't have mandatory sentencing. This is a Canadian approach. I think it will work, Monsieur Ménard.

Nicholson’s entire case for minimum sentences seems to be based on a classic appeal to authority.  Good policy is built on evidence not built on authority.

This is a point seemingly lost on Lilley as he completely fails to mention any of the relevant the evidence, including that of psychologists, and criminal lawyers (full disclosure - one was me) who testified to the negative impacts of minimum sentences.  

Lilley also makes no mention that Dr. William Marshall, Mr. Randall Fletcher (Sexual Deviance Specialist - employed at the Office of the Attorney General of Prince Edward Island) and Dr. Stacey Hannem (Chair, Policy Review Committee, Canadian Criminal Justice Association) all gave evidence suggesting minimum sentences were a poor policy choice.

In fact, there was little or no empirical evidence presented during the Bill C-54 hearings that provided support for the effectiveness minimum sentences in reducing crime or make communities safer.

Lilley also ignores evidence presented to the government at other hearings which calls into question the policy of mandatory minimum sentences.

The Library of Parliament's clearly sets out the potential constitutional difficulties, the lack of utility, and the negative impacts of mandatory minimum sentences.  Their legislative summary informed the government that:

Mandatory minimum terms of imprisonment are generally inconsistent with the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, as they do not allow a judge to make any exception in an appropriate case. [...] A mandatory minimum sentence may constitute cruel and unusual punishment, in violation of the Canadian Charter of Rights and Freedoms, if it is possible for the mandatory punishment, in a specific matter or reasonable hypothetical case, to be “grossly disproportionate,” given the gravity of the offence or the personal circumstances of the offender.

A study published in 2002 concluded that existing research generally does not support the use of mandatory minimum sentences for the purpose of deterrence, or for the purpose of reducing sentencing disparities.  

One Canadian meta-analysis found little difference in general recidivism rates, regardless of length of incarceration or whether the offender was given a prison or community sanction. In fact, prison produced slight increases in recidivism.

Decisions regarding appropriate punishment [through mandatory sentences] are therefore transferred from the judiciary to the prosecution.

When a charge for an offence carrying a minimum sentence is maintained, the accused has no incentive to plead guilty, more likely leading to a costly trial.

Incarcerating offenders for longer periods results in increased prison costs, which are not necessarily offset by any reduction in crime rates and recidivism.

Over the last number of years the Conservative government has heard from many other experts who counseled extreme caution with respect to the use of mandatory sentences.  These witnesses include (but are not limited to): Craig Jones - Executive Director of the John Howard Society, Isable Schurman - Law Professor, Julian Roberts - Professor of Criminology, Tim Stuempel - Chair, Policy Review Committee, Canadian Criminal Justice Association, and Joseph Di Luca, Vice-President, Criminal Lawyers' Association.

The House committee on Justice and Human rights has also heard testimony from Anthony Doob, a highly respected criminologist from the University of Toronto.  For the last 35 years Mr. Doob has carried out research on a number of different aspects of the justice system, most notably, on sentencing, imprisonment policies, and public attitudes concerning the criminal justice system.   Mr. Doob testified:

The evidence of [mandatory sentences] ineffectiveness is clear. Numerous studies have been carried out in various countries demonstrating that mandatory minimum penalties of this kind do not deter crime.

You may have heard evidence that contradicts this conclusion. I urge you to examine this evidence carefully. The single study that is most often mentioned by government representatives and others as evidence supporting the effectiveness of this aspect of the bill has been thoroughly discredited.

Even the Governments own research has been critical of minimum sentences.  A 2005 Justice Department Report found, after a review of the evidence, that:

Minimum sentences are not an effective sentencing tool: that is, they constrain judicial discretion without offering any increased crime prevention benefits. Nevertheless, mandatory sentences remain popular with some Canadian politicians.

This type of blunt analysis should cause any government concerned with proper and rational policy decisions concern.  

Given the costs (financial, constitutional, and sociological) of a minimum sentence policy it should be scandalous that the Minister of Justice cannot justify the Government’s position.

I assume Lilley is not ignorant to the evidence (he did cover the hearings into Bill C-54).  Yet he, like the Conservatives, advocates a blind acceptance of the purported benefits of minimum sentence.  

Given Lilley’s thesis that poor policies can have lasting impacts it is unfortunate that he turns a blind eye to the evidence while mocking those who seek guidance by it.