The decision of the Court of Appeal this week that race is, for all practical purposes, irrelevant to drug sentencing has been met with considerable praise. One editorial called it a triumph of equality before the law; another noted that the court properly refused to replace one bias with another.
The praise is misguided and reflects a fundamental misunderstanding of the argument about the relevance of race to sentencing.
The argument was never about implementing a sentencing discount or "playing the race card" as has been suggested. Nor was it even about using race to explain why the individual committed the offence. The former is truly demeaning and the latter virtually impossible to prove in the limited confines of a sentencing hearing.
The argument is that in applying traditional sentencing principles, a trial judge must consider how effective these principles would be in the relevant community -- in this case -- the black community.
The sentencing process is not just about holding the individual accountable and promoting rehabilitation. It is also about society and, in particular, reflecting society's condemnation of the offence and deterring others from committing similar offences. In drug cases, this latter principle, called general deterrence, takes precedence.
Indeed, consider that a drug courier who imports more than one kilogram of cocaine into Canada will be sentenced to six to eight years in jail -- even if he is she is a first offender and only thought he/she was transporting a much smaller amount.
This is a harsher sentence than most rapists and some intoxicated killers receive in this country. Because of the prominence of general deterrence in drug cases, it only makes sense to ask: Will lengthy sentences deter others in the offender's community from committing drug offences? It is at this point that systemic racism becomes relevant.
Can it really be said that lengthy sentences are going to serve to deter individuals who face hurdles at every step -- education, employment and housing -- and therefore limited life choices?
This is why the argument is more about race than poverty. Poverty can be hidden. Race cannot. Education and employment allow individuals to escape poverty. But not racism.
There is also an important link here to rehabilitation.
Sending young, racially disadvantaged individuals to jail for lengthy sentences will not assist in their rehabilitation. They will come out of prison even more psychologically and, in some cases, physically, scarred. Scarce resources will be even scarcer. It will come as no surprise, then, that some of these individuals will turn to gangs and crime to survive.
And, it is the black community that faces the impact of these collateral consequences.
There is another community experience that makes race relevant in drug sentencing to both denunciation and general deterrence. As observed by the Ontario Systemic Racism Commission in 1995, the "war on drugs" has become, in effect, a "war on blacks."
It is the black community that has faced the brunt of the "war" in terms of the use of certain countries like Jamaica as transport countries, differential enforcement ( racial profiling ), prosecution and even sentencing. In particular, the "war on drugs" has led to the gross overrepresentation of the black community in prison.
At the commencement of the "war" in Canada ( i.e., 1986 to 1993 ), the Ontario Racism Commission found that there was a 204 per cent increase in the number of black admissions to Ontario prisons. By comparison, the rise in white admissions was 23 per cent.
The commission also found that the rate of incarceration in the black community was considerably higher than in the aboriginal community. In 1992/93, the black admission rate was 3,686 per 100,000, the aboriginal rate was 1,993 per 100,000, and the white rate was 705 per 100,000. There is no reason to believe that these numbers do not reflect current incarceration rates.
In the United States, the problem has reached the point where, in 2002, there were as many African-American males in prison as there were slaves in 1820. If a group is over-incarcerated, it is sheer folly to think that prison will deter other members of that group.
Finally, Canada has one of the highest rates of incarceration in the world. This is a serious social problem.
In 1996, Parliament enacted a new sentencing regime to enable judges to give greater emphasis to restraint, alternatives to incarceration and to give special attention to those groups who are overrepresented in our prisons.
Parliament was satisfied that there is a problem of aboriginal overrepresentation and specifically demanded that special attention be given to their situation. The same argument applies to the black community.
In all likelihood, the Supreme Court of Canada will have the last word on this issue. In an earlier decision, the court recognized that "sentencing innovation by itself cannot remove the causes of ... offending" but judges can play a limited role in "remedying injustice."
If we, as a society, are not prepared to recognize that race still matters, and to take some remedial steps where its effects may be most pronounced, then we will never be able to escape the bonds of racism.
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