February 16, 2011

Oscar, 33, was born already addicted to heroin. His heroin-dependent mother died of AIDS when he was a small boy, leaving Oscar to fend for himself on the streets of New York. Convicted in 2004 of selling a small amount of heroin to support his habit, Oscar remains in prison under mandatory sentencing laws that have since been repealed. Oscar wants to get out of jail so he can get treatment for his drug dependence, marry his fiancée, Victoria, and take the janitor job that is waiting for him in Queens. New York State has spent $440,000 keeping him in prison.

Oscar's story illustrates the dismal failure of drug policy in the U.S., where mandatory minimum sentences for drug crimes are now acknowledged to have met neither public health nor criminal justice goals. Instead, they cost the taxpayers billions of dollars, with a tragic human cost in millions of destroyed lives. Is this where Canada wants to go?

In November, aiming to get tough on crime, the Canadian Senate passed Bill S-10, An Act to Amend the Controlled Drug and Substances Acts, which would increase penalties for possession of small amounts of drugs, including marijuana, and impose mandatory minimum sentences for a wide spectrum of offenses. Sponsors contend that S-10 would reduce drug use and trafficking and deter repeat drug offenses. But the U.S. experience, along with two reports from the Canadian Department of Justice (available here and here), indicates otherwise.

In fact, mandatory minimum sentences are likely to do more harm than good. Imprisonment creates health risks and often leaves those who serve time destitute, unemployable, and more likely to be entrenched in a life of crime. The bill undermines the internationally recognized right to health, as many people subject to imprisonment under S-10 have substance abuse problems and need treatment that is often not available in jail or prison.

Canada has been a regional leader in drug policy, implementing effective drug dependence and harm reduction programs. Vancouver's Safe Injection Site, Insite, has improved community health and safety while saving millions of tax dollars. Methadone has been available to inmates in Canadian federal prisons since 1998, and the program has been shown to reduce HIV transmission, increase adherence to HIV and hepatitis medications, and reduce the likelihood that participants will return to prison.

But S-10 would take Canada in the wrong direction. Under the bill, mandatory minimum sentences could be imposed for low-level, non-violent drug transactions if they triggered an "aggravating factor" - if the activity occurred "in or near an area frequented by youth" or if the accused had been convicted of a crime related to substance use in the last 10 years. These factors are overly broad, and the amounts involved so small that the law would be destined to target marginalized individuals whose small-scale offenses are often related to their drug dependence. The poor and members of minority groups, particularly indigenous people, are already incarcerated in disproportionate numbers in Canada, many for drug offenses. This urgent human rights issue would only worsen with the passage of Bill S-10. Further, the 10-year trigger period ignores the medical evidence that drug dependence is a chronic, relapsing disease. It amounts to punishing people for their addiction.

The United States, in a struggling economy, spends $12 billion a year to keep 500,000 people behind bars because of their drug use. Yet there is no evidence that drug use has gone down or that mandatory minimum sentences have benefited either public health or criminal justice. For this reason, eight states - including New York, where laws were the most punitive in the nation - have repealed most of these mandatory minimum sentences, and dozens of other jurisdictions are considering repeal or reform.

At the federal level, the National Criminal Justice Commission Act of 2010 seeks to reform the "war on drugs" in the United States from the ground up. The bill, approved by the House of Representatives last July, recognizes that "mass incarceration of illegal drug users has not curtailed illegal drug usage" but has resulted in "disproportionate impacts on minority communities." It urges a public health approach to drug dependence that includes alternatives to incarceration and increased resources for prevention, treatment, and social services.

Canada faces a stark choice: expand intelligent approaches that can meaningfully reduce crime while improving community health and safety, or waste billions of dollars on ineffective approaches that only appear to be tough on crime. By rejecting Bill S-10 in the House of Commons, Canada can wisely learn from the mistakes of its neighbour. Canada would be choosing a future in which people like Oscar have a chance to make the nation stronger by going into treatment, not into prison.

 Megan McLemore is a senior researcher in the Health and Human Rights Division of Human Rights Watch