WANT STIFFER SENTENCES FOR GROW-OPS? LOBBY MPS, NOT JUDGES

News that convicted marijuana growers rarely receive jail time might be
shocking, but it isn't surprising. In fact, in seldom giving sentences of
imprisonment to grow-op operators, courts are doing exactly as Parliament
has instructed them.

According to government statistics obtained by The Vancouver Sun, only one
in seven people in British Columbia -- and only one in 13 in Vancouver --
convicted of growing marijuana between 2002 and 2004 received a jail
sentence. And the percentage of marijuana growers sent to jail seems to
have decreased in the last few years.

Not surprisingly, law enforcement personnel, who have stepped up raids on
grow-ops in recent years, are disappointed with the sentencing records.
B.C. Solicitor-General Rich Coleman has also expressed disappointment with
the courts, saying they must "be reflective of the needs of the communities
they serve."

Fair enough, but proponents of harsher sentencing must look beyond the
courts if stiffer sentences are to be imposed on marijuana growers.

After all, in recent years, Parliament has made it clear that Canada
imprisons too many of its citizens, and has issued directives to the courts
to refrain from imprisoning defendants whenever reasonable.

In fact, the Criminal Code contains two paragraphs dealing specifically
with this matter. The Code first says "an offender should not be deprived
of liberty if less restrictive sanctions may be appropriate in the
circumstances," and then goes on to say "all available sanctions other than
imprisonment should be considered for all offenders."

With these sorts of directives, it's not surprising that courts are
reluctant to send people to jail for the non-violent crime of cultivating
marijuana.

Grow-ops might well provoke violent crimes -- such as the often violent
"grow-rips," where thieves break into a grow-op to steal drugs and cash --
but it's up to prosecutors to inform the courts of these events. Likewise,
it's up to prosecutors to apprise courts of the pressure grow-ops place on
communities. (To his credit, Coleman has emphasized prosecutors'
responsibility to do so.)

Even so, courts might, as directed by Parliament, still look for sentences
that don't involve jail time. One possible alternative is a conditional
sentence, a custodial disposition akin to house arrest, where offenders
serve time at home under strict conditions.

The reduction in the number of marijuana growers going to jail could be the
result of increased use of conditional sentences. And while the conditional
sentencing regime is not without controversy, there is much to recommend it.

Since offenders can attend work and pay their bills, conditional sentences
cost taxpayers only about one-quarter as much as jail sentences. And
offenders who receive conditional sentences are ineligible for parole,
unlike jail terms where offenders are generally paroled after serving
one-third of their time.

That's not to say conditional sentences are always appropriate -- they're
only available for sentences of less than two years, and are unavailable to
people who pose a threat to their communities.

Proponents of jail time for grow-op operators could argue that conditional
sentences shouldn't be available for marijuana growers, but they would then
have to ask Parliament, rather than the courts, to change the law.
Similarly, they could lobby Parliament to increase the maximum sentence for
marijuana cultivation.

In fact, Bill C-38, which would have decriminalized possession of small
amounts of marijuana, also included a provision doubling the maximum jail
sentence for marijuana growers to 14 years from seven. Bill C-38 died when
Parliament prorogued in 2003, but Prime Minister Paul Martin said he plans
to reintroduce it. So those favouring stiffer sentences for marijuana
growers may get their wish.

But there's a downside to that: Heavier sentences (and increased
enforcement) are likely to discourage "mom and pop" operations, but no
penalty is likely to deter crime syndicates. Stiffer sentences could
therefore play right into the hands of organized crime by giving crime
gangs even greater control over the marijuana industry.

It's not clear, then, whether harsher sentences are the solution to our
drug woes, but it is clear that if that's what people want, they need to
lobby Parliament, not the courts.