RACE, SENTENCING, AND THE WAR ON DRUGS

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.