Mandatory jail sentences good publicity, bad strategy

Mandatory jail sentences good publicity, bad strategy
James Morton

Last week a friend told me how her daughter's school went into lockdown because of a nearby shooting on a TTC bus. The shooting was almost certainly gang-related.

For two hours, 10-year-old children cowered beneath their desks while school doors were bolted and teachers anxiously imposed silence on the frightened kids. Despite door-to-door searches, the police did not find the gunman.

This dreadful scene is repeated across Canada as innocent bystanders fall victim to inter-gang rivalries.

In British Columbia there have been more than a dozen gang-related shootings in the last few weeks, and hundreds gathered last month in Surrey to protest the violence.

To meet a genuine public concern, the federal government has announced a series of tough anti-gang measures, including an expansion of the use of mandatory minimum prison sentences.
At first blush, such federal steps sound good – surely it makes sense to up the ante for gang crime?

The trouble is that mandatory minimum sentences, at least for the types of crimes related to gang violence, are more useful for publicity than for fighting crime. They don't hurt but they don't do much good either.

A detailed Connecticut study, following years of mandatory minimum sentences, found "that mandatory minimum sentencing laws achieve few of their stated substantive objectives and do not work."

There are several reasons for this.

First, most gang-related crimes do not lead to the charges associated with them, so the punishment for gang-related crimes is moot.

Second, even when appropriate charges are laid, the imposition of the mandatory minimum lies very much in the discretion of the prosecutor – one charge can easily be substituted for another, and gang-related charges can be replaced by non-gang-related charges in return for a plea of guilty.

Finally, and perhaps of greatest importance, most gang members live their lives with a very short event horizon; the threat of punishment a year or two in the future is dwarfed by the risks and rewards of day-to-day gang life.

So is there nothing to be done about gang crime? Must gangs run unchecked?

Of course not – but the solution to gang crime lies not in mandatory minimum sentences but in better community policing and property seizure.

Community policing is a results-oriented, community-based system that relies heavily on the co-operation of policing officers, volunteers and community members.

It is not cheap. Police move into the communities most affected by gang violence and, by establishing close ties to the community and learning the details of the players who live there, are able to identify, and charge, gang members involved in crime.

By bringing in other community members, alternatives to gangs are established and membership in gangs falls.

Too often police are seen as an outside force imposed on a community. Community policing eliminates this misperception and puts police where they need to be. Community policing changed the face New York, as the NYPD has recognized. In its words:

"Whatever gains we have achieved in fighting crime are minimized if the price is the trust and respect of the community we serve. If crime levels decline, but members of the community are reluctant to approach police for fear of a negative encounter, then we have not truly met our obligations to the public."

Cost is one problem with community policing, and, at least at first, it is also dangerous. It requires intensive police work, often in hostile environments. But such difficult work is a precondition to breaking gang violence.

Another helpful tool – and here both provincial and federal governments have been moving in the right direction – is the seizure of property obtained by crime. Gangs exist for several reasons, but a key element of gang life is money.

When money is seized and gangs are no longer a source of income, the gangs quickly fail. Straightforward and rapid seizure of gang-related assets chokes off an engine of gang life.
The federal proposals to increase criminal penalties for gang crimes will have very little impact on gang crime. A focus on the gangs themselves, and not merely punishment for a few gang members, is needed.

Such an approach will be costly, but it is the only effective way forward.

James C. Morton is a litigation lawyer at Steinberg Morton Hope and Israel in Toronto and adjunct professor and lecturer in evidence at Osgoode Hall Law School, York University.