Mandatory Sentencing for Drug Users: A Failed Experiment in the US

Bill S-10 currently being considered by the House of Commons calls for the introduction of mandatory sentences as deterrents to organized crime and large scale drug dealing in Canada. There are serious doubts about the value of this strategy , and many of the country’s health, research, and academic leaders have  objected , aware of the many hazards of this approach . But there is also a body of evidence from the US that can inform Canada’s decision on S -10 and help avoid the disastrous mistake that mandatory drug sentencing has been for the US –  in effect launching a 35 year epidemic of mass incarceration and collateral harms to million of Americans.

During the first 20 years of mandatory drug sentencing I ran a large drug treatment program in the Bronx. Under our Rockefeller drug laws ( the model for mandatory drug sentencing laws in the US ) I watched New York State’s prison system grow from 12,000 to 73,000 – as drug offenders rose from 10% to over 40% of the prison population. Since their passage in 1973 over 150,000 drug users were sentenced to prison under these laws. After release most returned to drugs and related crime – with 1/3 back behind bars in 12 months and 2/3 by 3 years after release. Under such laws the US prison population exploded, reaching 2.5 million by 2009 – the highest incarceration rate in US history and in the world today – six times Canada’s imprisonment rate. Today, as a direct result of mandatory drug sentencing , there are more drug offenders in US prisons (over 600,000) than in all of the prisons of the EU for all offenses. Is this an experiment that Canada really wants to repeat?

Our nations experience suggests that mandatory sentencing will only worsen Canada’s drug problems and create new ones from a greatly expanded and socially toxic prison system. In practice mandatory sentencing disproportionately affects large numbers of low-level street addicts living in abject poverty, selling drugs and sex to support their habits. I worked in Vancouver in 2005 -2006, where over 5000 individuals suffer from all the ills of untreated addiction, infectious diseases ( such as HIV) , severe and persistent mental illness, and a host of chronic medical conditions - as they cycle through Canada’s mental health, medical care , and criminal justice systems at vast expense to taxpayers. Hundreds were well known to local police and courts - the “frequent fliers” – but none were large-scale traffickers, for whom long sentences are already in place and have been for years. But as law enforcement concentrate limited resources on low level drug offenders, they deplete the very assets they could use to more effectively identify and bring down large scale drug dealers and their international supply networks.

Canadian experts rightly worry that mandatory drug sentences will also have disproportionate adverse impacts on Aboriginal populations. We see this in the US too. Thus while national rates of drug use in the US are similar for most racial and ethnic groups, under mandatory sentencing we have twenty fold disparities in rates of drug arrests and imprisonment for minorities. These arrests are concentrated in the poorest communities, where they appear to actually worsen the risks of crime in later generations and have negative consequences on public health, as high rates of imprisonment appear to amplify the AIDS problem. In the US today 25% of all HIV infected individuals pass through our prison system annually due to mandatory drug sentences , playing a major role in causing our 55 ,000 - 60,000 new HIV infections now occurring each year.

Ironically as Canada considers mandatory sentencing, the US has begun stepping back from such penalties. New York State recognized the errors of the policy within 2 years after the Rockefeller Laws passage in the mid 1970s . Once in place however mandatory sentencing policies are hard to roll back. It took over 30 years to rescind the harshest of these laws in NY. But the 2009 reforms of mandatory sentencing here resulted in 1400 fewer drug incarcerations in the first year alone. By rejecting Bill S-10 and mandatory drug sentencing now, Canada can avoid a policy that will do far more harm than all the drug use it claims to deter.

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