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America Has More Reasonable Drug Laws Than Canada: What the Hell?

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It beats me why so many American conservatives have smartened up about when it makes sense to send people to jail when Canadian conservatives -- at least the ones who count -- clearly haven't.

It wasn't always this way. Back in 2002, when Canadian conservatives weren't afraid to call themselves "progressive," my friend and colleague Pierre Claude Nolin chaired a special senate committee on illegal drugs. Senator Nolin was, and still is, a devout conservative. Yet his committee recommended that the sale of marijuana in Canada be legalized and taxed, thereby removing profits from gangs and organized crime and avoiding ruining the lives of users sent to prison.

Flash forward to last year, when Stephen Harper's government pushed through a bill that would require mandatory prison terms for anyone possessing six marijuana plants -- a minimum six-month sentence, with a maximum of 14 years.

The Americans have learned from their mistakes, while we're making new ones. Back when Senator Nolin was recommending less incarceration for recreational drug use in Canada, American authorities were engaged in a furious all-out war on the use of illicit drugs, handing out mandatory sentences until their jails were bursting at the seams. A decade later, Republicans and Democrats alike are retreating from mandatory incarceration laws at breakneck speed. This is about the only issue on which the two parties see eye to eye.

U.S. Republicans and Democrats are joining forces on this issue because both sides now recognize that incarceration for minor drug offences isn't accomplishing anything, but it's costing billions of dollars. They are finally recognizing that people with real drug problems need help that they aren't going to get in jail.

Jerry Madden, the former head of the Texas House Committee on Corrections, is a very conservative Republican. Yet in recent years he has helped steer Texas away from harsh incarceration policies for minor crimes, including drug infractions.

His philosophy on keeping people out of jail? "It's a very expensive thing to build new prisons and, if you build 'em, I guarantee you they will come. They'll be filled, OK? Because people will send them there. If you don't build 'em, [we] will come up with very creative things to do that keep the community safe and yet still do the incarceration necessary."

The United States has the highest incarceration rate in the world, and half the prisoners are there on drug convictions. With plenty of conservative support, the Obama administration has issued directives designed to lock up fewer people for shorter periods of time. "We must never stop being tough on crime," Attorney General Eric Holder said a few days ago. "But we must also be smarter on crime. Too many Americans go to too many prisons for far too long, and for no good law enforcement reason."

This is progressive thinking, whether it comes from the right, the left, or the middle.

And regressive thinking? The Harper government remains adamant that mandatory, one-size-fits-all sentences are the best way to fight crime. It has indicated it is willing to spend an estimated $9-billion to imprison more Canadians.

The average cost of keeping a Canadian in prison for a year is more than $113,000, which is money well spent for violent offenders. But why spend it locking up minor drug offenders? The prisons budgets just keeps growing, and the system is already costing Canadian taxpayers 61 per cent more than it was when Mr. Harper took power.

There are ways of pre-empting crime instead of locking people up. One is better policing. Another is providing better social services. Yet the government is skimping on spending on the RCMP, whose personnel are straining to the breaking point. Most provinces are desperately short of cash for social services, including treatment for mental disorders. The prisons are becoming our new mental institutions.

There has been no shortage of responsible people recommending that the government legalize, regulate and tax marijuana sales, making them similar to alcohol sales. It is true that the use of marijuana can cause problems. So does the use of alcohol, which was crusaded against in the early 20th century. It took 13 years of ineffective prohibition laws for American authorities to recognize that alcohol wasn't going away, and to begin making money taxing sales, rather than losing money trying to eliminate supply.

The best way to combat the abuse of drugs is through education, the way the federal government dramatically reduced the use of tobacco products in the first decade of this century.

Mr. Harper and his government have ignored a public appeal from prominent Toronto lawyer Edward L. Greenspan, former Ontario attorney general Roy McMurtry, and criminology professor Anthony Doob of the University of Toronto. These eminent persons pointed out, among other things, that with mandatory minimum sentences the Canadian legal system is going to become even more clogged than it is now, as accused fight charges that could take them to jail. They also noted that if minor offenders are convicted, they are more likely to re-offend than if they had not been sent to jail.

Now the Canadian Association of Chiefs of Police, headed up by Vancouver's pragmatic Police Chief, Jim Chu, has recommended that police officers be given the option of handing out tickets for simple possession of marijuana, rather than laying criminal charges.

The Harper government obviously believes that mandatory minimum sentences are good bones to throw to the party's core constituency -- hard line conservatives. They are forgetting that being a staunch conservative doesn't automatically make you dim. Republican governors and legislators in states like Texas, Ohio and South Carolina have abandoned minimum sentences. They know their core constituencies. They must have figured out that there are now one heck of a lot of hard-assed conservatives who have awakened to the fact that a huge amount of money is being spent -- and large numbers of lives are being ruined -- for no good reason.

[Colin Kenny is former chair of the Senate Committee on National Security and Defence and Deputy Chair of the Special Senate Committee on Illegal Drugs. kennyco@sen.parl.gc.ca]

*An earlier version of this oped was published in the Ottawa Citizen, August 24, 2013