NADIA GUO
<News Editor>
This semester will mark the first instalment of Nadia’s Criminal Law Watch column. Within each issue of Obiter Dicta, I will be keeping Osgoode up to date on current and noteworthy developments in criminal law in Canada, and around the globe, with a focus on injustices. Let’s start with some of the malarky that’s taken place over the holiday break while we’ve been stuffing our faces and getting Daviault-intoxicated:
US government decides not to criminally prosecute HSBC for laundering money for Mexican drug cartels
This was the most significant story for me, since it pulls at the very heart of the absurdity of the entire war on drugs. Perhaps the most scathing insult from the state to any small-time offender who’s ever been convicted of a drug crime, the Justice Department signed a settlement for a pitiful $1.9 billion (only five weeks of income for the British financial giant) in early December. Matt Taibbi for Rolling Stone wrote a biting article entitled “Outrageous HSBC Settlement Proves the Drug War is a Joke,” in which he compares what happens to regular drug offenders to what happened to HSBC:
“Just ask Cameron Douglas, the son of Michael Douglas, who got five years in jail for simple possession. His jailers kept him in solitary for 23 hours a day for 11 months and denied him visits with family and friends. Although your typical non-violent drug inmate isn’t the white child of a celebrity, he’s usually a minority user who gets far stiffer sentences than rich white kids would for committing the same crimes – we all remember the crack-versus-coke controversy in which federal and state sentencing guidelines left (predominantly minority) crack users serving sentences up to 100 times harsher than those meted out to the predominantly white users of powdered coke.”
So if there was ever more proof that was needed to prove that the war on drugs in America is entrenched in pure folly, this one certainly takes the cake. The government essentially revealed itself as its own enabler in justifying the need to spend billions in tax dollars each year on this more or less futile exertion of state power. Let me remind you that during the last five years of Mexican President Felipe Calderon’s term (which ended this past November), more than 100,000 people have died as a result of cartel-related violence. And this is a modest calculation, considering that Calderon announced it would no longer be updating the death toll since, in a country that investigates less than 10% of all crimes, these statistics will not be reliable. Theories for what precipitates the power of these crime organizations are aplenty, with some blaming government corruption and cooperation with criminal kingpins, and others the fruitlessness of the failed policy stance Calderon took on drug prohibition itself. Washington Post reports that despite the fact that Calderon had made it top priority in his term to wipe out the cartels, drug-related homicides have increased threefold under his presidency. What is markedly gruesome about all this business is that these crime organizations are unique insofar that they take pride in the bloody business they conduct, and want to ensure that everyone knows who is responsible for the corpses. They leave beheaded bodies strung up in places where the public is sure to see, with signs warning others not to cross them. Many of these victims are government officials themselves. And where does all the product go? Right over the border to good ol’ America, of course.
The rationale given was that basically, the corporation was too large to indict, and that the consequences of a criminal prosecution would ripple damage out to the broader financial system. Hmm, it didn’t really seem like the US government expressed much of a care when the banks were busy using legal loopholes to destroy the economy before the last recession – why the sudden change of heart? Could it be that the American-led drug war is, in reality, not something propelled by the concern the government has for its people, but by… greed? Nah, you say, Obama is a chill guy. He smoked pot in college. He would never do that. But it’s not just Obama, it’s the relentless trajectory of the system itself.
Reuters journalist Felix Salmon examines the purpose of the laws HSBC broke in “Why the US didn’t prosecute HSBC,” showing that in fact, these laws were not aimed to control the international banking system, but rather aimed towards economically sanctioning America’s political enemies. Because HSBC isn’t really its targeted antagonist, Salmon concludes that, “The question isn’t whether to use that power, it’s why. To do so would be bullying, and capricious, and would punish thousands of innocent individuals, and would destroy hundreds of billions of dollars of value, all for the purpose of nothing much in particular. Just because the US can prosecute HSBC doesn’t mean that it should prosecute HSBC. And sometimes, forbearance isn’t a sign of weakness, it’s a sign of maturity.”
You know what would be a sign of maturity, Salmon? It would be most definitely mature if the government would stop this infantile charade of what its actual objectives are in the war on drugs. The settlement with HSBC is a baby-sized scratch if one is to compare it to any effort at deterrence, and everyone knows it’s not going to stop them, and others, from doing it again. And again. And again. If you follow the flow of money from the illegal drug trade, it will always flow through legitimate sources. You want HSBC to get away with this to protect the economy? Then you’re going to have to admit that the drug industry is inextricably bound with the economy, and that the real drug kingpins sit in the financial sector. You’re going to have to let up on the hard-nosed policy decisions that land harmless offenders with sentences that effectively ruin their lives. What is needed from a mature government is a little accountability and less hypocrisy.
Tories’ fast-track refugee system fuels private immigration detention industry
When Stephen Harper isn’t busy increasing minimum sentences for harmless drug crimes to fill up prisons (see Bill C-10), he’s looking for ways to start up new detention facilities. Immigration minister Jason Kenney announced a new change to refugee claimant processes late December, where the processing time for claims will be reduced from 600 to between 35 and 60 days, citing an effort to afford less time for “bogus complainants” to put claims through while somehow still protecting “real” refugees. Without commenting too heavily on the actual impetus of this decision, which doubtfully has roots in compassionate sensitivities towards refugees, what is more pressing to those paying attention to the problem of privatization of detention and mass incarceration in the US is spelled out by The Guardian’s Bilbo Poynter.
While the Harper government has carefully kept away from proposing privatization of the prison system, Poynter reports that under the new changes, those seeking asylum may be detained for up to six weeks before review. Canada is reported to be listed as one of the only Western countries showing an active interest in increasing its asylum detention facilities against international human rights norms, and currently has three immigration holding facilities with management contracted out to private security corporations. One of the companies currently lobbying for “immigration service delivery” is Serco, whose facilities Kenney toured in Australia in 2010. On Christmas Island in April 2011, asylum seekers being detained at a Serco holding centre for over six months rioted in protest, resulting in burned-down buildings, and a showdown with police bearing tear gas and bean-bag rounds.
So the real question remains: Is all this really an attempt to crackdown on human smuggling, as Harper claims, or is it fuelled by the more surreptitious interest by certain investors to increase incarcerated populations?
Steubenville, OH rape investigation and Anonymous
A massive chorus of outrage as been voiced over the alleged mishandling and cover-up scandal of the gang rape of an unconscious 16-year old girl by Sheriff Fred Abdalla. Critics like hacktivists Anonymous accuse the town, which has a close alliance with its prized high school football team (and main source of economic revenue), Big Red, of lack of transparency in trying to protect Big Red team members from prosecution. Only two boys from the team have been charged, Trent Mays and Ma’lik Richmond, but according to Local Leaks (http://localleaks.blogs.ru), a site set up by Anonymous cell Knight Sec, many more were implicated. This site includes documents, Twitter screenshots, and a highly incriminating video of another teammate who was never arrested nor charged: Michael Nodianos. Nodianos crudely described and joked about the rape incident while naming others who were involved and not charged. Local Leaks’s disclosure claims to be ongoing and sourced from members of Steubenville society itself. This is a curious incident of civilian vigilantism trying to correct alleged failures of the criminal justice system themselves.
Prosecution for the case had to be handed over from Jefferson County to the attorney general of Ohio, because initial chief prosecutor Jane Hanlin was the mother of a suspected perpetrator in the case. Local Leaks alleges that she had tried to discourage the victim from filing a complaint and has shown an interest in protecting members of Big Red previously. In response to Knight Sec’s disclosure of sensitive information, Sheriff Abdalla made a public vow to come after those responsible for the leaks. Anonymous tweeted in response: “If Abdella (sic) was as concerned about finding rapists as #Anonymous, he wouldn’t have to worry about us. #ExpectUs to do your job.”
Named by Time as one of the most influential people of 2012, Anonymous is certainly a faction to watch out for when looking for corruption in criminal investigations. These little misogynistic football twats, self-dubbed “The Rape Crew” not only roofied this girl, but they also passed her unconscious body around from party to party so she could get raped and pissed on, so Anonymous has all my sympathy right now.
Vic Toews: “Either you’re against pizza parties for inmates, or you’re for crime”
Not incredibly surprising that Vic Toews is engaging in public assholery after his failed attempt to push through the privacy-infringing Internet monitoring bill under the guise of trying to catch pedophiles, but nevertheless, I’ve had enough of this guy and his bellyaching bullshit. Toews is experiencing some backlash for initiating new prohibitions on inmates for being able to order pizza and KFC from time to time. Predictably, like the hard-nosed Conservative he is, saying something along the lines, “Why should we spend our hard-earned tax dollars on criminals?… Huh? What fighter jets? Oh, those F-35s. $45.8 billion is nothing compared to all that money these convicted child rapists are spending on pizza!” Or something to that effect.
When faced with criticism revealing that the inmates in question actually bought the food with their own money for the purpose of charity fundraisers for local school projects, human societies and local fire departments, Toews wrote a ridiculous response to The Globe and Mail, pontificating on how allowing inmates to eat pizza and fried chicken from time to time might start other criminals thinking that prison is a fine and dandy place to go, and thus no longer serve the kind of deterrence the criminal justice system needs.
I’ll just leave the audience to think about that one.
More corrupt cops get slaps on the wrists
Said to be the biggest police corruption trial in Canadian history, five drug squad Toronto police, convicted of obstructing justice and committing perjury, get a whopping 45 days of house arrest. The incident that precipitated this investigation was an illegal search of a Scarborough apartment suspected of belonging to a drug dealer by ex-officers John Schertzer, who led the squad, Steven Correia, Ned Maodus, Joseph Miched and Raymond Pollard. Justice Pardu rationalized this light sentence due to the absence of “evidence of a pattern of criminal misconduct extending to matters [outside of the case],” and there being “no history of findings of misconduct under the Police Act.” Toronto Star Rosie DiManno reports differently, however, finding three past criminal investigation of the charged officers, 16 civilian complaints lodged against the drug squad, three misconduct charges laid on officers over an illegal strip-search, an officer charged with forgery, theft, and breach of trust for misuse of the cash reserve for paying informants, along with a report that found 82% of the squad’s investigations ended in a stay or a withdrawal of charges. Justice Pardu states that “noble cause corruption” played a role in mitigating police misconduct depending on the severity of vice police were engaged in combating.
Why am I not surprised? Oh yeah, because this kind of judicial protection prioritizing the boys in blue over civil rights happens all the time. Does anyone even know what became of the police disciplinary hearings following the condemning report on Charter rights violations during the G20 summit in Toronto? Yeah, me neither.
Want to submit to this column? Email nadiaguo@osgoode.yorku.ca