Swallowed Up: Drug Couriers at the Borders of Canadian Sentencing
University of Toronto Law Journal, Vol. 56, No.4, pp. 285-332, 2006
49 Pages Posted: 29 Apr 2010
Date Written: 2006
Situated at the intersections of the North and the South are the women from poor countries and the poor women from rich countries who work as couriers, carrying small quantities of prohibited drugs from source and transit states into those in which consumers reside. In many states, including Canada, the United States, and the United Kingdom, convicted couriers normally receive very harsh sentences, usually multiyear prison terms. This sentencing practice has fuelled concerns about the imprisonment rates of black women from socially, politically, and economically marginalized communities. Some studies indicate that black women receive prison sentences for importing drugs at rates greatly disproportionate to their populations in the United States, the United Kingdom, and Canada and that drug-importation offences contribute significantly to the over-representation of black women in prisons. The conventional view that severe punishment of couriers is necessary to achieve deterrence and protect society has encountered resistance from some sentencing judges in a few jurisdictions. They have criticized guidelines that produce harsh penalties, sought to modify these norms, and sometimes refused to invoke them. A recent Ontario sentencing decision offers what at first sight seems to be a fundamental break with established practice, both in its relatively light penalty and, more importantly, in its justification of the sentence. In R. v. Hamilton, the judge imposed conditional sentences on two black women couriers who had entered Canada after swallowing condoms stuffed with cocaine. Hill J.’s opinion characterizes importing by couriers as a distinctive offence deserving of mitigation because of the social context – the racialized identities, impoverished circumstances, and parenting responsibilities – of the women who commit it. His construction of black women couriers as trapped by their circumstances, ‘desperate’ for money and ‘vulnerable’ to exploitation by drug-trade organizers, draws on developments in feminist analysis and ‘critical race theory’ that have promoted social contextualization as a way to address discrimination. Without relinquishing the notion that courts must hold couriers accountable for their crimes, Hill J. seeks to temper the penal consequences of the offences, mitigating sentence on the basis that these women neither chose nor controlled the social context that drove them to commit their offences. This usage of social-context analysis did not persuade the appeal court, which treated the women’s social context as marking them as precisely the kinds of persons that severe punishment seeks to deter and, hence, as a reason to impose harsh penalties.
Despite their different holdings on the relevance of social context to determining the penalty, the two decisions share common themes that have the effect of buttressing discriminatory as well as punitive practices of the criminal-justice system. First, they rest on similar understandings of how the social context of poor black women accounts for a disproportionate number of them appearing before the courts as drug couriers. Both opinions treat ‘social context’ as pertinent to the women’s choices but not to those of officials. Neither imagines the possibility that the identities and circumstances of black women might cause them to be targeted when enforcement agents decide whom to watch, stop, and search. Second, both opinions reproduce the misleading portrayals of the dangers of drugs that have marked sentencing discourse since the state first criminalized intoxicants. This demonization of prohibited substances lays the foundation for portraying any importer of such substances as a menace to society, no matter how small her role. Its effects are compounded in relation to black women couriers because of historical and contemporary relationships between the harsh penalization of drug offences and the regulation of racialized minority populations.
Drawing on these similarities between the two opinions – rather than their more obvious differences – this article explores the limitations of building a case for reducing women’s imprisonment on the social context of women’s lives. Through an examination of how these opinions use social contextualization to constitute the black woman courier and to structure how ‘punishment descends upon her,’ our analysis questions the progressive potential of social-context analysis in the sentencing process. We argue that in this setting, social contextualization of a courier’s circumstances does not contest but, rather, tends to reinforce three critical elements that sustain harshly punitive measures: the demonization of drugs, the culturally embedded identification of such substances with members of racialized communities, and the rationality of interdiction and penal practices.
Part II of this article discusses the contributions of feminist and critical anti-racist knowledges to the development of social-context analysis of women’s crime and constructions of black women in the criminal-justice system. It summarizes the purposes of feminist social-context analysis, describes two strands of contextual inquiry that seek to make sense of women’s crime, and discusses how intersectional analyses of social context may be deployed to explain the presence of black women in criminal courts and prisons. Part III briefly describes the institutional history and contemporary setting of the sentencing practices that Hill J.’s social-context analysis sought to challenge. After a short account of early prohibition legislation and the discourses that served to rationalize harsh punishment, this part then turns to developments in sentencing principles at the end of the twentieth century, when judges reassumed a leading role in the sentencing of small-scale importers, a role they had lost during the twenty-five-year mandatory minimum sentencing regime of 1962 through 1987. Part IV examines the first-instance and appeal court decisions in Hamilton and Mason, tracing the ways in which both decisions – despite their differences – construct some questionable links between black women, poverty, drugs, and crime. Part V concludes by considering the implications of these approaches to the social context of couriers for feminist theory and for law-enforcement practice.
Keywords: Women, Coloured Women, Couriers, Punishment, Sentencing, R. v. Hamilton
JEL Classification: K30, K39
Suggested Citation: Suggested Citation