Drug mules, drug moms and criminal justice: mothering and redemption in film and in law.

• Author: MacDonald, Gayle

1. INTRODUCTION

   This article analyzes the representations of motherhood in sentencing decisions and in two international films, Maria Full of Grace and Clean, where drug involvement was a factor. The article provides an important example of how analysis of film provides lawyers and decision-makers with a way into understanding legal constructions of motherhood that have deep and systemic implications.

   In the cases and the films discussed in this paper, the main character or the "offender" was either a trafficker bringing drugs across international boundaries, a user of illicit narcotics or both. The international drug trafficking cases before the court in R v. Hamilton, at both the lower court and the appellate levels, arc the mainstay of our investigation. (1) R. v. Hamilton determines the sentences for two Jamaican women living in Toronto and convicted of importing cocaine in violation of the Controlled Drugs and Substances Act. (2) Both women, Marsha Hamilton and Donna Mason, were granted conditional sentences of imprisonment by the lower court judge, who took direction from subsection 718.2(e) of the Criminal Code, the stated aims of which are de-incarceration and the consideration of race-based disadvantage, particularly for Aboriginal offenders.

   This ease was featured in the mainstream media and has engaged scholars and decision-makers in debates on the appropriate response of the criminal justice system? For a brief period of time, chivalry (modestly) trumped drug war ideology in sentencing cases for traffickers whose offences were spawned by disadvantage due to race, gender and class. (4) Relying on section 718.2(e), the judge crafted arguments that imprisonment outside of an institution was appropriate due to the influence of systemic racism on the criminal involvement of Ms. Hamilton and Ms. Mason. The sentences were ultimately overturned by the Court of Appeal for Ontario, which stated that drug trafficking was too significant to warrant community-based justice. While imprisonment was mandated, the Court of Appeal ordered that both women could serve out their conditional sentences.

   At both levels, however, the courts positioned themselves as fair and even compassionate arbitrators of drug-related crimes by drawing from the discourse of restoration and re-integration. The offenders' capacities as mothers were influential on whether a restorative or conditional sentence was appropriate. R. v. Spencer, (5) decided in the same timeframe, further illustrates the influence of care-giving on sentencing, particularly in the restorative-based context established by section 718.2. Ms. Spencer, who was not deemed to have acted altruistically, was ordered by the Ontario Court of Appeal to serve her sentence in a custodial setting.

   The decision in R. v. Hamilton has been reviewed elsewhere. It appeared to us that examining the role that motherhood played in the sentencing determinations was a subject that warranted further investigation. (6) Scholars have alternatively praised the cases for advancing restorative sentencing and critiqued them for reifying gender and race in sentencing determinations. (7) The role that women's care-giving plays in the courts' decisions on when a conditional sentences is the appropriate sanction for the illegal transportation of drugs--the feature of the decisions that remains underexplored--is examined throughout this paper.

   This work fuses the worlds of visual media (film) and text (case law) to see if patterns of the representation of women of colour necessarily adhere to proscriptions of the "good mother." The issue of whether motherhood hinders or "helps" the women avoid punishment is examined. As insightful as the films are for their honest and bleak portrayal of the protagonist, we question whether they accept or counter the dominant society's vilification of drug involvement, particularly for women of colour. In particular, the work of feminist criminologist Dianne Martin on the theory of race and law in relation to the drug war is looked at to explain the intersections. The claim that courts respond in problematic ways to the (usually racialized) woman who embodies what are taken to be the contradictory social subjects of the nurturing mother and the deviant criminal is emphasized in Martin's work. This paper restates her claims and illustrates them with contemporary examples.

2. MOTHERING AND RESTORATIVE JUSTICE

   Due to the centrality of motherhood, the cases appeared to have direct connections to two international films: Maria Full of Grace and Clean. The films resemble the cases because they feature women involved in the drug trade. In Maria Full of Grace, the protagonist, Maria, is a drug trafficker and a "swallower" who has carried cocaine into the United States inside her body cavity. Maria's pregnancy is essential to the outcome of the film. In Clean, the main character, Emily, is a drug user and addict. Her effort to re-establish a connection with her son, Jay, is the main theme of the movie.

   In developing this paper, we were curious about the ways that mothering assists filmmakers and the courts in navigating the strains that occur when characters, often with sympathetic motives, are involved in the highly stigmatized world of drug use. In relation to the criminal law, we wanted to explore whether the presence of children permitted the courts to valorize altruistic mothering while allowing them to avoid social policy critiques on the collapse of the social safety net. The cases focus on individual accountability, suggesting that black men's failure to provide for their offspring was the source of the women's impoverishment. As a result, the cases mask the state's failure to adequately provide for women and children, particularly racialized women and children, through full employment, the achievement of substantive equality, or the establishment of an adequate social-welfare system.

   In the lower courts, the judges were sympathetic to what they construed as the defendants' predicament of impoverished motherhood. In the appellate decisions, the courts responded differently to the specific coalescences of race-gender-class-motherhood. They make several arguments: that it is "aggravating" for a mother to import drugs that harm (other women's) children; that harsh deterrent sentencing is required to send a message on the harms of illegal drug use, that the mothering by poor black women burdens Canada through social assistance reliance and criminality.

3. MOTHERING IN THE CRIMINAL LAW: R. V. Z.Z.V.F.

   As a starting point, the case of R. v. Z.Z.V.F provides a clear indication of the tensions sought to be illustrated in this paper. (8) R. v. Z.Z.V.F predated and provided authority for R. v. Hamilton, although this is not specifically stated by the trial judge. Decided in 2000, the Court broke with the tradition of imposing custodial sentences for drug trafficking offenses that were common prior to the revisions of the Criminal Code in 1996. (9) Duncan J. emphasized the importance of individualized sentencing and the need to consider alternatives to incarceration, where appropriate. The Court broke with the pattern of overemphasizing the sentencing principle of general deterrence typically stressed in drug-trafficking cases. Notably, the sentence in R. v. Z.Z.V.F. was not appealed--thus the case escaped the debate and scrutiny granted to R. v. Hamilton and, to a lesser extent, R. v. Spencer.

   In justifying the conditional sentence, the Court goes through a lengthy description of the facts. Z.Z.V.F. was a young 23-year-old mother of three children, ages 7, 5, and 4, surviving on a limited income. Z.Z.V.F. presented favourably to the Court, which lauded her for perseverance in job-readiness programming and for her devotion to her children. According to the Court, she possessed "an indefinable spark" distinguishing her from the "usual customers.' (10) A friend encouraged her to work as a courier transporting hash or "gum" and Z.Z.V.F stated that her involvement as a drug courier resulted from her impoverishment. While in Jamaica, the plan went awry. Placed in a locked room, Z.Z.V.F. was ordered to insert a cocaine-filled pouch in her vagina.

   Z.Z.V.F.'s desperate straits and economic need were accepted as a strong factor in the commission of the offence. She supported herself and her three children on welfare payments and the "baby bonus" totaling $1,285 per month. She received no child maintenance from either of the two men that fathered her children. The court summarized Z.Z.V.F.'s acute financial challenges and their influence on her criminal involvement:

   Around July 1998, she was feeling particular financial pressures. The children's bunks were broken and they were sleeping on the floor. Her oldest child would be starting school in the fall. (11) Because her circumstances were desperate, Z.Z.V.F. decided to serve as a drug courier on this one occasion. Her inexperience and her altruistic motivations led the court to impose a community-based sentence. The negative impact that imprisonment could have on the children is also emphasized in the sentencing decision. It was noted that:

   The defendant is still the sole caregiver to her 3 children, now aged 7, 5 and 4. If the defendant is incarcerated, the younger two will be taken in by their father who has provided little financial or other support in their lives to date. The older girl would have to go into foster care through [Children's Aid Society]. (12) Z. Z. V. F.'s parenting was a strong factor in the Court's decision to impose a community-based sentence. While "good mothering" kept Z.Z.V.F. from a sentence in an institution, it failed to rescue her from the criminalization experience. In one of the final paragraphs in the judgment, the judge emphasizes that "the defendant will spend over 6 years under restraint and supervision of court order.' (13) The time Z.Z.V.F. would spend under the supervision and control...