© 2001  Karen Selick
Jailhouse Quotas Imperil the Law-Abiding
An edited version of this article first appeared in the May, 2001 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


Jailhouse Quotas Imperil the Law-Abiding

The federal government kicked off this session of Parliament with a promise to reduce the proportion of aboriginal Canadians in jail (currently about five times the national average) down to the average.  It’s a pretty unusual goal, when you think about it.

There are two very different interpretations you could place on this promise.  The charitable interpretation is that the government intends in some vague, unspecified manner to fix the problems that lead to crime in the aboriginal community.  If they can reduce the crime rate, this should cascade down into reductions in the arrest rate, the conviction rate and ultimately the incarceration rate.

Then there’s the cynical interpretation--that the government will simply reserve a quota of spaces in correctional institutions for aboriginal inmates, equal to the percentage of aboriginals in the general population.  When the quota is filled, any additional aboriginals convicted of crimes will go free.  Presto!  Mission accomplished.

If the goal were really to reduce crime in the aboriginal community, why not say so?  By setting its goal in terms of the incarceration rate, the government is in effect using that rate as a proxy for the problems of crime and violence in the aboriginal community.  How will we know when those problems have been cured?  Why, when the percentage of aboriginal inmates reaches the Canadian norm.  It will be sorely tempting to achieve "success" by adopting the quota method.

Aboriginal Canadians should be very uneasy about this approach to achieving safe communities.  In the past, they’ve expressed concern that the high imprisonment rate reflects racial prejudice on the part of police, prosecutors, judges and juries—the entire justice system.  However, if the government chooses to gamble with the safety of the innocent, law-abiding majority of natives via sleight-of-hand definitions that conceal serious risks, this would represent a far more virulent form of discrimination.  

Take note: it’s not just the incarceration rate among aboriginals that’s out of whack.  There’s also an enormous discrepancy in the victimization rate of aboriginals compared with non-aboriginals.  

The Canadian Centre for Justice Statistics compared homicide rates in major Canadian cities from 1980 to 1989.  In almost every city, the victimization rate per 100,000 population was staggeringly higher among aboriginals than among non-aboriginals.  In Winnipeg, for instance, 19.1 per 100,000 aboriginals were murdered versus only 1.6 per 100,000 for non-aboriginals. 

Nor is it only murder that’s out of line.  Victimization rates for all violent crimes are similarly skewed.  Nationally, there are 9 violent crimes per 1,000 population per year, while for native bands the rate is over 33.  If we’re seeking a statistical goal for demonstrating crime reduction in aboriginal communities, surely bringing these victimization ratios down to average would be the appropriate one to pick.

Criminologists have debated for years the efficacy of imprisonment versus other types of punishment in deterring crime and rehabilitating convicts.  The one thing no-one has ever been able to deny is that at least for the period of their incarceration, offenders are not roaming at large, preying upon innocent victims.     

Therefore, the failure to incarcerate aboriginal criminals might well result in their committing additional crimes that would otherwise not have occurred.  Who will suffer most?  The same people who suffer already—the innocent, law-abiding members of their own communities.

Is the government really prepared to sacrifice this already vulnerable group for the sake of producing politically correct statistics?  

The government should not assume that aboriginals will unanimously support this policy.  In January, 1999 a B.C. woman was convicted of manslaughter against her common-law husband. Because of her Metis status and troubled background, she got a conditional sentence with community service—no jail time.  However, the family of her victim, themselves Haida natives, were outraged by the light sentence and left the courtroom in tears.

Before we leap holus-bolus into alternative punishments, there should at least be some strong evidence that they produce better results.  

And suppose we find out that alternative methods of dealing with criminals do indeed work better for aboriginal offenders.   Would we not then want to investigate whether they would also work better for non-aboriginals?  Is human nature different across racial lines?  Denying the use of alternative methods to non-aboriginals, once it were proven that they produce superior results with aboriginals, would not only be discriminatory, but downright foolish.  

But if non-aboriginals got to use these superior new crime-reducing methods, then given that they were already starting from a lower base of crime, wouldn’t that re-open the statistical gap between them and the aboriginals?  Did someone say "vicious circle"?  

Like many people, I’m skeptical about the long-term efficacy of imprisonment in achieving a safer society—except, as I’ve mentioned, for the incapacity of the prisoner to commit crimes while he’s actually behind bars.  However,  adopting different punishments for groups distinguished only by race is a repugnant, untenable practice.  If natives are justified in their allegations that this is what’s causing their over-representation in prisons, then it must stop.  But so long as the crime rate in aboriginal communities remains well above average, racism alone can’t take all the blame.  And reversing the discrimination won’t right any wrongs.  

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July 31, 2000