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naraburns  nihil supernum  1yr ago (text post)   31762 thread views

Culture War Roundup for the week of January 2, 2023

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B.C. top court broadens sentencing law aimed at reducing indigenous incarceration rates

British Columbia’s top court has broadened the sweep of a sentencing law meant to reduce incarceration rates among indigenous peoples, ruling that indigenous-specific sentencing can be applied even to offenders who have become disconnected from Indigenous communities and are only minimally aware of their heritage.

...

The decision reduces a five-year prison sentence to four in a case involving an unprovoked, near-fatal stabbing.

...

The offender, David Kehoe, is a Métis man who prosecutors argued had not been aware until recently of his indigenous background. He was convicted of aggravated assault after he used a kitchen knife to stab a man who had played loud music in the parking lot of an apartment building where Mr. Kehoe lived.

Mr. Kehoe, who was 30 at the time of the 2018 stabbing, had a record of 33 prior offences as a youth and as an adult. (The victim suffered a lacerated liver and punctured lung, and received life-saving surgery. He did not submit a victim-impact statement at Mr. Kehoe’s sentencing hearing.)

Under federal sentencing law, judges must pay particular attention to the circumstances of indigenous offenders. The Supreme Court interpreted that law in a case called Gladue (which involved a fatal stabbing) to mean that the history of colonization has harmed indigenous peoples, and that they are therefore entitled to special efforts to reduce their overrepresentation in the penal system. Social workers and others write “Gladue reports” for judges at sentencing time to detail indigenous-related background factors.

...

As of Christmas Day, 34 per cent of federal male prisoners were indigenous, and among female prisoners the rate was 48 per cent, according to the Office of the Correctional Investigator. Indigenous peoples account for a little over 5 per cent of the country’s population. In 1997, they made up 3 per cent of the population and 12 per cent of men in federal prison.

...

B.C. prosecutor Grant Lindsey noted in his arguments that Mr. Kehoe’s parents and grandparents had not gone to residential schools. His criminality was related in part to growing up with a non-indigenous stepfather who used and trafficked drugs, Mr. Lindsey said. Justice Alan Ross of the B.C. Supreme Court accepted that there was little nexus between Mr. Kehoe’s indigenous background and his crime, and sentenced him to five years in prison.

...

Justice Marchand, who was appointed by the Trudeau government to the appeal court in 2021, added it was not “simply a coincidence” that Mr. Kehoe’s Métis mother had fallen into an unstable, dysfunctional environment. He cited the report of the National Inquiry into Missing and Murdered Indigenous Women and Girls to make that point.

Some additional background. In Canada, indigenous people have a lot of problems. They tend to be poor, especially if they live on reserves. Many of them have drug and alcohol abuse problems, and they commit a lot of crime, especially violent crime. There's a lot of teen pregnancy, and in general, many of them live what most people consider to be highly dysfunctional lives.

It has recently become accepted wisdom that this is definitely entirely due to their historical mistreatment, especially their attendance at residential schools, which were designed to forcibly assimilate indigenous children into Western culture. The evidence supporting this is weak.

I have a few questions about this and similar cases.

Why are prison sentences so low in Canada to begin with? You often hear cases where someone kills multiple people and they get sentenced to under ten years in prison. After accounting for credit for time served and parole, they're often only in prison for a few years. Is there evidence supporting this approach to reducing crime?

Is there any reason why the optimal sentences for indigenous convicts are lower than for non-indigenous convicts?

Does it really make sense to blame the offender's dysfunctional background on his indigenous ancestry?

Does it even make sense to blame his criminal behaviour on his dysfunctional background?

Why are crime rates among the indigenous increasing?

On one hand, dropping a 5 year sentence to 4 years isn't earth-shattering. Judges have, and often use, greater discretion in sentencing based on whether they had a good morning thusfar.

On the other hand, "same crime, different punishment" will only be tolerated so far. Especially if, after several years, the indiginous incarceration level remains flat & indigenous crime rate rises. (as I would expect, mostly due to early release of serial offenders, with a small reduced deterrent effect)

It's certainly an inducement to try and find that 1/64th Cherokee Princess granny in your family tree (or whatever the Canadian equivalent is).

The most fascinating test of this will be when some white-collar criminal who carried out a fraud worth billions tries this defence: "Your Honour, there's a family tradition that some great-great-great-grandmother was at least part Indigenous, please take this into account when sentencing me".

He’s Métis and wasn’t previously aware of it. As I understand it that is the Canadian equivalent of being 1/64 Cherokee on your great-grandmother’s side.

I would like to think it'll only be tolerated so far, but my guess is that indigenous crime rates will simply be obfuscated or the rise blamed on other factors. After all, the judge pointed to the "missing and murdered indigenous women" report, which fails to mention that more indigenous men are missing and murdered than indigenous women, and seems to be a surprising fact to the Canadians I know.

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