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naraburns  nihil supernum  1yr ago (text post)   31779 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.

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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?

Gladue is awful and has been a disaster for indigenous Canadians; it doesn't just affect sentencing, it also makes convicting people more difficult because it can be used to "shield" juries from information that may prejudice them (like prior offences). But because the policy actually makes life worse for indigenous communities, it becomes a self-reinforcing justification for doubling down.

There was an awful incident a few years ago in Hamilton where an indigenous man high on meth shot a Good Samaritan who had intervened to stop him bullying an old man. Gladue provisions were introduced into the trial to prevent the jury from knowing about the killer's previous convictions for assault and weapons offences, and this measure was subsequently upheld in court. In a darkly ironic twist, while the killer was found not guilty, the two paramedics who came to the scene got 6 months of house arrest for mishandling the medical treatment.

I don't see anything in this summary of Gladue about the admissibility of prior convictions, and the prohibition is perfectly normal in common law countries. Eg, in the US, the general rule is that prior convictions are inadmissible except under fairly narrow circumstances. In fact, character evidence in general is usually inadmissible. See, eg, Fed Rule of Evidence 404 ["(1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident."].

So, a prior crime is inadmissible to show that the defendant has a propensity to commit crimes or that particular crime, but if the defendant has a distinctive M.O., the prior crime can be admitted to show he was the perpetrator. Or, eg, if I am caught breaking into a woman's bedroom at night and claim that I was merely trying to steal something, my prior rape of a woman in her bedroom might be admitted to show that I intended to commit a rape.

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