Should the justice system take race and background into account?

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By Pradip Rodrigues

September 11th will mark a milestone of sorts in Ontario. The province’s first court for Indigenous peoples will open with a ceremony at the Ottawa courthouse.

Although Indigenous people make up just 4 per cent of Canada’s population, they are over-represented in prisons. Consider these statistics: 36 per cent of the women and 25 per cent of men sentenced to provincial and territorial custody are Indigenous, so is 22.8 per cent of the total incarcerated population in federal prisons.

There has got to be some sort of mystery behind this over-representation other than simple racism on the part of law enforcement, the justice system and the public. Otherwise how would you account for the low representation of Chinese-Canadians or Jews in Canadian prisons who have also had more than their fair share of racism and suffering?

Anyway back to the Indigenous court, going forward, teams there will document the life experiences of the offender. For example, was there any involvement in residential schools or other cultural trauma that ripped the family apart? Was there emotional trauma and suffering as a result? These factors would be taken into account by the judge handing down the sentence. Sympathy for the offender’s sad background could see an offender shedding tears at an emotional group therapy session rather than see him or her locked up in a cell.
If Indigenous courts are expected to handle Indigenous offenders keeping in mind their backgrounds and suffering, it may soon be African-Canadians who currently make up three per cent of the general population, but 10 per cent of the federal prison population to wonder why they too should not have a court along similar lines given their own long litany of woes. Surely blacks too have suffered immense racism both here in Canada, their forefathers who were brought as slaves to the Islands did not exactly have it easy. Should their backgrounds and other emotional trauma be taken into account while sentencing?

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Why not? But why stop there, every individual carries some amount of emotional baggage that causes them to act in irrational and display criminal behavior. If the offender is white, comes from a dysfunctional family, suffered sexual abuse as a child and physical abuse as a teenager goes out to commit a crime, he will face the full wrath of justice. He or she has no excuse. White privilege! No wonder the alt-right feels aggrieved. But a racialized offender? Well, a team of mental health experts would need to determine what motivated the crime. This way most racialized offenders could in the future quite possibly be classified as victims. This could be the start of a new term: victim on victim crime.

In liberal Europe, experts are now classifying a third of “lone-actor attacks” between 2000 and 2015 as acts stemming from mental illness, terrorism it seems has nothing to do with it!
For example, on July 29, 2015, Ahmed A. Palestinian asylum applicant waltzed into Germany only to go on a deadly stabbing spree in a Hamburg supermarket two years later.

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Many of these lone-wolf attackers tend to be disturbed individuals who turn to religion, get radicalized and then get recruited by terror cells or go out to kill. Experts in Germany are bemoaning the fact that there aren’t enough mental health professionals to deal with the mental health crisis refugees face. So if these “lone wolf attacks” aren’t motivated by Jihadism or terror, then perhaps we as a society should feel sympathy for these offenders! Religion has in the past been described as a mild form of insanity, perhaps anyone evaluated as having a mental health issue should not be allowed anywhere near any place of worship!

So next we could be seeing offenders having refugee backgrounds get sentencing that takes into account their special circumstances.

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Who knows in the years to come our prison cells could well be transformed into psychiatric offices and venues for therapy sessions for former offenders/victims.

The way I see it every offender is a victim of circumstances. Policymakers in the western world are beginning to see the connection between the breakdown social problems.

There is a disturbing pattern evident in the link between illegitimacy and violent crime and between the lack of parental attachment and violent crime.

Even in high-crime inner-city neighborhoods, well over 90 percent of children from safe, stable homes do not become delinquents. By contrast only 10 percent of children from unsafe, unstable homes in these neighborhoods avoid crime.

At the end of the day, every community and family has to do a bit of introspection and healing of their own. Too much emphasis and scrutiny is placed on historic wrongs, society and the police, too little attention is paid to broken families, substance abuse, teen pregnancy, illiteracy etc which leads to a rise in the number of teenage delinquents repeating the vicious cycle all over again. And I suspect that nothing will change if they know that as offenders they could always play the victim card and blame their actions and offences on society.

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