Racial Justice

RACIAL JUSTICE & FEMINISM

Exploring how the Intersection of Systemic Racism and the Justice System Affects the Family By Katie Robertson

t’s no secret there’s a disproportionate number of Indigenous and Black people in the Canadian justice system. The truth is, it is not uncommon for racialized groups who have experienced the effects of colonization or slavery to be over represented. Not only does overrepresentation exist, it’s on the rise. In 2018, 30% of incarcerated adults were Indigenous, compared to 21% only a decade prior, but they only represent 4% of the Canadian adult population. A similar picture is painted for Black people. One statistic shows that Black people are over-represented in federal and provincial prisons by more than 300% vs their population, while for Aboriginals the over-representation is nearly 500%. However, because Canada has traditionally neglected to track race and ethnicity and is even more hesitant to release data, the current statistics are difficult to pin down. These facts might seem shocking if you don’t have lived experience, or study this data; the reality is though, this data

Ishowing overrepresentation of Indigenous and Black people in jail and as victims of crime, suggests it’s actually by design. Of course, the reason why we see such disproportionate statistics varies, but one of the most prevalent indicators is systemic racism; a fact many in the justice system are still hesitant to admit exists. The truth lies in differentiating between who is being criminalized and who is ending up imprisoned, rather than examining the numbers alone or generalizing them across the board. One analysis of 10,000 arrests in Toronto showed that Black people were 50% more likely to be taken to a police station for processing after arrest, and 100% more likely to be held overnight than were white people, even taking into account criminal history and age. And, when given bail, they had more conditions imposed.

A Family Sentence: The Hidden Effects of Incarceration

Putting aside race and ethnicity for a moment, let’s exam-

ine the hidden effect of incarceration on children and families.

Incarceration and reintegration can have major impacts on the family and community. Again, there is so little Canadian information available for analysis that very little is known about the families, particularly children, of incarcerated people. This dearth of data translates to a lack of intervention, policy, and program development.

Currently, there are more than 375,000 children in Canada with a parent involved in the justice system. The inability to respond to the children, and family members responsible for caretaking, creates a lasting and sometimes traumatic effect. Depending on the number of risk factors involved: poverty, stigma, self-esteem, family instability, race, and ethnicity, the risk of children experiencing adverse effects from parental incarceration increases dramatically. One statistic indicates that children of incarcerated parents are, on average, six times more likely to become incarcerated themselves.

Regardless of which parent is incarcerated, the impact on children is significant. When a father goes to prison, it’s usually the mother who continues to care for the children which has its own challenges including and especially economic. However, when it’s the mother who is incarcerated, the risk factors for children, and family, go up and they tend to suffer a greater disruption. Children of mothers who are in prison are often forced into new living situations, school changes, greater isolation, and risk of abuse. The main reason for this is because the majority of women in prison are mothers, and most of them are the sole caregivers for their children.

When looking at this from a race, specifically Black and Indigenous, perspective. A mother being incarcerated can spell disaster for a family where the father, or other male family member becomes the sole caregiver.

According to Jason Gorman, MSW, and former Mental Health Therapist at Forensic Assessment and Community Services in Edmonton, AB, “From another perspective, when the woman or matriarch of the family is incarcerated, then it’s up to the male in the household [in a Cis-heterosexual partnership], and western society doesn’t accept men raising their kids, or raising them in a communal way. Euro-Western culture is very individualized instead of looking at the family unit and how they raise children together.”

The untold cost of not supporting children, and their families, while a parent is incarcerated is infinite, and includes an increased likelihood of:

• Children being placed in foster care, and disconnected from their families, culture, and traditions, what some have likened to the

Residential School System with a new brand • Developmental delays and learning challenges • An increased likelihood of dropping out before grade 12 • Drug use and addiction • Poverty & homelessness • Crime, including gang involvement, and incarceration later in life It’s worth noting that there is research suggesting the strength of the parent-child bond and the quality of the family’s social support system play a big role in the child’s ability to overcome many of the challenges, and ultimately be happy and healthy in their life. Knowing this, it’s critical that the justice system develops stronger understanding and supports for the unique dynamics of the family, to try and ensure a more resilient child both during and upon re-entry of the incarcerated parent.

Changing Our Approach To Justice

Knowing that the burden of incarceration falls squarely on families, how can we reshape the way justice is delivered and reduce the impact on children and the communities they live in?

One approach is to remove the blindfold from lady justice, by looking at the effects of incarceration on the community as a whole, which could be achieved through a restorative justice model—an alternative approach to incarceration—wherever possible.

Restorative Justice philosophy outlines that we need to identify root causes of crime and make amends for the harms done, by focusing on healing relationships among victims/ survivors, offenders and communities. Restorative Justice is extremely beneficial since it creates opportunities for dialogue between people involved in harm, giving and receiving parties, as well as those impacted by that harm; all with the goal of preventing future crimes. Restorative justice can also mean ensuring the right supports are available for families and communities to assist in healing.

Despite the fact that some forms of restorative justice have been used in the Canadian and U.S. justice system for several decades, Fania Davis writes in her work, The Little Book of Race & Restorative Justice that, “the restorative justice (RJ) community largely failed to address race, quite surprisingly given that it is people of color who overwhelmingly bear the brunt of our nation’s criminal justice system.”

This fact is especially poignant given that, “restorative justice and the Indigenous ethos in which it is grounded are strongly relational in their orientation. Both deeply value entering into and maintaining “right relationship” as well as sharing one’s personal story,” says Davis.

In Changing Lenses, Howard Zehr writes that, “we in the West view crime through a particular lens. The “criminal justice” process that uses that lens fails to meet many of the needs of either victim or offender… Such failures have led to a widespread sense of crisis today.”

Enter the Gladue Reports

One small step towards incorporating a racial and ethnic lens on justice are the Gladue Reports, named after a Supreme Court Case in which the court ruled judges must take into account an Indigenous offender’s history of systemic racism, over-incarceration and abuse when sentencing them. Gladue Restorative Justice practices have been documented as being extremely effective in reducing Indigenous recidivism rates.

The Gladue case (also known as R. v. Gladue) was a landmark Supreme Court of Canada decision, handed down on April 23, 1999, which advises that lower courts should consider an Indigenous offender’s background and make sentencing decisions accordingly, based on section 718.2 (e) of the Criminal Code.

The Gladue Report is an attempt at Restorative Justice, serving as a type of pre-sentencing report that gives detailed circumstances about the offender’s life and also the history of coloniza-

Katie Robertson is passionate about gender equality and racial justice

tion. The Gladue Report recommends how society should approach sentencing in order to help assist Indigenous offenders reintegrate into their communities in a positive way. Restorative justice also means that families of the offender can find some justice for Canada’s past actions against First Nations People. The program can also help prepare new offenders to return to their communities by helping create stronger family ties and cultural connections - key ingredients of strong societies according to many traditionalist perspectives.

“An elder told me once, you have to know where you’re from to know where you’re going. Connecting to tradition and cultural practices has kept us going as a humanity; it resonates with our blueprint,” says Gorman, who prepares Gladue reports for the courts.

Indigenous-led restorative justice programs are becoming increasingly common across Canada. Many First Nations communities have an extensive history of Restorative Justice practices handed down over generations. A number of studies have documented Restorative Justice conferences being held in Indigenous communities to resolve conflicts between individuals or families. The Gladue report formalizes this cultural aspect of Indigneous justice within the Canadian justice system.

Changing our approach to incarceration does not mean that people should go unpunished for their crimes or that it is necessary to be soft on crime. Restorative justice means that society takes responsibility for its past actions against First Nations People and other racialized people. Changing how we approach incarceration means acknowledging how oppressive systems, including white supremacy, play a role in our justice system and society as a whole, as well as how that affects how an offender can reintegrate into community.

“Imagine a father who was incarcerated for a DUI, breaches because he’s the main provider for his family and his probation conditions don’t accommodate for his employment - the next step in that has been jail,” says Fabienne Javadli, a Gladue Report writer and resource support to Jason Gorman. “When we have the full picture, we can recommend incorporating traditional restorative practices including healing circles, Indigenous rehabilitation programs, and access to cultural communities.”

The idea is that sentencing happens after taking into account a person’s life history - where they came from, their culture, and traditions, which means that decision making is more informed and in line with restoration of a person, rather than simply ‘locking them up’.

A New Outlook

The Gladue Reports, as a means to restorative justice, is currently only available for those who identify as Indigenous and have access to legal representation who will advocate for the report to take place. Perhaps, someday, this type of action will include Black people, and eventually everyone who moves through the system. By taking into account trauma, mental health illnesses, poverty (which is trauma), and then putting together resources and roadmap to recovery likely has a far greater rate of success in terms of ‘rehabilitating’ someone and lessens the burden the family faces when a parent is incarcerated. The systemic issues that are prevalent in so many offender’s lives (racism, poverty, abuse, etc.) shouldn’t be the their burden to pay for - these issues are all of ours, and all of our responsibility to dismantle - changing our justice system to provide compassion, grace, and access to traditional and culturally appropriate support systems is vital for our entire society - if we truly wish for justice to be served.