Every nation has its own unique history of discrimination and unequal treatment, with most having a present history that places some minority groups at a marked disadvantage within subsets of societal life. In those states with recent or present histories of subordination and unequal treatment, the result of the majorities behavior and biases often culminates in the disproportionate representation of the minority group within the criminal justice and correctional systems. As a result, social movements and international legal bodies, including the United Nations, have pushed nations towards adopting anti-subordination and/or anti-classification laws and policies, such as the United States’ Fourteenth Amendment’s equal protection clause. International legal bodies tend to focus reform efforts on nations like Kyrgyzstan, Saudi Arabi, and Peru, where acknowledgement of subordination and racism has occurred, but efforts to enact comprehensive laws prohibiting such acts have not.[i] Less international regulatory attention is paid to developed countries, such as Europe and America, where laws, policies, and treaties to protect against subordination have been promulgated, but overrepresentation statistics of target populations nevertheless continue to rise as a result of ongoing subordination. Since international focus remains largely on developing countries, subordination in developed nations has a tendency to be overlook by international regulatory bodies until public outrage forces their attention. Arguably however, developed nations, with their formal and stable legal systems, are better situated to enact laws that may help reduce and remedy subordination. Therefore, this article will focus on implementing remedial sentencing legislation in developed countries.
If anti-classification laws – laws which “hold that the government [or entity] may not classify people either overtly or surreptitiously on the basis of a forbidden category: for example their race”[ii] – in developed countries alone are failing to effectively address prison overrepresentation resulting from past and present subordination, then what is to be done? One answer is remedial legislation and anti-subordination policies, which are laws and policies that are “not hostile to racial and sexual differentiations unless they perpetuate the subordination of … blacks [or Native Americans],” and where “the intention of the actor do not matter [but rather] how the actions feel to those acted upon” are of concern.[iii] Most commonly remedial policy occurs in the context of education admissions and equal employment opportunity policies. However, with the passing of Bill C-41 and Section 718.2(e) of the Criminal Code, Canada became one of the founders of what I now term “remedial sentencing legislation.” Such legislation permits, or mandates that judges consider certain factors, utilize their discretion in sentencing, and/or offer reduced or alternative sentencing options to qualified offenders. For instance, in the Canadian context, Bill C-41 introduced conditional sentences, which permit judges to allow certain offenders to serve their sentences in the community. Section 718.2(e) of the Criminal Code more directly targets Indigenous offenders (sometimes referred to as Aboriginal, Native American, or Indian) by instructing judges to consider, “all available sanctions other than imprisonment that are reasonable in the circumstances … with particular attention to the circumstances of aboriginal offenders.”[iv] This Article proposes that countries where prison overrepresentation statistics are tied to a history of subordination, abuse, or inequality, should enact remedial sentencing legislation alongside current anti-subordination laws and policies to assist in lessening overrepresentation statistics. It is argued by Paul Butler that without remedial sentencing legislation, judges and police offers who, for the most part, are members of societies dominant group, “tend to prefer people who look like themselves … which reinforces the status quo and stymies minority progress”[v] while contributing to their overrepresentation. In particular, the article will look to overrepresentation statistics in the Unites States of America as justification for implementing remedial sentencing legislation.
In discussing remedial sentencing, this article will begin with a discussion of the shortcomings of Canada’s Section 718.2(e) of the Criminal Code. It is necessary to understand where Canada fell short in applying Section 718.2(e) of the Criminal Code to comprehend how, despite its shortcomings in the Canadian context, remedial sentencing remains a useful tool for combating overrepresentation statistics caused by subordination. Thus, this article will present an overview of Canada’s Section 718.2(e) of the Criminal Code, it’s benefits and its shortcomings, before discussing best implementation methods for avoiding Section 718.2(e) of the Criminal Code’s pitfalls and ensuring remedial sentencing legislation success. Finally, the article will examine the need for remedial sentencing legislation in the United States context.
2. Canada’s Remedial Sentencing Legislation: A Critical Analysis
In Canada, remedial sentencing legislation is directed primarily at Indigenous offenders due to Canada’s history of adopting policies aimed at eradicating Indigenous culture and institutions, and displacing Indigenous persons.[vi] The final push towards remedial legislation came as a result of the Residential School Program. The Residential Schools were government funded, mandatory enrollment boarding schools whose aim was to eliminate the Indian problem by “deconstructing young Indians,”[vii] and assimilating them into euro-settler society. The program was officially terminated in 1996, leaving many survivors to deal with lasting impacts, including a heightened risk of substance abuse and criminal behavior.[viii] Also as a result of the Residential Schools, and other discriminatory practices, Indigenous representation in correctional facilities began to increase rapidly, rising from 11% in 1991-1992 to 15% in 1996-1997 in federal prisons, while representing just 3% of the larger Canadian population during the entire time period.[ix] The steady rise in Indigenous correctional representation led the Canadian government to pass Section 718.2(e) of the Criminal Code in late 1996, with the intent of reducing the overrepresentation of Indigenous persons in correctional facilities.[x] Unfortunately, since the passing of Section 718.2(e) of the Criminal Code Indigenous overrepresentation has continued to rise, with Indigenous persons in 2015 accounting for nearly 24.4% of the federal prison population while comprising only 4.3% of the total Canadian population.[xi] Critics of remedial sentencing look to the continued overrepresentation as evidence of the laws ineffectiveness. However, much of Section 718.2(e)’s “ineffectiveness” stems from poor implementation on the part of the Canadian government, combined with the introduction of mandatory minimum sentences which effectively override remedial sentencing options.
Though Section 718.2(e) of the Criminal Code initially received praise for recognizing the subordination of Indigenous persons, the legislation fell short since it was enacted in 1996 without guidelines to assist judges in determining how to interpret or apply the section. As a result, Section 718.2(e) of the Criminal Code was largely unemployed by judges, and therefore, ineffective in preventing Indigenous incarceration. In 1999 the Supreme Court of Canada set forth sentencing guidelines, now known as the Gladue report, within the landmark case, R v. Gladue. The judge in Gladue pronounced the following guidelines:
[i]n sentencing an aboriginal offender, the judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connections. In order to undertake these considerations the sentencing judge will require information pertaining to the accused … [while] additional case-specific information will come from counsel and from a pre-sentence report which takes into account the system or background factors and the appropriate sentencing procedures and sanctions.[xii]
While the Gladue guidelines were a step in the right direction, they nevertheless fell short, since the court “failed to specifically denote how Aboriginal background and circumstances, and the emphasis on restorative justice should be balanced with the legal objectives of sentencing like deterrence and denunciation.”[xiii] As a result, judicial confusion surrounding the use of Section 718.2(e) of the Criminal Code remained intact, with judges continuing to seek clarification today.[xiv]
Aside from the shortcomings of the remedial legislation relating to judicial instruction and guidance, the legislation was also implemented primarily as a standalone solution. Without support from other programming meant to tackle root causes of Indigenous overrepresentation, such as drug rehabilitation clinics, community programming for educational and employment opportunities, police sensitivity training programs, and increased government funding for reserves, among others, Section 718.2(e) of the Criminal Code is forced to shoulder too much weight, making it falter under the pressure.[xv] Whereas, if Section 718.2(e) of the Criminal Code were to be supplemented with other programming and/or legislation aimed at rectifying the underlying causes of criminalization in Indigenous communities, for instance, PTSD, poverty, and low education and employment rates, the remedial sentencing legislation might stand a better chance of reducing overrepresentation, since its job would be to assist primarily in rectifying police, jury, and judicial biases.[xvi]
Finally, the chance for Section 718.2(e) of the Criminal Code to effectively reduce Indigenous overrepresentation was undermined in 2012 with the passing of The Safe Streets and Community Act (herein “Bill C-10”). Bill C-10 introduced mandatory minimum sentences for a range of offenses, including those which disproportionately relate to Indigenous overrepresentation, such as, drug crimes. In passing Bill C-10, the Senate failed to include a safety valve provision to ensure the availability of Section 718.2(e) of the Criminal Code for Indigenous offenders sentenced under the bill.[xvii] As a result, judges have been stripped of the judicial discretion required by Section 718.2(e) of the Criminal Code.[xviii]
Notably, while Section 718.2(e) of the Criminal Code, thus far, has had minimal impact on Indigenous overrepresentation statistics, the mere presence of the legislation continues to provide hope within many Indigenous communities. Knowing that judges can, if they elect to, apply more lenient sentencing options, or sentencing options that are more likely to rehabilitate than punish, encourages Indigenous offenders faced with heavy prison sentences to appeal based on Section 718.2(e) of the Criminal Code grounds. By encouraging Indigenous offenders to appeal, Appeal Courts and the Supreme Court are given the opportunity to examine the usage of Section 718.2(e) of the Criminal Code, providing the government with useful data regarding areas in which increased support to combat Indigenous subordination is needed. For instance, the Courts can see whether Section 718.2(e) of the Criminal Code is primarily employed for drug related crimes, where the plaintiff is alleging racial profiling or targeted police practices. This data can then be used to develop training programs and community programs to help rectify the root causes of the identified problem areas.
3. Methods of Implementing Remedial Sentencing Legislation for Success
Canada may be the founder of remedial sentencing legislation, but admittedly, they did not perfect it. Therefore, countries wishing to follow suit and adopt remedial sentencing legislation should, legislatively, use Section 718.2(e) of the Criminal Code as a model, while also learning from Canada’s implementation mistakes, in order to increase the likelihood of success of their own legislation. First and foremost, countries must acknowledge that remedial legislation and policies are, for the most part, incapable of working efficiently when implemented without anti-classification laws, community programming to rectify underlying causes of criminality, and government admissions of wrongdoing.[xix] Since, as stated by Ralph Premdas, without community programming and government admissions the cultural divide remains too deep and the history of subordination too recent for remedial programming to be effective, especially when the dominate group refuses to adhere to the programming.[xx] Therefore, as suggested by Premdas, the “starting point [must be] a correct diagnosis of the problem of historical subjugation of entire ethnocultural communities in the multi-ethic state.”[xxi]
Once the lasting effects of subordination are identified, remedial sentencing should be implemented alongside other laws and programs meant to directly combat social bias and racism, as well as address and remedy the negative intra-group effects of subordination (i.e. drinking, drugs, poverty, unemployment, etc.). The companion laws and programs should include “passive polic[ies] that seek to ensure that discrimination will not be tolerated once it is detected.”[xxii] Remedial legislation will compliment passive policies and laws because it, in contrast, is proactive, seeking “not only to subvert, but also avert, discrimination.”[xxiii] Since aggrieved parties are not forced to wait until subordination is detected, they are not forced to come forward individually, but instead are provided access to the law simply by entering the criminal justice system.[xxiv]
After ensuring that remedial sentencing legislation is not enacted alone, the legislations maximum effectiveness can be achieved through a combination of means, including: (1) visible endorsement from executives, aka the federal government, politicians, Supreme Court and Court of Appeals judges, and high-level police officers in managerial or supervisory roles; (2) clear communication of the goals of the program; (3) clarity regarding the criteria or qualifications employed by, and within, the program; [xxv] (4) consideration of the community impacts of mass imprisonment and overrepresentation when considering punishment options, and what punishments are ethically just;[xxvi] (5) open dialogue with policymakers from the target group; and (6) providing justification for the policy, and more specifically, justification for the policies application to the target group.[xxvii]
Applying the six implementation recommendations in the Canadian context would have gone far to increase the effectiveness of Section 718.2(e) of the Criminal Code. For instance. though the government publicly endorsed the legislation, the justices did not when they failed to utilize the legislation because of their confusion surrounding its application. Since judges often failed to consider Section 718.2(e) of the Criminal Code, attorneys had no real encouragement to push for Section 718.2(e) of the Criminal Code’s application. With legal professionals failing to apply Section 718.2(e) of the Criminal Code, law enforcement officers were able to continue profiling and employing racial biases, leading to a continuation in Indigenous arrests. Much of prong one’s failures could have been avoided through proper employment of prong two and three, since judges would have been more likely to apply Section 718.2(e) of the Criminal Code if, from its enactment, the goals were clear, and the criteria and guidelines for use were well-defined and clearly articulated to avoid judicial confusion. Setting forth clear guidelines and alternative sentencing options would have been made easier had the government engaged in a more interactive process with the Indigenous communities most impacted by overrepresentation. Likewise, by engaging in open discussion with Indigenous community members and groups, the government would likely have been made aware of the lack of external programming for addressing the root causes of Indigenous criminalization. Once aware, the government could have continued to communicate openly with Indigenous communities to implement passive policies alongside Section 718.2(e) of the Criminal Code. Finally, had the government done a better job justifying the implementation of Section 718.2(e) of the Criminal Code, and articulating why it was necessary that it be applied to the Indigenous population, opposition groups may have been more receptive and mindful of the legislation, and as a result, they may have thought twice before enacting mandatory minimums in direct conflict with the judicial discretion requirement of the remedial sentencing legislation. Furthermore, use of prong four would have provided the legal drafters with a better understanding of how mass imprisonment associated with mandatory minimum and tough on crime focused policies would impact entire communities, and result in the continuation of subordination.
Regarding sentencing options, for best results remedial sentencing legislation should encompass a variety of alternative sentencing options, and include guidelines on when each sentence option should most often be employed. Examples of alternative sentencing options to be considered include: proportionate sentencing, including “fine, fine options, suspended sentences, probation orders, compensation orders … conditional and absolute discharges;”[xxviii] community sanctions, including community service; conditional sentences; reconciliation programs; restorative justice programs; and mandatory rehabilitation programming, among others. By clearly articulating a range of alternative sentencing options, judges are better able to comprehend what options, aside from incarceration, are available, and how they serve to help remedy subordination in comparison to incarceration. For instance, community sanctions and conditional sentences, allow offenders to serve their time in the community, possibly with a community service requirement. By serving their time in the community instead of in a prison, the impact on families and communities is lessened. When community sanctions are further combined with rehabilitation programming or targeted community service work, there is an increased chance that offenders will be rehabilitated, and therefore break the cycle of reoffending that is prevalent amongst overrepresented populations.
4. Remedial Sentencing Legislation in the United States of America
Within the United States, overrepresentation statistics can be seen amongst Black populations, with Black citizens and residents comprising approximately 34% of the prison population. Put into perspective this means “Blacks are about eight times more likely to spend time behind bars than whites.” Similarly, Native Americans in the United States “are incarcerated at a rate 38% higher than the national average, according to the Bureau of Justice Statistics.”[xxix] Both Black Americans and Native Americans have been the subjects of slavery, segregation, entrenched racism, racial bias, police profiling, and more. The effects of historic forms of subordination and discrimination have led to high rates of poverty, low rates of educational achievement, lower socio-economic status, and higher than average rates of incarceration. In fact, Paul Butler argues that “but for the fruits of slavery and entrenched racism, African Americans would not find themselves disproportionately represented in the Criminal justice System.”[xxx] Subordination of Blacks and Native Americans, however, is not a phenomenon that the majority left in the past, instead subordination and discrimination continues to occur in college admissions, employment, housing, police profiling, and beyond, to this day. And while America has adopted a number of anti-classification laws, overrepresentation rates have continued to rise.
Overrepresentation of Blacks and Native Americans impacts more than the sentenced individual. Mass imprisonment damages social networks, distorts social norms, and destroys social citizenship.[xxxi] Likewise, mass incarceration fosters distrust in the law and law enforcement officers amongst minority members, which helps to perpetuate the cycle of criminalization. Given the damaging effects, both on individuals and communities, of the United States over-sentencing of Blacks and Native Americans, Dorothy Roberts argues that the United States continuation of “mass incarceration … is not only morally unjustifiable, but morally repugnant.[xxxii] And since, as Paul Butler noted, “there is no arena of American life with more unfortunate and disparate racial consequences than criminal justice,”[xxxiii] the United States is seemingly an ideal candidate for remedial sentencing legislation. In fact, both Roberts and Butler, advocated for remedial legislation, with Roberts specifically pointing to Canada’s Section 718.2(e) of the Criminal Code, as an example.
Remedial sentencing legislation comparable to Canada’s is plausible in the United States context, since “the United States Supreme Court has interpreted the Constitution to give Congress broad remedial powers to remedy prior discrimination.”[xxxiv] Specifically “the United States Supreme Court has interpreted the equal protection clause [in the Fourteenth Amendment] as permitting affirmative action programs that remedy past discrimination.”[xxxv] Courts subject remedial and affirmative action legislation to a “strict scrutiny” standard by employing three prongs:
[f]irst, the Court examines the basis of authority under which the government entity is passing the affirmative action legislation. Second, the Court determines, based upon findings of prior discrimination, whether the legislation was remedial in nature. Third, the Court determines whether the remedy is narrowly tailored to redress the past findings of discrimination.[xxxvi]
Notably, the Courts have held that general societal discrimination fails to justify a racial preference, meaning subordination needs to be linked to present Black and/or Native American criminality to justify remedial legislation.[xxxvii] Moreover, to be accepted in the criminal arena, remedial legislation must be narrowly tailored to pass the courts strict scrutiny test. The strict scrutiny standard presents a hurdle for passing remedial sentencing legislation in the United States at the federal or state level for application in federal or state prisons, however as Paul Butler notes, “the conceptual leap has been accomplished” in areas such as racial gerrymandering. Ultimately, Butler notes that the “real battle to be waged is on the political front,” with advocates and lobbyists pushing for change while simultaneously demonstrating the need and benefit of remedial sentencing legislation.[xxxviii]
For Native Americans specifically, remedial legislation should also be adopted by tribal courts. Since tribal courts are not required to adhere to the strict scrutiny standard when adopting remedial legislation, passing remedial sentencing legislation may be easier than in federal or state courts. If so, tribal court experience with remedial sentencing legislation could provide the evidence that advocates and lobbyists need to make a successful political push towards remedial sentencing legislation adoption on the federal or state level. Regardless of whether tribal courts or federal/state courts implement remedial sentencing first, the continuing presence of racial and ethnic subordination, combined with rising correctional facility overrepresentation statistics means it is time for change. Remedial sentencing legislation is but one tool that the United States should employ, to begin addressing disproportionate representation in correctional facilities, and larger cases of continued subordination.
[i] United Nations Human Rights Office of the High Commissioners, Committee on the Elimination of Racial Discrimination Discusses Anti-Discrimination Efforts in Kyrgyzstan, Peru and Saudi Arabi with Civil Society (April 2018), available at https://ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=22994&LangID=E.
[ii] Jack Balkin and Reva Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. Miami L. Rev. 9, 10 (2003-2004).
[iii] Ruth Colker, The Anti-Subordination Principle: Applications, 3 Wis. Women’s L.J. 59, 60-67 (1987).
[iv] Criminal Code, RSC 1985, C-46, s 718.2(e).
[v] Paul Butler, Affirmative Action and the Criminal Law, 68 U. Colo. L. Rev. 841, 861 (1997).
[vi] The Canadian Encyclopedia, Gradual Civilization Act (last modified Mar. 3, 2006), available at https://thecanadianencylopedia.ca/en/article/gradual-civilization-act
[vii] Alberta Regional Professional Learning Consortium, Conversation Guide: history and Legacy of Residential Schools, 2 (2017), available at http://empoweringthespirit.ca/wp-content/uploads/2017/08/History-and-Legacy-of-Residential-Schools-Sept-2017.pdf
[viii] Brenda Elias, et al., Trauma and Suicide Behaviour Histories Among a Canadian Indigenous Population: An Empirical Exploration of the Potential Role of Canada’s Residential School System, Soc. Sci. & Med. 74, 1562-63 (2012); see also, Amelia Ross, et al., Impact of Residential Schooling and of Child Abuse on Substance use Problem in Indigenous Peoples, Addictive Behaviors 51, 186-87.
[ix] Micheline Reed and Julian Roberts, Adult Correctional Services in Canada: 1996-97, 85-002 Statistics Canada 18.3 (1996), available at https://www150.statcan.gc.ca/n1/en/pub/85-002-x/85-002-x1998003-eng.pdf?st=7Cb_JNDu
[x] May Lydia Yeh, Restorative Justice, Affirmative Action Sentencing Legislation and the Canucks: Lessons From our Northern Neighbor, 7 Wash. U. Global Stud. L. Rev. 661, 669 (2008).
[xi] Office of the Correctional Investigator, Canada, Annual Report of the Office of the Correctional Investigator 2014 – 2015: Aboriginal Corrections (2015), available at http://www.oci-bec.gc.ca/cnt/rpt/annrpt/annrpt20142015-eng.aspx#s8
[xii] R v. Gladue,  1 SCR 688, at 690.
[xiii] Meaghan Irons, Section 718.2(3) of the Criminal Code and Aboriginal Overrepresentation in Canadian Politics, Scholarship@Western, 9, 11 (2018).
[xv] Id. at 7.
[xvi] Id. at 8.
[xvii] Renee M. Pomerance, The New Approach to Sentencing in Canada: Reflections of a Trial Judge, Canadian Crim. Law Review 17.3, 315 (2003).
[xviii] Id. at 307
[xix] See generally, Ralph Premdas, Social Justice and Affirmative Action, 39 Ethnic and Racial Studies Review 3, 449-462 (2016).
[xx] Id. at 460.
[xxii] Faye Crosby, Aarti Iyer, and Sirinda Sinchareon, Understanding Affirmative Action, 57 Annu. Rev. Psychol. 585, 587 (2006).
[xxv] See generally, Faye Crosby, et al. Understanding Affirmative Action, 57 Annu. Rev. Psychol. 585, 594-96.
[xxvi] Dorothy Roberts, The Social and Moral Costs of Mass Incarceration in African American Communities, 56 Stan. L. Rev. 1271, 1301 (2004).
[xxvii] See generally, Faye Crosby, et al. Understanding Affirmative Action, 57 Annu. Rev. Psychol. 585, 594-96.
[xxviii] Bruce Archibald, Sentencing and Visible Minorities: Equality and Affirmative Action in the Criminal Justice System, 12 Dalhousie L.J. 377, 395 (1989).
[xxix] Jake Flanagin, Native Americans are the Unseen Victims of a Broken US Justice System, Quartz (April 27, 2015), available at https://qz.com/392342/native-americans-are-the-unseen-victims-of-a-broken-us-justice-system/.
[xxx] Paul Butler, Affirmative Action and the Criminal Law, 68 U. Colo. L. Rev. 841, 844 (1997).
[xxxi] Dorothy Roberts, The Social and Moral Costs of Mass Incarceration in African American Communities, 56 Stan. L. Rev. 1271, 1281-96 (2004)
[xxxii] Id. at 1273.
[xxxiii] Paul Butler, Affirmative Action and the Criminal Law, 68 U. Colo. L. Rev. 841, 857 (1997).
[xxxiv] Kenneth Russell, Constitutional Law: Evidentiary Standards Required to Pass Affirmative Action Legislation, 61 Temple l. Rev. 931, 939 (1988).
[xxxv] Id. at 931.
[xxxvi] Id. at 945.
[xxxvii] Id. at 934; see also Paul Butler, Affirmative Action and the Criminal Law, 68 U. Colo. L. Rev. 841, 875 (1997)
[xxxviii] Paul Butler, Affirmative Action and the Criminal Law, 68 U. Colo. L. Rev. 841, 876 (1997).