Transcript — Indigenous welfare: How poverty is leading to longer sentences
Hello. Welcome to this edition of Sentencing Matters, a podcast from the Queensland Sentencing Advisory Council.
Voiceover (music): Sentencing matters - a podcast that informs, engages and advises on sentencing issues in Queensland.
I'm Debbie Kilroy, and I'm a member of the Queensland Sentencing Advisory Council. In this edition, I'm speaking with Canadian Senator, Kim Pate. Kim was appointed to the Senate of Canada in November 2016. She has many decades of experience advocating for marginalised, criminalised, racialised, and institutionalised people in the prison system in Canada. Prior to her appointment in the Senate, she worked with women and girls in the justice system and has long advocated for women in prison. She's considered one of the driving forces behind the commission of inquiry into certain events at the prison for women in Kingston. The commission investigated the mistreatment of women and resulted in the closure of that prison. Senator Pate, thank you for joining us.
Could you just tell us why did you start advocating for women and girls who are criminalised and imprisoned?
Prior to that, I worked with men and young people, and I did volunteer work in the women's community. A number of people recommended, including someone who was at the time my supervisor, he was head of what was called the John Howard Society of Canada, similar to Elizabeth Fry where I went to work, and suggested that I combine those two by working with CAFES, Canadian Association of Elizabeth Fry Society, so I did. When I went there I didn't think there would be much difference between men and women, but I was woefully, woefully misinformed and very quickly saw huge differences. Things like women were more likely to be in jail for longer periods of time than men were for committing the same offences. We saw the majority of women who had children, their children ended up in state care whereas the majority of men's children ended up in the care of family or friends, basically their mothers often.
I also saw that many of the women pled guilty. The over-representation of Indigenous women was even far greater than it was Indigenous men. Right now, as I sit here, about a quarter of the jail population in Canada is Indigenous peoples. If we look at women alone, they're about 39%. If we look at girls alone, 43%. The last stats that I've seen, 43% of girls in custody are Indigenous girls. Huge over-representation. As well, that's where we first saw the trend of increasing numbers of women with mental health issues, and to some extent those with intellectual disabilities as well in the prison system. Essentially, we were seeing all of the places where women were cut from services, social services, healthcare, education, protective, if you would, services, where they were cut often because women don't complain.
Places also like social assistance where we had huge cuts to our social assistance, which you call your, I think, your Centrelink programs here. It led to creation of infinitely criminalise-able groups. We didn't take violence against women seriously. We had over-representation of Indigenous women. We had almost all of the people going into prison were poor people. We saw this huge over-representation. It was most stark when I started working with women. You saw very clearly how it's all of those intersections of inequality really came together. You saw a very different population than the population I'd worked with when I worked with men or even with young people.
Just as you describe, what has happened and continues to happen in Canada, it's actually quite frightening, the parallels between our two countries, Australia and Canada, particularly for women, Aboriginal women. I was just wondering if you could talk a bit about your view of mandatory minimum sentencing.
Well, in Canada we, over the last 20 years, we have had a massive proliferation of mandatory minimum sentences. I think that's true in your country. It's true in many countries around the world. We've seen both a hardening up of the prison system and a reduction in the ability of judges to utilise their discretion in sentencing. That's a huge issue when we know that the people who know most about the individuals they’re sentencing are the very people who have heard all the evidence. Even if the person has pled guilty, which too often women do without having a trial, even then you have access to the sentencing material.
For judges to have that discretion removed and because of really often political reasons, mandatory minimum sentences be or penalties be imposed because sometimes they're not just sentences, they're penalties like victim surcharge, they're being put on registries, that sort of thing. To have those sorts of penalties imposed without the discretion of a judge who's heard all of the evidence, to be able to say, ‘Well, that may be the standard we've set or that we've decided as courts, may be appropriate in some cases, but here's a reason why we should actually not be imposing the most harsh penalty or this particular provision.’ What we know is when we impose mandatory minimum sentences we actually see the discriminatory patterns of the sentencing process heightened. We end up with more and more poor people, more and more racialised people, particularly Indigenous people in your country and in Canada, and we see more and more people with the very issues that prevent them from having often viable defences because they don't have lawyers or they don't have lawyers who... they can't afford to have... mount the types of defences that could achieve differences.
I use the example in Canada, and I'll use it here, even though impaired driving is not a criminal offence as I understand it here, in Canada it is. It is the most litigated area because wealthy people get charged with impaired driving. Even though we have mandatory minimum sentence, there's a provision in there that many people in our country don't even know about, that if you actually can afford to go to treatment, if you can get a judge to agree and a Crown prosecutor to agree that you could go to treatment, you can actually be exempt from that mandatory minimum. Well, guess who gets that? It's mostly people with money and resources who can afford treatment, who can afford to go sometimes to the United States or somewhere else to have all of those issues ‘dealt with’ quote/unquote.
When you say impaired, you mean driving whilst...
Drunk driving and drug driving, yes. Would it be correct in saying that you agree that no matter what the offence is, including driving offences and criminal offences, because we do call them traffic offences here and criminal offences, and there are some driving types of offences that are criminal offences like driving causing death or causing grievous bodily harm, et cetera, but any type of offence, would you agree that none of them should have mandatory minimum penalties?
Yes, I think that mandatory minimum penalties skew – it both hides the discrimination and exacerbates it. What I mean by that is it looks like the law's being applied equally to everybody, but I often use the Anatole France quote, which is from the 1700s in France, and it goes something like, ‘The law applies equally to the rich and the poor, neither is permitted to steal bread or sleep under bridges.’ So a mandatory minimum acts like that. It looks like on its surface it's fair because whoever comes before the court will be treated the same way, however we know only certain people are likely to come before the courts in the first place because some will be diverted out because they won't be charged by the police. Some will have opportunities to be diverted after charge because of resources or authority or power or influence. Some will actually go before the courts and in situations like I've described examples or ways to get around that may be found.
I've seen people declared incompetent even though you or I might be found to be competent to stand trial, someone else may not be because they can afford to go to 10, 15, 20 psychiatrists until someone finds them incompetent. We know that the law isn't applied fairly in the first place. Mandatory minimum penalties create the impression that they are. The flipside is because it's only certain people who are likely to be charged or are more likely to be charged, then they're more likely to get longer sentences as well. Where the judge may see circumstances, whether it's intergenerational issues or... I think for murder, for instance, in our country, many of the women serving sentences for murder or manslaughter have actually killed someone or used lethal force against someone who was abusive to them. Very few of them even mount a case of self-defence. Very few of them is that reactive violence fully contextualised. They would be a perfect example of where someone might say, ‘Well, except for murder’.
In our country, that has been the stumbling block. Our government is saying we are very interested in looking at alternatives to mandatory minimums for almost every offence except murder. One of the things we're bringing forth is the fact that the reality is that not everybody convicted of murder has done something that was planned, premeditated in the way that many people think first degree murder is described. One of the bills that I'm in the midst of putting together and planning to propose and I've offered to our government is a bill that will allow judges to exercise the discretion to not impose mandatory minimum sentences because one of the things that we've been caught up in is which mandatory minimum should we get rid of. It becomes a bit of mug’s game eventually because everybody's arguing about, ‘We don't want mandatories for this’. Very good people end up in an argument about which mandatory minimums should we get rid of.
A much smarter man than me, a man who is a Member of Parliament and also a former Minister of Justice in Canada, Irwin Cotler, had come up with this idea that we have a new bill that would allow judges to not impose mandatory minimums. That's essentially what I've taken and then expanded upon and created some pre-ambulatory language to try and drive that home.
That will be through the Senate?
That will be through the Senate, and then it will have to go back to the House of Commons. It may take us a few tries, but my view is, and certainly from talking to people in our country, your country, New Zealand, many parts of the world, is most people if you ask them the simple question, should someone who's done crime do the time, almost everybody will say a knee-jerk response yes. The minute you peel back even the first layer of that though, in my experience, people will actually make a much more nuanced decision.
Nowhere have I ever found where the first response is going to be let's first put someone in jail. Most everybody wants to know why did it happen, how can we prevent it happening again. With a few cases where a child has been killed, where it's a planned premeditated particularly heinous crime, you may have people saying, ‘I want to prevent other people’, so they may still go to jail as an option, but still with that most people will want to know how do we stop this from happening in the future. How do we prevent this person being created in another person in the community?
Most people want to be able to unpack that. Even in those situations, in my experience, people want to know ‘how do we stop it from happening?’. It's also why we have judges and why we have a system that doesn't allow... I mean, if my son or daughter was killed I know that my initial response might very well be one that I would not be proud of 10, 15, 20 years down the track, that it may very well be a response of, ‘Just let me at that person.’ That's why we've set our system up the way we have, so that it's actually we pull that back, we hopefully provide supports for people who have been victimised. Basically whoever was harmed went out and exacted harm against the people who perpetrated the harm that they experienced.
The reason we've set up legal systems is to actually be able to pull back and look at the entire system and say, ‘Okay. How did we end up here in the first place and how do we stop it from happening in the future? How do we deal with this person that's before us? How do we prevent it from happening to other people?’. That's the pieces of the system that often, especially I would say in the last 20 years, have become very confused in the public's mind.
Many people will say we've had the rise of… I say so-called victims groups not because there aren't people who are victimised, but I've yet to meet a person in prison who hasn't already themselves also experienced some level of victimisation. In Canada, 91% of the Indigenous women, 87% of the women overall have histories of physical and/or sexual abuse. When we talk about Indigenous communities and residential schools and the missing and murdered Indigenous women in our country, we know that the level of victimisation is significant. What we really need to be doing if we're wanting to talk about victimisation is step back and say how do we actually prevent more people from being victimised and then we'll prevent more people from also being criminalised and institutionalised instead of setting up more vengeful or regressive types of systems.
Yeah. Thinking about the criminalisation, particularly of Aboriginal women, for example. We are seeing through data collection that young Aboriginal women are being charged with more violent types of offences. Is that something that you're seeing in Canada?
In Canada, we talk about ensuring that people understand the links between the increasing numbers of Indigenous women, particularly girls coming into the system, and the missing and murdered Indigenous women inquiry that's happening, and a woman named Cindy Blackstock, who on behalf of First Nations Caring Society, is arguing for equal access of children to healthcare and educational and social services in Indigenous communities.
Some might say, ‘How are all those related?’. Well, the way they're all related is young people, young indigenous girls in particular, learn very early that although they will be over-policed, they will be under-protected by the state. That if they go missing, there's less likelihood that police will be looking for them than if they were non-Indigenous girls. If they've experienced violence, they are less likely to experience or have supports in place to assist them to deal with the aftermaths of that violence.
In fact, increasingly any response to them will be a pharmacological or a pathologising response. What I mean by that is they'll be either encouraged to take drugs, legal drugs, or they'll be pathologised, they'll be told they have behaviour problems and/or personality problems, and then may start anaesthetising... may take legal drugs and then start anaesthetising themselves beyond that. They still remain targets as we've seen with the inquiries and as we see with the history of women who are in prison. They remain targets. What they're essentially told by all of those responses is they're essentially deputised to protect themselves. Then the minute they do act to protect themselves or their children or their sisters or their aunties or their mothers or anybody else in their family, the full weight of the law comes down to criminalise them and often imprison them.
We see the lack of response of the state to protect them and the deputising of them to essentially protect themselves, and then the criminalising of them when they actually do act to protect themselves. When we see increasing numbers of young women coming in with violent offences, oftentimes they're pleading guilty to those offences. Not always are those offences being unpacked about what actually was happening. If they are unpacked, they tend not to be put in full context of whether it's the intergenerational issues they're dealing with, whether it's the particular violence that was a threat to them in that moment, or whether it was what they thought they had to do to ward off violence in the future. Some of those will look very different. Some will look like premeditated acts even when they are actually acts that young women are taking to try and prevent themselves or someone they care about from being harmed.
I think, for instance, an example of a young woman who was charged, actually she and her sister were both charged with premeditated murder. What they were doing, what they responded to was a man who had... everybody in the community knew had victimised a number of young women. Everybody in the community knew he was doing that. The way he did it was that he would invite them over to his house and he'd allow underage girls to drink and do drugs. Many of these young women were already at risk in other ways. He'd bring them over and then he would quote/unquote ‘take advantage of them’. What he was actually doing was raping them. These two young women, we don't even actually know, they don't know, and most everybody around them doesn't think they actually killed this man, but they were the only ones left when he was found dead in the house. They were still there – they had been passed out – and they took responsibility. Both of their lawyers said there's going to be no hope of you fighting this.
When you talk about young women in for very violent offences, I can't think of something more violent than being convicted of first degree murder, and they were, and yet the context I think is vital to understanding whether in fact one, they're a risk to anybody else. Chances are not. First of all, do we even know it was them? We don't. Chances are even if it was them, are they a risk to anybody else? No. Is it even conceivable? Well, possibly, but only if you've got a predator coming after them again in the future.
When we know that context and it's really important in regards to sentencing or whether they get sentenced or not. What can we do to influence public opinion so that they understand the context of this type of offending or any type of offending really?
I think part of it is exposing these stories. Exposing these injustices that happened to people and having people recognise they're not anomalous. I've just had this pointed out or starkly come to reality for us in Canada because there was a mother of a woman, Ashley Smith, who died in a segregation cell in Canada. Unlike most families, her family, after a period of grieving, were clear that they wanted exposed what had happened to her. Her mother very courageously said, ’If I don't understand how she died’, she had gone into custody at 15 on a breach of probation, had accumulated sentences inside. By the time she died in adult custody she had been transferred, she had been tasered, she'd been pepper-sprayed, she'd been duct taped... on and on the travesties went. The law had been breached all over the place in her treatment.
Her mother wanted to understand herself, but said, ‘I want the entire country to understand what happened to my daughter’. That is so unusual. Most families are just as cowed and just as shamed by the criminal justice label or the prisoner or accused or conviction label as are their family members who carry those labels. It was highly unusual. We went through in methodical, meticulous detail and unpacked that entire piece. At the end of the day, everybody in Canada who knows that story would say it was a travesty. Here was a young woman who clearly had some mental health issues, and she was criminalised and imprisoned and killed in the system. Her death was ruled a homicide by the jury, the inquest jury. Everybody will now recognise she should never have been in prison. I thought, okay, this is great. Here we've got a great exemplar of what's wrong with the system.
That impulse, though, to marginalise those stories is so great that even now academics who I know and I respect, lawyers who I know and respect will talk about her case as anomalous even though part of the reason we meticulously went through is we wanted to show how typical her story was and how there are many, many more men, women and young people in the system who similarly have been dealt with the way she was, and yet people have essentialised her story and still want to believe it's an anomaly. That was terrible what happened to her, but it isn't happening to other people. I have to continuously remind, particularly academics and lawyers, that she wasn't... just recently someone said in the national media, ‘Well, Ashley Smith, everybody knows she should never have been jailed because she had mental health issues’. I went back and reminded people that actually when she died she was still not identified by corrections as having mental health issues. It was only after she died and after we unpacked everything that everybody now agrees she had mental health issues.
I wish I had an easy answer for you about how you fight that public opinion. I think it's persistently and consistently unpacking those stories and exposing the narrative that is put forth. As I say to law students or doctors or lawyers when I'm doing training sessions, always consider who benefits from the perspective you're being asked to accept.
One of the most crass ways, as much as I hate it, one of the things that I've found has been working with more conservatively minded, fiscally conservative folks, is to actually talk about the costs and the fact that we are spending in Canada, the parliamentary budget officer found in 2010 we're spending $343,000 minimum a year.
Per person. Per woman per year. In our country men are kept in separate institutions depending on their classification level, but women are all kept in one institution in a multi-level institution. Women who are classified as maximum security are all held in what's essentially a supermax. It's higher than any security level available for men. We know the costs are astronomical. The parliamentary budget officer estimated it may be more than $600,000 per year per woman in those cells. We say if you've got a woman going to jail because she's been abused and she's fought back, if you've got a woman going to jail, about 80% of our convictions are for fraud, poverty-related and essentially fraud cases...
They're going to prison because they're poor.
Yes, they're going because they're poor. We're now taking them out of the home. Two-thirds of them are mothers, the majority of them sole supports to their kids before they go to jail. 90% of those kids end up in child welfare system. You add on then the cost, human cost, social cost, and the financial cost, we're talking upwards of at least half a million. Even the most conservative estimates, $200,000 per year depending on what level of custody, up to over a million dollars per year. What could communities be doing if they invested those resources in the community not just to benefit that one person who's now incarcerated, but the entire community? What housing could you put in place? In our country, what water treatment plants? We've got more than 100 reserves, Indigenous communities in the country, that have no clean water. What kind of education systems could you put in place? What kind of housing initiatives? What kind of healthcare initiatives? What kind of childcare initiatives could you put in place?
Everybody knows the answer to that, which is a whole lot more than is in place now. What do you achieve by putting people in prison? Well, you put them in. You may separate them for a period of time. If they don't die in there, the presumption is most of them are coming back to our communities and we don't want them coming back more harmed than when they went in, but many do come back with... particularly those who end up in more isolating conditions and subject to uses of force and all the things that happen. Don't you want a community that is better resourced to actually prevent people from ending up there, and if they do end up there have them come back into the community in a way that's going to assist them to integrate into the community?
A lot of people would say that it's about we want to feel safe, that prison makes us feel safe and ensures community safety.
Well, we know that that's not accurate. If that was true, the United States would be the safest place in the world to live because they have the most punitive and longest sentences, harshest penalties and the like. We know that's not true. We do know that some of the countries that have invested in social programs, healthcare education, particularly some of the Scandinavian countries have the lowest crime rates, the lowest imprisonment rates, and the highest standards of living. Presumably, everybody wants that. Of course, we want to be safe, but the presumption that jail keeps us safe is... I know some people still believe that, but if you start to unpack this it's hard to find people who actually can still stick to that. Even people will say, ‘Well, at least for the period of time they're in custody they may be away’. If your interest is having people not to harm someone, then we can think of all kinds of other creative ways to keep them away from the people they're harming.
In Canada I've had some of the Indigenous communities talk about setting up... essentially using old ideas of banishment to say we want 20 good men to take the men who are causing problems and work with that one guy. Have 20 good men mentor him so that he learns how to not continue to do the behaviour. That's just one idea.
It's like the community is relying on the prison industry so much more for everything. Which brings me to a question around, I suppose, when we talk about Aboriginal people and the mass incarceration, over-representation of Aboriginal people. Canada has Gladue reports. Can you talk a bit about Gladue reports and the pros and cons of those reports in regards to sentencing for Aboriginal people?
Gladue reports are essentially pre-sentence reports that have been developed particularly for Indigenous people. In Canada, they're called Gladue reports because a young woman, Jamie Gladue, her case was taken to the Supreme Court in Canada to challenge the decision of the judge who sentenced her not to apply the provisions of the criminal code to her. Those provisions go back to the mid-90s. They were changes in the Criminal Code that were brought into effect at the same time as new corrections legislation was brought in. Part of the objective was to discourage judges from sentencing not just Indigenous people but all people to prison. Section 718.2(e) of our Criminal Code of Canada says that prison should be used as a last resort. We should use restraint with imprisonment. In particular, that applies for Indigenous people. That's where that comes from.
The name Gladue comes from Jamie Gladue, who never got the benefit of one of those reports. In fact, ironic would be the kindest way to describe it. In fact, if you read the Supreme Court of Canada decision, Jamie was a 19-year-old young woman who was in a relationship with a man who everybody knew was incredibly violent towards her. She was pregnant with her second child by him. The night that she stabbed him, he had just raped her younger sister. He'd broken into the apartment where her sister was. Had come back and beaten Jamie up. When Jamie stabbed him, he was trying to get back into the apartment where her sister was. If you read the facts of that case, as most law students do in our country and probably elsewhere, it's described as Jamie was a jealous wife who thought her common law husband was having an affair. Vastly different from what the preliminary inquiry alone showed.
There was racism at every level of the system. The police who intervened, her own lawyer, the Crown prosecutor. In Jamie's case the judge heard all of the evidence, recognised that but for the day she would likely have been the victim, and tried to give a lesser sentence. But part of the reason he didn't give a lesser sentence was he was trying to decide whether he should apply this provision of the Criminal Code. He made an offhand comment that it didn't apply to anybody living off reserve, any Indigenous people living off reserve. That became the point upon which the case was, in the end, argued all the way up to Supreme Court of Canada. That's why they're now called Gladue reports even though Jamie never had the benefit.
It actually clouded completely the injustice of how a battered girl really, a very young Indigenous women who was repeatedly battered and was clearly trying to defend herself and her sister, never got the benefit of self-defence. Instead, it gets described as she got some sentencing discount, which was not true. I think what it really underscores too is instead of fundamentally rethinking what we're doing in our criminal justice system, we keep trying to add on and fix it. Sometimes it's because it makes us feel better, it's a kinder, gentler way. Sometimes it's because we have really great champions who see a way to... for instance, we have a number of people in our country who have set up special circumstance courts. Best of intentions, intending to say get Indigenous people out of custody, people with mental health out of custody, people who are experiencing violence in the home out of custody. They're all well-intentioned, but in my experience they merely are widening the net of social control and widening the criminal justice, the capture.
Instead of saying things like, ‘Okay. This is someone with mental health issues, they shouldn't even be being criminalised. Let's get them out of the system entirely. Let's look to resourcing the mental health systems appropriately. This is someone who's clearly experienced violence, has never had the support to deal with the violence they've experienced, let's get them out of the system and deal with that. Indigenous people, intergenerational impact of everything from, in our country, residential school, historical colonial abuse, generations of poverty, let's deal with that and get them out.’ I think it makes many of us feel better to think we're being kinder and gentler in a different system, but it doesn't necessarily change the trajectory we're on.
I'm not someone who actually doesn't believe in the Rule of Law. Not everybody who will talk about prison industrial complex will say this, but I actually do think there's a rule for law. I want there to be a standard that people can look to and say, yeah, it's not okay to bash your wife. I was in law school when marital rape was introduced. Before that time people actually would argue if a woman chooses to be married, then she chooses to make herself sexually available to the man she marries for the rest of her life. I don't think it was bad that those provisions were brought in place. The problem comes when we actually don't provide supports for other options to be in place to prevent people from being victimised.
I don't want to see the law change to say it's okay... it's not okay to hurt people, but I do think we could be doing very different things once we engage that law. We shouldn't engage that law unless we actually need to do so to ensure that someone gets the message that they clearly shouldn't be doing what they're doing. That doesn't mean that they should then go to prison, but it does mean that we should be looking at different ways to hold people accountable.
Holding people accountable too sort of brings me to... I'm thinking around when someone is in prison. You spoke before about men have different prisons with different levels of classification. Where women, because of the smaller numbers, I suppose, corrections would argue, we have a maximum security prison that holds all women in at all classification levels. We do that here in Queensland as well as other jurisdictions around the country and in Canada. What does it mean really at the end of the day when someone is sentenced to a term of imprisonment, however is looking to be released but caught up in the classification system of the corrections framework?
Women tend to be over-classified. A case called Ewert that's going before the Supreme Court of Canada in Canada is challenging the raced, classed, gendered and ableist discriminatory patterns of the classification scheme that's in place that many jurisdictions, including Queensland’s, has modelled. I mean, oftentimes you're using here classification mechanisms and metrics that have been essentially debunked and thrown out in Canada. We're about to have the Supreme Court of Canada look at another challenge that way. One of the things that happens is when people go into custody they tend to be, particularly if they're women, particularly if they're Indigenous prisoners often are over-classified. What that means is you have a more reduced likelihood of getting access to the programs you need to jump through the hoops to get to the parole board to get out. You're also less likely to have visits. You're also then less likely to be able to integrate early into the community.
We have about half of the women who are classified as maximum security in our country are Indigenous prisoners, are Indigenous women. They are the least likely to be reduced at the earliest points in their sentence. They're more likely to be reduced at what's called statutory release, which as the name would indicate the correctional service has a statutory responsibility to release them, but even then if they find there's a reason why they don't have a placement for them they can say that because there's no placement that means they're at increased risk still to the community and that can actually keep them in to the very end of their sentence. Not having those mechanisms in place and not having resources in place means that you actually cause people to serve not only longer sentences, but more punitive sentences and have fewer opportunities to get out.
It's been great speaking to you, Kim. I hope that everybody's enjoyed this edition of Sentencing Matters. For more information on sentencing issues in Queensland, you can head to our website, sentencingcouncil.qld.gov.au. Thank you.