The criminal justice system is not working. When it comes to Indigenous offenders, we are making the situation worse.

Canadian policymakers became concerned in the early 1990s about the extreme proportion of Indigenous people being incarcerated. The Criminal Code was changed in 1995 to require judges to consider sanctions other than incarceration — for all offenders — and to pay particular attention to the circumstances of Indigenous offenders.

The incarceration rate continued to increase.

In 1999, the Supreme Court of Canada released the R. vs. Gladue decision which reminded judges of the changed legislation and mandated a change in the sentencing regime when dealing with an Indigenous person.

The incarceration rate continued to increase.

In 2012, the Supreme Court released the R. vs. Ipeelee decision. This time the court was blunt and told judges they were mandated to follow the legislation and the previous court decision in Gladue.

The incarceration rate continued to increase.

It has continued to this day. Now we are locking up more women and children than ever before.

'Incarceration is contagious'

Mere tinkering with the system has not worked. We have been talking about this problem for almost 50 years. Despite the talk, despite the expense of holding conferences, despite bringing together the experts, the incarceration rate continues to climb.

Incarceration does not deter crime. The best predictor of whether someone will commit an offence is whether they have ever been incarcerated.

Minimum sentences do not deter crime. Longer and harsher sentences do not make for safer communities because the offender must at some time be released back into society.

The justice system was never designed to repair broken cultures. - Harold Johnson

There are some people who are so unhealthy that they are a danger to themselves and others. These people — Clifford Olson, John Crawford, Robert Picton — must be separated for the safety of society. For this set of people, prisons are a solution. But the vast majority of people in the penal system are there because we cannot imagine anything else to do with them.

When I was prosecuting in northern Saskatchewan, I knew if an offender was sentenced to a provincial correctional centre, they would return angry. If they were sentenced to a federal institution, they would return angry and mean.

Incarceration is contagious. The more we incarcerate, the more we have to incarcerate. In many Indigenous communities, incarceration is epidemic, if not pandemic.

The cycle of trauma

When I was prosecuting, I noted that 95 per cent of offenders were in court for something they did while intoxicated by alcohol. About 15 to 20 per cent of them had addictions. The majority were simply overindulgence and the resulting violence.

Thirty-five percent of Indigenous Peoples in Canada refrain from any alcohol. Compared to the abstinence rate for Canadians as a whole — 18 per cent — there are twice as many sober Indigenous people. These abstainers rarely if ever come into conflict with the criminal law.

Harold R. Johnson was a finalist for the 2016 Governor General's Literary Award for non-fiction. His book Firewater examines the intersections of alcohol and the justice system. (University of Regina Press)

The residential school system traumatized Indigenous Peoples. Now, the violence associated with overindulgence continues to traumatize our people.

We then bring this traumatized person to court and traumatize them more with a preliminary hearing, then add more trauma with a trial, then sentence them to jail where we know they are likely to be severely traumatized. Then we release them back into the community and ask them if they learned their lesson.

The justice system was never designed to repair broken cultures. It was never designed to treat trauma and it does a poor job of recognizing the problems associated with overindulgence of alcohol.

Back in its formative years, the common law declared "he that killeth a man when he is drunk shall be hanged when he is sober." More than 500 years later we still attempt to apply that principle with detrimental results.

The justice system has failed Indigenous people and it has failed us miserably. Not only has it failed to provide protection, its overreliance on jail as a deterrent has made our situation worse.

Replace deterrence with redemption

The solution to this situation is for communities to take back control of justice. I am not about to tell communities how to do that. Each community will have to find their own answers based upon its capacity.

I will, however, suggest a change to the Criminal Code of Canada: replace the concept of deterrence with redemption.

Deterrence has been proven to not work. Redemption, on the other hand, will allow offenders to earn their way back into society.

What that redemption looks like will be different each case and will depend on the wishes of the victim and the community, along with what the offender is prepared or capable of doing.

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