Breaking the law: How the state weaponizes an unjust criminal justice system

Good column by prominent criminal lawyer Marie Henein on systemic barriers within the justice system:

On June 6, Prime Minister Justin Trudeau took a knee during the Black Lives Matter demonstration on Parliament Hill. It was the correct show of support required of a political leader, acknowledging undeniable facts: a history, a present and – without change – a future of racism.

But if the Prime Minister is going to stop at a bended knee, then that is as ineffectual as sending out a “thoughts and prayers” tweet. To quote Shakespeare, it is sound and fury signifying nothing. A bended-knee photo-op is not enough. Not even close.

The history of racism, in the United States and Canada, manifests in an endless list of ways. I want to talk about the one I’ve known intimately: the criminal justice system. Its history and present is central to our understanding of how criminal justice, from police powers to sentencing, is part of the web that directly oppresses Black and Indigenous lives. Knowing this reveals the hollowness of Mr. Trudeau’s camera-ready genuflection.

Let’s start here. There is a rational reason that Black Lives Matter marches have been accompanied by demands to defund police, enforce police oversight and decrease the epidemic of mass incarceration. It is because the state’s weaponization of the criminal justice system for the purpose of racial marginalization has a long, well-documented history. Using the criminal law is a dependable and effective method to double down on marginalizing the marginalized and sidelining the racialized. Historically, criminalizing others, locking them up, is a weapon deployed to maintain social dominance. Drug laws, three-strikes rules, minimum sentences – much of it has been born from racism masquerading as law and order. That is just a plain, undeniable fact. It is and always has been the case.

Let me give you just one example of how this political three-card monte is played. One of the most notorious was U.S. president Richard Nixon’s declaration of a War on Drugs. While entrenched by president Ronald Reagan, it was in fact Mr. Nixon who first inspired it when, in 1971, he announced at a press conference that drug abuse was “public enemy number one in the United States.” But the declaration of war wasn’t really on drugs at all. John Ehrlichman, counsel and assistant to Mr. Nixon and a Watergate co-conspirator, later revealed the truth: “The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the anti-war left and Black people. … We knew we couldn’t make it illegal to be either against the war or Blacks, but by getting the public to associate the hippies with marijuana and Blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course, we did.”

Mr. Reagan was masterful in his use of the “war on drugs” mantra to whip up mass hysteria and fear with the nightly news showing crack dens and the arrests of Black men. Now the enemy was not only identified, it was real, palpable and there for everyone to see. President Bill Clinton later piled on with his three-strikes rule, proof that cracking down on crime, whether in Canada or the U.S., is something that has always found bipartisan support. You see, the marginalized are not a particularly important voting bloc for most politicians. The criminalization of drugs throughout U.S. history was and continues to be linked to race in the United States. The war on drugs led to the incarceration rate in the U.S. doubling and then tripling. The same patterns are true in Canada’s history of deploying criminal law to control Indigenous and Black communities as far back as colonial times; the incarceration trends of minorities in Canada mimic those of the U.S.

Criminalization and incarceration are the ultimate weapons in marginalization. Arresting someone, restricting their movements through a bail order, and handing out a conviction and hence a criminal record – incarcerating is a surefire way to push down and keep down a population. It guarantees a life of struggle and a burden that the majority of the white population does not suffer.

And it is not just the creation of criminal offences or the expansion of minimum jail sentences that serve this ulterior purpose. Police powers are often also mobilized by the state. Stop-and-frisks, carding and unlawful searches are all police tactics that are disproportionately visited on racial minorities. If you are Black or Indigenous, you are more likely to be forced to interact with the police.

If you practise criminal law, then you know that the majority of times that individuals are stopped by the police that they describe being harassed, the extent to which their privacy is intruded far exceeds the number of cases that ever make it to court. If a police officer improperly stops you, searches your car, degrades and humiliates you and finds nothing, your case and your experience often disappears from public view and into the ether. The vast majority of police interactions do not result in criminal charges. The police officer is often not sanctioned or dissuaded from doing this again. Nobody knows just how many law-abiding citizens are harassed by the state daily. So while the numbers we do have show that Indigenous and Black members of the community are disproportionately stopped and interfered with by the police, their experiences occur in the shadows. Unless there is a death that happens to be caught on video, or a crime alleged, nobody hears about it. But while it is hidden from view, those experiences are lodged in the collective and individual psyche.

The disproportionate impact on Black and Indigenous communities is staggering. Commentators frequently respond that more white men are killed by the police yearly than Black men. That claim is a complete distortion. A myriad of statistics demonstrate that both in Canada and in the U.S., a disproportionate percentage of the Black and Indigenous population is subjected to police violence. It is no answer to say more white people are killed or quote silly statistics about “white-on-white violence” compared to “Black-on-Black violence.” These are distracting, insidious talking points. They don’t tell you the one fact you need to know: If you are a Black or Indigenous man, you are more likely than a white man to be harassed by the police, stopped and searched by the police, arrested, held for bail and incarcerated. That is what matters. If you are Black or Indigenous, you do not drive, walk, live without the fear of state harassment or interference.

The disproportionate incarceration of racialized members of the community tells the story as well. In January, Canada’s Correctional Investigator Ivan Zinger confirmed that Indigenous people comprise more than 30 per cent of the federal inmate population; Indigenous women make up 42 per cent. This is a stunning overrepresentation within the prison population. “Over the longer term, and for the better part of three decades now, despite findings of Royal Commissions and National Inquiries, intervention of the courts, promises and commitments of previous and current political leaders, no government of any stripe has managed to reverse the trend of Indigenous overrepresentation in Canadian jails and prisons,” Dr. Zinger said. “The Indigenization of Canada’s prison population is nothing short of a national travesty.” Black Canadians are similarly overrepresented.

The overpolicing and overincarceration of racial communities is a critical point. It is the state that is “othering” a segment of the population. The criminal justice system provides an official government imprimatur that this group of people – “they,” the “accused” – are not like you. The message that is being sent is that they deserve less, are not to be trusted, must be corralled, segregated, stopped and removed from “civil” society. How else are we to be safe?

One of the most troubling aspects is that the police conduct that is inspiring demonstrations across not only this continent but the world is state conduct. Let me say that again because it is a significant point that must be understood: The conduct, the abuse, is visited upon members of our community by our own governments. It is sanctioned and financed by the state. The police officers are state actors and state funded. The criminal justice system is comprised largely of state actors paid for by the government. The jails are manned, funded, controlled by state actors. The offence, the outrage stems in no small part from our government’s role in the abuse of its own citizens. This travesty lays squarely at the feet of our government and the gross inaction of politicians, no matter what their political stripe.

So when the person who is the head of the state takes a knee conveniently in front of the cameras and has not and does not do anything to address the problem, well, what can I say? The person with power and privilege has failed to make the change that is in his hands to make. The state needs to do more than take the knee.

While it has sent well-wishing tweets every which way, the Canadian government has not taken any decisive action on criminal justice reform. The Harper government’s flourish of mandatory minimum sentences, which should have been abolished long ago, continues to thrive under the watch of the Liberals, notwithstanding their 2015 election promise to abolish them. More offences have found their way into the Criminal Code, not fewer. No serious attempt has been made to decriminalize, to improve the condition of jails, to look at restorative justice models – or, indeed, any evidence-based justice reform. Maybe that is because a tweet is easier to read than an expert report.

Even now, as every province and territory struggles to deal with the catastrophe that COVID-19 has visited on the criminal justice system, help from the federal government is non-existent. Today, incarcerated accused people cannot have a trial. Most cannot speak to their lawyers; many don’t even have lawyers. Legal aid – which provides the most marginalized, isolated and disenfranchised with the dignity of having a lawyer help them to have their voice heard in court – are in crisis and grossly underfunded across the country. And courthouses fill up more and more every day with the unrepresented, the underprivileged, and those with addiction and mental-health struggles. In Northern communities, Indigenous people who are accused of crimes and granted bail often choose to stay in jail because they cannot afford the transportation needed to return to their communities. And despite this catastrophic Hobson’s choice, not a single penny has been offered up by the Prime Minister in his doorstep news conferences.

It is not as though smart people haven’t been offering thoughtful policy options for our governments to consider for years. In Ontario alone, two reports were commissioned by the previous government to address carding and the investigation of police. The Independent Street Checks Review and the Independent Police Oversight Review were penned by the Honourable Justice Michael Tulloch, the first Black member of the Ontario Court of Appeal, who made practical, entirely achievable recommendations centred around the belief that, in order to gain any legitimacy, police need to have a vested interested in the communities they serve. His recommendations included investing more in community policing and less on use-of-force tactics and training; investing in community situational hubs where mental-health experts work in tandem with police to address mental-health issues; the creation of a central college of policing that would operate as an independent regulatory body to professionalize and demilitarize policing; changing the way that oversight boards are appointed; and mandating governance training. Very few of these pragmatic suggestions were ever taken up. And so the report sits, among all the others, waiting for someone, anyone, to take a look.

There are real things in policing and in the criminal justice system as a whole that can change immediately and begin to end its disproportionate burden on racialized communities. Wholehearted, reflective, meaningful changes – not incremental tweaks – are needed to tear down the foundations of institutions that have been built and thrived on a racist history, and replace them with approaches that protect all community members.

Criminal justice reform is a good place to start now. It is a good way to show marginalized communities that the state will refuse to use its power to abuse its own citizens. To show that the state will not put its knee on the neck of George Floyd until the breath is taken out of him. To show that the state will not choke Eric Garner for selling cigarettes on the street. To show that it will not shoot 12-year-old Tamir Rice for playing with a toy gun. To show that it will not take Indigenous people, such as Rodney Naistus or Neil Stonechild in Saskatchewan, and abandon them at the outskirts of the city with no clothes and leave them to freeze to death. To show that the state, when called to help people in a mental-health crisis, will not shoot Andrew Loku.

So the Prime Minister isn’t just anybody taking a knee. He is the representative of the state, a white man with all the power and privilege that is an unreachable fairytale to most, who has the ability and authority to change things. This is not a time for salutary gestures, carefully measured words and photo-ops, or inconsequential small tweaks. The time for gradual change has long passed. The Prime Minister’s chasm between gleefully putting on blackface and taking a knee can be readily filled with action. So instead of bending the knee, how about standing up? The Prime Minister needs to put his money where his march is.

Source: Breaking the law: How the state weaponizes an unjust criminal justice system: Marie Henein