9 PAGES DUE BY 24 HPURS

profiledawson3958
attachments_3.zip

SOCI 2087 Module 2.pdf

MODULE TWO Police: Inside the Blue Wall 1

MODULE TWO POLICE: INSIDE THE

BLUE WALL

SECTION 2. 1: Recruitment and Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Gives an examination of how the ‘disciplinary technologies’ of paramilitarism and

neutrality have long shaped police officers in both positive and negative ways.

SECTION 2. 2: Police Subculture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

An introduction to police occupational culture followed by a look at the personality

traits this subculture and the daily workplace pressures of policing encourage.

SECTION 2. 3: Community Policing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Community policing models have been proposed to re-integrate police departments into

their communities. This section looks at Toronto’s recent experiments with community

policing to assess it.

SECTION 2. 4: Police Funerals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Examines police funerary rituals through both an interpretative and socio-political lens

to gain insight into this little-discussed phenomenon.

SECTION 2. 5: Cultural Depictions of Policing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

No look at policing would be complete without including the media depictions of it, so

we explore this topic to see what it reveals about changing cultural ideas and differing

national views toward policing.

2 Police: Inside the Blue Wall MODULE TWO

SECTION 2. 1: Silent Instruments of a Remote Power

Police officers serve as public representatives of the nation-state whose authority they

represent. The needs and demands of governments, as embodied in their selection and

recruitment processes, consequently have a crucial influence on how people are shaped

into police officers and on the institutional culture of police departments. In countries

with strong central governments recruitment and training can be standardized creating

the foundation of a common national police culture despite regional differences. In

Canada, the federal government, in partnership with the Canadian Association of Chiefs

of Police (CACP), has ensured that “ a common recruitment process is in use virtually

across Canada” (Sewell, 2010). Today’s Canadian police applicants are judged on a

wide variety of criteria including: physical fitness, education, life experiences,

psychological test scores, language skills, and diversity quotas.

The Roots of Police Recruitment and Training

In the 1800s the first British police recruits were drawn from the “ respectable class of

labourers” with an emphasis on an applicant’s sobriety and height. In America the

emphasis was on height and political connections as American police were viewed as

“ blatantly politicized henchmen” dependent on their personal strength and charisma for

their power. In contrast, English police were to be a disciplined, politically neutral

force, whose public persona 1 brought “ décorum and order to public places” and power

resided in their professional occupational identity (Emsley, 1996).

To achieve this Robert Peel envisioned a police training process that “reshaped recruits

in the image of a neutral, objective, machine-like figure” through the twin ' disciplinary

technologies' of paramilitary discipline and bureaucratic neutrality by appointing joint

commissioners to guide his new force (Emsley, 1996). To bring paramilitary discipline,

Peel appointed Lieutenant-Colonel Charles Rowan, a Scottish cavalryman and lifelong

bachelor who had fought Napoleon at Waterloo. Rowan was joined by Sir Richard

Mayne, a lawyer who was a ' rising star' in English law and the son of a famous judge.

Mayne’s legal background was to ensure the new police were efficient, disinterested,

' silent instruments of a remote power' —the remote power being the British central

government’s legal system.

1 persona http://en. wikipedia. org/wiki/Persona_%28psychology%29

MODULE TWO Police: Inside the Blue Wall 3

The joint commissioners managed to “ recruit, train, organise, equip, and deploy a force

of nearly one thousand men” within only three months. Thirty years later the force had

largely attained the ideal of mass producing machine-like officers as this 1859

description of a Bobby from London’s Quarterly Review makes clear:

We all know him, for we see him day by day as we promenade on the

streets. Stiff, calm, and inexorable, he seems to take no interest in any

mortal thing—to have neither hopes nor fears, amid the bustle of main

street or the roar of Oxford-Street. ‘Private Constable X 59’ stalks

along, an institution rather than a man. We seem to have no more hold

of his personality, than we could possibly get off his coat, buttoned up to

the throttling point. (Wilson, 1859)

IN FOCUS

Psychological Screening

One selection tool not available to the first police commissioners but used by police

departments since the early part of the 20 th century are psychological screening tests

(Bartol, 1996). During the 1960s and 1970s such tests became a standard part of the

application process as corporate management policies were adopted by many police

forces. Such tests not only help identify unfit candidates, thus shielding departments

from ' negligent hiring' lawsuits brought by civilians who have been victimized by

officers but also select candidates likely to maintain psychological fitness relative to

future job performance providing a good investment for police departments (Barrick &

Mount, 1991; McQuilkin, Russell, Frost & Faust, 1990; Twersky-Glasner, 2005).

Typical police assessment instruments include the MMPI-2, California Personality

Inventory (CPI), the Inwald Personality Inventory (IPI), the Edwards Personal

Preference Schedule (EPPS), projective tests like Rorschach tests and polygraph

(though the validity of polygraphs” 2 to do anything besides “scare the hell out of

people” 3 remains highly questionable). The original qualities screened for were

intelligence and aptitude but the focus on desirable traits has shifted from cognitive

abilities to personality traits (e. g. , emotional stability). This move was due to the

potentially adverse effects on minority police applicants although many of the

personality tests used by police departments maintain a component of intelligence

testing (Twersky-Glasner, 2005). Police personality tests also select against applicants

2 validity of polygraphs http://antipolygraph. org/ 3 scare the hell out of people http://www. skepdic. com/polygrap. html

4 Police: Inside the Blue Wall MODULE TWO

who show high levels of impulsivity, hostility, lack of autonomy, immaturity, anti-

social tendencies, potentials for alcohol and/or drug abuse, emotional labiality, social

introversion, paranoia, and psychoses.

Police psychological scores can be an interesting data source and a recent study of one

set of recruiting data revealed that successful and unsuccessful applicants were

significantly different on nine of the 19 California Personality Inventory (CPI) scales.

The successful applicants were:

• more assertive and dominant;

• had more potential for social mobility and desire for status;

• more self confidence and social presence;

• a more pronounced sense of self worth;

• more need for autonomous achievement;

• more functional (efficiency) intelligence;

• more self-insight;

• more masculine;

• possessed greater ability to perceive the psychological state of others.

(Twersky-Glasner, 2005)

The Paramilitary Roots of Policing

Lieutenant-Colonel Rowan’s military background profoundly shaped the origins of

policing. Based on military tactics he divided London into six divisions to be regularly

patrolled. This beat system of patrols was based on the Shorncliffe System for light

infantry. More importantly, from a subcultural perspective, Rowan insisted that his

men be held to strict standards of conduct and organized into a military hierarchy with

“ the co-ordination and integration of all officers deployed as squads under centralised

command and control” (Waddington 1993). The first Bobbies lived in communal

military-style barracks, were regularly drilled in marching, penalized for unkempt

uniforms, and were subjected to a written code of regulations administered by superiors

as penalties and rewards (both monetary and symbolic) that 'trained up' new recruits

MODULE TWO Police: Inside the Blue Wall 5

through the ranks.

Taken as a whole, this “application of (quasi)–military training, philosophy, and

organization to policing laid the paramilitary foundation of the police culture that

endures to this day” (Jefferson 1993). The goal of this paramilitarism was to make

police training a ' well regulated machine' that produced ' automatic policemen' through

drill and discipline in the way that military organizations of earlier periods had produced

soldiers (Miller, 1977).

This fixation on discipline was seen as vital to police training because whenever young

males are gathered into a group and given weapons, the potential for violence, bullying,

and abuse is enormous. Early police forces were plagued with alcoholism, dereliction

of duty, extortion, fraternization with (and abuse) of prostitutes, and gambling. A 1904

survey of Chicago police found that they spent most of their time “ not on the streets,

but in saloons, barbershops, bowling alleys, pool halls, and bootblack stands” (Buntin,

2010). The situation was little better in London with the very first police recruit

dismissed after only four hours when he was found drunk on the job (Learn History,

2004). Rowan, and other commanders who were recruited from the military, believed

that a strict, sometimes cruel, regime of paramilitarism was the best cure for this.

The creation of most police forces in Canada was done through importing the British

paramilitary model and the British military officers who were needed to institute it. For

example, the first OPP commissioner (or ‘commanding officer’ as he was then called)

was a British Major General, born in colonial India, who had suppressed a nationalist

uprising in English-occupied Ireland. He was loaned to Ottawa as the Director of

Artillery before being assigned “ to develop [the OPP’s] quasi-military character which

would prove enduring” (Higley, 1984). His replacement was another British Major

General who fought against South Africans Boers 4 as part of England’s Dragoon Guard

cavalry before setting up the School of Cavalry in Canada. The first RCMP

commissioners have similar backgrounds; it is not too far a stretch to say that the OPP

and the RCMP were originally envisioned as colonial auxiliary forces to the British

Army.

This predominance of English military officers in the OPP came with a price and an

early OPP Assistant Commissionaire complained about the “ protection of Englishmen

on the [OPP] Force. . . Canadians, Scotch or Irish had little chance, but the English

received every favour and consideration, before appointment and after” (Higley, 1984).

Yet it is difficult to contest the value that British paramilitary discipline had in securing

the high regard many Canadians have for their police. It also explains why Americans

4 Boers http://www. foreignaffairs. com/articles/63383/nicolas-van-de-walle/diamonds-gold-and-war-the-

british-the-boers-and-the-making-of-so

6 Police: Inside the Blue Wall MODULE TWO

would idealize the RCMP as a model of discipline and morality compared to their own

less disciplined forces.

As time passed, Canadian police forces and senior officers were recruited from within

the ranks and the hierarchy became less British-dominated, but the goal of using

military-style discipline to create ' automatic police' did not lessen. In a 1929 speech

made to the Chief Constables Association of Canada (now called the Canadian

Association of Chiefs of Police) an Ontario police chief proclaimed:

the symbol of the machine is applicable to the functioning of the police

department to a degree to which does not apply elsewhere . . . Discipline,

and discipline alone can ensure that the force functions as a unit.

(C. A. C. , 1929)

Like many factory owners of the time, Canadian police chiefs believed that

transforming their employees into machine-like objects was the highest ideal of efficient

and impersonal performance. Some chiefs went as far as to write out time-tables for

patrolling officers dictating exactly where they should be on their route at any given

time.

The ideal of machine-like, paramilitary-like officers has translated into the lasting

legacy of valuing a certain emotional remoteness in officers. As Lt. Al Benner, a San

Francisco Police Department psychologist has noted, this extracts a high price on

modern police officers,

To function effectively in our job, you must annihilate, smother and

suppress normal emotions like fear, anger, revulsion and even

compassion. To do otherwise is to invite overwhelming doubt or

hesitancy when action is required. The penalty for achieving this

competency is a mind set foreign to your social contemporaries. We are

victims of our own success. This psychological sacrifice creates a

paradox where officers are rewarded for maintaining emotional distance

on the job, but punished for doing the same in personal relationships.

(Kirschman, 2006)

Another dubious legacy of paramilitarism in police cultures is the deeply hierarchical

military chain-of-command that has the “ propensity to induce rigid mindless, deference

to authority, ” discourage “ engaging, pro-active” ways of dealing with crime and

reward “ knee-jerk reactionary responses” (Perez, 2010). For some citizens in a

democracy encountering a machine-like police officer trained to unquestioningly obey

orders of a remote authority is a chilling experience. It is difficult to forget that when

given certain orders such ' silent instruments of remote power' can effect mass murders.

MODULE TWO Police: Inside the Blue Wall 7

And for this reason the greatest moral lesson of the Second World War, enshrined in

Nuremberg Principle IV 5 , is that “ just following orders” is not a defense for

committing atrocities against civilians.

The Rise of Paramilitary Police Raids

To ease democratic fears about having a government-controlled paramilitary force

permanently patrolling the streets, London Bobbies were armed with a stout club (or

sabres when performing crowd control) not firearms—except high-ranking inspectors

who were allowed to carry pistols. This lack of firearms became the hallmark of the

Bobbies’ commitment to democratic control and public legitimacy. In questionnaires

given to British police in 1987 and 1995 the majority (79%) of police still did not want

a hand-gun when on patrol though some British police have been sent on patrol armed

with handguns and sub-machine guns 6 since 2000.

A major departure from this ideal has been the rise of Paramilitary Police forces in

North America since 1980. University of Eastern Kentucky criminologist, Peter

Kraska, estimates there has been over a 1, 500 percent increase in the use of SWAT

teams in America from the 1980s to the early 2000s. So prevalent has been the push

that SWAT teams are created despite the absence of any historical need (Forcese,

1992). In the most extreme American case this process has seen the literal militarization

of police, as the US Army “ routinely sends armoured personnel carriers, grenade

launchers, and M-16 rifles to city police stations” (Sorensen, 1999).

These paramilitary units were intended to respond to special events such as hostage-

taking; whereas most policing is concerned with the banal and the usual. For example

the OPP TRU (Tactical Response Unit) originated as a response to the potential of

terrorism at the 1976 Olympics but “ its mandate has long since shifted to focusing on

providing police tactical response to domestic high-risk situations” which most often

means a disgruntled armed man who has barricaded himself inside a home (Higley,

1984). Critics have suggested that these heavily-armed units often experience ‘mission

creep’ and are applied unnecessarily simply because a use and justification for such

police resources must be found. The other dangers of such squads include: privileging

such paramilitary raids as ' real policing' , encouraging reactionary dangerous ' cowboy'

attitudes among tactical members, allowing such squads to become reservoirs of racist

5 Nuremberg Principle IV http://en. wikipedia. org/wiki/Nuremberg_Principles#Principle_IV 6 sub-machine guns http://www. msnbc. msn. com/id/33448132/ns/world_news-europe/t/some-british-

bobbies-gun-comes-job/

8 Police: Inside the Blue Wall MODULE TWO

and chauvinistic attitudes, and the danger to bystanders when coordination and

communications breakdown. Forcese (1992) describes an example of a fatal

“ coordination and communications breakdown” :

On August 14, 1988, the Ontario Provincial Police called in their special

tactical unit to deal with a reported suicidal young man. There was no

evidence that the man was a danger to persons other than himself, but he

was undoubtedly armed with a rifle. Local police, known by the young

man, were removed from the situation, and the heavily armed tactical

squad in a briefing were told of the extreme danger of the situation. The

OPP, apparently, were never provided with the accurate description of

the suicidal man. In the confusion, where ranking officers apparently

misunderstood the location of the tactical unit and the man, an innocent

person, terrorized by the presence of armed intruders, was accidentally

shot to death in his yard. The pathologist who performed the autopsy

testified that two fatal police shots struck the man when he was down on

the ground, and that the victim was shot a total of thirteen times,

resulting in twenty-five wounds.

This fatal shooting lead to both a Coroner’s Jury and an Inquiry (Drinkwalter Report,

1989). A recent 2006 OPP report on tactical squads called the shooting and the

subsequent public investigations a “ watershed” moment that profoundly “influenced the

delivery of police emergency response services across the province. ” Despite safety

concerns both public inquires ultimately concluded that “tactical response is a life

saving support system that benefits the public, the police and even those who choose to

be the focus of tactical response” (Drinkwalter Report, 1989).

Such a claim is more difficult to support in America where 40, 000 ' no-knock raids' are

performed a year allowing tactical squads to storm a property without any prior

notification to the residents. The reasoning for these raids is that the element of surprise

will stop residents before they can destroy evidence or arm themselves. Such concerns

have some merit but the predictable consequences of allowing such heavily armed

officers to conduct surprise raids has been the killing of at least 40 innocent Americans

who were either killed by mistake when they tried to fight off the ' intruders' invading

their home at night or when the SWAT squads raided the wrong address (Wikipedia

gives summaries 7 of some of these accidents). Communication breakdowns and false or

mistaken warrant information are the lead causes of death in no-knock raids.

7 summaries http://en. wikipedia. org/wiki/No-knock_warrant#Examples

MODULE TWO Police: Inside the Blue Wall 9

Yet ' no-knock' raids are not just confined to the USA, Forcese (1992) describes the

following incident:

In 1987, Montreal tactical team members battered down the door of a

Montreal apartment where a man, wife, and eighteen-month old infant

were eating dinner. They entered firing automatic weapons, wounding

the woman and the man, who bled to death, untreated. The raid was

prompted by an arrest warrant for attempted murder, arising from a fight

in a restaurant between the victim and an off-duty police officer.

While there are likely un-stated elements in this situation that would give insight into

the Montreal tactical squad’s action, the outcome is still tragic. The simple equation is

that the increasing use of military-grade weapons and no-knock home raids will

inevitably result in a mounting number of civilian deaths and considering that less than

half of these home invasions result in felony charges this is a high price. Yet some law

enforcement officials consider this an acceptable trade-off because they occur as part of

the ' war on drugs' . When Florida police conducted a night drug raid on the wrong

house and roughly dragged a nearly nude innocent couple down to the police station the

attorney hired by the police union stated, “They made a mistake. There’s no one to

blame for a mistake. The way these people were treated has to be judged in the context

of a war” (Balko, 2006). We must ask “ if police are conducting nightly armed raids in

‘the context of a war’ are they a military organization?” because the very same type of

raids are being conducted by American Special Forces in Afghanistan and across the

rest of the globe an estimated 12 times a day (Turse, 2011).

IN FOCUS

Paramilitarism and Domestic Life

The paramilitary nature of policing not only separates police from their communities;

it can also separate them from their families. As police psychologist Ellen Kirschman

(2006) notes “ policing is a greedy, un-family friendly” profession that demands much

from its employees because officers “ must put in long hours, often doing night shifts

in ‘ergonomically incorrect’ police cars and uniforms to be eligible for promotion and

this often comes at the expense of their families. ”

The demands of policing have long been expected to influence an officer’s private life

and even modern officers’ families “ may feel like unpaid representatives of the police

force” due to the need to maintain appearances and live up to the moral standards that

policing is supposed to represent (Kirschman, 2006). In the enthusiastic “utterly

10 Police: Inside the Blue Wall MODULE TWO

intoxicated” rookie phase such sacrifices are easy to make (and possibly even

welcomed by young adults) but for many older officers the lack of family contact is a

high price.

In the past the anti-family nature of policing was even more explicit largely due to the

many military policies adopted. For example, the OPP’s policy of rotating officers

between various Ontario districts every few years caused havoc for many officers’

families and was widely disliked by officers due to the housing and travel stresses it

caused. The ability of senior police to influence the rotation postings also led to

charges that it was being used as a tool to reward and punish officers. Yet this policy

was justified because “ an OPP officer must be prepared, as in War, to travel on short

notice” (Ontario Attorney General, 1928).

A similar rotation policy exists in the RCMP and a new recruit’s first posting was

customarily in the Near Arctic or another location far away from a recruit’s home

province. Even harsher was the RCMP policy forbidding officers from marrying until

several years of service had passed—an extremely unpopular regulation with young

officers (and their girlfriends) in the days when pre-marital sex was publicly

condemned and this policy lead to many deserters. The first officer had to wait a long

seven years before marriage, this was reduced to five years up until the 1950s and two

years until the mid 1970s (www. rcmpgraves. com). This policy was justified by RCMP

Commissioners by the need to ' maintain a mobile Force' —a need traditionally

associated with military, not policing, goals.

The Idea of Police Neutrality

While it was a cavalry officer who brought military discipline to the first modern police

force, it was up to the lawyer Richard Mayne, to bring the complementary efficiency

and disinterestedness to the new organization. Mayne' s hope was to create an

“ impervious body of men serving a ‘higher’ interest: the interest of the rule of law as

understood by the state.” The primary competitor for an officer’s loyalty was an

officer’s own sense of morality and his loyalties to his local community and class

interests, so these had to be over-ridden and subordinated.

New police officers were, and still are, severely warned about letting their own views

override their commitment to state law. For example, the first OPP training notebook

advises the constable against making any moral decisions, specifically warning them

that their moral evaluation of an act is ' immaterial' : “ If the act is illegal take what steps

you are supposed to bring the guilty parties to justice, if it is not illegal have nothing to

MODULE TWO Police: Inside the Blue Wall 11

do with it” (Hegley, 1984). An officer’s ability to remove his personal judgement from

the volatile situations he dealt with became his proof of allegiance to both the higher

authority of the federal government’s rule of law and a sign of his own efficiency.

To re-route an officer’s loyalty from his local community to the ' higher interest' of the

government was the second task. Not only did new recruits arrive with emotional ties to

their town and family, the very public role of an officer seemed to naturally lead them

to an involvement in local affairs. Thus officers’ lives were strictly controlled; they

were not allowed to vote in elections, required permission to get married, and were

forbidden from sharing meals with civilians. The strongest regulation furthering this

purposeful alienation of an officer from the public was the strict prohibition against

engaging in informal conversation with the public when on-duty, especially

conversations with those of the lower class.

Paley (1989) notes that in England the new police were explicitly forbidden to “ enter

into any conversation” and the Discipline Book of the Toronto Police Force records

dozens of fines given to policemen for “ gossiping on the beat, ” —the most frequent

cause for disciplinary action. The Letterbook of an early Toronto Chief Constable

simply notes:

The Police on duty are strictly forbidden to gossip or idle with each

other, or with any persons, especially servants at houses on their beats.

(Hegley, 1984)

Toronto mayor and police reformer Adam Wilson (1859) puts the matter even more

bluntly:

nothing can be a greater abomination than a talking policeman. All his

duties should be quietly and promptly executed.

As the police broke off all conversational contact with the public they were being

simultaneously trained in a new language: bureaucratic legalism. A key part of an

officer’s impersonal efficiency was his ability to translate a wide spectrum of disturbing

crime into the impersonal language of official court statements. To do this, police

evolved a ' robotic style' of delivery that did not always please the courts as one

irritated Justice of the Peace in 1917 wrote:

[A constable] never walks or runs, he always ‘proceeds’; he never asks,

he always ‘requests’: he never finds people quarrelling, they are always

‘having an altercation’: for a stable to be behind a house near a church is

too simple; it has to be ‘situated at the rear of a house in the vicinity of a

church’; he never watches, he always ‘keeps observation’ or ‘keeps

12 Police: Inside the Blue Wall MODULE TWO

observation in conjunction with another officer’; if he charges a man

with what in our days is considered the indecency of making water in the

street, he must describe the action as ‘urinating’; he prefers not to speak

of a scratch or a bruise, it must be an ‘abrasion’ or a ‘contusion. ’ The

ridiculous state of things sometimes occurs that the court has to translate

his pompous phraseology into more homely language which the ignorant

can understand. (De Lint, 1999)

This new police ' special dialect' not only encouraged impersonal efficiency but also

gave nervous uneducated police officers the ' proper police way' to address the

intimidating court judges. Unfortunately, this commonality of speech has the

“ disadvantage . . . that when several officers give evidence of the same facts their

testimony sounds stereotyped, and this lays them open, often unjustly, to the suspicion

of having compared notes” (De Lint, 1999).

While this police special dialect has never completely gone away, by the mid-twentieth

century the strict prohibition against conversing with the public had lessened

considerably as the loyalty of the police profession to their government employers

solidified. A quote from a WWII-era OPP training notebook shows this transformation:

Be civil to everyone, you are a servant of all classes of the community,

irrespective of their social standing. Do not talk unnecessarily. Keep

your eyes open, and your brain alert, to absorb of all what goes on

around you. (De Lint, 1999)

By the 1960s and 1970s police training began “ re-situating the constable back into the

community” as ideals of community police became widespread. Soon the prohibition

against talking was not only removed, but its opposite was now promoted and gossiping

was encouraged as a means of information gathering and building community

partnerships (Cordner, 1997). Despite this shift in training, the purposeful

disembodiment and alienation of police from their communities has had a profound

effect on shaping how police and the public view each other.

Manufacturing Solidarity

Police commissioners realized early on that divorcing a young man from both his local

community and his own conscience placed a heavy emotional burden on police officers

and recommended that police solidarity or ' esprit de corps' 8 be generated during

training as compensation. The hope was that by turning the police institution into an

8 esprit de corps http://en. wiktionary. org/wiki/esprit_de_corps

MODULE TWO Police: Inside the Blue Wall 13

officer’s ‘new family’ that new recruits could find a sense of belonging that would

soften the loss of other social ties and also serve to “ counteract the human tendency to

become involved in local community groups or sects” (De Lint, 1999).

Many ways of creating police ‘esprit de corps’ during training are adopted from

military practices: group rewards and punishments, similarity in appearance (buzz cuts

and uniforms), and painful hazing rituals like being tear gassed. The RCMP ' depot' 9 in

Regina is a mandatory ' boot camp' for all new recruits and serves the same function as

a military boot camp, to sever a recruit’s ties to their previous life by making them

completely dependant on the RCMP for shelter, food, clothing, and self-esteem. Some

psychologists have pointed out that this enforced dependency is fundamental to most

brain-washing procedures as the new provider of these basic essentials takes over the

role of parent in the recruits’ minds (Wilson, 2009).

Another bonding technique adopted from the military is heavy alcohol drinking

sessions. A modern sociological study tracking 117 American police recruits during

their training found that (Obst, 2003):

The results showed that recruits socialise and drink more with colleagues

after entering the Academy than they did pre-Academy. The way recruits

drank also changed during training with a tendency towards heavier

drinking sessions. These findings, based on a longitudinal methodology

suggest that the enculturation process encouraging recruits to socialise

and drink with peers begins early in the training process with 45% of the

recruits stating that they felt some pressure to drink during their

Academy training.

While it would be expected that drinking may increase while living in at

the Academy, it would be expected to drop off as officers moved into

operational positions with stronger supervisory practices. However, this

did not occur, particularly in terms of the quantity of alcohol consumed.

It could be concluded that during their time in the Academy, recruits

actually learnt to drink alcohol in larger quantities. These results may

reflect the development of the trend towards the heavy drinking sessions,

which have been reported by many studies into police drinking (e. g. ,

Davey et al. , 2000; McNeil & Wilson, 1993; Shanahan, 1992).

9 depot http://www. rcmp-grc. gc. ca/depot/journal/index-eng. htm

14 Police: Inside the Blue Wall MODULE TWO

IN FOCUS

A Jealous Profession

A sense of belonging to a large police family is welcomed by most new officers but it

can also be a jealous community. If an officer chooses to go home instead of

socializing with other officers, they can be labelled as distant; if they ask for time off

for family reasons, they can be labelled as “ unable to control their domestic life"

(http://www. rcmp-grc. gc. ca/depot/journal/index-eng. htm). Ellen Kirschman (2006)

offers the following example when a husband asked his police officer wife to call

home if she was going to be late:

Karen resented his suggestion. She told Manny she felt as though he was

her father and that she didn’t have to ' report in' and ' ask permission' .

Manny stuck to his ground and said it was unacceptable for him to be left

hanging. He valued his time with Karen and wanted to wait for her,

providing he knew how long that would be. Manny emphasized that he

was not trying to control Karen’s life but to control his own. Karen

finally revealed that she was afraid of being humiliated in front of the

' guys' , who would tease her for having to tell her husband where she

was. She felt this would make her look foolish—if she couldn’t stand up

to her husband, how could she confront the bad guys?

Manny didn’t budge from his bottom line. He told Karen that handling

the taunts of her shift mates was her concern, and he wasn’t playing

second fiddle to her need for their approval. He offered to help Karen

figure out a snappy, light-hearted response to their teasing, but he clearly

said that he expected her allegiance to be to him first.

The next time Karen was delayed and telephoned home, she did get

teased. She responded by telling the guys that they were afraid to tell

their ' mommies' they would be late, that she was a grown up and was

taking responsibility for managing her marriage. Some of them got the

hint and called their wives; some of them didn’t. But Karen had broken

the ice, and she and Manny eliminated a nagging source of resentment.

Manny and Karen solved this issue in a straightforward way, with little

upset. They also made a symbolic statement about the relative value of

work and family.

MODULE TWO Police: Inside the Blue Wall 15

16 Police: Inside the Blue Wall MODULE TWO

US versus THEM

Policing not only draws officers together as a group but separates them from the rest of

the population (Skolnick, 1977). Any job that requires the exercise of authority and the

need to act as a rule enforcer is often disliked by those on the receiving end of it—as

every teacher, police officer, and referee knows. New officers begin to develop a belief

in an ' insider/outsider' structure where fellow officers are trustworthy (' insiders' ), but

they should be sceptical and ever vigilant of those who are not police (' outsiders' ). The

suspicious working-personalities of police officers make them less likely to engage in

social discourse with non-officers (Skolnick, 2000). As the Toronto police union

president Craig Bromell bluntly stated, “ Forget everything that you learned in Police

College. It is us versus them” (The Fifth Estate, 1999).

People who can demonstrate characteristics and traits like those already on the force

stand a greater chance of being hired (Twersky-Glasner, 2005). This division is

reinforced by a recruitment "training regimen that reinforces fitting in” and even once

accepted into the police force a new officer feels continuing pressure by the police force

to “ fit in or move on. ” In this way officers have a “ different experience from

accountants, dentists, or lawyers, who often practice with much less peer pressure,

even in large firms; police culture is more obvious than that of most other occupations”

(Sewell, 2010).

This insular tendency is so extreme that many officers select their spouses and close

friends from the policing ranks and the profession has a strong hereditary element with

sons and daughters of officers often becoming police themselves. This sort of culture

encourages an environment where it seems few people outside the police circle can be

trusted. In turn, the public perceives police officers as distancing themselves from civil

society; caught in a feedback loop of distrust, research indicates that many officers

rarely feel integrated with the community despite the vital role policing fills in the daily

workings of a community.

Ankony (1997) defines this alienation as “ a condition in social relationships where there

is a low degree of integration or common values and a high degree of distance and

isolation between people in a community” and believes these feelings result from how

an officer’s personality has developed due to the experiences of his job. However some

of this alienation must be attributed to the first 100 years of policing when the

separation of police from their local community and the creation of an inner solidarity

was purposefully cultivated as a way of securing police loyalty to the remote authority

of state law.

Perhaps the most infamous expression of police insularity is the ' blue wall of silence'

that strongly discourages police officers from discussing policing matters with non-

police. Despite being continually claimed as a myth by police public relation officers,

MODULE TWO Police: Inside the Blue Wall 17

its existence is found in both sociological literature and anecdotal evidence. While some

form of a wall of silence is found in most professions that deal with sensitive personal

matters, the ' us versus them' nature of policing makes the blue wall stronger than most.

It has been a serious obstacle to both sociological inquiry and civilian reform as the

alienated police culture resents civilian control and demands a relatively free hand,

making it very difficult to democratically reform police forces. As the book Police in

Canada: the real story 10

states:

The characteristics of police culture can be summed up this way: it

encourages robust solidarity with other officers; it is isolated from other

parts of society; it assumes importance for protecting social values as

understood by police; it believes others do not have a real understanding

of police work. (Sewell, 2010)

10 Police in Canada: the real story http://www. thepolicefile. ca/?page_id= 44

18 Police: Inside the Blue Wall MODULE TWO

SECTION 2. 2: Police Subculture

The idea that policing has a distinctive subculture has “ enjoyed wide acceptance, great

longevity [and] intense study” in the field of sociology (Sewell, 1999). Since the early

1950s sociologists have spent many hours in patrol cars, handing out departmental

surveys, and conducting officer interviews in an attempt to “ unlock the world of the

police officer and open it to scrutiny and understanding” (Sewell, 1999). The

conceptual model of a subculture has been applied in many different areas as it allows a

researcher to ask what “behaviours, values, beliefs, attitudes, socializations. . . and

cognitive tendencies” might be collectively shared by a group of people. As Meehan

(1992) describes:

police officers must juggle and balance their response to accommodate

the conflicting demands of the citizen, the law, and the formal police

organization, and all of these with their own sense of working (policing)

the streets. In the face of these conflicting demands, officers develop a

set of shared assumptions [. . . ] in order to draw inferences for controlling

groups, making decisions, and taking action.

Such shared assumptions do not suggest that every member of a subculture is identical

or interchangeable but it is predicated on the idea that various forms of ' gravity' pull all

members of a group in a similar direction toward similar traits. Various models have

been proposed to explain why officers share these collective traits, but most agree the

demands of the job play a large role. Crank (1997), for example, asserts police’s

“ widely shared attitudes, values and norms [. . . ] find their genesis in these work

environments. ” Paoline, Myers, and Worden (2000) agree that a police officer’s need

to work in an environment “ characterized by uncertainty, danger, and a coercive

authority” is the primary form of gravity working on police subcultures.

When the subculture theory is applied to policing it is referred to as ' police culture' ,

' police occupational culture' , or ' working personality' . A summary of three such

sociological studies give us a survey of the research in this field.

 Skolnick (1977) found that police personalities clustered around the traits of

machismo, bravery, authoritarianism, cynicism and aggression.

 A later Skolnick study (1966, 2000) described the ' working personality' of

police with three main components: danger, authority, and efficiency.

MODULE TWO Police: Inside the Blue Wall 19

 Balch (1977) found a consensus among researchers that typical police

characteristics were suspicion, conventionality, distrust of the unusual,

cynicism, and prejudice.

 A study by Reiner (1992) found ' cop culture' in the late 1980s to be based on

the traits of machismo, pessimism, suspicion, public isolation/internal solidarity,

conservatism, racial prejudice, pragmatism, and a cycle of mission-action-

cynicism.

 Lester, Babcock, Cassisi, Genz, and Butler (1980) found that the psychological

scores of local American police in comparison to their English counterparts

were significantly higher in exhibition, dominance, and heterosexuality.

Despite local variations, the idea of a policing subculture common to Anglo-American

societies has been a productive hypothesis. From the brief survey above we find that

sociological studies agree that the policing subculture draws officers toward the general

traits of suspicion (cynicism, pessimism), authoritarianism (bravery, assertiveness,

machismo), conservatism (distrust of the unusual, pragmatism, conventionality,

efficiency) and internal solidarity (alienation from the public).

Having already explored internal solidarity in the previous section, we will now explore

the other four traits: suspicion, authoritarianism, pragmatism and conservatism.

IN FOCUS

The Blue Wall and the Ivory Tower

Policing is one of those public professions where everybody seems to have an opinion

about it. At the most extreme ends are those who believe that the police do everything

right or everything wrong, but most people fall somewhere in-between, usually based

on their interactions (or lack of interactions) with various police forces and officers.

The same can be said about the police, as most officers have their own view of the

public, some are disdainful of non-police, and some embrace the ethos of public

service, while the majority fall somewhere in-between.

The relationship between the ' blue wall' of policing and the ' ivory tower' of academia

can be just as varied—and as polarized. The phrase “ college kid” has long been an

insult among senior Canadian police (Stroud, 1983). This state of affairs might be

understood by looking at Toronto Police Chief, Bill Blair’s experience in the

criminology classes he took,

20 Police: Inside the Blue Wall MODULE TWO

“ I found it prudent not to offer myself as an expert. ” One day, the

professor was lecturing about police enforcement of drug laws. Blair bit

his lip and listened. Some of the discussion, he recalls, “ was grossly

misinformed. ” (Lorinc, 2010)

Nonetheless, Blair found the experience of hearing other perspectives useful: “ It was

valuable to see how people perceive us. ” Considering the profoundly self-assured

nature of both police officers and professors, Blair’s position of empathy is a wise

middle ground. Police officer turned sociologist, James Albritton, also places empathy

at the heart of any dialogue between police and academics,

Based on my personal experience in both academics and policing, I have

progressively understood the decisive importance of empathetic

understanding in social science research. Without empathy, an essential

part of the human element under study is lost, and the resultant research

becomes nothing more than the projection of the researcher’s

assumptions, biases or presuppositions. (Sewell, 1998)

To understand the actions of the police the sociologist must take the role of the other

in order to see how police perceive their circumstances and accordingly construct their

actions just as the police must engage in a parallel process of role-taking in attempting

to understand the variety of people they encounter in their own job (Hester & Eglin,

1992). This module explores the sociology of police subculture and in doing so makes

broad generalizations about police officers, again this parallels police officers need to

rely on generalized ' working concepts' about members of the public.

The necessity of role-taking is not the only similarity between sociology professors

and police officers. Both professions are sometimes disliked rule-enforcers (especially

as the efforts of both jobs are largely aimed at 18-25 year olds), both are trained to

look critically at the actions of others even if this earns them their scorn and both

professions often focus on the darker parts of human society. It is easy to understand

why both police and sociology professors can share the trait of cynicism. The gulf

between the ' blue wall' and the ' ivory tower' is large but empathy, professional

respect, and dark humour can help lessen the gap.

Subculture Trait I - Suspicion

A common saying goes that “ a good cop suspects evil wherever they goes” (Twersky-

Glasner, 2005) and the sociologists have noted that an “ element of danger seems to

make the policeman especially attentive to signs indicating a potential for violence and

lawbreaking” (Skolnick, 1966). As a result, police can be generally suspicious people,

MODULE TWO Police: Inside the Blue Wall 21

always sceptical and vigilant of ' outsiders' , a category which includes most non-police.

Sometimes this trait can transform into domestic hyper-vigilance with an officer

obsessing over a child’s or spouse’s safety.

The application of suspicion while on duty is the most pressing concern because

Canadian police are authorized by section 25(1) of the Criminal Code of Canada to use

force to resolve conflicts. Police learn when to use force from their training and the

shared understanding of other officers (Hunt, 1985). For example explaining the rapid

escalation of force 11

by a police trainer gives examples of how to ' educate' the jury to

the realities of the use of force. The use of force is a delicate matter in police training

because for both officers and civilians it can be a matter of life and death. If an officer

fails to use enough force they can risk their own life and that of their partner or

bystanders, but if they use too much force they can turn a tense but non-violent

situation into a fatal encounter (see Figure 2. 1 for an example of a force chart).

Figure 2. 1: Go to the following web address to view a ' typical escalation

of force' chart used in training

http://www. rcmp-grc. gc. ca/ccaps-spcca/cew-ai/imim-migi-

eng. htm#imim

With such high stakes an officer must find a delicate balance between suspicion and

paranoia (Kappeler, Sluder & Alpert, 1994). Unfortunately it appears that the police

training and attitudes in the post-911 environment are now priming officers towards

seeing threats everywhere, sometimes fantastical in nature.

This paranoia was demonstrated in the 2010 Toronto G20 protests when the city’s

police chief presented 12

padded swords, padded arrows and chain mail from a self-

described fantasy role-playing ' nerd' 13

teenager, a crossbow and chainsaw from a man

heading to his cottage, and various items not considered dangerous such as “ bandanas,

skateboard and bicycle helmets, golf balls, tennis balls, goggles, rope and walkie-

talkies” as “terrorist weapons” confiscated from “ anarchists” (Mahoney, 2010). This

same paranoid worldview was present when police justified arresting a G20 protester

who blew bubbles 14

near an officer by stating the officer did not know if the bubbles

11 explaining the rapid escalation of force http://www. policeone. com/corrections/tips/120741-Explaining-

the-rapid-escalation-of-force/ 12 police chief presented http://www. theglobeandmail. com/news/national/toronto/weapons-seized-in-g20-

arrests-not-what-they-seem/article1622761/ 13 nerd http://cnews. canoe. ca/CNEWS/Canada/G20/2010/06/30/14570136. html 14 blew bubbles http://www. youtube. com/watch?v= PGMTm3QRwEc&feature= relmfu

22 Police: Inside the Blue Wall MODULE TWO

contained “ urine or ammonia. ” Toronto officers also justified arresting people behind

their canvas banner because they did not know whether protesters were “heating up

super glue to produce cyanide and kill everyone” and they expressed further worries

that “ terrorists were in the sewers and going to contaminate our water system” (Coles,

Garvie, Bansal & Rousseau, 2010) 15

.

Heightened security at high-profile international events is justified but when police

begin curtailing civil liberties and making arrests in order to fight threats like chain-

mail clad protesters wielding chainsaws, ammonia-laced bubbles, and caldrons of

poisonous superglue it seems they are preparing to fight a Batman villain not provide

security. Such paranoia is not appropriate since the actual vandalism that does occur at

political protests is less than many post-Stanley Cup hockey riots. For example, after

the 2008 Montreal Stanley Cup rioters destroyed 16 police cars while the G20

protesters destroyed 3. Nor does such paranoia do much to actually stop vandalism as

“ black bloc” anarchists (described by one storeowner who had his storefront window

smashed as “ mostly 18 to 20 [years olds]. Many were girls” ) did the majority of their

vandalism while 50, 000 officers were mysteriously not deployed to stop them 16

—a

situation that still remains unexplained.

Perhaps the true danger of this paranoid mindset is summed up by the RCMP officer in

charge of the whole G20 operation who said the security operation was a success

because despite “ multiple false alarms” they never had “to urge NATO planes to shoot

down any threatening civilian aircraft” (Freeze, 2010). Such a heightened sense of fear

threatens to make such false alarms a larger danger to the public than any criminal

enterprise. This worldview is not just limited to policing protests and it is not just

civilians who are worried about it. A retired Minnesota sheriff has stated that he is,

vehemently opposed to the kind of training cops get these days, training

that in essence teaches cops to shoot first and ask questions later. He is

appalled by the number of mentally ill people killed by the police,

unarmed people killed by the police, innocent bystanders killed as a

result of reckless police chases. (Guillermina, 2004)

When a local reporter commented to the sheriff that he could never personally imagine

shooting “ a 97-pound woman armed only with a knife, ” the former sheriff replied “ No,

you wouldn’t shoot her, nor would anyone who has not gone through police training. ”

At the heart of such comments is the question of how accurately an officer can perceive

15 Coles, Garvie, Bansal & Rousseau, 2010 http://rabble. ca/news/2010/06/eyewitness-accounts-police-

brutality-and-indiscriminate-arrests 16 failed to be deployed to stop them

http://www. torontosun. com/news/columnists/joe_warmington/2010/06/30/14564416. html

MODULE TWO Police: Inside the Blue Wall 23

the threat facing them. There is no questioning the dangerous nature of policing, like

bouncers or orderlies in mental hospitals, as one of the key duties of police officers is

to confront threatening people, but in a paranoid world-view where every protest

banner hides an improvised chemical weapon factory, the ability of police officers to

accurately perceive ' threats' is increasingly being called into question. A Globe and

Mail (2015) Editorial accurately summarizes the changing views on police and their use

of force:

Police sometimes need to use force. Sometimes they must even use deadly

force. But what police need above all is training in how to not use force.

They need to be experts in de-escalating conflict and calming people down.

They need to be smarter, more reasonable and more level-headed than the

people they come into contact with. That is the job.

Unfortunately, North American police culture often seems to be built on

meeting threats with greater threats, and issuing ultimatums of the ' comply-

or-die' variety. In most circumstances, that is exactly the wrong way to go.

(Baird, 2015)

IN FOCUS

How Dangerous is Policing?

Is policing the most dangerous job in Canada? This question is difficult for many

people to objectively judge because the death of a police officer—especially those

killed on-duty—receives substantial media coverage while 80% of the over 300

Ontarians killed at work each year receive no media coverage at all. We can look at

the statistical data to help resolve this question, but first we need on a definition of

dangerous.

If ' dangerous' is defined as having the highest on-the-job homicide rate then the

statistics show that 133 Canadian police officers were murdered at work between 1961

and 2010. This makes policing the second most dangerous profession in Canada next

to taxi drivers who are murdered at about twice the rate of police. In the USA, retail

cashiers, restaurant and hotel managers, and cab drivers have higher rates of on the

job homicide than police.

Statistics Canada data reveals that modern officers face less of a chance of being killed

than earlier officers. Before 1989, an average of 3. 6 officers were killed per year, but

since then the rate has halved to 1. 5. The higher pre-1989 rates are likely due to a

24 Police: Inside the Blue Wall MODULE TWO

higher rate of crime as research shows that the on-duty homicide rate of police officers

follows other basic homicide trends. The lack of protective body armour also led to

higher rates in the past as 92% of the officers killed were shot (Cardarelli, 1968). The

most dangerous tasks were investigating robberies, domestic disputes, and firearms

complaints (Dunn, 2010) 17

. In the 1970s, Canada ranked fourth highest among 14

nations for the rate of officers murdered in the line of duty.

Limiting the definition of ' dangerous' to only homicides ignores the majority of police

killed on the job because half of on-duty police fatalities are due to traffic accidents

and 20% are due to natural causes or other types of accidents (like heart attacks or

drowning). If we expand the definition of ' dangerous' to include all types of on-the-job

fatalities then the rate Canadian police has for on-the-job fatalities is 14 fatalities per

100, 000. This rate is well below many resource-extracting occupations such as

mining, logging, and fishing.

The death rate per 100, 000 workers (1988-1993) is (Perspectives on Labour and

Income, 1996):

 281 for mining and quarrying (cutting, handling, and loading)

 246 for construction (insulating)

 139 for mining and quarrying (labouring)

 137 for air pilots, navigators, and flight engineers

 123 for timber cutting

 116 for log hoisting, sorting, and moving

 110 for net, trap, and line fishing

 14 for policing

Even workers in less dangerous occupations like truck drivers (38), construction

labourers (35) and pipefitters and plumbing (31) are twice to three times more likely to

be killed doing their job than a police officer.

17 Dunn, 2010 http://www. statcan. gc. ca/pub/85-002-x/2010003/article/11354-eng. htm

MODULE TWO Police: Inside the Blue Wall 25

A broader definition of ' dangerous' would include non-fatal injuries and diseases.

Policing is associated with high stress injuries from assaults, lower back pain and

higher cancer rates from using traffic radar guns (Parsons, 2004). Contrary to popular

belief (and their easy access to firearms), the rates of suicide amongst Canadian police

officers is lower than the general population rate (Andrews, 1996; Loo, 2003; Loo,

1986).

Policing is a dangerous job, especially in terms of homicide; yet policing is much less

potentially fatal than a number of industrial labour jobs or even driving a taxi. A

balanced approach to considering the danger of policing is important because a

University of Colorado sociologist observes that the constant exaggeration of

policing’s danger may be creating an unhealthy mindset in American officers:

Police training and socialization in the US is suffused with constant

reiterations of its risks and dangers. Steve Herbert’s ethnography of Los

Angeles police describes the litany of safety and danger talk that

characterizes daily police life, and that my own research confirms: “ Roll

calls regularly end with the admonishment to “ stay safe out there, ” and

officers at the end of a watch express satisfaction that they have returned

safely. . . . A common folk saying around the department holds that “it is

better to be judged by twelve than carried by six”—it is better to take an

action that guarantees the preservation of your life even if it results in

criminal action against you. It is difficult to imagine a more subtly

effective recipe for long-term terrorization of patrol officers.

The idea that policing is among the most dangerous of professions is

axiomatic in US popular culture. Even more so since the September 11 th

terrorist attacks, pictures of police as everyday heroes who risk their

lives to save us from chaos and destruction are commonplace. Without

doubt, police officers sometimes perform heroic deeds; without question,

they sometimes face fatal risks. But the dangers they face are not nearly

as great as most of us have been taught to assume.

Yet, faced with data that incontrovertibly challenges their perceptions of

police work, many people with whom I have shared this information still

express scepticism. As a friend of mine put it, “ the statistics might be

right, but the meaning of the statistics is wrong—something about the

essential quality of policing is missed. Policing feels more dangerous.

I’m sure even the fishermen whose jobs are eight times as risky would

say policing feels more dangerous. ” Maybe. But I would argue that the

statistics suggest policing needn’t feel so dangerous. Why does it? And

26 Police: Inside the Blue Wall MODULE TWO

why are we so invested in believing it should?

The perceived danger of policing, for them and for us, is inextricable

from the glamour the job has. How many young men, in particular,

would choose to become police officers if they knew just how much of

their time would be spent assisting the ill, stranded or frightened,

resolving domestic disputes, and writing reports?. . . The glamorization of

danger, the hyper-representation of extreme events, and the assumption

that at whatever cost, all risks of danger should be prevented if possible,

are all inextricable from public demands that police be prepared at all

times for the worst case scenario: they could be shot in every traffic

stop; every troubled teen could turn out to be another Columbine killer;

every mentally ill person could potentially become violent. While these

are technically true statements, the likelihood in any given situation that

homicide is a risk is extremely small.

I am not arguing therefore that police shouldn’t be on guard or shouldn’t

be prepared for worst case scenarios. Rather, I am arguing that the

excessive emphasis on lethal possibilities may not in fact be serving to

more effectively protect us and police officers. No studies have been

done on what less intensively danger-focused policing might produce in

terms of police and citizen safety. As a nation, we have simply assumed

that the “overwhelming force” by our military and “ total control of the

situation” by police will provide us with the safest environments. I raise

here a possibility I believe is at least worth testing: perhaps our

preparations for danger are not neutral in their effects on police and

citizens. Perhaps they may even increase the likelihood of dangers

escalating out of control. (Rosga, 2003)

The number of Canadian police officers murdered on duty nationwide since 1961 is

2. 7 per year yet in Ontario alone from 2005-2014 Special Investigations Unit' s (see

Module Three for more about the SIU) statistics show that firearm deaths by police

officers was between 4-10 civilians per year (i. e. not including vehicle deaths and

custody deaths) (SIU website, n. d. ). If changing how police perceive and react to

danger could reduce the second number without increasing the first would it not be in

everyone’s benefit to do so?

MODULE TWO Police: Inside the Blue Wall 27

Subculture Trait II - Authoritarian

Authoritarian behaviour is the “psychological expectation to be obeyed or submitted to

by subordinates. ” In policing, the category of subordinates encompasses most civilians

(except those with powerful social connections or wealth) and all lower-ranking

officers. This attitude is encouraged by the paramilitary structure of the police

hierarchy and also by the expectation of the public and fellow officers that an officer

should be able to take charge of a chaotic situation when others cannot. To fulfil this

expectation an officer must act from a position of power and “ with the knowledge that

what one says or thinks is probably correct” (Paoline, Myers & Worden, 2000).

Paoline, Myers and Worden (2000) also believe authoritarianism helps officers cope

with the danger and uncertainty of their occupational environment by allowing them to

“ maintain the edge” which they describe as “ employing a take-charge approach to their

work as they create, display, and maintain their authority to be ‘one up’ on citizens (the

outsiders. )” This combined need to maintain a ' one up' on civilians and an expectation

to be automatically submitted to can create conflict when police encounter others who

fail to properly submit in their body language, words, and behaviour. To an overly

authoritarian officer any ' disrespect' is a punishable offence. The book Not A Kid

Anymore gives the following example of the volatile mixture of authoritarianism,

juvenile disrespect and racially based “ working conceptions” :

Just ’cause we look tough don’t mean shit. But you see the police use

that to say we’re dissing [disrespecting] them. Even if we are, that’s not

a crime. [. . . ] Cops are on my case a lot. At night when I’m hanging out,

just swinging, a dick will come up and ask why I wear my handkerchief.

What gang I belong to. They say I’m in their “ face. ” Sure hassle the shit

out of me when I’m doing something. But not for nothing. [. . . ] The cops

like to see you squirm. We hate it. But we are forced to accept their

reasons for stopping us. White kids walk away after their nasty dealings.

(O’Bireck, 1996)

Such ' attitude checks' by officers to see if an individual will submit or not are common

on the street but the mere presence of an officer can spark a hostile response from

upper and middle class citizens who are unused to having to submit to authority. A

writer reporting on the Canadian police claims that:

As an observer, I felt most threatened, most in danger of violent assault,

when I accompanied uniformed policemen into upper- and middle-class

bars and private clubs. In the bad bars, we were a familiar sight, part of

the daily routine in places like the Drake or the Blackstone in

Vancouver, in the Charley or the Princess in Winnipeg, in the Gasworks

or Stages in Toronto, but we were attacked most often in bistros and

28 Police: Inside the Blue Wall MODULE TWO

lounges where members of the educated classes were relaxing and

drinking. In a bar called the Arts and Letters Club, two uniformed

officers of the Vancouver police were almost mobbed by well-dressed

and well-heeled club members when they entered to eject a troublesome

patron at the special invitation of the management. We all got pushed

around by men and women who worked as lawyers and executives and

entertainers. Perhaps cocaine had something to do with this, but there

was a deeply felt outrage on their part that the “ cops” should intrude on

their ground. I had the distinct impression that we were suppose to be off

somewhere less tasteful thumping poor folk and busting street punks.

(Stroud, 1983)

The authoritarian nature of policing is often complicated by the fact that an officer’s

expectation of respect can refer to both their personal pride and to the ' higher interests'

(state, capitalism, racial privilege, patriarchy) they represent. Thus, situations can

occur where a citizen respects an officer but not the government that employs them or,

conversely, the institutions are respected but the individual officer is not. This dynamic

helps explain the extra abuse, both verbal and physical, some officers heap on

protesters even when they have been respectful to the officer—they are being punished

for their disrespect to the institution there are protesting.

More often the demand for respect is personal. Often both officer and suspect are

younger males with strong (often exaggerated) senses of manliness and such ' dick-

wagging' or ' pissing' contests are a constant risk. To avoid such pointless conflicts the

police culture proscribes norms that view overly authoritarian officers as

‘unprofessional’ or ‘immature. ” As Carsten Stroud (1983) describes,

One of the first things I discovered was that there is a distinct difference

between the policeman in the United States and in Canada. Bearing in

mind the dilution of truth implicit in all generalizations, I think it’s

accurate to say that most Canadian street cops were far less ready to use

violent and threatening tactics on even the most deserving citizens.

On Davie Street in Vancouver I spent hours with many different

policemen, of varying ages, and none of them were eager to rough up

the frequently obnoxious street people they had to deal with. Even

policemen who didn’t know I wasn’t a cop took a long slow time to think

about it before they decided that force was called for. I watched one cop

stand quietly and accept five minutes of gross verbal abuse from a

drunken tourist on Robson Street in Vancouver. The man cursed the cop

creatively and thoroughly for far longer than I would have

MODULE TWO Police: Inside the Blue Wall 29

considered acceptable, and then he left untouched. I can’t think of a State

Trooper or a city cop in any of the American towns I’ve visited who

would have stood still for half that harangue without striking back.

Taking abuse such as that may be part of the job description, but taking

it as often and as gracefully as most of the men and women did calls for

a genuine commitment to restraint. Officers who carried a chip, who

provoked a fight, were openly frowned upon as men without maturity or

control. There were men like that, but the peer group pressure they

opposed was immense and sustained. The worst insult was to be

considered “ unprofessional” and a pugnacious cop was always seen that

way by his colleagues.

In sociological terms the occupational needs of policing places a high value on

authoritarianism but other subcultural values such as maturity and professionalism help

to rein in excessive authoritarianism. According to Stansfield (1996) the English police

culture encourages tempering authoritarianism into a milder more mature form called

paternalism:

What [Peel] actually created was a police force that operated according

to the principle of “ parens patriae. ” Parens patriae means, literally,

“ parent of the country” and refers, traditionally, to the role of the state

as sovereign and guardian of persons under legal disability. In this

context, it is intended to convey that, as delegates of the state, public

police are responsible for the safety of the public much like a parent is

responsible for the safety of their child.

Piaget’s (1977) observations that this type of “ parent-child” relationship is still one of

' unilateral respect' —the inferior is expected to respect the superior—but the parental

role prevents the macho aggressiveness that can easily arise in authoritarianism. A

parent may need to discipline a child but they should not lose their temper and start

beating them.

The need to constantly maintain an authoritarian persona can affect an officers’ personal

life by encouraging them to “ police their families they way the work the streets”

(Kirschman, 1997). Some officers instil their homes with demands of obedience that

create an appearance of domestic “ clarity, simplicity, and order” and thus lowers an

officer’s anxiety level, but it can come at the price of intimacy, positive regard, and

many spontaneous emotions. For example, a relative of mine who worked as a police

dispatcher, and who was married to an OPP officer, made her children stand ready for

a room inspection each week as the kids announced, “ Ready for inspection, commander

mommy. ” Outside the family, the combination of “ training in interrogation skills and

30 Police: Inside the Blue Wall MODULE TWO

over certainty of opinions” in some officers can create an “irritating, adolescent

combative conversational style” that makes “ communicating with any non-police peers

nearly impossible” (Kirschman, 1997).

Subculture Trait III - Pragmatism

Like every professional, police must learn to adapt to the realities of their job by using

ways not necessarily formally sanctioned by society and their superiors, but that are

nonetheless efficient. Such methods are not based on “ the administrative rules, which

derive substantially from the criminal code or municipal regulations, but are those

“ rules of thumb” that mediate between departmental regulations, legal codes, and the

actual events on the street” (Manning 1978). William Waegel (1981), for example,

documents that a large part of detectives’ working knowledge is their ability to decide

which cases contain enough information to lead to an arrest and are worthy of further

investigation, and which are not. A similar informal but valuable job skill is the use of

deception as an aid in efficiency (Skolnick, 2000).

To the public a deceptive cop might be synonymous with a ' crooked cop' but police

officers’ job experiences teach them to view deception as a natural tool. This view is

often endorsed by the court system when it is practiced in the investigative and daily

activities of police work and consequently police develop ' extralegal' powers to assist

them in detecting criminal offences. Those police officers who become good at such

techniques become known as ' good street coppers' (at least in British parlance) while

those who cannot or will not master the techniques risk being ostracized.

According to Stansfield (1996), “ examples of extralegal police powers are the use of

informers, inducing confessions, finessing criminal acts, and differentially targeting the

poor for surveillance. ” These powers are adequate in most cases; however, in some

cases, such as the control of organized crime, the police resort to illegal acts such as

fabricating evidence or coerced confessions. The informal system of extralegal powers

and illegal acts, known colloquially as the ' Ways and Means Act' (referring to a

fictional statute 18

that police use to justify extralegal practices) makes manageable the

difficult police assignment of using the law to control those members of society who

represent the most serious threat to social order (Stansfield, 1996). Unfortunately such

discretionary, dubious actions will naturally penalize some members of society more

than others and this can make both the police and knowledgeable civilians, cynical

about achieving ' justice' in the criminal justice system (Stansfield, 1996).

18 fictional statute http://policecamerapaperwork. blogspot. com/2007/05/section-69-of-ways-and-means-

act. html

MODULE TWO Police: Inside the Blue Wall 31

IN FOCUS

Informants

A rarely discussed but important ' working ability' for many officers is the handling of

informants. Physical evidence may get convictions but it is often ' snitches' who first

identifies suspects. No one likes informants but from Judas Iscariot (Imperial Roman

informant on radical cults) to Ronald Reagan (FBI informant on Hollywood leftists)

they have profoundly shaped history (Herhold, 1985).

Over the last two decades law enforcement dependence on informants has grown and

many countries have introduced policies to facilitate this by offering financial

incentives, protection, or leniency in exchange for information or testimony. As a

result, "the ' flipping' of criminals is now a central approach in the investigation [and]

increasing organisational pressures are exerted on police officers to recruit and establish

long-term relationships with criminal trade participants" (Aaronson, 2013). For

example, in 1975 the FBI had 1, 500 informants, and during the 1980s the number had

quadrupled to 6, 000 due to the ' War of Drugs' . In 2004 a presidential directive gave

the FBI an additional 13 million dollars to increase informants and it now has a

"network of over 15, 000 informants, the largest network of spies ever to exist in the

United States. " (Aaronson, 2013)

The benefit of increased intelligence from informants has its dark side because

informants are becoming increasingly powerful within the justice system. Considering

most informants are criminals themselves this is a worrying trend. A former Drug

Enforcement Agent who had "close association with more than 10, 000 confidential

informants" vividly describes them as "traitorous information whores who betray

friendships, relatives, business and/or criminal associates, nations, and even terrorist

organizations. They are criminals and conmen who use their insider positions of trust to

steal and barter information that can and often does destroy those who most trust them"

(Levine, 2009).

Some informants snitch for emotional reason like vengeance but most often have strong

legal and financial incentives to produce information that can lead to a conviction.

Informants can receive payments of hundreds of thousands of dollars per case and in

one infamous case,

a federal narcotic task force in New Mexico, took a child rapist who had

raped so many young boys in the past that “he lost count, ” as their

undercover informant. While working under the protection of the feds, the

informant continued to rape young boys. The allegations are that the feds

32 Police: Inside the Blue Wall MODULE TWO

knew that their informant was the predatory rapist being hunted by local

police and continued to protect him so that he would not be discredited as

a witness in a drug case. (expertwitnessradio. org, 2010)

Informants and the War on Terror

The ' Wars' on Drugs and Terror have been boom times for informants. Studies have

found that nearly 50% of the federal terrorism convictions since 9-11 resulted from

informants, 30% were sting operations where the informant played an active role in the

underlying plot and in 10% of cases the informant was an agent provocateur—an FBI

operative who actually instigated the terrorist action. As a Human Right Watch 2014

study into the subject concludes "with three exceptions, all of the high-profile domestic

terror plots of the last decade were actually FBI stings" - a fact that is rarely mentioned

in the resulting media coverage (Human Rights Watch, 2014).

A typical FBI counterterrorism operation involves examining all the immigration data

and taxi licences of a city' s Muslim population looking for any violations that can be

used to create informants. Potential informants are then offered legal and cash

incentives to turn over any ' terrorists' they can find, so the informants will hang around

a mosque until they can befriend some “powerless braggarts” in their early twenties or

someone with mental health issues and together they plot ' terrorist' attacks. At this

point the FBI swoops into to make a high-profile arrest.

Most such ' terrorists' caught in this manner live on the "fringes of society, occupying

neither the skills nor the financial resources necessary to execute an attack on their own

and who never came into contact with Al Qaeda or any other terrorist network

whatsoever. " One ex-FBI agent described the 19 year-old Somali-American student

convicted of trying to bomb a Christmas tree lighting ceremony as "a kid who, it can be

reasonably inferred, barely had the capacity to put his shoes on in the morning”

(Aaronson, 2011). In the case of the ' Newburgh Four' , accused of planning to attack a

US military base, a judge said the government “came up with the crime, provided the

means, and removed all relevant obstacles, ” and had made a ' terrorist' out of a man

“whose buffoonery is positively Shakespearean in scope” (Human Rights Watch,

2014).

The CSIS informant who brought about the conviction of the ' Toronto 18' for their

plans to behead the Prime Minster had wanted $2. 7 million or he would refuse to testify

but in the end he was paid $300, 000. This informant was also the only member of the

terrorist group with any military training, firearm experience or even a driver' s licence.

The training videos the group produced are almost comedic with teenage ' terrorists'

jumping over camp fires, doing doughnuts in Canadian Tire parking lots, giggling

during their jihadi speeches, and frequenting the local coffee shop still dressed in

fatigues (Teotonio, 2010). A RCMP informant was also brought in to arrange a phoney

MODULE TWO Police: Inside the Blue Wall 33

fertilizer purchase on behalf of the youths so charges relating to explosives could be

laid; this informant wanted $14-million for his efforts but was paid $500,000 (Freeze

and Akkad, 2007). Without the aid of such highly-paid informants the group seemed

unlikely to accomplish anything.

The case of Rezwan Ferdaus is similar. Despite an FBI agent admitting that Ferdaus

had “obvious” mental health problems, he was targeted for a sting operation and an

informant was sent to his mosque. Together, the informant and Ferdaus devised a plan

to attack the Pentagon and US Capitol, with the FBI providing fake weaponry and

funding their travel. The stress of the fake plot was so hard on Ferdaus that he began

suffering seizures and depression so badly that his father had to quit his job to care for

him. Ferdaus pled guilty and was sentenced to 17 years in prison (Human Rights

Watch, 2014).

The current legal climate is so hostile to terrorism that almost every suspect is

convicted with a lengthy sentence and prosecutors "can introducing evidence obtained

by coercion, classified evidence that cannot be fairly contested, and inflammatory

evidence about terrorism in which defendants played no part, asserting government

secrecy claims to limit challenges to surveillance warrants" additionally "the bar on

entrapment in US law is so high that it’s almost impossible for a terrorism suspect to

prove" (Human Rights Watch, 2014). Law enforcement agencies are under heavy

political pressure to stop terrorist attacks, and when this pressure is combined with

financial rewards for informants and a vulnerable population of Muslim males,

especially the young, the poor and those with mental or developmental disabilities, and

"you have a recipe for rampant human rights abuses” under the guise of safety (Human

Rights Watch, 2014).

Subculture Trait IV - Conservatism

Police officers must deal with examples of human selfishness, cruelty, and apathy on a

daily basis and this constant exposure can erode a person’s faith in “the basic goodness

of humanity until an officer feels that only the most innocent of victims—children,

elderly, pets—are not assumed to have somehow deserved their victimization”

(Kirschman, 1997). I refer to this phenomena as ' moral erosion' and it is found to

varying degrees among many people who work in the criminal justice and mental health

systems who witness some of the worst sides of humanity on a daily basis.

A steady stream of discouraging experiences convinces many officers that “ the judicial

system doesn’t work, criminals have too many rights, and victims’ needs don’t count,

the public doesn’t appreciate the police enough and politics not justice dominate their

34 Police: Inside the Blue Wall MODULE TWO

job” and they react by adopting an attitude toward the society they once swore to

protect that ranges from protective detachment to misanthropic pessimism (Twersky-

Glasner, 2005). Other officers adapt to moral erosion by subscribing to the narrative

that they are different from the general public because they compromise a thin blue line

protecting society from mayhem and anarchy. As police are employed to maintain the

state’s conception of order it is not a far jump for many officers to ascribe to a sense of

mission in safeguarding a larger social order and accordingly adopting a conservative

view of life, society, and politics.

A conservative attitude generally expressed as a disposition “ to preserve what is

established, stressing tradition and social stability, keeping established institutions, and

preferring gradual development to abrupt change” (Merriam-Webster Dictionary, 2011)

and this can be a healthy respect for the need of humans to be guided by rituals,

initiations, and culturally accepted values and meaning. Police officers’ daily

experiences dramatically illustrate to them the multitude of ways a human can ' fail' in

life and so their understanding of the human need to have established forms of guidance

and role-models is reinforced. Consequently, police culture often finds itself working

with churches, schools, sports, popular charities, and other widely accepted institutions

that try to instill communal values and respect for authority. In many ways this

conservatism is in agreement with the sociological theory of anomie first popularized by

French sociologist Émile Durkheim in 1897. Anomie (Latin a-nomos or ' without

norms' ) is described as “personal feeling of a lack of social norms; normlessness”

caused by the disintegration of a society’s widely accepted values. Some schools of

sociology believe that suicide, depression, and criminality result from prolonged

anomie and conservative attitudes work to prevent anomie and its negative

consequences.

On an individual level this conservatism can express itself as an officers’ embrace of

conventionality in their lifestyle, relationships, purchases, and tastes. Hence the officer

may try to conform to the domestic ideal of “ a nice house, with a white-picket fence

and 2. 5 kids” by purchasing expensive houses in the suburbs and shunning anything

weird or unusual. Other officers try to cope with the “ adrenaline withdrawal” of being

off-duty by becoming avid consumers going on “shopping sprees” for “ novelty gifts or

expensive toys—TVs, speedboats, big houses and motorcycles” in accordance with

mainstream tastes (Kirschman, 1997). This conventionality is also expressed in officers’

“addictions to caffeine, alcohol or sedatives” and horror at less harmful but

unconventional drugs. One side-effect of this middle-class consumerist lifestyle is that it

creates both a literal and figurative distance between police officers and the poorer,

inner-city citizens with whom they most often interact.

MODULE TWO Police: Inside the Blue Wall 35

IN FOCUS

Political Conservatism and Policing

The personal conservatism of police culture (“small-c” conservatism) easily becomes

intertwined with the “ big-c” Conservatism espoused by the American Republican

Party and the Canadian Conservative Party and polling has estimated that 80% of

police officers vote for these types of parties. Since North American Conservative

parties represent the sometime radical interests of big business, imperialism, and

fundamentalist Christianity this can result in officers holding some strange belief-

systems despite their adherence to conventionality.

For example, modern Conservative Parties are dedicated supporters of America’s

exceptionalist right to aggressively invade other countries in violation of international

laws. This creates the unsettling paradox of many law-enforcement officers supporting

the “supreme international crime” as such aggressive invasions were termed by the

Nuremberg Tribunals that followed in the wake of World War II.

The politics of fundamentalist Christianity and unregulated capitalism create similarly

odd mixtures. In my personal conversations with a Sudbury Regional Police officer

who became a Conservative candidate and minister for the Pentecostal Assembly of

Canada, he stated that if elected he would enforce “ God’s law not man’s law” —this

was a strange statement to hear from a law enforcement officer. This fusion of law

enforcement and fundamentalism has become more prominent in the last decade and

stretches to the highest level of the Canadian legal system. In recent years (2006 -

2008) the position of the Minister of Public Safety and Emergency Preparedness, the

ministry in charge of the RCMP and corrections, was held by Stockwell Day who also

belonged to the Pentecostal Assembly of Canada. Day is well known for his

fundamentalist beliefs and has said “ I believe that the Bible is the infallible word of

God and every word in it, cover to cover, is true” (Day, 1998). From 2011-2013, the

Minister of Public Safety has been currently held by Vic Toews, a Paraguayan

Mennonite who stridently opposes same-sex marriage and abortion. In 2003, Toews

opposed including sexual orientation under the protection of hate crime legislation

because “ A homosexual activist could go to the Holiday Inn, say, and tell them,

“ We’ll sue you for the removal of those Bibles because they constitute hate literature. ”

36 Police: Inside the Blue Wall MODULE TWO

Toews previously held the position of Attorney General (Minister of Justice)

before he was replaced by Rob Nicholson in 2007. Nicholson is a devout

Roman Catholic and described by fellow Conservative Kim Campbell as

very decisive and things are very black and white to him. There is a

wrong and there is a right. He never questions. He is very strong in his

faith. He believes in exactly what the Catholic Church preaches. He is

not one of these Catholics who picks and chooses. He is a devout

Catholic and he does believe in the doctrine of the church, so that’s why

. . . that’s why he takes the stand that he does on [abortion and] gay and

lesbian marriages. (Schmitz, 2007)

The role of the American Attorney General was held by John Ashcroft from 2000-

2005, yet another subscriber to the Pentecostal Assembly of God church. Ashcroft' s

devotion to literal interpretations of the Bible are almost too many to count, such as

having himself anointed with oil whenever he won an election and holding Bible study

groups with the Department of Justice employees each morning in his office, but

perhaps his most famous act was ordering a curtain ' burka' placed on the female semi-

nude ' Spirit of Justice' 19

statue located in his department’s Great Hall where news

conferences were held. Ashcroft ordered the statue covered up because he did not

want to be photographed besides the statue’s one fully-exposed breast that protrudes

from her toga.

The adoption of the Conservative political desires of big business can also result in

contradictory philosophies in police culture because the desires of large corporations

are often far removed from the pragmatic needs of police. For example, Conservative

officers are often anti-union (except their own), anti-tax (except for their own salaries

and sizable budgets which are paid from taxes), anti-government regulation (expect for

the criminal code, gun registry, marijuana prohibition, etc. ) and anti-social program

(despite knowing how limited policing is in fixing larger social ills).

The paradoxical belief that governments are too incompetent to regulate markets but

competent to regulate individual morality through increased police power is at the

heart of most conservative and neoliberal political philosophies (Harcourt, 2010). This

strange state of affairs leads to the irony of police officers advocating the radical

philosophy of unregulated capitalism despite most sociological studies of anomie

(including Durkheim’s own original analysis) concluding that unregulated capitalism is

anomie’s greatest cause. Over the last 200 years unregulated capitalism has:

19 Spirit of Justice http://news.bbc. co. uk/2/hi/americas/1788845. stm

MODULE TWO Police: Inside the Blue Wall 37

 destroyed rural farming forcing people to crowd into cities;

 destroyed middle-class factory jobs through ' free trade' that sent those jobs to

other countries;

 demanded high levels of unemployment and immigration to keep job wages

down;

 kept a constant flow of new technologies pouring into society with no regard

for the radical social effects they incur;

 preferred alienated labour that emphasized profit-maximizing efficiency over

family, community, and living wages;

 allowed the gap between rich and poor to grow to grotesque proportions;

 successfully fought to lower corporate taxes at the expense of health,

education, social and environmental programs;

 filled the media with narcissism-inducing ads and programs that constantly

privilege individual desires over the public good;

 repeatedly crashed economies through reckless stock-market gambling and

banking fraud.

The near anarchy of such unregulated capitalism is a dedicated foe of any social

conservatism that tries to preserve traditional modes of social order such as family,

religion, government, and notions of the public good. This paradox means that police

officers daily deal with the negative human consequences of poverty and alienation,

yet they are also the front-line defenders of the anomistic-economic system that

produces it.

38 Police: Inside the Blue Wall MODULE TWO

Subculture Trait IV. I - Prejudice and Stereotypes

One aspect of police culture closely related to conservatism is the use of stereotypes.

This is then often broadened to racism and condemned as one of the worst aspects of

policing and this can be the case. Yet imagine it is your job to drive around the city and

find criminals: Where do you go? Who do you stop? Do you go to ' the bad part of

town' ? Do you stop ' rich white people' who have enough social power to make your

life difficult? Do you investigate the scruffy-looking walker in the suburbs with shifty-

eyes? If you don’t use stereotypes and ' conventional' wisdom to guide you what do you

use?

Van Maanen (1978) states that “ police use stereotypes to guide them on whom to

police” and studies by Bittner (1967) and Sacks (1972) have shown that police officers

react in terms of practical notions of what appears to be “suspicious for this time and

space” plus a set of stereotypes about the kinds of people who constitute typical

criminals. Rubington and Weinberg (1996) refer to such practices as the “ working

conceptions” used to select potential criminals by the police. Griffiths and Verdun-

Jones (1994) refer to these practices as ' typifications' and ' recipes' ; ' typifications' are

typical or common expectations about routinely encountered events and ' recipes' are

the standard actions taken based on those typical formulations.

Ericson’s (1982) work on proactive policing provides a list of four such typifications

that police use to decide on which people are worthy of further investigation:

1. Individuals out of place; those who “ are engaged in activities at a time and/or in

circumstances deemed not normal” . Examples given by Ericson include “youths

who were not well dressed but were driving an expensive Cadillac, a man at 4 am

in a commuter train station with no scheduled train due for several hours, an old

man in ' derelict' conditions walking in a wealthy residential area, and a group of

men sitting in a car outside a bank. ” Such typifications are bound by time periods

and local variations in fashion, for example, “ an administrative directive within

the Los Angeles police department in 1959 “urged its men to be suspicious of

persons wearing sneakers at night” (Rubinstein, 1973).

2. Individuals in particular places; those people found in places that police have

defined as areas where deviants gather (for example, parking lots, public parks,

fast food chains). Proactive stops, in this context, would be for liquor and drug

violations and high crime areas.

3. Individuals of particular types regardless of place; people who are seen as being

particularly troublesome (for example, bikers, gang members, punks, and

individuals with a record).

MODULE TWO Police: Inside the Blue Wall 39

4. Unusual circumstances regarding property. For example, an officer might look for

“ old cars with damage to the front end assuming the driver may have been in an

accident where he was the culprit and, therefore, issue a summons. The person

who cannot afford to pay for car repairs might also not be able to pay a fine and is

more likely to have an outstanding warrant on him. ” This is a technique that

officers feel would yield a high probability of catching drivers with outstanding

warrants.

In using these indicators to decide whether or not to initiate proactive action specific

groups are more likely to be targeted than others based on stereotypes because

stereotyping judges people by their external appearance. Ultimately the use of

stereotypes is not a reliable assessment tool and when police use stereotypes to

determine their actions in law enforcement activities, they create a self-fulfilling

prophecy. According to Stansfield (1996):

A self-fulfilling prophecy can occur when police have a belief (i. e. , a

stereotype) that most, if not all criminals, belong to a particular group.

Consequently, police use their discretion to target members of this group

with the predictable result that they find members of this group

committing crimes. When police arrest and charge these individuals,

they produce statistics that reinforce the stereotype about who is doing

crime. Armed with these “ objective” statistics, police target members of

this group.

IN FOCUS

Racial Profiling and the Irish

The question of self-fulfilling prophecies is a key question in discussing racial

profiling. Unfortunately the topic of racial profiling has become so controversial in

Canada that it has been called the “ Northern Taboo” resulting in Canadian police

agencies being prohibited from even collecting statistics on the race of those they

investigate; this makes research on the topic difficult (Wortley, 1999). Racist attitudes

among police officers are well documented but the need to rely on stereotypes and the

nature of self-fulfilling prophecies suggests that it is more complicated than racism

alone. If an ethnicity is over-represented in crime statistics, racists are quick to assume

that this reveals an ' eternal' cultural or genetic predisposition for crime- but a

historical view shows just how often such ' eternal' faults disappear when social

conditions change. An examination of the relationship between Toronto police and

Irish immigrants in 19 th century Canada gives us an example of this.

40 Police: Inside the Blue Wall MODULE TWO

In the 1800s Catholic Irish immigrants were widely considered by

Protestant Anglo-Canadian elites to be a ' troublesome race' prone to

criminality and drunkenness. To many Canadians of this time all Irish

women were potential prostitutes and all Irish men were potential

hoodlums or gangsters. These negative stereotypes find some

justification in the Toronto police statistics of that era. The areas of

Toronto where Irish immigrants could afford to live were slums and the

high Irish Catholic birth rate and general poverty did little to change this.

Yet considering the background of these Irish immigrants, many of them

were destitute, escaping the famine of their homeland—a situation

facilitated to nearly genocidal proportions by the repressive British

policies and occupation of North Ireland. Irish gangs, tight-knit

communities, and devout Catholicism were responses to maintain an

Irish identity in the face of this British occupation when they were

imported to Canada. The largely Protestant English Toronto police

officers shared the anti-Irish bias of their British counterparts and the

force was rife with ' Orangemen' —a secret society that viewed Irish

Catholics the same way the Ku Klux Klan viewed African-Americans.

(Vronsky, 2004)

Thus in 19 th century Toronto we have an openly anti-Irish criminal justice system and

an immigrant Irish culture riddled with anti-state gang activity and the usual crimes

and addictions that accompany poverty. Add in the self-fulfilling prophecy of police

discretion and we begin to understand how Toronto officers believed that the Irish

were essentially a criminal race. Yet within two or three generations the typical Irish

stereotype transformed from a criminal to that of a brogue-speaking moustached police

officer; if someone talked about the ‘essentially’ criminal nature of modern Irish-

Canadians, they would be laughed at.

Similarly, popular views of organized crime reflect popular racist stereotypes. A

modern stereotypical organized crime outfit is that of the Russian mob or Vietnamese

gangs, forty years ago it was the Sicilian mafia or Japanese yakuza; in the 19 th century

it was Jewish and Irish gangs. This constant transformation shows that while certain

elements in ethnic cultures do have periods of increased criminality - dictated by a

variety of, often adverse, sociological factors - there is nothing ' essential' to such

criminality. The current inability to rationally discuss racial profiling stems from a

cultural inability to see crime in a larger sociological context.

MODULE TWO Police: Inside the Blue Wall 41

SECTION 2. 3: Community Policing

In 1994, Bill Blair, an undercover Toronto detective responsible for some of the city’s

biggest drug busts, was asked by the Chief of Police to handle a potentially explosive

situation that had developed between 51 Division (or ' Fort Apache' as it was known

locally due to the ' cowboy' attitude and siege mentality of many of its officers) and the

residents of Regent Park. 51 Division officers were pursuing a suspected drug dealer

through the housing development when a young black resident shouted at them to slow

down because their high-speed pursuit was as least as dangerous to the community as

any drug-dealer. The officer responded with a sexual and racial slur, and the resident

grabbed his own crotch in response. The situation escalated and soon residents were

throwing bottles and yelling profanities at the officers. In response forty-five police

cruisers converged on the low income neighbourhood and released a cloud of pepper-

spray and batons. In the resulting melee several officers were injured and three people

were arrested and brought to the police station. Soon a crowd gathered around 51

Division angrily demanding their release.

A day later, residents held a meeting at the Regent Park community centre.

Against his staff’s warning, Blair decided to show up. The fluorescent-lit hall

was over-capacity, crammed with people exasperated by years of ill

treatment. When Blair entered the room, the din grew louder. “ People were

shouting and screaming, thumping their fists into their hands, ” McConnell

remembers. Blair took a chair and set it down in the centre of the linoleum

floor. With the residents standing around him, he said he would answer their

questions.

“ The first question was the toughest one, ” Blair [said]. “ They asked me,

‘Are there racists over at 51 Division?’ If you say no, everyone knows you’re

lying. And if you say yes, it’s kind of tough to go back to the station and

work with your people. ” His response is a kind of model in miniature of the

Blair approach to diplomacy. “ What I told them was that racism is a problem

in society and among all humans, ” Blair recalls. “ I recruit from the human

race and we’re as human over there as we are in this room” . . . . According to

people who were in the room, the speech was remarkably successful ….

When you talk to people from Regent Park today, they point to Blair’s time

there as a turning point.” (Hune-Brown, 2011)

42 Police: Inside the Blue Wall MODULE TWO

Blair backed up his successful town hall appearance by making changes to how

Division 51 operated on a daily basis. He put many of the divisions’ plain clothes

officers back in uniform hoping to reduce the strong-arm style of policing and

reintroduce a degree of professionalism. He also declared that a working community

relationship and not arrests were to be the divisions’ top priority.

The rebel cops at 51 went on to pursue their grievances through the

Toronto police union. Blair, however, set to work normalizing

community relations with a hearts-and-minds campaign. He assigned a

couple of young beat cops to drop by that elementary school every day,

not just when trouble was brewing. Initially, they got a prickly reception.

But they persisted. “ Within five weeks, ” he recalls, “ those officers were

in the classrooms, reading to the kids. ” He took the same tactic with

local merchants and churches. At one, the pastor told him his

congregants were offering up prayers for the officers of 51 Division.

Blair made sure to relay that surprising piece of information back to his

squad; soon, some officers were attending services. As he says, “You

can’t police from the 50,000-foot perspective. ” (Lorinc, 2011)

When progressive candidate David Miller was elected mayor in 2003, he chose not to

renew the contract of the Police Chief Julian Fantino due to Fantino’s “ militaristic

approach to policing high-crime neighbourhoods” and his “supporters in the Mike

Harris government” (Lorinc, 2011). Instead Miller hired Blair and his community-

focused philosophy to supplement his own “ community safety drive in Toronto’s

neediest neighbourhood” and in 2005 Blair became the city’s youngest chief at 51-

years-old and the first one ever to have a university degree (Lorinc, 2011).

Blair began making the same type of changes to the Toronto Police Service as he had

done to Division 51 by “reorienting the force so it paid as much attention to community

safety and reducing the influence of gangs as to locking up criminals” (Lorinc, 2011).

To accomplish this Blair redeployed 200 desk officers to street patrol, hired another

250 officers for bike and foot patrol and focused on creating stronger links to

community groups. He also changed police hiring policies to reflect a city where almost

half the population was born outside Canada. His recruitment criteria emphasized

language and cultural competencies and half of the police college graduates since 2005

have been women or visible minorities and one-third speak at least three languages.

MODULE TWO Police: Inside the Blue Wall 43

The Philosophy of Community Policing

Chief Blair’s method was the implementation of the community policing approach that

had been adopted by many North American policing services with varying degrees of

commitment and varying degrees of success. Community policing is a wide term

covering a diversity of policing methods—everything from foot patrols, to community

liaison programs, to neighbourhood watch programs—but the underlying philosophy is

to build stronger police ties with the community which allows police to do their job

more efficiently.

While it may seem new the idea of cultivating community contacts and popular

legitimacy to make policing more efficient has a long history and this is found at the

heart of the traditional Nine Principles of Policing that have existed since the 1800s

(sometimes incorrectly called Peel’s Principle of Policing).

Nine Principles of Policing:

1. The basic mission for which the police exist is to prevent crime and disorder.

2. The ability of the police to perform their duties is dependent upon the public

approval of police actions.

3. Police must secure the willing co-operation of the public in voluntary observation

of the law to be able to secure and maintain the respect of the public.

4. The degree of co-operation of the public that can be secured diminishes

proportionately with the necessity of the use of physical force.

5. Police seek and preserve public favour not by catering to public opinion, but by

constantly demonstrating absolute impartial service to the law.

6. Police use physical force to the extent necessary to secure observance of the law

or to restore order only when the exercise of persuasion, advice, and warning is

found to be insufficient.

7. Police, at all times, should maintain a relationship with the public that gives

reality to the historic tradition that the police are the public and the public are the

police; the police being only members of the public who are paid to give full-time

attention to duties which are incumbent upon every citizen in the interests of

community welfare and existence.

44 Police: Inside the Blue Wall MODULE TWO

8. Police should always direct their action strictly towards their functions, and never

appear to usurp the powers of the judiciary.

9. The test of police efficiency is the absence of crime and disorder, not the visible

evidence of police action in dealing with it.

As can be seen from this list, public consent, public co-operation, minimal force and

the idea that ‘the police are the public and the public are the police’ have long been

ideals for policing.

Community Policing Methods

Modern approaches to community policing have centred on a handful of key ideas such

as using preventative proactive policing, zone policing, educated constable generalists

and media outreach. One common suggestion is to supplement the normal model of

reactive policing (only responding to crimes that have already occurred) with

preventative proactive policing that attempts to engage communities in situations other

than just crime responses. According to the community-based policing model,

officers should not simply circulate through the community awaiting a

call for help or the sight of an offence in progress, but they should work

actively with the community to respond to, and we hope, prevent crimes

from taking place. (Roberts, 2000)

In this model police departments should no longer act as ' motherships' which patrol

cars depart from, but instead police services should be decentralized and throughout the

community with neighbourhood or storefront police substations. By placing police

stations in high visibility areas the objective is to make it easier for the police to

communicate with the public.

Community policing also promotes zone policing that recognizes the heterogeneity

(diversity) of communities as a city can be subdivided into communities based on such

characteristics as race, sexual life style, language, religion, and the types of crime

committed there allowing for differing policing techniques in different areas (Stansfield,

1996). A form of zone policing can be seen in Chief Blair’s recruitment of academics to

do ' hot spot' analysis that uses computer models and crime data to predict where

criminal activity is likely to occur. Blair claims such modeling allows police “ to be

more intelligent in how we deploy our resources” (Lorinc, 2011).

MODULE TWO Police: Inside the Blue Wall 45

Another community policing proposal is to use educated constable generalists instead of

officers who begin with little education and are then specialized according to their

assignment (like drug squad, homicide, or tactical). Constable generalists would be able

to handle the wider levels of discretion and autonomy that would allow them to be

involved in more aspects of the policing process including investigation. Toward this

goal Blair’s hiring criteria has seen the average age of police recruits rise to 28 and has

seen a sizable increase in the number of recruits with undergrad degrees, and “ during

graduation ceremonies, [Blair] presses the rookies on the importance of avoiding racial

biases” (Lorinc, 2011).

Community policing also emphasizes the use of the media outreach to communicate

with the public, such as Crime Stoppers programs that create dramatic reenactments of

a crime to play on television in hopes of prompting citizens to phone in new

information with the promise of anonymity and financial rewards. The organization

claims to have paid Canadian informants nearly thirteen million dollars during its

history (up to 2011). A Toronto police detective named Scott Mills started using the

Internet, Facebook, YouTube, and Twitter to put out Crime Stopper appeals resulting

in a sevenfold jump in feedback. With Blair’s blessing, Mills also leveraged his

thousands of Twitter and Facebook followers to promote activities for Toronto youth,

such as legal graffiti art projects and BMX bike tournaments. A similar tactic of

recruiting the public as both paid and unpaid informants occurred after the 2011 riots in

Vancouver and Britain when police harnessed both the traditional corporate media and

internet-based social media outlets to distribute pictures of suspects.

Critiques of Community Policing

Despite community policing’s promises it has also garnered criticism. For example, the

model of proactive policing that puts more police out into communities on foot patrol

can be seen as intrusive by communities that distrust police. When in the wake of a

teenage shooting death Blair proposed to Toronto’s Boards of Education that a police

officer be stationed permanently in designated high schools it was met with some

community criticism and when Blair stressed that “ the cops in schools are carefully

selected, and their job is not to patrol the halls. . .rather [they will] help with coaching

and involve themselves with the life of the school” some parents and students were

suspicious of the police’s intention (Lorinc, 2011).

Others critics worry that involving the public in policing risks creating forms of

vigilantism and a society of informants. Normandeau and Leighton (1990) point out that

Neighbourhood Watch' s neighbourhood substations and zone policing are updated

versions of the ' watch and ward' vigilante police forms used in agricultural

communities to maintain order. They suggest that these forms of ' kin justice' and

46 Police: Inside the Blue Wall MODULE TWO

' proto-state policing' are too dangerous to re-introduce into modern societies.

According to Stansfield (1996), many of the community policing programs “ are

informal, part-time, volunteer, surveillance networks” that encourage citizens to

provide police with additional information about each other’s habits and behaviours.

The most enduring critique of community policing offered by a variety of police

officers, criminologists, and lawyers is that community policing is more about public

relations than real reform policing. Thus while some sociologists interpret community

policing as increasing pluralism and rationalization, and liberal commentators often

highlight the ethnic sensitivity training police now receive, skeptics question whether

multicultural changes to policing—like allowing RCMP officers to wear Native braids

or Sikh turbans 20

—or setting diversity hiring quotas are necessarily products of genuine

police compromise and improved community understanding.

We should not be too quick to discount such changes in the dress of officers because

paramilitarism places a high value on traditional uniforms (and police cruiser paint

jobs) 21

and so such changes are improvements. Yet Hester and Eglin (1992) have also

noted that the popularity of community policing over the last 30 years has coincided

with a crisis of legitimacy for ruling classes. Since the 1970s many segments of North

America have felt an increasing distrust of the ruling classes’ political and economic

system. This has reduced the ruling classes’ ability to maintain its hegemony and Hester

and Elgin (1992) believe Anglo-American police, to help offset this loss of legitimacy,

have decided to implement community policing as a propaganda tool to rebuild public

support.

Similarly, Gordon (1987) believes that community policing help police deal with people

whose support for the ruling class appears to be weak and, therefore, needs boosting

and it is in the context of distrust and dislike of the ruling class that contemporary

community policing was developed. From his perspective community policing was a

grudging compromise to maintain the image of neutrality that a government needs to

ensure its legitimacy. Some academic criminologists have noted that even the ' Nine

Principals of Policing' are themselves closer to police propaganda than a reflection of

the realities of policing.

In the case of Chief Blair’s reform, University of Toronto professor and criminal

lawyer Peter Rosenthal, feels that Blair “ talks a much better game” than his

conservative predecessor Fantino but believes “ there’s been less change on the force

than Blair would care to admit” (Lorinc, 2011). “As far as I can tell, he hasn’t operated

20 Sikh turbans http://news. rediff. com/report/2010/may/12/baltej-dhillon-rcmp-on-20-years-in-the-

force. htm 21 paint jobs http://www. cbc. ca/news/canada/toronto/story/2007/01/18/cruisers. html

MODULE TWO Police: Inside the Blue Wall 47

very differently than his predecessors, ” says Rosenthal noting that there are still many

incidents where police officers use firearms inappropriately and where homeless people

are arrested or harassed.

Perhaps the best illustration of the limits of Blair’s progressivism and community

policies were seen in the 2010 G20 protests.

15 years after that tense meeting in Regent Park, Blair was once again

asked to get up in front of an angry public and speak for the police. Just

like in 1995, Blair’s task was to acknowledge public anger while

remaining credible to the men and women in uniform who work beneath

him. But this time his public statements [about the G20] made an ugly

situation worse. (Lorinc, 2011)

Unlike the humanity Blair had showed in Regent Park, in the aftermath of the G20

protests Blair blandly “ continued repeating his collection of talking points” and refused

to explain why police removed name tags during the protest, why laws had been

purposefully misrepresented by the police department before the protest, and why he

refused to hold any officers responsible for their violent misconduct despite the

existence of videotapes showing the abuse.

Blair’s supporters have offered excuses for what happened during the G20:

the unfairness of holding an event like the G20 in downtown

Toronto. . . they hint darkly about the other police organizations involved,

like the ISU , which was formed for the G20 and then immediately

dissolved. . . they talk about the Police Association and the kind of

pressure the powerful union can bring to bear on a chief. (Lorinc, 2011)

Maybe an easier explanation is that police departments must now publicly renounce

racism, sexism, and sexual orientation discrimination because Canadian culture at large

has rejected such discrimination. But to show sympathy for anti-capitalist protesters,

even if they represent the views of part of the community he serves would place a

police chief in direct opposition to the true rulers of Canadian society. A position not

even the most progressive police chief could take and still keep their job.

48 Police: Inside the Blue Wall MODULE TWO

SECTION 2. 4: Police Funerals

Police funerary rites and memorials are public events. The death of an on-duty officer

receives media coverage and the resultant funeral ceremonies can involve shutting down

roads and even whole towns as thousands of people, including police officers,

politicians, and military representatives converge on the event from across the

continent. When four RCMP officers in 2005 were killed in Alberta, the Queen of

England sent her condolences to the thousands of mourners (this is one of the benefits

of being a ' Royal' force), and even the death of a police horse 22

named Brigadier in

Toronto became a large public event:

A memorial service that was planned to be held in Scarborough was

delayed and moved to the Ricoh Coliseum at the Exhibition grounds so

that all the other police horses could attend. Toronto Mayor David Miller

issued a five paragraph communiqué on the tragic loss of Brigadier [. . . ]

Police officers from Ontario and neighbouring U. S. states attended. And

the service was attended by several dignitaries, including Ontario

Lieutenant Governor, Ontario Community Safety Minister, Mayor David

Miller and of course Toronto Police Chief, Bill Blair. (Weinreb, 2006)

Even after the funeral is over there are a number of permanent markers erected and

yearly memorials to remind Canadians of slain officers. Perhaps the strangest sign of

the increasingly public nature of police memorials is the growing industry of selling

refrigerator magnets 23

, t-shirts 24

, and personalized bumper stickers 25

with the names of

the dead officers. As with many aspects of an officer’s personal life even their deaths

are not considered private.

This section will examine the sociological significance of police funerary rituals to see

what they can tell us about police culture and the nature of overtly public funerals in

general. We will first look at these rites through a historical-political lens to place them

in their public context and then use a subjective-interpretive lens to see how they fulfill

emotional and existential needs.

22 horse

http://www. torontopolice. on. ca/modules. php?op= modload&name= News&file= article&sid= 2136 23 refrigerator magnets http://www. cafepress. ca/+ police-memorial+ magnets 24 t-shirts

https://secure3. convio. net/nleomf/site/Ecommerce/55870528?VIEW_PRODUCT= true&product_id= 85

82&store_id= 1201 25 bumper stickers http://www. emergencystuff. com/national-ems-memorial-service-custom-bumper-

sticker/

MODULE TWO Police: Inside the Blue Wall 49

Display of Social Power

The documentary A Very British Gangster (2007) may seem like a strange place to start

a study of police funerals but it offers us a dark mirror image of the police funeral. This

documentary records the funeral of a crime boss’ brother—who also was a criminal—

and how the town was brought to a standstill to allow for a regal funeral procession,

complete with horse-drawn carriages and bag-pipe escort. During the funeral a

television announces that the town' s “ motor-ways, high-schools, and businesses are

closed for the day, out of respect. . . and safety. ” The decision to honour a criminal in

this manner was not popular with all locals but the sheer number of mourners—over

3, 000—and the crime boss’ social position in the town were too powerful to ignore or

disrespect. The documentary host comments that “ the funeral is a chance to mourn and

a chance to demonstrate their strength” and few people are unwise enough to disrespect

powerful organizations with the capacity for violence while they are in mourning.

Despite being on the other side of the law, police funerals are also displays of their

powerful position in their communities and especially their control of public roads.

A similar acknowledgment of the social power of funerals can be found in reports by

RCMP informants on labour movements during the 1930s and 1940s. The now

declassified intelligence reports detail how labour movements used work-place fatalities

as occasions to hold politically charged funeral marches. RCMP informants often

commented on how successful these funeral parades were based on their pageantry and

emotionally stirring eulogies. The ability to make people acknowledge the death of a

member of your organization is a display of social power.

Political Propaganda

If we accept that public funerals are often displays of social power then the growth of

public police funerals should be placed in the context of the growing political power of

police and police unions. In 1978 the first yearly tribute to slain officers began being

held on Parliament Hill and in 1994 a granite stone base displaying the names of 227

police officers killed in the line of duty since 1879 became part of the ceremony. The

reasons given for selecting Parliament Hill as the memorial site by the Canadian

Association of Chiefs of Police (CACP) and the Canadian Police Association (CPA) is

revealing. The CACP website states that Parliament Hill was chosen because it is “ the

place where laws are made that directly impact on police officer safety” (CACP,

2007 26

), so there is a clear political element to the commemorative ceremonies.

26 CACP, 2007 http://cpoma. ca/welcome. html

50 Police: Inside the Blue Wall MODULE TWO

The Ontario Police Memorial was spearheaded by a similar combination of police

unions (TPA, PAO, OPPA) and police chiefs (OACP) and is likewise built adjacent to

the Ontario Legislature at Queen’s Park. The funding for it came from a $700, 000

grant provided by the Ontario Government under Conservative Premier Michael Harris.

The politicization of Ontario police unions makes it difficult to separate this grant from

their endorsement of Michael Harris in two provincial elections and the PAO’s own

yearly lobby day 27

at Queen’s Park. Yet this blurring of politics and mourning is mild

compared to the use of slain officers by American police unions,

During a tense bargain round in a Texas town 10 years ago, for example,

[Police Labor Institute negotiator] Burpo boasted that the unions made a

slain officer the centre of the campaign. “ My husband’s life was worth

more than 3 percent, ” Burpo remembers the widow saying, referring to

the demanded pay hike. But the union got the pay increase it wanted.

“ That’s really up there on the edge. The city council folded. They

couldn’t take it, ” says Burpo. (Schmidt, 2000)

The propaganda value of police widows should not obscure the real suffering

underneath the hype and propaganda, but police widows have been used for political

purposes since 1833 when Constable Robert Culley left behind a widow after the Cold

Bath riots. Until the death benefit gains made by police unions in the 1970s most media

accounts’ focused on the very real plight of pension-less police widows left to struggle

on after their husband’s deaths.

The American ' on the edge' use of slain officers for political gain by police unions may

be coming north. According to “ one insider close to both the Tories and the police

union” in 1998 TPA president Craig Bromell was upset that the Harris government

failed to capitalize on the “ public outcry surrounding the funeral of a slain detective

constable” to weaken the SIU’s rules of high-speed police pursuits to the union’s liking

(Anderson, 1998 28

).

State Religion

In 1998 the Federal government proclaimed the last Sunday of every September as a

national police memorial day and the flags on all government buildings are at half-mast

to “give Canadians an opportunity each year to formally express appreciation for the

dedication of police and peace officers, who make the ultimate, tragic sacrifice to keep

communities safe. ” This national day of mourning not only represented the growing

political power of police but it also saw the extension of Canada’s ' religion of state' to

27 lobby day http://www. youtube. com/watch?v= MEi_i_QQjoI 28 Anderson, 1998 http://www. walnet. org/jane_doe/news/toronto_98/now-980820. html

MODULE TWO Police: Inside the Blue Wall 51

police officers. Before the modern era the use of the phrase ' ultimate sacrifice' was

almost exclusively reserved for soldiers but the phrase is now commonly extended to

police officers.

The origins of this Canadian ' religion of state' are well-documented in Jonathan

Vance’s sociological examination of Canadian First World War memorials (1999).

Vance states that the purpose of WWI war memorials was not only to provide a site for

remembrance and to glorify those who had died “in service of state” but to craft a

mythology that situates the “ birth of the Canadian state at Vimy Ridge” and despite the

surface Christian trappings of many memorials and cenotaphs, “ Canadian clerics

complained about the absence of religious ceremonies in their unveiling” (Vance,

1999). In this new secular religion of statehood the myth of Christ’s suffering and

ultimate sacrifice on the cross was being replaced by the soldier’s suffering and ultimate

sacrifice in the trenches. The national flag was replacing the crucifix. This new state

mythology gave a ' purified' narrative of the Great War ' free of complexity' and re-cast

the trauma of the war in the larger mythology of democracy, Empire, and the birth of

the Canadian nation-state (Vance, 1999). This process would reoccur after the Second

World War and it was this ' religion of state' that would eventually extend to slain

police in recent decades.

The ' religion of state' experienced another large boost in the wake of 9-11 and with this

resurgence it would see police officers (and firefighters 29

to a lesser degree)

unequivocally join soldiers and federal politicians as government employees worthy of

full state honours. The post-911 equivalency of solider and police ultimate sacrifices

can be seen in the fact that the 401 Highway was officially renamed the Highway of

Heroes 30

in honour of military causalities in Afghanistan and Sudbury MPP Rick

Bartolucci’s private member’s bill Highway Memorials for Fallen Police Officers 31

gave

the Ministry of Transportation the power to rename local bridges after ' sacrificed' 32

officers. In fact, the desire of American and Canadian governments to downplay 33

military causalities has meant that, at least in terms of media coverage, police are now

the key martyrs in the North American religions of statehood.

Historically the most powerful users of funeral propaganda in this manner have always

been actual religions—from Islamic martyr processions to the Catholic Book of Saints.

Yet no matter which group holds the funeral procession, the message remains the same:

deaths in the service of that institution are morally justified sacrifices that bring glory to

the whole institution.

29 firefighters http://www. workers. org/ww/2001/fire1122. php 30 Highway of Heroes http://www. ctv. ca/CTVNews/CanadaAM/20070824/online_petition_070824/ 31 Highway Memorials… http://www. e-laws. gov. on. ca/html/statutes/english/elaws_statutes_02h26_e. htm 32 sacrificed http://www. sacred-texts. com/ame/cig/cig06. htm 33 downplay http://www. seanbruyea. com/2006/04/in-canada-an-uproar-over-army-casualties/

52 Police: Inside the Blue Wall MODULE TWO

Emotional Displays and Existentialism

Thus far police funerals have been examined from the outside to see what messages

they give to an external audience and what socio-political (or socio-religious) context

they occur in. Now we examine police funerals from the inside and see how they

reinforce and reflect police occupational culture.

As discussed in earlier sections, police are trained to repress emotional reactions to any

traumatic situations they might witness and this prohibition frequently extends to the

display of any ' softer' emotions in general. This repression is necessary but difficult to

constantly maintain. Funerals provide a notable exception to this taboo on emotions as

does the police custom of heavy drinking sessions. In any other situation a crying

officer would bring the strong disapproval of their peers but it is a common sight to see

burly men openly weeping during police funerals—even if the officer never personally

knew the deceased. This emotional freedom also applies to the funerals of police dogs

and horses because they, like children, ' are not assumed to have somehow deserved

their victimization' .

Funerals are an occasion where ordinary people can reflect on deeper existential

questions such as the meaning of a human life. In the case of a large public funeral this

existential question is given a rare collective interpretation and the eulogies become not

just a chance to honour and remember the individual who died but an occasion to

reinforce communal values and mythologies. As Jonathan Vance (1999) observes a state

funeral and memorial,

. . . purifies things, makes them innocent, gives them a natural and eternal

justification, it gives them a clarity which is not that of an explanation

but a statement of fact. . . it abolishes the complexity of human acts, it

gives them the simplicity of essence. . . it organizes a world which is

without contradictions. . .by establishing a blissful clarity: things appear

to mean something.

In the case of police funerals this ' purifying' and meaningful interpretation is

channelled into the ideals of sacrifice, service, and nobility. That these values are found

in both middle-class and military cultures, reflects policing’s heritage as a

bureaucratically neutral paramilitary organization which defends bourgeoisie

conventionality. These are also values that orientate individuals to the larger

organization or community and when thousands of officers attend a funeral they do not

just provide comfort to the bereaved, they also communicate the value of life led in

such service to the ' higher good' . This ideology that some police believe situates police

culture in opposition to the stereotyped selfish lives led by criminals (and most citizens

in general) who do not live for anything beyond themselves. The internal and external

MODULE TWO Police: Inside the Blue Wall 53

message is that police officers have chosen to live and die for the larger good of the

nation-state. Here are the thoughts of an American police officer serving on a UN

mission on the meaning of a police officer’s life:

Today I attended the funeral of Carlyle Schrank, an American officer

who died of a heart attack, far from his home and family. I knew Carl. I

first met him when we were preparing to leave the United States for

Kosovo. He was a friendly, warm human being. He lived most of his life

as a police officer. Somewhere in his past, he chose this profession as a

cause worthy of his life and he stayed with it despite every hardship,

despite every cost. The sacrifices of these officers, paid willingly for

their duty, is so much like the sacrifices of all my brother and sister

officers. And police around the world have all been diminished by their

deaths.

It is hard for me to imagine life as a police officer without the spectre of

death hanging over us. Police officers know that death can come any

day. The officers who came before me taught me that. It is part of our

job. Officers dream about their deaths. They dream the violent, painful,

grotesque deaths that police officers see every day. They dream about

their failures and their fears. And they live with those burdens every day

they wear that uniform.

For nine years I have defied death and hatred and cruelty and untold

violence to do my job honourably and justly because I believed it was the

right life for me to live. Even in the face of my own death, at the cost of

so many that are dear to me, I have persisted as stubbornly as I could

manage. Being a police officer has been my opportunity to be the best

man I could be, to serve a higher cause that was greater than myself.

It has been my pride and honour to have worked with so many valiant

souls over the years. I have lost some, but I carry on in their names. I

hope I make them proud of me. I hope I am worthy of them.

After losing friends in this job and confronting the worst aspects of

humanity, I have come to realize that it is not dying for a cause that

makes us righteous. No one becomes special by dying. Anyone can die

and everyone will. It is living for a cause that makes being a police

officer a truly noble profession. It is commitment and conviction that

gives us strength and makes it possible for us to continue on when we

have every reason to succumb to our grief and turn our backs to the

world. How we live our lives is far more important than how we die.

54 Police: Inside the Blue Wall MODULE TWO

Police officers live this kind of life for everyone we know and care

about, so that they can have a better life. Truth and justice. That is a

cause worth living for. (Olsen, 2001 34

)

In such a powerful ideology even the death of a police horse which the horse’s rider

termed an “ ultimate sacrifice” , can bring out moving poetic odes. Here is Toronto Star

columnist Jim Coyle' s (2006) eulogy about Brigadier’s death:

It was nothing less—this memorial to one animal’s life and city’s

mourning of his loss—than a celebration of mankind’s higher

aspirations. . . It was a powerful reminder of the merits of selflessness and

humility. . . . Lest We Forget.

The ' blissful clarity' of this mythology ignores many ambiguities inherent in policing

and there is a danger that such state funerals send a message that the lives of those who

do not serve the state are less valuable than those who do—but it is a powerful

mythology that few humans are not emotionally touched by. It situates the life of a

police officer in the eternal wars between egotism and service, duty and self-interest,

and ultimately, meaning and meaninglessness. In the increasingly secular nation of

Canada where the comforts of religion are accepted by fewer and fewer, the comforts

offered by the religion of state are strong.

34 Olsen, 2001 http://www. unmikonline. org/civpol/articles/legacy. htm

MODULE TWO Police: Inside the Blue Wall 55

SECTION 2. 5: Cultural Depictions of Policing

It is impossible to discuss policing without discussing media portrayals of police

because these fictional examples have greatly affected how the public view police and

how police view themselves. The media’s interest in policing has been an enduring one

and it is said that since the invention of television there has never been a year without at

least one police drama on air and long before television there were novels, movies, and

comic strips ready to do the same.

The idea of uniformed officers constantly patrolling the streets of London was not an

initially popular one but due to “ the rapid incorporation of the police constable into

Victorian popular culture he became a normalized presence” (McLaughlin, 2007). In

Victorian England the police had many “ cultural patrons” willing to use the power of

the arts to “ advertise” the new force but most successful among these was Punch

magazine. Punch was a popular satirical magazine but its conservative political views

meant it,

was resolutely pro-police and played a pivotal role in popularizing and

traditionalizing ‘the bobby. ’ This was done by smothering him in

representations of ‘Englishness’ and constituting him as the embodiment

of the national temperament, periodically reminding readers that his

creator, Robert Peel, was the epitome of English genius. (McLaughlin,

2007)

A commentator on police affairs noted that

if fear of the police is, in England, less acute than it might be and there

is culpability in the matter, Mr Punch’s artists are to blame . . . Punch has

been busy in delineating the Force with kindliness . . . geniality and

tolerance. (Pulling, 1964)

The secret of Punch’s success was two-fold. First, they “ concentrated not on the

organization but on the character of the individual constable” (Kift, 1986) avoiding the

tricky sociological and political issues that swirled around the new force. Second, they

took the individual constable out of his urban origins, with its intonations of class

conflict and poverty, and portrayed him as a friendly ' village bobby' . This allowed

Punch readers to consume a steady stream of cartoons and stories about police officers

without having to encounter the reality of what they represented.

56 Police: Inside the Blue Wall MODULE TWO

Punch’s focus was almost exclusively on rank-and-file officers but it was police

detectives that most firmly captured the public’s imagination and later the imagination

of novelists and film-makers. Previously “ crime stories had tended to bestow criminals

(operating outside the law and on their own terms) with heroic status,” but the growing

popularity of mystery novels made detectives into the protagonist (McLaughlin, 2007).

The public admired detectives but their ambivalence about the new police force was still

there. For instance, the detective in the first English detective novel, The Moonstone

from1868 is

professionally competent but socially unacceptable to the novel’s upper

class characters. The local police are represented as socially acceptable

but incompetent. The author’s intention may have been to accommodate

middle-class fears of creating a too effective police force that does not

know ‘its place. ’ (McLaughlin, 2007)

This may explain why it is an amateur civilian detective, Sherlock Holmes, and not a

police detective that has become the enduring symbol of the ultimate detective.

After the First World War there were many changes in society that altered the media’s

depictions of policing. The British government started producing their own media

through the British Broadcasting Corporation (BBC), and BBC radio broadcasts and

cinema newsreels “ edited incidents of police violence heavily and went to remarkable

lengths to cast the police as ‘the thin blue line’ or caught in the middle of extremists”

(McLaughlin, 2007). Police departments and police unions also become more media

conscious during this era and funded full-time press offices to sponsor weekly radio

talks by chiefs of police and publish ' official' police histories. This new media

suaveness by the British state,

constructed a historical narrative that idealized the identity of the

constable by reproducing the ‘best’ of the popular cultural

representations, available histories, and political statements which

emphasized that England had the finest police force in the world.

(McLaughlin, 2007)

In comparison, the United States media portrayals of police of the post-world war era

were less flattering as this reflected both the American experience of police forces as

‘gangs’ loyal to politicians and ethnic communities rather than the government, and a

broader American ' irreverence for authority' . Most famous of these comical American

portrayals were the popular slapstick films of the Keystone Kops. In these silent-film

comedies, the police were,

MODULE TWO Police: Inside the Blue Wall 57

insanely incompetent, dressed in ill-fitting, unkempt uniforms. . . what

the Kops lacked in sense they made up for in zeal, as they dashed off to

the chase on foot or drove off in a tin lizzie 35

(one accommodated the

entire force), in jerky, speeded-up tempo. Whether they collided with

one another around corners or became entangled in clotheslines,

ladders, or folding tents, their facial expressions of dour dignity never

changed. (Encyclopaedia Britannica)

Despite, or maybe because, of their insane incompetence the Keystone Kops have

“ became enshrined in American film history as genuine folk-art creations” whose

comic appeal can still be seen in the Police Academy films and Chief Wiggum in The

Simpsons.

Even though the American public loved to mock their own police, the British ideal of

police as noble, trust-worthy state officers also strongly appealed to them. It would

have been disloyal for Americans to admire the Bobbies of the very country they had

fought a revolutionary war against but Canada’s RCMP contained many aspects of

British policing without the historical baggage. Consequently an “ enduring, passionate,

love affair” developed between Hollywood and the RCMP. Of the 575 motion pictures

that Hollywood has made about Canada by 2006, 256 have starred Canada’s federal

police agency or as one movie reviewer proclaimed “ All Canadian heroes belong to the

Royal Mounted. ”

This situation was parodied in the 1970s cartoon character of Dudley Do-Right 36

and

Pierre Berton’s The Americanization of Our National Image (1975) gives the following

summary of the Hollywood depiction of an RCMP constable,

The movie Mountie was almost invariably brave, noble, honourable,

courteous, kind and trustworthy—all the standard boy scout qualities, to

go with the hat. He is the quintessential hero and always wins. He gets

his man and he gets the girl (or nobly gives her to another).

It was not just Americans who were obsessed by this idealized image of a police

officer, it was Canadians too and even the RCMP “ for all their reluctance were sucked

in” to the Hollywood mythos that was being created. Yet the RCMP’s role was not just

as an audience, as RCMP management “ maintained pressure on Hollywood through the

early censor boards” to ensure that “respect due to such a body as the Royal North

West Mounted Police” was given (Berton, 1975). When Hollywood came north to film

pictures in the 1950s “ the RCMP as a result of government pressure were able to read

35 dashed off to the chase on foot or drove off in a … http://www. youtube. com/watch?v= mZBdxvego1E 36 Dudley Do-Right http://en. wikipedia. org/wiki/Dudley_Do-Right

58 Police: Inside the Blue Wall MODULE TWO

and comment on any scripts” involving them (and they are not the only police agency to

make such a request 37

). The RCMP’s desire to control their image reached an ironic

climax in 1997 when the RCMP gave the Disney Corporation licensing rights to all

products bearing the image of the ‘Mountie. ’ This guaranteed that all official Mountie

merchandise and souvenirs would need copyright approval from a special licensing

body (Gittings, 1998) but it also generated accusations that the Canadian government

was supporting the ‘Disney-fication’ of the RCMP. This public sensitivity to a

copyright agreement reflected how strongly the image of the red serge 38

-wearing RCMP

officer meant to the Canadian psyche and self-image. No other country in the world,

not even Britain and their Bobbies, is so globally identifiable by their police force.

Following the Second World War the American portrayal of their own police changed

from slapstick bunglers to cool, hard-working professionals reflecting the increased

respect for the government due to war-time patriotism. The most influential police

depiction of the 1950s on both radio and television was Dragnet. Dragnet was based on

the fictional exploits of a LAPD detective named Joe Friday. So popular was Joe Friday

that when the actor who portrayed him died he was buried with full police honours. The

catchphrase “ Just the facts, ma’am” associated with the Friday character encapsulates

the more realistic style of police dramas of this era.

By 1971 the Cold War conformity was waning and America’s most popular police icon

would transform from the straight-shooting Joe Friday to his near opposite, a rogue cop

named ' Dirty' Harry Callahan played by Clint Eastwood. Dirty Harry became the

template for a new kind of ' loose-cannon' movie cop “ who does not hesitate to cross

professional and ethical boundaries in pursuit of his own vision of justice, especially

when the law is poorly served by an inept bureaucracy” (Wikipedia). The Dirty Harry

archetype does not shy away from killing and Callahan kills 45 suspects over five

movies—including his main opponent a ' psychologically unbalanced hippie' serial

killer. Joe Friday’s professional “Just the facts” was replaced by Callhan’s

threateningly sarcastic “Make my day” and “Do you feel lucky, punk?” Despite Dirty

Harry’s brutal nature his rationale for killing criminals remained the greater good of

protecting society.

The film resonated with an American public that had become weary and

frustrated with the increasing violent urban crime that was characteristic of

the time. The film was released at a time when there were prevalent

reports of police brutality and police overstepping their authority through

37 request http://earthnews. net/ciaoncbs. htm 38 serge http://en. wikipedia. org/wiki/Serge

MODULE TWO Police: Inside the Blue Wall 59

entrapment and obstruction of justice. Author McGilligan [1999] argued

that "America needed a hero, a winner at a time when the authorities were

losing the battle against crime". (Smith, 2012)

This new violent policing icon was not met with universal approval. Critics have called

the films “ a right-wing fantasy” and a “ single-minded attack against liberal values” that

glorified sexism, racism and violence—but Dirty Harry remains an enduring and

influential depiction of the modern American cop.

While right-wing, Dirty Harry clones dominated the film screens of 1970s and 1980s,

the television shows of the same era offered a more humanistic and liberal version of

policing. The sitcom Barney Miller gained “a devoted following among real-life police

officers” through its “ low-key portrayal of cops going about their jobs” (Wikipedia).

The cops of Barney Miller were ethnically and politically diverse, ranging from flashy

capitalists to officers with anti-war beliefs but the true focus of the show was on the

“ believably quirky” criminals and citizens they had to deal with. A similar liberal

attitude was seen in Hill Street Blues, a police drama that focused on “ overlapping plots

and examinations of moral conundrums such as police corruption, racism, alcoholism,

and both interpersonal and institutional forgiveness” (Wikipedia). The concept of liberal

' cop shows' did not survive past the 1980s and since then the competing cop models

have largely been the cool professional Joe Friday model and the maverick-conservative

Dirty Harry model.

Representing the Joe Friday model are shows like Law & Order and CSI. Novelist J. G

Ballard (2005) sees CSI’s Gil Grissom as a modern day Joe Friday and the whole show

as representing the police ideals of machine-like efficiency and emotional detachment:

Every viewer knows that the only people who show emotion in C. S. I.

are about to be dead. This lack of emotion extends to the cast, who never

display a flicker of anger or revulsion. None of the team have

relationships with each other, and there are few rivalries and no affairs.

We never see where they live and know nothing about them. Gil

Grissom, the head of the C. S. I. team played by William Petersen, is a

likeable but hermetic figure who will throw out a Shakespeare quote or a

tag from Rousseau as he peers into his microscope, but he remains

sealed inside his quest for the truth.

The Dirty Harry model is seen in NYPD Blue’s character Andy Sipowicz described as

the “ drunken, racist goon with a heart of gold” whose ' blue-collar conservatism' was

the ' the moral core' of the show or in 24’s Jack Bauer. Played by Canadian Keifer

Sutherland, Bauer is the head of a fictional Counter-Terrorism unit in Los Angles, and

embodies the Dirty Harry willingness to break the law, including engaging in torture,

60 Police: Inside the Blue Wall MODULE TWO

to serve the greater good. Like Dirty Harry before him, Bauer’s moral example has not

been without controversy. At a legal conference in Ottawa, American Supreme Court

Justice Antonin Scalia 39

, a conservative Roman Catholic, took offense at a Canadian

judge’s remark that “ Canada did not consider what Jack Bauer would do when setting

policy” (Lattman, 2007). Justice Scalia shot back:

Jack Bauer saved Los Angeles. . . He saved hundreds of thousands of

lives. . . Are you going to convict Jack Bauer? Say that criminal law is

against him? ‘You have the right to a jury trial?’ Is any jury going to

convict Jack Bauer? I don’t think so. (Lattman, 2007)

More grimly, self-described ' American army torturer' specialist Tony Lagouranis has

stated that Jack Bauer was a role model for “ inexperienced young interrogators [who]

copied what they saw in Hollywood and on television programmes such as 24” leading

to the brutality seen in Iraq’s Abu Ghraib prison (Shipman, 2007 40

). Reminding us the

television has a powerful influence on not just how the public views a profession but on

how those in a profession view themselves.

Perhaps the grimmest insight into the modern media’s depiction of police is Ballard’s

(2005) insight into the emotion-less CSI cast which leads him to believe that in the age

of forensic police drama it is no longer even police who are the stars of the show—it is

the corpses they autopsy.

Given that there are no interesting characters, no car chases or shoot-

outs, no violently stirred emotions and no dramatic action, why is the

C. S. I. series so riveting? What is it that grips us to the end of the

episode, which is scarcely more than an elaborate crossword puzzle with

human tissues in the place of clues? My guess is that the answer lies in

the inner sanctum at the heart of all three series—the autopsy room. Here

the victims surrender all that is left of their unique identities, revealing

the wounds and medical anomalies that led to their demise. Once they

have been dissected—their ribcages opened like suitcases, brains lifted

from their craniums, tissues analysed into their basic components—they

have nothing left, not even the faintest claim on existence.

39 Antonin Scalia http://en. wikipedia. org/wiki/Antonin_Scalia 40 Shipman, 2007 http://www. telegraph. co. uk/news/worldnews/1554137/I-blame-myself-for-our-

downfall-in-Iraq. html

MODULE TWO Police: Inside the Blue Wall 61

I suspect that the cadavers waiting their turn on the tables are surrogates

for ourselves, the viewers. The real crime the C. S. I. team is

investigating, weighing every tear, every drop of blood, every smear of

semen, is the crime of being alive. I fear that we watch, entranced,

because we feel an almost holy pity for ourselves and the oblivion

patiently waiting for us.

How such a show will influence a new generation of police officers is an open question.

SOCI 2087 Module 3.pdf

MODULE THREE Police: Policing and Democracy 1

MODULE THREE POLICE: POLICING AND

DEMOCRACY

SECTION 3. 1: Police Discretion and Decision-Making . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Provides an introduction to police discretion, how it acts as the main ‘gateway’ into the

Criminal Justice System for most Canadian citizens and what factors shape its use.

SECTION 3. 2: Quis Custodiet Ipsos Custodes? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Gives a summary of the internal, governmental, and civilian methods for overseeing

police abuses that exist in Ontario and judges their effectiveness.

SECTION 3. 3: Maintain Le Droit—Police and Politics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Outlines the Canadian experience of police interference in political elections.

Online Resources

The Guelph ' Strip-Search Seven'

http://web. archive. org/web/20090502232505/http:/www. ccla. org/pos/briefs/jan28%20-

%20civiliancomplaintsys. shtml

2 Police: Policing and Democracy MODULE THREE

SECTION 3. 1: Police Discretion and Decision-Making

A countries' criminal justice system is often a huge collection of interlocking

institutions and agencies rarely seen by most citizens, so police operate not only as the

public force of the system but also the gatekeepers into its domain. As Roberts (2000)

writes,

Police act as gatekeepers to the criminal justice system. By their

uniforms and cruisers, the police are easily the most visible of all

criminal justice professionals. They are accordingly critical to the entire

process. (Roberts, 2000)

An officer’s gatekeeping ability rests upon their discretion for they decide who to

follow, who to detain, who to investigate, and whether to issue a citation, give a

warning, or make an arrest. The International Association of Chief’s ‘Police’s Code of

Police Conduct’ (1989) acknowledges the vital role discretion plays in the functioning

and legitimacy of policing:

There can be difficulty in choosing between conflicting courses of action

[but] the principle of reasonableness should guide the officer’s

determinations and the officer will consider all surrounding

circumstances in determining whether legal action shall be taken.

Consistent and wise use of discretion will do much to retain the

confidence of the public.

The Supreme Court of Canada similarly recognizes the vital role of police discretionary

power in the criminal justice system, ruling that,

discretion is an essential part of the criminal justice system. . . [t]he

Criminal Code provides no guidelines for the exercise of discretion in

any of these areas. The day-to-day operation of law enforcement and the

criminal justice system nonetheless depends upon the exercise of that

discretion. (Beare v. R. , 1988)

Officers do not have unlimited discretion despite the limitations of court rulings and

departmental directives, such as those mandating automatic arrest in cases of domestic

violence and impaired driving, important decisions of who to detain and question, how

a situation is characterized, and who is arrested often depend on an officer’s personal

judgment (Klening, 1996). The Supreme Court has recognized the need to reign in

police discretion, ruling that Section 24 of the Charter 1 (and sometimes Section 15 (1))

1 Section 24 of the Charter http://en. wikipedia. org/wiki/Section_Twenty-

four_of_the_Canadian_Charter_of_Rights_and_Freedoms

MODULE THREE Police: Policing and Democracy 3

is a remedy for cases involving the use of police discretion in an “ improper or

arbitrary” manner (Goff, 2001). Some lower court cases have also tried to limit police

discretion, such as a decision by the Saskatchewan Court of Appeal that ruled that the

Criminal Code granted police too much discretionary power (Beare v. R. , 1988) but

this case was later overruled by the Supreme Court upholding the necessity of allowing

police officer’s maximum discretion in most cases.

IN FOCUS

Discretion and Ethical Dilemma

The book Police and Community (Purpura, 2001) has a list of scenarios for

prospective police offices on the use of discretion. This list provides a sample of the

complex encounters police officers must handle. How would you exercise your

discretion in these cases?:

 Should I give this off-duty police officer a ticket for speeding?

 Should I give the city councilwoman’s son a ticket for speeding?

 Should I give my mother a ticket for speeding?

 Mr. Smith has been a family friend for decades and his wife recently died of

cancer. Should I arrest him for driving under the influence, or take him home?

 While on foot patrol, you observe a subject that you have a “ hunch” is a

junkie-dealer. You stop him, check his pockets, and find heroin. You know

that you stopped him without reasonable suspicion or probable cause. The case

will go nowhere as it stands now. Do you claim you arrested the suspect first

for a minor charge and then found the heroin?

 As a police officer, while searching a retail department store with other

officers and the store manager, following an early morning burglar alarm, you

see your sergeant pocket a store watch. Do you report him?

 Should you report your partner who beats suspects when they are handcuffed,

even though he saved your life once?

4 Police: Policing and Democracy MODULE THREE

 Your shift is about to end, but you have probable cause to make an arrest of an

individual for a charge that most of your fellow officers are not pursuing. You

realize that an arrest will bring you additional overtime compensation and you

need the money to pay your bills. What do you do?

 You respond to a disturbance call concerning two neighbours arguing. When

you arrive, one neighbour complains that the other neighbour, a police officer

that you know, threatened him with a pistol because of barking dogs. The

victimized neighbour wants the off-duty officer arrested for pointing a firearm

at him. What do you do?

 While on patrol you notice a known drug dealer driving his car. Do you follow

him around until he makes a minor driving violation so you can pull him over?

 A security officer at a local department store turns a 75-year-old lady over to

you for stealing hearing aid batteries. You are aware that she is on a fixed

income and unable to afford the batteries. What is the reasonable action for you

to take in this situation?

Discretion, Race, and Class

In principle police target people who violate laws but in reality this choice can involve

complex decision-making and categorizing and it is through this “ selective use of these

powers that order is reproduced” (McCormick & Visano, 1992). According to Roberg

and Kuykendall (1993) police discretion involves three basic elements.

1. Deciding whether to get involved in an incident in the first place;

2. Determining how to behave in any particular incident;

3. Selecting one of many alternatives in dealing with the problem.

As a result, discretion encompasses most choices made by a police officer but what

criteria do police use when making this decision? Ultimately officer discretion depends

on a complex mix of the police officer’s personal judgment, their training, police

occupation culture, attitudes, and responses learnt in order to cope with common

pressures and conflicting demands of their jobs. According to Goff (2001) most studies

on police discretion focus on the specific factors leading to an arrest and the following

factors are the most commonly cited:

MODULE THREE Police: Policing and Democracy 5

1. situational factors;

2. the social class, age, sex, and race of those involved;

3. the relationship between victim and complainant;

4. the amount of respect or deference given to the police officer;

5. the nature of the offence or problem; especially in terms of threat;

6. the amount and quality of the evidence of a crime having occurred.

Allowing the second factor to influence an officer’s discretion is unavoidable but it is

also the most controversial issue connected to police discretion—that is, whether

discretion favours or penalizes the members of a certain social class or racial group.

Just sitting on a park bench or leaning on a wall, when performed by certain types of

people at a certain time of day, may be sufficient grounds for these people to be picked

up by the police and taken for a police check. Jokes about the fictional offences of

' driving while black' , ' being native in a public place' and ' gathering while leftist' both

acknowledge and parody the unfairness of some aspects of police discretion.

Sensitivity to police discretion has existed as long as the police have. A 1904 survey,

for example, claimed that Chicago police were too discretionary in their law

enforcement because “ some gambling houses might be raided, while others ignored;

some voters protected, others harassed; some civilians assisted, others clobbered; some

riots suppressed, others supported” (Higley, 1984). Beginning in the 1950s, when

American police shifted in emphasis from responsive policing to pro-active tactics such

as stop-and-search, search-and-seizure, and “ other interventions that tread a narrow line

between crime prevention and violation of civil liberties” the question of police

discretion became the “most visible, most resented, and most inflammatory” aspect of

policing (Higley, 1984). For example, the distinction between the crime of ‘loitering’

and simple socializing was thinly drawn in many African-American neighbourhoods as

the police would “ bypass a rousing bingo game within the walls of an Irish or Italian

club, [but] they would not tolerate a black teenage crap game on a side street” (Higley,

1984).

In a similar example from this same era, Bienvenue’s and Labif’s (1974) study of arrest

data for the City of Winnipeg during the 1960s found that Aboriginal women and men

were over represented for all offences, especially minor offences, except drug traffic

violations where whites were arrested more often for the most serious, indictable

offences. Such an arrest pattern reflects police discretion because minor offences

involve extraordinarily discretionary while serious crimes involve little discretion

(Goff, 2001). Ericson (1982) states that even suburban whites suffered increased

6 Police: Policing and Democracy MODULE THREE

“ proactive investigative activities” starting in the 1950s, but only if they were “ bikers”

or “ pukers” which he defined as “ basically male, lower working class, in their late

teens, with long hair. ” Despite this dismal history Walker (1993) found a downwards

trend in arrest disparities on the basis of race, gender, and socioeconomic status over

time, indicating that the use of discretion by officers has become fairer at least in

regards to their power of arrest.

Which behaviours police choose to ignore are as important a part of discretion as what

behaviours they do focus on. Fleming (1981) found evidence of biased discretion to not

proceed with an investigation after the victim of a violent crime was determined to be

homosexual. Likewise Abell and Sheehy in 1993 documented that when police

investigated crimes including gay individuals, the assailants received more lenient

treatment simply because the “violence and homophobia and lesbophobia underlying it

[was] often downplayed or excused. ”

Yet, sometimes ignoring potentially criminal behaviour can be an appropriate response

and is necessary to avoid flooding the legal system with minor charges and to maintain

police legitimacy within a community. Two examples will illustrate how proper use of

discretion can sometimes mean doing nothing at all:

In a recent visit to a large city, an individual was observed walking along

the edge of the sidewalk next to a busy thoroughfare, talking to himself,

and occasionally shouting at passers-by. He appeared to be imagining

himself walking a tightrope and was shouting at others to gain their

attention and to get them to applaud his ' feat' . Two police officers were

standing nearby and they clearly observed both his behaviour and the fact

that many pedestrians were crossing the street to avoid coming close to

the person in question. For more than twenty minutes the officers

observed the behaviour, taking no action and ignoring comments by

others that something should be done. Finally, the tightrope walker

moved on and when questioned the officers indicated that he was well

known to them and their colleagues, but that he seldom caused any ' real'

trouble. (Cox, 1996)

The second example comes from a Laurentian student who grew up in small Ontario

community:

My cousin, who at the time was a 17 yr old male, was going to his prom

party. The police were fully informed about the party and where it was

to avoid conflict. They agreed to letting the party happen, even though

they fully knew that there was going to be underage drinking, as long as

there was no drinking and driving. My cousin was driving people from

the prom to the party and did this several times. In his final trip he was

MODULE THREE Police: Policing and Democracy 7

pulled over by one of the police outside of the party. He was questioned

as to whether or not he had anything to drink and said that he hadn’t,

which was the truth. The police officer asked him if he had any alcohol

in the car, and he truthfully said he did. The cop looked at him and said

“ Why couldn’t you just lie to me?”

He then informed my cousin that now that he knew that there was

alcohol, he had to take it. My cousin had a case of beer and a bottle of

rum. The police officer told him that if he had a relative of age to claim

the alcohol, he would only take one. My cousin called my sister and she

had to come and claim his case of beer, and the officer took the rum. He

gave my cousin a fine and let him continue on to the party with the case

of beer.

That is my story of the police, I found that the police officer was very

generous in letting him keep one of them and also the fact that they did

not bust up the underage drinking. (Laurentian Student - Name Withheld

By Request, 2009)

One of the most well-known studies of police discretion is Chambliss’ 1976 study on

two groups of students attending the same high school. One group he called the

“ Saints” as they were from stable, white upper-class families; the other group he

referred to as the “ Roughnecks” as they came from lower-class families. Chambliss

found that both groups of boys participated in truancy, drinking, petty theft, and

vandalism, yet it was only the “ Roughnecks” who were arrested for any misdeed

during the two-year study while the “ Saints” criminality was ‘invisible’ to the police:

 poor, non-mobile [i. e. car-less], outspoken, undiplomatically ' tough'

kids will be noticed, whether their actions are seriously delinquent or

not. Other kids, who have established a reputation for being bright (even

though underachieving), disciplined and involved in respectable

activities, who are mobile and moneyed, will be invisible when they

deviate from sanctioned activities.

Chambliss believes that such discretion is explained by the deep class structure of

American society because,

Obviously, no representative of the upper class drew up the operational

chart for the police which led them to look in the ghettos and on street

corners—which led them to see the demeanour of lower-class youth as

troublesome and that of upper-class youth as tolerable. Rather, the

procedures simply developed from experience—experience with irate and

influential upper-middle class parents insisting that their son’s vandalism

was simply a prank and his drunkenness only a momentary ' sowing of

8 Police: Policing and Democracy MODULE THREE

wild oats' —experience with cooperative or indifferent, powerless, lower-

class parents who acquiesced to the law’s definition of their sons’

behaviour. (Chambliss, 1976)

IN FOCUS

Discretion and Conventionality

As discussed in other sections, police officers use stereotypes and personal judgements

to guide their discretion and the discomfort some people have with police officers is

their fear of being subject to the powerful discretion of an officer whose own

conventionality and conservatism might strongly disapprove of their own legal but

unconventional lifestyle.

Whether you are a skateboarder, a leftist, a live-action role-player, queer, an artist, a

student, a street performer, an anarchist, a punk, a goth, or simply eccentric, the

assumption that some officers automatically distrust or dislike you is not completely

misguided—and in the worst case scenarios this can lead to legal difficulties. It is true

there are some police officers who are skateboarders, have artistic hobbies, are queer,

or who used marijuana and listened to Slayer every day as a teenager. For many non-

conformist Canadians, however, the dangers of an encounter with just one

aggressively conservative officer far out-weighs the benefits of talking to police to

discover this diversity. Looking at the example of facial hair and car ownership helps

illustrates this dynamic.

Growing facial hair would seem to be a private personal decision far removed from

the justice system but many people I have talked to have noted a clear upsurge in law

enforcement surveillance after growing a full beard. I first noted this myself in my

late-twenties when I grew a beard and soon my regular evening walks had a noticeable

increase in being accompanied by circling patrol cars. Having related this story to

other bearded individuals and students I know I’m not alone in this effect and stories

I’ve heard from the United States, especially for bearded African-American males, are

even worse.

Being subjected to increased police surveillance due to your choice in facial hair can

seem absurd but it is explainable by the fact the current conventions favour clean-

shaven faces and goatees while beards, even trimmed ones, have attained a flavour of

wildness. This is a reversal of a long-standing Western convention where beards were

more generally the norm and failure to grow a beard was taken as a sign of

childishness or effeminacy. As the ancient Spartans used to say, “ There are two

people without beards—women and children. ”

MODULE THREE Police: Policing and Democracy 9

What makes the police suspicion of beards’ unconventionality ironic is that police

culture norms permit the unconventional grooming fashions of shaven-heads (a

hairstyle traditionally associated with right-wing radicals, religious cults and military

boot camps) and moustaches (a facial hair style uncommon outside of ' macho'

professions). Police fund-raising often seems to go out of the way to include some

form of head-shaving. It is claimed that police adopt these unconventionality styles for

pragmatic reasons alone (i. e. so suspects cannot use the hair for leverage or to allow

proper seals of gas masks) but it is difficult not to suspect deeper motivations

involving conventionality, masculinity, and paramilitarism are also involved.

Another unexpected place where conventionality and discretion overlap is in the area

of cars. Many years ago a student in his early twenties, who was paying his way

through university by writing a weekly column on new cars for a newspaper, related

to me that as part of this job he would regularly test-drive expensive cars between

Toronto and Sudbury and just as regularly he would find himself pulled over by the

police. Traffic enforcement has long been known as a very discretionary situation

where the outcome “ depends on a variety of factors including the violator’s attitude

and demeanour, the actual violation, and the mood and attitude of the officer”

(Dantzker & Mitchell, 1998).

The student felt he was being unfairly targeted because no matter how diligently he

obeyed the rules of the road inevitably a cruiser would pull him over and a sometimes

hostile questioning would ensue. The student understood that a Northern Ontario

university student driving an expensive car would be seen as unusual but he could not

understand the hostility of the officers to him once he explained the situation and what

worried him was that it was the same officers pulling him over again and again.

One explanation of this behaviour was that police stops were less about investigating a

possible stolen vehicle and more about harassing a young man who had acquired a

conventionally esteemed object that the officers’ themselves admired. The student’s

ability to acquire such a valued object (even if only momentarily) without first

working his way through the capitalist economic hierarchy was insulting to some

officer’s conservative values and so he was deemed worthy of police harassment. This

interpretation was supported by an instance where the officer who had repeatedly

pulled him over, angrily told him, “you don’t deserve to drive that car. ”

10 Police: Policing and Democracy MODULE THREE

SECTION 3. 2: Quis custodiet ipsos custodes?

For Canadians of European descent, the experience of policing has largely been a

positive one. This is not to minimize the injustice experienced by minority populations

at the hands of Canadian police but it does reflect the popular approval of police

documented in many opinion surveys of Canadians and the positive comparison with

many other nations who have dismal relationships between the police and the public.

Like any profession, policing has its shining exemplars and abusive thugs and how a

nation-state deals with the second category reveals a great deal about their attitude

towards democracy.

As the agents responsible for the state’s internal monopoly of violence, police occupy a

vital position in a democracy. Too little policing and rival factions might emerge to try

to take power and plunge the country into anarchy - but if an officer, as a representative

of the state, can beat you, steal from you, tap your phone, verbally harass you and you

have no recourse then you live in a de facto police state. Consequently, the

accountability of police is not just important to prevent abuses, it also represents one of

the flashpoints between democracy, liberty and state authority.

Despite the importance of this issue there has been a long-standing reluctance amongst

policing agencies and their ruling class employers to allow mechanisms of external

oversight into policing. Anglo-American elites have long preferred to allow the police

to police themselves—under the guidance of police chiefs and politicians. This insular

arrangement is justified by claiming that only a police officer has both the experience

and insight to judge another officer. There is some validity to this claim, but in both

perception and practice this leads to many difficulties. As Alan Borovoy, chief counsel

to the Canadian Civil Liberties Association, states:

The difficulty is that in every step of the complaints process the police

are the ones making the critical judgments, and it isn’t until it gets

through all kinds of processes that anyone from outside of the police has

a look at it [. . . ]Even if the police handling of any complaint is super fair,

it’s not going to appear fair. (Brennan, 2004)

Despite this obvious critique most police complaints processes throughout the Western

world—including Ontario—use a police-dominated system, but decades of constant calls

for police reform and the democratization of the police complaints system have had a

slow but noticeable effect and significant changes and new institutions have arisen in

Ontario. In this section we will review the Ontario police’s accountability institutions

and assess their effectiveness.

MODULE THREE Police: Policing and Democracy 11

1. Chief of Police and Departmental Professional Standards Bureau

The most common way of complaining about police harassment (including

discrimination, breach of confidentiality, misconduct, or conduct that might result in a

criminal charge) is for someone to go to the local police station, file a complaint, and

hope the Police Chief and the department’s Professional Services Branch investigate it.

This process is at the heart of the criticism that the ' police police themselves' . The

advantages to a police department of such a system is its efficiency, discreetness, and

controllability as it allows a police chief to screen out baseless complaints while using

internal discipline to keep officers in line, but the drawbacks are numerous:

 People may fear reprisal from the police if they report misconduct.

 People might be too scared to approach the very institution that victimized them.

 Many of the populations police deal with, like the homeless, prostitutes,

minorities, are already stigmatized and have little social power to ensure police

complaints are dealt with.

 Police chiefs have a vested interested in maintaining a good image for their

department and the goodwill of the frontline officers and their union.

 There is no external way of knowing if punishments or reprimands are carried

through.

 No external method to determine if the ' baseless' complaints dismissed by the

department are actually frivolous.

These concerns are supported by an investigation into the administration of this process

conducted by the Ontario Civilian Commission on Police Services which found “serious

mismanagement on the part of the force in handling of alleged misconduct by members

of the force” (Ontario Civilian Commission Report, 1999). No matter whether such

internal processes are conducted fairly or not they are still viewed poorly because

Ontarians felt that “… they would have more faith in the system if the investigation

process was independent of the police. Only then would there exist the possibility of a

fair and positive result for complainants” (Ontario Civilian Commission Report, 1999).

Internal reviews are also hampered because the ability of police chiefs to discipline

officers has been limited by the growing power of police unions. As late as the mid-

1960s police chiefs had virtually unlimited power to run their departments, but today

police chiefs are seriously constrained. Not only are many important issues subjected to

12 Police: Policing and Democracy MODULE THREE

collective bargaining, but police unions exert enormous informal influence both within

the department and within the community at large that constrains the power of chiefs

(Magenau & Hunt, 1996).

IN FOCUS

Police Oversight in Sudbury

On a warm June night in 2006 two Laurentian university students were having a late

night ' political conversation' in the Grotto of Lourdes when two police officers

arrived and told them to leave because it was a known place where prostitutes

frequent, and therefore they were not permitted to be there. When the students

refused to leave stating that it was a ' public area' the police called in seven more

officers and both students “ [were] dragged across the ground to the police cruiser. ”

The female student claims she had her “ face slammed into the slag” and the male

student had his head struck on the front bumper of a police cruiser.

They spent the night in jail and were released on bail the next day. One of the bail

conditions was that were to have no contact with each other. Both students were

charged with trespassing, resisting arrest, and assault, and after finding a can of spray

paint in one student’s bag an additional charge of mischief was laid.

Photographs from the following day show the female student with ‘road rash’ style

abrasions on both knees and a swollen bruise on her cheekbone the size of a golf-ball

but she stated that she “ found it very difficult to find doctors at the hospital and in

Walk In Clinics that would participate in an assessment of the injuries in a way that

was needed for legal documentation. ” She was unwilling to file a complaint against

the Sudbury Police “ because she doesn’t have faith in the investigation process” and

believed the police mistook her and her friends as “ poor street kids.”

When the two students made a brief court appearance “ surrounded by about 25

supporters” the Sudbury Star became involved, possibly notified of the event by the

students and their supporters, and soon afterwards the Chief of Police, Ian Davidson,

became involved stating that he would have the professional standards bureau conduct

an investigation despite the lack of filed complaint “ due to the concerns raised by the

media and others. ”

Davidson acknowledged that the Grotto of Lourdes where the students were arrested

was “ space [. . . ] open to the public” but said the property’s owners, the Diocese of

Sault Ste. Marie, had given the police a “blanket letter of agreement” granting police

permission to keep an eye on the property after incidents of vandalism and graffiti had

MODULE THREE Police: Policing and Democracy 13

occurred. He also stated that when people refuse to comply with police when being

placed under arrest or they fight back, “then various levels of force are completely

appropriate and necessary to protect the officer and to protect the person being

arrested. ”

The students were then invited by the police to “ tell their side of the story” to the

internal police reviewers but on advice from their lawyer, they decided not to meet

with the police for the purposes of their internal review. The female student said it

was “ comparable to asking an abusive partner to decide whether they assaulted you

and if it was ‘wrong’ for them to be violent to you. There needs to be an independent

community-based group that monitors police actions. ”

In each subsequent court appearance between 10-20 people came with the students to

show community support for them. With criminal charges still pending and no results

on the internal investigation by that December the students believed “ that the

prosecutor is stalling to try and figure out whether it would publicly look better for

them to drop the charges or go to trial. They are feeling some pressure and want this

case to go away out of the public eye. They want it out of the media and for us to

stop making clear that the police harassment and brutality that we experienced

happens all the time to marginalized people. ” In February of 2007 all charges against

the students were dropped “ based largely on the fact neither accused had any previous

criminal record and had spent some time in custody following their arrest.” A police

analysis of the spray paint found it was not the kind used to conduct vandalism.

While “ relieved” the charges have been dropped, the assaulted student said she was

still “ weigh[ing] all her options” and was considering either legal action against the

officers involved or filing an official complaint with the Greater Sudbury Police

Service. She had not filed a complaint on the advice of her lawyer who recommended

she go through the court process before taking further steps. The Police Service’s

internal investigation “ determined the officers acted properly and did not engage in

any misconduct in their handling of the incident.” Police inspector Al Lekun said the

results of that investigation were reviewed by a third party but did not state who that

was.

The Crown Prosecutor maintained that the students “ behaved badly” in resisting

arrest but the student’s lawyer “ told the court if this matter had proceeded to trial

there would have been much argument ‘over who behaved badly that night’. ”

Laurentian sociology professor Gary Kinsman said the charges laid against these two

were “ trumped up from day one” to cover up a severe over-reaction from officers

involved that night.

14 Police: Policing and Democracy MODULE THREE

Since this incident an improvised sign has been erected at the Grotto stating that

access is prohibited from sunset to sunrise.

Source: Stradiotto, 2006; SCAP, 2006; Vaillancourt, 2007

2. Ontario Civilian Police Commission (OCPC) [formerly called Ontario Civilian

Commission on Police Service (OCCPS)]

OCPC is a provincial board, appointed and funded (with salaries of $100, 000+ ) by

Ontario’s Minister of Community Safety. The main role of the OCPC is to operate as

an appeal board for civilian complaints and police officers who disagree with decisions

made by a Chief of Police and the professional standards bureau. In practical terms

OCPC mostly holds hearings to address police union complaints against decisions made

by Police Chiefs. In this capacity it functions as a type of labour relations board for

police officers and its other duties, like giving awards to auxiliary police 2 , further

removes it from independently handling civilian complaints. In regards to the estimated

3000 complaints against Ontario police officers in a year, 1/6 will be examined by the

OCPC and only 70 will be granted a hearing.

OCPC has the mandate to begin investigations with the powers of a commission under

the Public Inquiries Act but the municipality whose police department they are

investigating must fund any commission. They also have the power to ask that another

police force be brought in to investigate the problem and, in an ' emergency situation' ,

they can suspend or remove any Chief of Police and appoint a new administration to

run the police. As of 2011, I could find no instances of OCPC using any of these

formidable powers in the searchable database of OCPC rulings 3 . This lack of action

supports those who feel that,

the greatest limitation of OCCPS is that it does not conduct its own

investigations of complaints. As the process now operates, when a

complaint is lodged with OCCPS against a police officer, OCCPS simply

forwards the complaint back to the police. In other words, the civilian

body that is supposed to ensure police accountability does not actually

investigate police officers accused of misconduct. Instead, the police are

allowed to investigate themselves, and OCCPS is relegated to performing

a review of the findings.. . Many people are surprised to learn that

OCCPS merely shuffles a public complaint against an officer back to the

police to investigate. (Committee to Stop Targeted Policing, 2000)

2 awards to auxiliary police www. torontopolice. on. ca/media/images/20041020-program. pdf 3 OCPC rulings http://ocpc. ca/english/DecisionInformation/Disciplinary/index. asp

MODULE THREE Police: Policing and Democracy 15

Other OCPC weaknesses include:

 Complaints must be made in writing. This limitation stops complaints from both

people who do not read or write English and homeless people without mailing

addresses.

 A six-month limitation period for filing a complaint. This restriction poses an

unnecessary burden on people who are struggling to survive from day to day,

and may not have the opportunity within that short timeframe to lodge a

complaint.

 The word of police officers is valued far above the word of marginalized

people.

 Even if a disciplinary action is ruled for, the actual disciplinary proceedings are

conducted by the police themselves.

 The overall power and independence of OCPC was ' drastically reduced' when

the provincial Conservative government rewrote its governing legislation, the

Police Services Act, in 1997. The Conservative’s reforms also eliminated

another Ontario civilian police oversight agency which overburdened the OCPC.

 Third parties are prohibited from making complaints. This limitation was

limitation brought in by the Ontario Conservatives—previously anyone who

witnessed police misconduct could file a complaint.

In 1997, seven Guelph women were among those arrested at a protest against the

Ontario Conservative’s severe reduction of Ontario social services. Unlike men arrested

in the protest they were forced to undergo a strip-search. Believing they were strip

searched as a punishment they filed a complaint with the Guelph Police department that

was dismissed so they appealed to the OCPC.

Now go online and read this account (go to the case history of The Guelph

' Strip-Search Seven' ) of how OCPC (or OCCOPS as it was then called)

handled the case.

http://web. archive. org/web/20090502232505/http:/www. ccla. org/pos/briefs

/jan28%20-%20civiliancomplaintsys. shtml

16 Police: Policing and Democracy MODULE THREE

3. Office of the Independent Police Review Director (OIPRD)

In 2004 the Ontario Liberal Government announced it was creating a new police

oversight agency in response to complaints that the “ existing provincial oversight body

[OCPC] is little more than window dressing” (Brennan, 2004). The new provincial

agency is called the Office of the Independent Police Review Director [OIPRD] and it

is appointed and answerable to Ontario’s Attorney General. The stated goal was to

create “ an arm’s length civilian oversight body” that would “ overhaul the police

complaints system in Ontario to end the practice of police investigating themselves”

(Brennan, 2004).

Complainants about police can now bypass the local police department and file

complaints directly to the OIPRD, including submitting complaints online, while

complaints filed at police departments must then passed on to the OIPRD within three

days. The OIPRD then decides whether to:

 Dismiss the complaint;

 Assign a civilian investigator empowered to carry out their own investigations

with the power to execute warrants and seize evidence but requiring the

permission of a Justice of a Peace and the local Police Chief to do so;

 Ask that another police service investigate;

 Pass it back to the originating service for self-investigation.

Police chiefs remain in charge of any discipline that is required. Interestingly, the office

also has the power to delve beyond individual complaints into systemic issues including,

according to the current director, the “ fair amount of [police] incivility. . . at traffic

stops” (Rankin, 2010).

The creation of the OIPRD was difficult because Ontario police were suspicious of the

new organization and “ it was a lot of work to get the police association onside” but

Liberal Community Safety Minister, Monte Kwinter, believed that it is “ a system that

treats both citizens and police fairly. . . I want to make sure that it isn’t stacked against

them (the public) but on the same level I want to make sure it’s not stacked against the

police either. I want to make sure it is fair, equitable, and transparent” (Brennan,

2004).

MODULE THREE Police: Policing and Democracy 17

A detailed analysis of governmental legislation establishing the OIPRD by amending the

Police Services Act notes that (Hobbs, 2007):

 The chain of command created under Bill 103 means that the oversight

mechanism is ' independent' in name only and is actually ensconced in provincial

government. This direct linkage between the oversight mechanism and the

highest levels of provincial government belies any pretence of democratic

process and accountability [. . . ]. It is troubling that the exercise of oversight will

occur indeterminately on an ongoing basis by one government appointee, who

will answer not to the public but to the government of the day.

 The copious use of certain undefined terminology within Bill 103 means that

there is little certainty as to how the new complaints process will actually work

and leaves enormous OIPRD power within the hands of policy makers. For

instance, under s. 60(4), the OIPRD has the power to refuse third party

complaints concerning policy or service issues, without specific criteria. They

can also under s. 24 dismiss ' frivolous' and ' vexatious' complaints but there is

no definition of those terms.

 Under section 56(3) we are told that rules or guidelines—such as procedural

rules related to the powers, duties, or functions of the OIPRD—are not binding.

As such, the mandate of the OIPRD will be conditional, subject to factors such

as political context and personal ideological stance. The lack of clarity within

the Bill leaves it subject to the changeability of the political climate, and thus to

pressures of powerful interest groups, such as Police Associations.

When the OIPRD officially opened in 2010 it received 1, 011 complaints (half of which

were filed directly to them) in its first month alone and this was “ more than was

expected” (Rankin, 2010). Of those first thousand complaints 416 were dismissed for a

variety of reasons including being deemed “ frivolous or vexatious. ” Of the remaining

complaints, 100 were assigned to be investigated by one of the agency’s ten

investigators, four of whom are former police officers. Despite an annual budget of $9

million, the OIPRD has,

. . . caused barely a media ripple [and] the new office hasn’t been as active

as police leaders thought it would be. “ Frankly, I was expecting more of

an impact, ” says Toronto police Chief Bill Blair. (Rankin, 2010)

The ' soft-launch' of the office has some civilian critics worried that “ under the new

system, police will continue to investigate the vast majority of complaints” but it is too

early to truly judge its effectiveness (Rankin, 2010). Like the OCPC, the OIPRD has a

broad mandate and considerable powers, but like the OCPC it also has the power to

simply refer complaints back to the police department they originated against. Only

18 Police: Policing and Democracy MODULE THREE

time will tell whether the OIPRD will be an effective and independent police oversight

agency or another level of government bureaucracy, full of well-paid jobs, but lacking

the political will to confront police misconduct.

4. Special Investigations Unit

The Special Investigations Unit [SIU] is a provincially-funded agency that is to be

automatically notified by Ontario police departments whenever a civilian suffers a

' serious injury' in a police encounter. The SIU can also “ act on requests from members

of the media, lawyers, coroners, medical professionals, and people who feel the police

have injured them” [Wikipedia]. The SIU has had a difficult history since its formation

in 1990.

One continual complaint voiced by the organization itself is that underfunding and lack

of staff has meant that the SIU has had to “rely on the OPP for forensic investigation

assistance and would involve local police services for interviewing witnesses” (Adams,

2003). More seriously, the SIU has suffered from a lack of cooperation from many of

the police officers they were sent to investigate. The TPA, Toronto’s police union, even

began placing posters in police stations telling officers not to cooperate in SIU

investigations. The hostility towards the SIU spilt over into other professions who relied

on good relationships with the police. For example, in 2006 the Ottawa Emergency

Medical Services “ flatly refused to speak to the SIU” (Marin, 2008). The whole

situation became so hostile that a 1997 provincial inquiry rewrote the SIU’s mandate to

more clearly specify that police had to cooperate with SIU investigations.

The SIU’s main opponent has been police unions determined to protect officers from

possible career-ending criminal charges. In the past, the Police Association of Ontario

(PAO) has even publicly demanded that the head of the SIU resign but the SIU’s most

consistent critic has been the Toronto Police Association (TPA). When an SIU

investigation resulted in charges against two officers, after a high-speed pursuit that

ended in the death of an elderly cyclist, the union counter-attacked the SIU by placing

ads in the Toronto Star and Toronto Sun for “ going after the police for doing their job

as we were trained to do it” (Anderson, 1998). The police union then made it known it

“ was gearing up for a major attack on the SIU”—which included using private

investigators to shadow SIU investigations 4 —for bringing “ unnecessary hardship” to

police officers.

4 using private investigators to… http://www. walnet. org/jane_doe/news/toronto_99/torstar-990122. html

MODULE THREE Police: Policing and Democracy 19

A 2008 report, already the seventh inquiry report in the SIU’s two decade history,

stated that serious police oversight “ has hit rock bottom in Ontario” and it criticized the

SIU for (CBCNews, 2008):

 Turning “ a blind eye” when police don’t notify it or respond to interview

requests as quickly as the law requires, resulting sometimes in delays of days or

weeks;

 Being reluctant to insist on police co-operation with investigations and not

keeping records of police non-cooperation;

 Having a culture that is influenced by too many former police officers among its

staff, including having “bought into the fallacious argument that SIU

investigations aren’t like other criminal cases, and that it is acceptable to treat

police witnesses differently from civilians” ;

 “ is practically pathological in its avoidance of public controversy and

consistently opts for the path of least resistance. ”

This report by Ontario’s ombudsman, and former SIU chief André Marin,

recommended additional funding, a more informative website 5 , and legislation to make

it an offence for police forces not to co-operate. But Marin’s final conclusion was that

the core problem of the SIU was that its institutional culture was “timid, fearful and

lacking in rigour, ” a situation encouraged by the Ministry of the Attorney General’s

refusal to support the SIU in confrontations with uncooperative police (CBCNews,

2008). When asked to defend the fact that in its first decade the SIU conducted 1, 636

investigations but laid only 47 criminal charges and secured only 8 convictions,

Ontario’s Attorney General replied that,

Civilian oversight in the form of the SIU was intended to assist chiefs of

police in shouldering their daunting duties, not to be an irritant. The fact

that the SIU overwhelmingly clears officers should be seen by as an

endorsement of good policing. (Wikipedia, SIU)

It is impossible to determine whether this a valid statement or another example of the

Ministry’s weakness as described in the Ombudsman’s report. The best hope for

Ontario citizens is a transparent system that would allow them to judge for themselves.

5 website http://www. siu. on. ca/en/stats_index. php

20 Police: Policing and Democracy MODULE THREE

IN FOCUS

How many people are killed by police?

Every sociologist studying policing at some point tries to find statistics on how many

people are killed by the police only to discover that no one officially collects this data.

As a new professor I spent months looking in government databases and RCMP

publications convinced that somewhere this data could be found - but what I learned

was that such statistics are so controversial that governments do not want to collect

them much less release them to the public.

In America the FBI collects data on homicides by law enforcement but it is voluntary

and many jurisdictions simply do not participate. The US Congress passed a law in

1994 requiring "data about the use of excessive force by law enforcement officers [to

be] published in an annual summary" but "it was never implemented" (Cushing, 2014).

The US military stated a similar refusal to count the civilians causalities it causes. The

lesson learnt is that if civilians want to know how many civilians are killed by

government agents then it is up to civilians to count them.

Any figures about this subject must therefore be estimated. A Newfoundland reporter

realizing that he "could not find any nationwide statistics" used the data from several

provincial SIU units to make the following estimates: Ontario police kill 7 people per

year, Alberta police kill 5, B. C police kill 4, Quebec police kill 3, and Newfoundland

police kill 0. 15. Using these provincial tallies he estimated that there are about 25

people killed by police in Canada each year, and perhaps twice as many who die in

custody (Baird, 2015).

Fatal police shootings/law enforcement homicides per million people:

United States 2. 9

Alberta 1. 4

Canada 0. 7

Ontario 0. 6

Nfld & Lab 0. 3

Australia 0. 2

Germany 0. 1

United Kingdom 0. 04

Japan 0. 0

These estimates led the Newfoundland reporter to conclude that Canadian police kill

more civilians in one year than UK police kill in a decade. A similar American

study estimated that American police kill twice as many civilians in one month (i. e.

111 killed during March 2015) as UK police did during the entire 20 th century (i. e.

52 killed) (Agorist, 2015). As civilian groups compile such shocking estimates the

view of policing in North America is changing.

MODULE THREE Police: Policing and Democracy 21

If British police are not regularly armed with guns and this practice leads to far less

lethal encounters with civilians and no British officers have been murdered on the job

since 2012 than perhaps non-lethal weapons should replace handguns as part of a police

officer' s typical gear - especially in the case of younger officers. Even the fairly

conservative Globe & Mail recently ran an editorial that asked, "Would disarming some

Canadian police make an already safe country even safer?" and suggested that police

should run pilot projects where all of the front-line police in a precinct go about their

daily patrols without guns to measure the results (Globe editorial, 2014).

The first step in such a project would be getting accurate nationwide figures on fatal

police shootings. American civilians groups like fatalencounters. org and

killedbypolice. net do an excellent job of tracking these events through collecting media

accounts but the government and police forces should be the ones doing this. Until

these statistics are accurately counted and openly published, police forces will remain a

shadowy institution at the heart of North American democracies.

5. Police Service Board (PSB)

Not to be confused with a police department’s Professional Standards Bureau, Police

Services Boards (PSB) are the primary municipal agencies responsible for local control

of police departments. Since 1990 the Police Services Act mandates that each

municipality with a police force must also have a PSB, but such institutions date back to

the 1800s when they were called ' boards of commission of police' .

Unlike all the previous oversight agencies, PSBs are not primarily provincially

controlled as the board is composed of 3/5 local members and 2/5 provincial members.

The local appointees include the mayor (or mayor’s representative) and one non-

municipally employed citizen while the provincial appointees are patronage positions 6

paid for by the province (MacLeans. ca, 2010). Recently the Police Association of

Ontario (PAO) fought a political campaign to have one of their union members put on

each PSB but was defeated.

The provincial government through the powers of the OCPC can disband any PSB.

This undercuts the PSB’s authority but is a reminder of the early days of policing 7 when

a mayor’s local power over the police department led to corruption.

6 patronage positions http://www2. macleans. ca/2010/08/24/tory-donors-top-list-of-patronage-

appointments-liberals-say/ 7 early days of policing http://www. russianbooks. org/crime/cph3. htm

22 Police: Policing and Democracy MODULE THREE

The duties of a PSB, all of which are done in consultation with the Chief of Police,

include:

 proposing the police force budget;

 determining policing objectives;

 hiring police chiefs and deputy chiefs;

 hiring new police officers;

 determining complaint guidelines;

 holding monthly public meetings (but they often hold matters discussing

important matters—money, security or disciplinary issues—behind closed

doors);

 advising and supervising the Chief of Police.

In theory, PSBs may demote, suspend, or dismiss any police officer and reprimand the

police chief or ask a neighbouring police department to investigate a chief, but in

practice these powers are rarely used. The archive of minutes 8 from Sudbury’s own

Police Services Board (PSB) contains no obvious oversight but offers many

commendations and words of thanks to the police service. Even the PSB of larger cities

like Toronto, which have a more democratic history of civilian oversight, seem little

more than a mechanism for approving police budgets and hiring.

For example, Torontonian ' Jane Doe' , who successfully sued the Toronto Police for

failing to warn her about a serial rapist 9 , has stated that “the Police Services Board

serves only as a rubber stamp for the chief” (Aikins, 2002). Doe cited an audit the City

Council ordered to review how police handle sexual assault complaints: “Chief Fantino

reported that the social audit recommendations were all acted upon and though this was

patently false, the board just accepted it as the truth” (Aikins, 2002).

Doe’s opinion was shared by Toronto councillor Bas Balkissoon who served for a

period on the Toronto Police Services Board during which time he was critical of then

Toronto Police Chief Julian Fantino as well as the Toronto Police Association leader

Craig Bromell.

8 archive of their minutes http://www. gsps. ca/en/yourpolice/archivedminutes. asp 9 who successfully sued… http://www. walnet. org/jane_doe/news/toronto_99/chatelaine-9901. html

MODULE THREE Police: Policing and Democracy 23

I resigned my position on the Police Services Board because I believe the

system of accountability is not working. I am very, very afraid of the

actions I’ve taken against the police. (Aikins, 2002)

John Sewell, a member of the Toronto Police Accountability Coalition 10

also believes

the PSB are dysfunctional but also describes what it would take to reform this. Sewell

(2010) believes that a democratic civilian authority governing municipal police would

ensure that:

the public is informed on issues, information on the service is readily

available; a decision-making process is in place that is transparent, open,

and accessible to the public; there is full debate of various options and

alternatives; and a sense of public ownership of the enterprise. In

practice, current police boards do not fulfil these mandates.

Courts and Other Police Forces

If a complaint against a police officer is serious or if it attracts media attention a

common solution used by police chiefs is to have a neighbouring police department, or

sometimes the OPP or RCMP, investigate the accusation. This process does little to

relieve police of the charge of policing themselves. An RCMP officer expressed this

underlying problem in explaining why the RCMP had “pulled its punches” in an

investigation of a municipal police department said, “ Police officers are like a

fraternity; you feel a certain loyalty to one another” (Borovoy, 2000).

Even when another police force does successfully uncover corruption in a fellow force

leading to criminal charges, it is unclear whether the Ontario court system has the

political will or resources to engage in large-scale police prosecutions because such

prosecutions earn the wrath of the police and generate negative media coverage about

Ontario’s criminal justice system. The collapse of a recent high profile court case

against six members of a Toronto police drug squad might represent an unsettling

example of this situation. A CBC report gives the background on this case:

The case begins the in late-1990s, a period when Toronto police were

fending off widespread accusations of internal corruption on several

fronts. Julian Fantino, who was Toronto’s police chief until 2005,

repeatedly said during this period that any such incidents were isolated

and urged the public to keep faith in the 7, 200-member force.

10 Toronto Police Accountability Coalition http://www. tpac. ca/

24 Police: Policing and Democracy MODULE THREE

But in 2001, after an outcry from defence lawyers that their clients were

being unfairly treated and robbed, Fantino quietly established an internal

task force to investigate specific allegations stemming from a five-year

period in the late 1990s. According to some, the task force was set up to

try to avoid a full public inquiry and assure authorities that only a small

group of officers might be involved. The main target was one team of

undercover drug officers in particular, a team led by now-retired Det.

Sgt. John Schertzer and which happened to have one of the best arrest

records at the time.

The special task force was led by RCMP Chief Superintendent John

Neily, now an assistant commissioner. The task force grew to include 26

senior Toronto police investigators, five Mounties, including Neily, and

a handful of civilian support staff. Its work went on for three years and

has cost more than $8 million.

In the spring of 2004, shortly after the six Toronto drug squad officers

were charged with an assortment of criminal offences, Neily handed in

his final report to then chief Fantino. In it, he pulled no punches and

wrote that the task force had found evidence of a “ crime spree” by

“ rogue officers. ” He then went on to say “ that the real victim, while

initially portrayed to be drug dealers who may have lost cash, was

indeed the justice system and the police service because by means of the

courts, affidavits, search warrants and so on were being utilized as tools

for the potential gain of the suspects, ” who were all police officers.

Neily recommended criminal charges against 12 Toronto police officers,

not just the six who were charged. The task force report also points to

two additional teams of drug officers that were investigated but never

charged. (Seglins, 2008)

Soon after the RCMP-led investigation laid charges against the officers, problems

began occurring in the case. The lead prosecutor “ accuse[d] the Toronto police force of

failing to provide the necessary follow-up support to bring such a complex case to

trial. . . According to two police sources who have read the letters, [he] went so far as to

threaten to abandon the prosecution unless the police increased their support” (Seglins,

2008). When the case failed to progress, the RCMP Superintendent who had headed the

task force wrote to the prosecutors, saying he was “ extremely concerned [about] a lack

of overt action” to develop a prosecution strategy (Neily, 2003).

Defence lawyers representing the six officers complained repeatedly about delays on the

part of the Crown “ but lawyers for the Attorney General’s ministry were often

unresponsive” leading one lawyer to wonder whether Crown lawyers were “ afraid of

the police or they’re collaborating with police or trying to provide a way out” (Tyler,

MODULE THREE Police: Policing and Democracy 25

2008). This concern was echoed by the Toronto defence lawyer who had helped trigger

the initial corruption probe when he alleged that “ the upper echelons of the attorney-

general’s office intentionally sabotaged the case by refusing to give prosecutors the

resources they needed to bring the case to trial in a timely manner” (Tyler, 2008).

In January 2008, the 30 corruption counts against the six officers were stayed when it

was ruled that the ' glacial' speed with which Crown prosecutors were bringing the case

to trial had violated the accused officers’ charter rights to a speedy trial. This ruling

created an outcry from many in the legal community because it suggested that there was

no force powerful enough in Ontario to prosecute police officers. A 2010 court ruling

re-instated the charges against 5 of the 6 officers and Ontario’s Attorney General’s

office has strongly denied sabotaging the case to maintain good relationships with the

police but it remains to be seen whether the re-instatement of charges actually leads to a

trial or whether this was a face-saving manoeuvre by the provincial government.

Journalists and the Internet

It is commonly stated that the press fulfils part of its ' guardian institution' role as the

' watchdog of democracy' by revealing state abuses, including police misconduct. This

myth, like many myths, has a kernel of truth as the following description of the ‘good

old days’ by a Washington Post reporter illustrates. This reporter' s search for

information was often thwarted by his “ loyal adversaries” who were the,

police commanders who felt it was their duty to demonstrate that crime

never occurred in their precincts, desk sergeants who believed that they

had a right to arrest and detain citizens without reporting it and, of

course, homicide detectives and patrolmen who, when it suited them,

argued convincingly that to provide the basic details of any incident

might lead to the escape of some heinous felon. (Simon, 2009)

To by-pass the police' s cult of secrecy he would then simply call up a sympathetic

judge and have them remind the recalcitrant officers of their legal obligations in a

democracy,

And then I would stand, secretly delighted, as yet another police officer

learned not only the fundamentals of Maryland’s public information law,

but the fact that as custodian of public records, he needed to kick out the

face sheet of any incident report and open his arrest log to immediate

inspection. There are civil penalties for refusing to do so, the judge

would assure him. And as chief judge of the District Court, he would

declare, I may well invoke said penalties if you go further down this

path.

26 Police: Policing and Democracy MODULE THREE

Delays of even 24 hours? Nope, not acceptable. Requiring written

notification from the newspaper? No, the judge would explain. Even

ordinary citizens have a right to those reports. And woe to any fool who

tried to suggest to His Honour that he would need a 30-day state Public

Information Act request for something as basic as a face sheet or an

arrest log.

“ What do you need the thirty days for?” the judge once asked a police

spokesman on speakerphone. “ We may need to redact sensitive

information, ” the spokesman offered. “ You can’t redact anything. Do

you hear me? Everything in an initial incident report is public. If the

report has been filed by the officer, then give it to the reporter tonight or

face contempt charges tomorrow. To be a police reporter in such a

climate was to be a prince of the city, and to be a citizen of such a city

was to know that you were not residing in a police state. ” (Simon, 2009)

Despite the conflicting goals between reporters and police officers, especially in the

instances where police try to confiscate news footage 11

, the overall relationship between

the police and press is often one of mutual dependence. The press are heavily

dependent on police departments to provide daily briefings on local crime to fill their

columns and evening newscasts—in many cases simply reprinting the police blotter 12

accounts. High profile crimes like O. J. Simpson’s trial or a missing white woman 13

can

provide 24-hour news stations with an extraordinary amount of coverage.

The police in turn rely on the press to put out warnings, descriptions of suspects,

AMBER alerts 14

, and positive accounts of police work and volunteer efforts. Since the

1970s most police departments have a staffed public relations department to provide

press releases to the media and maintain good relationships with reporters. Some police

officers have even gained celebrity from their regular media appearances, such as Cam

Woolley, the OPP’s media co-ordinator for highway safety, but this can lead to

departmental jealousy 15

(Freed, 2007). A startling example of the close ties between the

press and police came to light in 2011 when both the Commissioner and Assistant

Commissioner of London’s Metropolitan police had to resign due to their

11 confiscate new footage http://www. cjfe. org/resources/media_releases/cjfe-protests-quebec-city-police-

move-grab-news-tapes 12 police blotter http://www2. macleans. ca/2011/04/14/a-weapon-of-mass-distraction/ 13 missing white woman http://en. wikipedia. org/wiki/Missing_white_woman_syndrome 14 AMBER alerts http://en. wikipedia. org/wiki/AMBER_Alert 15 jealousy http://www. thestar.com/News/article/172787

MODULE THREE Police: Policing and Democracy 27

inappropriately close ties to people involved in the Newscorp phone hacking 16

scandal

where reporters bribed police to gain access to phone records (Rogers and Pederson,

2011).

Such mutual dependence limits the press’ ability to effectively act as a watchdog of the

police and this trend has worsened since the 1980s as most media corporations have cut

staff (especially investigative reporters whose cover stories cause friction with powerful

social institutions) and increased workloads to maximize profits. This has resulted in a

media landscape that suffers from many of the same weaknesses as other forms of

civilian oversight: under-staffing, under-funding, and unwillingness to risk irritating the

police. As a Washington Post reporter states,

the last remaining daily newspaper in town no longer has the manpower,

the expertise or the institutional memory to challenge [the] half-truths,

obfuscations and apparent deceit [of police departments]—these are the

wages of a world in which newspapers, their staffs eviscerated, no

longer battle at the frontiers of public information. (Simon, 2009)

The rise of the Internet and volunteer citizen journalists has begun to fill the watchdog

role created by shirking press newsrooms. Video-sharing websites like YouTube

combined with the rise of video cameras have allowed for easier documenting and

disseminating police abuses and there have also been volunteer websites set up to

collect and follow stories on police misconduct like:

http://toronto-police-watch. wikispaces. com/

www. rcmpwatch. com

http://winnipegcopwatch. org/

http://www. copblock. org/

http://gangstersinblue. org/

http://www. copwatch. org/

16 phone hacking http://www. guardian. co. uk/news/datablog/interactive/2011/jul/21/phone-hacking-what-

happened-when

28 Police: Policing and Democracy MODULE THREE

The volunteer organization Copwatch not only runs a website to document police

misconduct they also conduct ' reverse surveillance' on local police:

Copwatchers go out on foot or driving patrols in their communities and

record interactions between the police and civilians. Copwatchers hope

that monitoring police activity will provide a deterrent against police

misconduct. Some groups also patrol at protests and demonstrations to

ensure that police do not violate the rights of protesters. One Copwatch

organization states that it has a policy of non-interference with the

police, although this may not be true for all groups. (Wikipedia,

Copwatch)

In response to the increasing presence of camera-armed civilians, Canadian

police forces are increasingly confiscating cameras and erasing their memory

cards as documented in articles like, Vancouver police board to vote on "clearer

guidelines" for seizing 17

cameras, Are Cameras the New Guns? 18

and When

Police Are in the Picture 19

. But it is unclear whether grass-roots media alone can

be an adequate replacement for the traditional watch-dog role of the press. As

the Washington Post reporter ruefully comments,

So-called citizen journalists and bloggers and media pundits have lined

up to tell us that newspapers are dying but that the news business will

endure, that this moment is less tragic than it is transformational. Well,

sorry, but I didn’t trip over any blogger trying to find out [officer]

McKissick’s identity and performance history. Nor were any citizen

journalists at the City Council hearing in January when police officials

inflated the nature and severity of the threats against officers. And there

wasn’t anyone working sources in the police department to

counterbalance all of the spin or omission. I didn’t trip over a herd of

hungry reporters either, but that’s the point. (Simon, 2009)

17 Vancouver police board… http://www. straight. com/article-232588/vancouver-police-board-vote-

clearer-guidelines-seizing-cameras-citizens-and-media 18 Are Cameras the New Guns? http://gizmodo. com/5553765/are-cameras-the-new-guns 19 When Police Are. . . http://www. thestar. com/columnists/article/487990--when-police-are-in-the-picture

MODULE THREE Police: Policing and Democracy 29

IN FOCUS

Sudbury Star versus Sudbury Police Union

Part of the media’s reluctance to fulfil their role as a watchdog of police is also due to

the increasing willingness of police unions to confront or hinder the press. While the

director of public affairs or media co-ordinator at a police department cannot

comment on many press reports for either legal reasons or the need to maintain a

good relationship with the press, police unions are far less restrained. For example,

one reporter describes the tactic of “ police union officials. . . wheeling out the example

of the only Baltimore police officer killed as an act of revenge” to block press

requests to identify officers involved in many situations. The Toronto police union

sued the Toronto Star for “ $375, 000 in general, aggravated and punitive damages for

each of its 7, 200 members, for a total of $2. 7 billion” after the paper ran an article on

racial profiling that the union felt was unfair (The Toronto Star, 2003).

Similar tactics have been seen in Sudbury when the police union complained that the

Sudbury Star simply had too many articles that portrayed policing in a negative

manner in a short period, as this letter to the editor 20

from the union president states:

For many readers, this constellation of negative police articles seems to

suggest police officers are tarnished. . . . You have abused your trusted

position in society. You have gone out of your way to undermine the

public’s confidence and trust in our police officers. . . [which] allow us to

do our jobs. (MacDonald, 2007)

The union president then suggested that articles on murdered police officers should be

given more coverage in the newspaper, (“I ask you to apply common sense to priority

of news items, especially when a police officer is murdered”) before giving the

newspaper a subtle warning:

We are the guardians of public safety. . . In the future, I expect you will

consider the potential consequences to public safety when you insinuate

there are serious systemic issues in our police service. (MacDonald,

2007)

In a rare move the managing editor of the Star publicly responded to the union letter

by proudly asserting that less than 5% of their articles on police were on police

misconduct:

20 letter to the editor http://www. thesudburystar. com/ArticleDisplay. aspx?archive= true&e= 783511

30 Police: Policing and Democracy MODULE THREE

The assertion of bias does not withstand a modicum of scrutiny. . . [In the

past] seven weeks, the Star published 283 news items concerning police

activities nationwide and local. They include 221 items reporting on the

good, routine and/or innocuous work of police services, mostly in

Sudbury. . . 49 items which specifically praised the works of police; and

13 items which could be categorized as depicting police officers. . . in a

negative light. Only three of those were generated by the Star—the two

stories and the editorial.” (MacLeod, 2007)

Despite the Sudbury Star’s manager’s firm refutation of the union’s claim, the chilling

effect of such police union complaints against negative stories—such as the Star’s

announcement that the Toronto police had been called in to investigate the local police

just a few day before—cannot be discounted. Nor can the fact that by the Sudbury

Star’s own admission only 5% of their police coverage is of a critical nature.

Final Thoughts on Police Oversight

The philosopher Plato once described a utopian state in which police, known as the

Guardians, would watch over society for society’s good under the supervision of the

Philosopher King. His critics over the centuries have asked, ' Quis custodiet ipsos

custodes?' —' Who guards the Guardians?'

In Canada and the United States there are a variety of organizations, both governmental

and private, that scrutinize police conduct but their effectiveness is questionable and

many defense lawyers have “ long advised clients not to even bother lodging a formal

complaint [. . . ] It’s always useless” (Rankin, 2010). Instead they suggest that abused

citizens must speak the language of raw power by using civil lawsuits to attack police

department bank accounts. This is not a fight many average people can win nor is it the

solution that many average officers want. Less defeatist but still pessimistic is the chief

counsel to the Canadian Civil Liberties Association who despite the creation of OIPRD

in Ontario still describes the existing arrangement as “ cop heavy. ”

A cop heavy system has some merit as it prevents over-regulation and the second-

guessing of an officer’s action and is in accordance with police chiefs’ historical right to

sole jurisdiction over officer discipline. Police unions also raise valid concerns when

they fight to ensure officers maintain all the legal rights of a normal citizen, such as the

right to remain silent in an SIU investigation. The institutional memories of many

unions bitterly recalls when officers could be fired on the whim of a chief or

government official. No oversight process will be seen as acceptable if it does not

satisfy the concerns of both officers and citizens.

MODULE THREE Police: Policing and Democracy 31

SECTION 3. 3: Maintain Le Droit—Police and Politics

The question of political autonomy of the police has been a sensitive topic since the

beginning of policing. If the police are seen as politically controlled they lose popular

support and legitimacy, but if police are not answerable to politicians—who

theoretically represent the public’s will—who are they answerable to? So delicate is this

topic that it is often avoided altogether.

Sociological analysis, such as that of Ratner and McMullan (1987), has found that

“ police ideology tends to be supportive of political authority as police are reinforcers of

state power and class dominance” but on some occasions in Canadian history this broad

support of political authority has manifested itself as support of specific politicians and

political parties. When the City of Toronto was incorporated in 1834, for example, the

City Council

retained for itself the formidable power to hire Toronto police officers.

Each Alderman had the right to appoint a number of constables in his

ward, resulting in a police force hired entirely through a system of

political favours. The Toronto police force was partisan, corrupt, and

inept. . . Making matters worse, incumbent Tory [Conservative]

politicians were routinely using the Toronto Police as a private army to

suppress their opposition Reform candidates. . . In the following years,

numerous legal political meetings and Reformer rallies were violently

broken up by the Toronto Police, on orders from incumbent Aldermen.

Toronto Police constables would be personally transported in wagons by

Tory aldermen at the reins, and set loose to attack Reform candidate

meeting. (Vronsky, 2004)

This endemic political corruption of municipal police was given as a reason for the

creation of an Ontario provincial police, yet the first OPP recruits needed a letter from

a Member of Parliament to be considered for hiring. This suggests that the provincial

police were still dependent on political patronage and the fact that such letters of

recommendations stated the “ [OPP candidate] and all his connections have been good

Conservatives” shows that the patrons remained Conservative politicians.

At end of World War Two the ruling Ontario Conservative government called an

election in the hopes of getting a majority government but they faced strong opposition

from the CCF (the forerunner to today’s NDP). In order to discredit the CCF, Mitch

Hepburn, the Liberal Leader ran “ an anti-Semitic, union bashing, Red-baiting

campaign” in newspapers and bill-boards. Hepburn’s campaign was based on material

given to him by an OPP Special Investigation Branch’s captain. In return Hepburn

offered to pay for any lawsuits that may result from the OPP’s political collusion.

32 Police: Policing and Democracy MODULE THREE

When the CCF leader replied to the libellous attacks by stating that the OPP was acting

as a political ' Gestapo' for the Liberal Party, the Ontario media attacked him as a

conspiracy theorist 21

and the resulting backlash resulted in both the defeat of the CCF

and a large majority for the Liberals. Later Royal Commissions and archival research

would not only vindicate the CCF leader’s counter-charges but show that a secret

political police existed composed of current and former OPP Criminal Branch and

Special Branch officers who infiltrated trade unions and CCF meetings and reported

their findings directly to Hepburn’s Attorney General.

Blue Ties—Modern connections between Police and Politics

Unfortunately police interference in Canadian elections is neither confined to the

provincial level nor limited to the past. The 2006 federal election was a close battle

between the incumbent Liberals and opposition Conservatives. In the midst of the

electoral campaign the Royal Canadian Mounted Police (RCMP) sent out a press

release announcing that it was conducting an investigation into allegations of insider

trading by the Liberal’s Finance Minister. This action violated the long-standing RCMP

custom of not interfering during elections due to the perceptions of police interference

such acts could cause. In 1988, for example, the RCMP had held to this custom by

waiting till one day after the federal election to raid the riding offices of a Conservative

candidate who was later fined $20, 000 and sentenced to a day in jail after pleading

guilty to 11 counts of breach of trust and fraud.

The timing of the 2006 public announcement of investigation against the Liberal

Finance Minister and the fact that he was later cleared of any wrong doing has lead

many political commentators to believe the RCMP investigation was politically

motivated. The Globe and Mail’s national affairs columnist wrote that,

You don’t have to be a shill for the Liberals to ask what the heck the

Mounties thought they were doing in announcing a criminal investigation

during an election campaign. . . . What the RCMP did was inexplicable and

quite wrong. Informed friends who know about RCMP practices are

baffled. They’ve never seen anything like it before. (Simpson, 2006)

Later investigation would find that that RCMP commissioner Giuliani Zaccardelli had

personally directed the RCMP to issue the press release naming the Liberal finance

minister—a decision the police force now says was not in keeping with past practice.

Even a former Conservative cabinet minister thought the RCMP actions were improper,

21 conspiracy theorist http://www. funnypictures. net. au/images/sheep-dog-trials-im-telling-you-the-man-

and-the-do1. jpg

MODULE THREE Police: Policing and Democracy 33

What was unusual about this whole process was commencing an

investigation and starting with a press release…there has been all kinds

of speculation that the RCMP wouldn’t mind a change of government.

(Simpson, 2006)

Questions about the ties between the RCMP commissioner Zaccardelli and

Conservative leader Stephen Harper would be heightened when, after the

Conservative’s electoral victory, Harper’s first public appearance as Prime Minister

was a photo shoot with Zaccardelli on a tour of the RCMP’s child exploitation unit.

Harper announced six months later both $37 million in federal funding to the RCMP

Training Academy and a $161 million to fund “ a massive recruiting campaign with

plans to hire 10, 000 new officers over the next five years adding to the already 18, 000-

strong force” (Torstar, 2009 22

).

This was not the only time—or even the last time—that Conservative leader Stephen

Harper benefited from police interference in a federal election. In 2011, an anonymous

retired Toronto police officer revealed to a Sun Media reporter that, 15 years earlier,

he had found the leader of the NDP in a ' suspect' massage parlour but no charges were

laid. Despite the age, weakness, and anonymous nature of this claim, this story was

released on the Friday before the Monday election date allowing no time for proper

investigation of the claim.

Since the massage parlour claim relied on photocopies from the anonymous officer’s

notebook and such notes belonged to the police department, the OPP anti-racket squad

was called in to investigate any possible criminal wrongdoing. The OPP’s anti-racket

squad later found no evidence of wrong-doing on anyone’s part. Yet, some have

questioned whether the OPP could properly investigate this incident because the

Toronto Police Chief during the time of the original massage investigation, Julian

Fantino, was also the recent OPP Commissioner and was now serving as Stephen

Harper’s Associate Minister of National Defence after being elected as a Conservative

Party candidate.

The enduring relationship between Canadian police forces and the Conservative Party

(or Tory Party as it is sometimes called) is not exclusive to Canada. During the 1980s,

when the RCMP was said to “ fall under the effective political control” of Canadian

Conservative Prime Minister Brian Mulroney (Palango, 1998), the British police were

dubbed “ Maggie’s Private Army” in reference to their strong ties to Conservative

Prime Minister Margaret Thatcher. In a rare look into the political affiliations of British

police it was found that 80% of officers supported the Conservative Party (Reiner,

1992). Such polling was subsequently banned by the British Home Office due to effects

22 Torstar, 2009

http://www. thestar. com/business/2009/03/14/police_recruits_looking_for_job_security. html

34 Police: Policing and Democracy MODULE THREE

it had on public views toward the police’s neutrality. In the USA where such research is

not forbidden there is “ copious evidence of police political support for the Right and

Far Right. ” (Reiner, 1992)

Since the invention of modern urban policing by Robert Peel, who served as Britain’s

Conservative Prime minister between 1841 and 1846, some have questioned whether

police forces are truly neutral agencies or tax-funded paramilitary wings of the Anglo-

American Conservative party. While the majority of rank-and-file officers allegiance to

the Conservative party extends no further than their voting record, the pro-Conservative

political behaviour of senior police ranks and anonymous police leaks has had a

ominous effect on at least two Canadian elections.

SOCI 2087 Module 4.pdf

______________________________________________________________________________________

MODULE FOUR Courts: Rigging the Game 1

MODULE FOUR COURTS: RIGGING THE

GAME

SECTION 4. 1: History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Summary of the development of codified law from a Marxist view and discussion of the

value of scepticism toward the legal system’s claims of fairness.

SECTION 4. 2: Stacking the Odds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Examines the everyday workings of courts with emphasis on the current reliance on

plea bargaining.

SECTION 4. 3: Jury Vetting and the Legal Aid Strike . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Investigates how the recent Ontario scandals involving jury vetting and Legal Aid

reveal how the courts favour prosecutors.

SECTION 4. 4: The Court System as Degradation Ceremony . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Examines the court process as a degradation ceremony and looks at the vital role of

degradation in the criminal justice system.

SECTION 4. 5: Degradation Ceremonies Counter-Tactics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Assesses the role of accounts used by defendants in court to resist the labels placed on

them by such degradation ceremonies.

SECTION 4. 6: The Stigma of a Criminal Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Illustrates the effect of a criminal record on future employment opportunities.

______________________________________________________________________________________

2 Courts: Rigging the Game MODULE FOUR

Online Resources

You will be prompted to complete the following readings as you work through this

module:

Criminal Cases

http://www. justice. gc. ca/eng/csj-sjc/just/08. html

Going to Court

http://www. justice. gc. ca/eng/rp-pr/cj-jp/victim/guide/sech. html#a1

Going to Trial

http://www. justice. gc. ca/eng/rp-pr/cj-jp/victim/guide/seci. html#a1

Overview of the Canadian Criminal Justice System

http://www. julianhermida. com/polnotesoverview. htm

Plea Bargaining in Canada

http://www. canada. justice. gc. ca/eng/rp-pr/cj-jp/victim/rr02_5/p3. html

Legal aid’s long march from donation to bargaining

http://www. lawtimesnews. com/201001186181/Commentary/That-s-History-Legal-aids-

long-march-from-donation-to-bargaining

Legal Aid Boycott letter by Frank Addario

www. criminallawyers. ca/legalaidletter. pdf

Smith, J. (1992). Humiliation, degradation, and the criminal justice system. The

Journal of Primary Prevention, 12(3).

Stain that won’t go away

http://www. thestar. com/SpecialSections/Crime/article/460766

Living with a Criminal Record

http://www. thestar. com/SpecialSections/Crime/article/460765

You will be prompted to watch the following online video as you work through this

module:

A Canadian prisoner’s perspective

http://www. youtube. com/watch?v= 8yXO4wh46vM&feature= relmfu

______________________________________________________________________________________

MODULE FOUR Courts: Rigging the Game 3

SECTION 4. 1: History

As societies grew larger and more stratified, the informal customs of social, religious,

and moral sanctions could not resolve disputes as they once had. Changes in the

organization of a society from kinship and tribe to a territorially based political

organization inevitably resulted in changes in the legal system (Vago, 1994). Amongst

the variety of new state regulatory mechanisms that emerged were written codified

laws.

The basic content of the law and legal system concomitantly becomes

more complex, specialized, and statutory as the economy grows more

complex and diversified, industrialization increases, and social

institutions become more stratified and specialized. (Vago, 1994)

Even in its earliest forms the complexity of such new laws could be bewildering. In

Athens, for example, the growth of the legal system has gives us the story of a citizen

beginning his prosecution of a case (as there were no state-paid prosecutors in those

days) by going around to the various stone pillars spread across the city that had

Athenian laws carved into them and writing down the relevant points for his case.

Nearly 2000 years later in Victorian Britain we have similar stories of case law so

enormous and wide-spread that it is said that it would take a person several life-times to

even read all the criminal laws much less understand them.

As societies grew larger the presence of laws and a formal legal system became more

and more essential to the maintenance of social order even as those legal systems

became more complicated and chaotic. Early sociologists recognized the interrelation

between legal institutions and social order and tried to describe the historical

development of law and the factors that influenced the legal system. One of the most

influential of these descriptions was given by the socio-economic theorist Karl Marx

(1818-1883).

Marx postulated that as a society’s mode of production changes so too will their social

relationships change. For example, how people left farms to work in factories during

the industrial revolution or how the Canadian economy shifted drastically from

manufacturing jobs to service sector 1 jobs over the last two decades (CIA World

Factbook, 2008). A Marxist analysis looking at the later shift would expect that

Canadian personalities and relationships will transform to reflect this change in

production by shifting from the traits required in assembly line manufacturing (rational,

precision, obedience) to those required in the service sector (appearance, verbal skills,

emotional manipulation). This economic determinism theory—so called because the

economy determines social relations—is reflected in Marx’s theory of law.

1 service sector http://en. wikipedia. org/wiki/Service_sector

______________________________________________________________________________________

4 Courts: Rigging the Game MODULE FOUR

According to Marx, the capitalist economy of Western societies was the primary force

in shaping the growth of modern law and legal system, and capitalism’s largest

requirement of the court system was that it regulate and preserve the social relations

needed in a capitalist economy. Thus Marxist theory predicts that the main goal of a

Western court system and laws is to preserve private property and the rights of capital

while instilling the values of hard-work, self-sacrifice, sobriety, and servitude in the

populace. In practice, this means there are harmful human acts excluded from criminal

codes because they were vital to capitalism at some time—such as the theft of lands

guaranteed by treaty to First Nations or the lack of pollution regulation and labour

safety laws until the 1970s.

Clement (1977) modifies this stance by noting that while the court system’s primary

goal is to maintain the conditions necessary for accumulation of private profit, its

secondary goal is to give the majority of people the feeling that their interests are being

met by the court system. Similarly, Hagan and Albonetti (1982) believe that when it

comes to “ equality before the law,” there is nowhere that these words are “ more

subjective in meaning than in their application to the sentencing of white-collar

offenders” where judges give extremely light sentences leading to many corporation

recidivists (Goff and Reason, 1978).

Viewed as such, a “ fair trial” —like welfare funds, health insurance, and universal

childhood education—is a benefit reluctantly given by capitalists to placate the

proletarian workers and liberal bourgeois, but a privilege that can be removed if it

threatens to interfere with larger economic goals. When problems like recessions or

depressions occur solutions are found that attempt to satisfy workers but more

importantly that do not threaten the economic and political position of the elite.

For example, labour leaders who took part in the Winnipeg General Strike of 1919

were labelled as criminals by the Canadian elites, beaten and arrested by the RCMP,

and sentenced and deported by the legal system. However, in the 1960s it was realized

that unions could be helpful to the capitalist system if they were cooperative, increased

worker morale, and assisted in capital accumulation despite their basic demands for

higher wages—and so what was done to the leaders of the 1919 strike was then deemed

illegal. Yet when a series of recessions occurred in the late 1970s and early 1980s, the

legal system was again employed to attack unions through aggressive police actions and

unfavourable legal decisions. Viewed as such, the Western legal system is seen as

having less to do with justice and more to do with profits.

This is admittedly a very cynical and economically driven view of Western legal

systems but it can serve as a potent antidote to the obscuring illusions of fairness,

justice, neutrality, and independence that Western legal systems too often cloak

themselves in. According to Ratner and McMullan (1987):

______________________________________________________________________________________

MODULE FOUR Courts: Rigging the Game 5

The court is commonly presented as the most autonomous component of

the criminal justice system, especially in terms of judicial independence.

This independence is, however, limited by the appointment procedures

for Canadian judges, their somewhat dependent relationship with police

officers and prosecutors, the social origin of the judiciary, and the

content of criminal law. The position of prosecutors is likewise

constrained.

Thus, it does not ultimately matter whether the court officers are elected, as they are in

the US, or politically-appointed civil servants as they are in Canada, because if a judge

or prosecutor does not use their considerable levels of discretion in ways that ultimately

align with the larger economic needs of capitalism they will be removed from their

position. Marxist arguments actually view the court system’s strict taboos against

personal bias and conflicts of interest as actually facilitating the deep inherent

capitalistic bias in the criminal justice system by removing court officers’ individual

personalities. The more ' neutral' a judge, the better the deep unspoken presumptions of

the legal system can flow through them.

IN FOCUS

Rigging the Game

Stansfield (1996) uses a sports analogy to summarize the Marxist view of the role of

the legal system in capitalism.

Both the poor and the police are frustrated by their respective roles in

reproducing the existing social order. Frequently, because they are

unaware of the larger picture, the poor blame police for their

predicament, and police attempt to punish the poor for their deviant

lifestyles (i. e. , ' breaking the rules' ). Just as the players on a losing team

that has little or no chance of winning, occasionally resort to cheating

and then blame the referees when they are caught, occasionally, referees

punish losing teams by imposing penalties (i. e. , ' unsportsmanlike

conduct' ). If the poor never win, and the elites always win, eventually,

the poor tire of the game and quit playing (i. e. , drop out), or, worse

still, from the vantage of the elites, they may try to ' break-up the game'

(i. e. , rebel). To avoid this, elites have developed strategies to keep the

poor motivated and, when this fails, to discourage them from rebelling.

______________________________________________________________________________________

6 Courts: Rigging the Game MODULE FOUR

The key to keeping all sides ' playing the game' is to convince the poor

that they have a reasonable chance of ' winning' . This is not an easy task,

given the true, exploitative nature of the game—a stratified social order

that is reproduced by differential enforcing of biased laws. The problem

for the elites is: how to make the social system, generally, and the legal

system, more particularly, appear to be fair and equitable? One way is to

allow people from one class to move into another class (i. e. , ' trading

players' ). For example, some elites become poor (i. e. , bankrupt) and

some poor become elites (i. e. , ' rags to riches' ). Player trades alone,

however, are not enough to convince the poor that the game is fair.

Therefore, other ways have been found to convince the poor the game is

fair.

The solution has been to mystify the real purpose of the legal system.

Mystification is achieved by cloaking the law in liberal rhetoric that

emphasizes the ' principles of natural justice' . For example, the criminal

justice system rhetoric emphasizes ' fairness' (i. e. , a fair trial), ' honesty'

(i. e. , tell the truth, the whole truth, and nothing but the truth), ' freedom'

(i. e. , no arbitrary detention), and ' humaneness' (i. e. , no cruel or unusual

treatment or punishment). However, the criminal justice system, in

reality, is distinguished by ' racism' (i. e. , overrepresentation of blacks

and Natives in arrest rates and prisons), ' deceit' (i. e. , police perjury),

' arbitrariness' (i. e. , police shooting fleeing felons), and ' cruelty' (i. e. ,

indeterminate sentences). It is this ' gap' between appearance and reality

in the criminal justice system that elites must bridge; mystification is the

bridge.

Critical Models and the Rule of Law

Marxism, like many critical models of crime, calls the very concept of ' rule of law'

into uncertainty by illustrating how criminal laws are unevenly applied or used as tools

of oppression. If one takes these models seriously one might question whether justice is

not better served by abolishing modern criminal justice systems than reforming them.

This radical question has haunted many sociologists and legal scholars.

The influential Canadian Christian philosopher, George Grant, addressed this concern

is his 1975 book English Speaking Justice, where he warned readers to be “ extremely

careful” in questioning the core beliefs of Western liberal law because as a secular

institution that no longer drew its moral authority from Christian conceptions of justice,

our legal systems only continued to survive due to an “ unthinking confidence” most

Westerners have in them. If that confidence was undermined, Grant believed the legal

______________________________________________________________________________________

MODULE FOUR Courts: Rigging the Game 7

system would disintegrate and bloody anarchy would emerge. For Grant, to deeply

question rule of law was to play with fire.

The pioneering Marxist historian E. P Thompson was also especially worried about this

question. As a Marxist and dedicated British peace activist, Thompson was “ an

unrelenting critic of unjust legal rules that served the interests of England’s propertied

classes” and his academic work continually “ reviled the use of law as an instrument of

class oppression. ” Yet he also recognized that “ virtually all Englishmen—high- and

low-born, rich and poor—considered the Rule of Law as their common inheritance” and

always noted in his work when a legal ruling did favour the working-class. The

paradoxical nature of his Marxism and respect for rule of law is best seen in his 1975

book Whigs and Hunters which detailed how the English Black Act 2 was an “ instrument

of class power pure and simple” yet ends with what has been called one of the “ greatest

defenses ever mounted” of rule of law, cautioning his readers against viewing criminal

law as only an instrument of class power, because,

the rule of law itself, the imposing of effective inhibitions upon power

and the defence of the citizen from power’s all-intrusive claims, seems to

me to be an unqualified human good…What is remarkable (we are

reminded) is not that the laws were bent but the fact that there was,

anywhere in the eighteenth century, a Rule of Law at all.

Thompson’s conflicting sentiments reveal the profound moral difficulties any critical

sociologist faces when examining Anglo-American court and legal systems. Like many

aspects of capitalism, rule of law can be an unfair rigged game to the many average

citizens who encounter it, but the question of whether it is better than uninhibited “ rule

of the strongest” is debatable. The incompatibility between Grant’s “ unthinking

confidence” and Thompson’s critical sociology as expressed in this section means

Canadians will have to start thinking seriously about such questions.

IN FOCUS Judges - Appointed or Elected?

In 2010 a former Quebec Minister of Justice claimed he was under "colossal" pressure

from Liberal Party fundraisers to appoint judges based on their donations. A subsequent

inquiry found no concrete evidence of influence peddling but it did "harshly criticize

the process of appointing Quebec judges, saying there are no standards governing

2 Black Act http://en. wikipedia. org/wiki/Black_Act

______________________________________________________________________________________

8 Courts: Rigging the Game MODULE FOUR

selection committees" and noted that "almost half of the population believes that

political ties are considered in the appointment of judges" (CBCNews, 2011).

Situations like this occur because Canadian judges are political appointees leading to

perceptions of corruption. The federal government appoints judges to federal courts

(and to provincial superior courts); provincial governments appoint judges to provincial

courts. These appointments are often recommended by non-government ' advisory

committees' but these committees have no legal force and are often themselves

politically appointed. All judges must be chosen from the population of eligible lawyers

but it is hard to avoid the perception that lawyers with connections to the ruling political

party will not receive preference. All potential judges then go through a lengthy process

of vetting to determine their suitability.

The provincial government also appoints the Justice of the Peace (JP), who do most of

the judicial bulk-work (by-laws, traffic, bails, and warrants). According to the Ontario

Court of Justice website to be eligible to become a justice of the peace a person needs

to "generally have 10 years of paid or volunteer work experience and a university

degree or college diploma" and presumably the right political connections. A lawyer

familiar with the application process admitted, "patronage is alive and well, " after a

former Liberal aide was appointed to be a JP (Powell, 2009).

The competition for judgeships can be fierce as the position is not only prestigious but

also lucrative. While few government jobs can compete with enormous corporate

salaries; government pensions and benefits help compensate. Canada' s 1, 000 federally

appointed judges were paid $260, 000 a year in 2009 and in retirement their pensions

are two-thirds their salary. Ontario provincial courts judges earn about $225, 000 a

year. More than 200 of Ontario' s 350 JPs earned more than $150, 000 in 2008 and

some JPs continued to work in their former jobs.

Worries about political appointments have some Canadians wondering if we should

adopt the American system where 87% of all state judges must win public elections to

get the job. Elected judges would seem to be a more democratic method but the

American experience with the system is mixed. Elections depend on expensive

advertising campaigns which make judges dependant on donors and leads to the

unsavoury situation such as judges asking lawyers for cash donations. Elected judges

are also more likely to bow to public pressure in highly publicized cases during election

years. Additionally the American public seems largely uninterested in having to elect

judges every few years and the majority of judges run unopposed.

______________________________________________________________________________________

MODULE FOUR Courts: Rigging the Game 9

SECTION 4. 2: Stacking the Odds

When an individual is charged with a crime, their fate is decided through a process of

interactions between the judge, prosecution and defense attorney in a process

determined, to a large degree, by “legal terminology, court norms, and routine

conceptions of defendants” (Rubington & Weinberg, 1996). Thus despite the defendant

having the highest stake in this procedure, as outsiders to this process they are often the

least able to affect the trial. Instead they are placed into the court agents’ routine

conceptions of a typical case and a typical defendant and treated as such with any

deviations from this set role being frowned upon. When the high levels of discretionary

power of judges, prosecutors, and probation officers are tempered by law it is most

likely in directions unfavourable to defendants, such as government orders setting

mandatory minimum sentences. The fact that the majority of criminal defendants are

from the lower classes while most court agents are from the upper middle class (or

higher) only furthers this gulf, as does the often arcane rules and terminology of trial

proceedings. Many defendants have turned to their lawyer at the end of a trial and

simply asked “ What just happened?” for as far as they were concerned the trial might

as well have occurred in a foreign language.

Yet despite these considerable factors already aligned against a defendant, the Canadian

court system has some features that even further stack the odds in the judge and

prosecutors’ favour. In the rest of this module we will examine three such features: plea

bargaining, jury vetting, and lack of legal aid.

Before we continue it is worthwhile for students unfamiliar with the

Canadian Criminal Justice System to go online and read this Ministry of

Justice summary of a typical criminal trial (starts half-way down under the

heading “How do criminal cases proceed?”) and their guides to Going to

Court and Going to Trial. This flow chart of the Canadian Criminal Justice

System also provides a good graphic illustration of the court process.

http://www. justice. gc. ca/eng/csj-sjc/just/08. html

http://www. justice. gc. ca/eng/rp-pr/cj-jp/victim/guide/sech. html#a1

http://www. justice. gc. ca/eng/rp-pr/cj-jp/victim/guide/seci. html#a1

http://www. julianhermida. com/polnotesoverview. htm

______________________________________________________________________________________

10 Courts: Rigging the Game MODULE FOUR

Plea Bargains: A Necessary Compromise?

Plea bargaining - also known as plea discussions, plea agreements, and resolution

discussions - is “ a method of settling criminal cases without litigation” (Ziegelwanger,

1995) by forging an agreement between the prosecution and the defense involving the

accused pleading guilty in trade for some presumed benefit. The involvement of victim

(or surviving family members) in such agreements is generally rare but in prominent

cases they are often consulted as too are the police. The trial judge has the final right to

accept or deny any plea bargain, although in practice few plea bargain agreements made

by the prosecution and defense are denied, and a judge would need to detail their

reasons in doing so. Most commonly, plea bargains are struck early in the court

process, but they can be offered throughout the criminal trial process and can be

cancelled by either side until the terms of the bargains are enacted.

In the 1970s plea bargaining was a secretive uncommon practice discouraged by the

Law Reform Commission of Canada but since then it has become a widely accepted

way to “ ease the administration of justice” (Ziegelwanger, 1995). Today, plea bargains

are now the main way of resolving criminal prosecutions in Canada. As Ronald Delisle

(1995), professor of criminal law at Queen’s University and a former Ontario

provincial court judge, stated

[in] about 90 per cent of criminal cases, the accused person either pleads

guilty voluntarily, or makes a deal. If we try to abolish plea bargaining,

there is no way on God’s green earth that our society could afford the

trials. The number of judges and lawyers involved would be horrendous.

(Jenish & Driedger, 1995)

William Trudell, vice-president of the Canadian Criminal Lawyers’ Association,

believes that not only are plea bargains common but they are beneficial to most parties

involved,

[N]egotiated settlements usually work to everyone’s benefit by

preventing costly, emotionally stressful trials in which victims must face

their assailants in court. […] I do a lot of murder cases and we are very

careful. The Crown and defense don’t come to agreement on a plea

bargain in a murder case without seriously doing a lot of hard slugging.

(Jenish & Driedger, 1995 3 )

3 Jenish & Driedger, 1995

http://www. encyclopediecanadienne. ca/index. cfm?PgNm= TCE&Params= M1ARTM0010445

______________________________________________________________________________________

MODULE FOUR Courts: Rigging the Game 11

Take time now to go online and read the Department of Justice Canada’s

Plea Bargaining in Canada written by Verdun-Jones and Tijerino (2004).

When reading this summary of plea bargaining in Canada note:

 The importance of the Martin Task Force;

 The issues and public reaction to the case of Karla Homolka;

 Why the case of Boudreau versus Benaiah, 2000, was important.

http://www. canada. justice. gc. ca/eng/rp-pr/cj-jp/victim/rr02_5/p3. html

IN FOCUS

Types of Plea Bargaining

Plea bargaining can occur in one of four ways as charge, sentence, fact, or label

bargaining.

Charge bargaining involves the following activities:

 the reduction of the charge to a lesser or included offence;

 the withdrawal or stay of the charges or the promise not to proceed on other

possible charges;

 the promise not to charge friends or family of the defendant.

Sentence bargaining is another common form of plea bargaining. “ [T]he judge may

be directly involved in the agreement or the prosecutor simply agrees to make a no-

sentence or a light-sentence recommendation” (Monk, 1993). In the second instance,

prosecutors and defense lawyers recommend to the presiding judge an appropriate

sentence for the accused. Judges do not have to accept this recommendation, but they

usually do. Sentence bargaining usually includes the following:

 a promise to proceed summarily rather than by way of indictment;

 a promise from the Crown to make a particular recommendation in relation to

sentence;

 a promise not to oppose defense counsel’s sentence recommendation;

 a promise not to appeal against sentence imposed at trial;

 a promise not to apply for a more severe penalty;

______________________________________________________________________________________

12 Courts: Rigging the Game MODULE FOUR

 a promise not to apply for a period of preventive detention;

 a promise to make a representation as to the place of imprisonment, type of

treatment, etc. ;

 a promise to arrange sentencing before a particular judge.

In the case of fact bargaining, the prosecutor and defense lawyer agree to submit

certain facts about the case or the background of the offender into court. In so

agreeing, they hope that the accused receives a lighter sentence. Such a practice

usually involves:

 a promise not to volunteer certain information about the accused (for example,

information on the defendant’s previous convictions);

 a promise not to mention a circumstance of the offence that may be interpreted

by the judge as an aggravating factor (and therefore make the accused

deserving of a more severe sentence).

Label bargaining is the attempt by defense counsel to prevent his or her client being

charged with an offence that carries a negative label (for example child molestation) in

exchange for a less socially objectionable one (for example assault) by offering a plea

of guilty.

Source: Goff, 2001

The Case Against Plea Bargains

In 1975, the Law Reform Commission of Canada, reflecting the opinion of many

judges and members of the public, described plea bargaining as a shameful practice that

made “ justice for sale” and was “ something for which a decent criminal justice system

has no place” as it put the criminal justice system into disrepute (Verdun-Jones and

Tijerino, 2004). Yet, by 1989, the Reform Commission, faced with a system bogging

down under its own weight, reversed its position and stated that, “ plea negotiation is

not an inherently shameful practice. ” This ambiguity still surrounds the practice despite

its widespread use and efficiency and most legal professionals concede that extensive

use of plea bargaining skews legal statistics, as defendants are routinely overcharged

and then plea to lesser offences. As John Langbein (2007), a professor of law and legal

history at Yale states,

We know it’s effective—both for accused criminals looking to minimize

their punishment, and for prosecutors coping with the torrent of cases

sloshing through the courts. But is it right? Are these bargains moral?

Plea bargaining works by threat, and it goes like this: ‘Oh, you want to

exercise your constitutional right to a jury trial? Please be our guest.

______________________________________________________________________________________

MODULE FOUR Courts: Rigging the Game 13

But understand that if you exercise that right we will punish you much

more severely. ’ In effect, that means we are punishing you twice. Once

for what you did and once for having the temerity to exercise your right

to face a jury. (March, 2007)

If you let me, the prosecutor, increase the sentencing disparity [between

a guilty plea and a guilty verdict] enough, I can get anyone to concede

guilt to almost anything. Suppose I’ve got 20 bishops ready to testify

that I didn’t overstay the parking meter. But the choice is plead guilty,

pay a fine or face a possible death sentence. What do you think? I plead

guilty.

What it does is defeat the age-old wisdom that led us to divide the

charging and investigative function on one hand from our determinative

and sentencing functions. What’s happened is the prosecutor has

combined all those functions in one set of hands: he is the investigative

officer, the prosecutorial officer, the determinative officer, and the

sentencing officer.

Famous examples of this disparity include the cases of Paul Lewis Hayes and ' Robert

H. ' Hayes was an American petty criminal who already had two felony convictions on

his record when he was caught forging a cheque for $88. 30. When Hayes refused to

accept a plea bargain of a five-year sentence, he was convicted as a habitual offender

and sentenced to a mandatory sentence of life in prison under Kentucky’s Habitual

Criminal Act. The case of ' Robert H. ' —an unidentified man described in a 1994

University of Chicago Law Review paper—is similar. According to the authors, Albert

Alschuler and Andrew Deiss, Robert spent six months in an Atlanta jail despite the lack

of formal charges. When he finally met with a public defender, she told him if he

pleaded guilty he could go home that day because of the time he’d already served but if

he pleaded innocent he would remain in custody for at least another year awaiting trial.

Robert reluctantly pleaded guilty and only later did authorities realize that he’d been

mistaken for someone else and should never have been arrested.

In both cases an expensive trial was trying to be avoided but the coercive nature of plea

bargains casts a dark shadow because “ in the pursuit of efficiency the original goals of

the penal system and the idea of justice are neglected” (Ziegelwanger, 1995). Maich

(2007) 4 questions whether “ it is a wise decision to trade the liberties and rights offered

by our constitutions for the sake of expediency? Just as importantly, are the

compromises required to entrench such a system morally defensible?” Such questions

become even murkier when the defendant is also offering evidence to help convict

another less co-operative defendant, such as in the case of Karla Homolka who served

4 Maich (2007)

http://www. thecanadianencyclopedia. com/index. cfm?PgNm= TCE&Params= M1ARTM0013120

______________________________________________________________________________________

14 Courts: Rigging the Game MODULE FOUR

only 12 years for her part in the horrific kidnapping, rape, and murder of two Ontario

schoolgirls after she agreed to testify against her husband, Paul Bernardo.

Plea bargains not only create a coerced choice between unequal options, they also

remove all the protections afforded an accused during a trial, most especially the

presumption of innocence and the chance to present their side of the story. As law

professor Stephen Schulhofer notes:

The major problem with plea bargaining is that it forces the party into a

situation where they have to take a guess about what the evidence is,

about how strong the case might be, and they have to make that guess

against the background of enormously severe penalties if you guess

wrong. So defendants, even if they have strong defenses, and even if

they are innocent, in fact face enormous pressure to play the odds and to

accept a plea. And the more likely they are to be innocent, and the more

strong their defenses are, the bigger discount and the bigger benefits the

prosecutor will offer them. Eventually at some point it becomes so

tempting that it might be irresistible, especially when the consequences

of guessing wrong are disastrous. So the result is that the system as a

whole doesn’t do what we count on it to do, which is to sort out the

guilty people from the innocent people. It doesn’t do that because the

guilty people and the innocent people are all faced with the same

pressure to plead guilty. (Frontline website 5 , n. d. )

In this way, plea bargains have removed the centrality of trials from the court system,

and both police and prosecutors have found ways to make this work to their advantage.

Simon Fraser University criminologist Bryan Kinney believes that “in provinces such as

Ontario, police tend to lay charges without them being screened by Crown prosecutors,

so it is not unusual to see excess charges laid that can later be bartered away to obtain a

guilty plea” (Makin, 2011, The Globe and Mail). The laying of unscreened charges

means the accused must accept a plea bargain simply to avoid having to defend

themselves against multiple frivolous charges.

Plea bargaining allows the processing of cases without the need to go to trial and many

defendants are happy to avoid the legal costs of trial. But such a ' trial-less' system is a

radical disadvantage to an innocent person without a large bank account because they

are penalized for simply asking for the right to a trial, as the difference in sentences

handed to those who co-operate with prosecutors versus those who maintain their

innocence and go to trial illustrates a de facto form of coercion that underlies practically

every serious prosecution. The Western legal tradition is based upon the ideal of a fair

5 frontline website http://www. pbs. org/wgbh/pages/frontline/shows/plea/faqs/

______________________________________________________________________________________

MODULE FOUR Courts: Rigging the Game 15

trial acting as a check against potential abuses of power but plea bargaining has

radically altered that equation.

______________________________________________________________________________________

16 Courts: Rigging the Game MODULE FOUR

SECTION 4. 3: Jury Vetting and the Legal Aid Strike

If a person refuses any plea bargains and insists on a criminal trial they now face the

twin obstacles of winning a not-guilty verdict and paying for their defense. Despite the

claims of the Canadian court system to conduct ' fair trials' , recent legal scandals in

Ontario have shown the odds are stacked against a defendant in overcoming both

obstacles. For this next section we will look at how an Ontario-wide ' jury vetting'

scandal and a 2009 Legal Aid ' strike' vividly illustrate core imbalances in the court

system against a defendant.

Jury Vetting

Jury trials are considered the bedrock of Western legal systems’ safeguards against state

abuse, but recent revelations in Ontario show that even juries can be stacked in favour

of the prosecution when it was revealed that some Ontario crown attorneys were

allowed to get the list of potential jurors long before the jury selection process began.

This jury vetting allowed Ontario prosecutors to brazenly circumvent rules surrounding

the selection of jurors to their own advantage.

According to the Juries Act prosecutors are only able to ask police if the juror has been

convicted of an indictable offence and such information must be shared with the

defense. In receiving the jury list before the selection process, some Ontario

prosecutors began asking the police about non-criminal matters involving the jurors and

none of this information was being shared with the defense. Upon the request of

prosecutors, police would routinely turn over information from the Versadex database

administered by the Canadian Police Information Centre (CPIC) on potential jurors.

This information contained data obtained by police on a call to a private address, even

if that call did not lead to an arrest, including informal police annotations and mental

health status. The accessing of any CPIC data is normally strictly regulated by both the

Freedom of Information and Protection of Privacy Act and the Personal Health

Information Protection Act and can only occur during a formal police investigation or

with the permission of the individual involved.

This ' offensive' practice (as Superior Court Justice Bruce Thomas called it) was first

uncovered in the Simcoe region but further investigation by the Privacy Commissioner

in the fall of 2009 uncovered it throughout the province, including Kingston, Toronto,

and Thunder Bay. Once the widespread nature of Ontario jury vetting became apparent,

and cases started being suspended and declared mistrials because of it, even the

normally conservative National Post newspaper (2009) described it as “ the beginning of

______________________________________________________________________________________

MODULE FOUR Courts: Rigging the Game 17

an apocalypse for the Ontario legal system” due to prosecutors’ immorally “ adopting

the cockamamie American system of obsessive, intrusive juror analysis” that

contravenes “ a list of legal and moral principles [. . . ] almost too large to fit into a single

editorial.”

Cases of jury vetting were found to stretch back to at least to 2004 where the Simcoe

County Crown was provided with police CPIC notes on which potential jurors

“ dislike[d] police, ” had “ family issues, ” consorted with “ criminal associates, ” had

dismissed charges, had peace bonds, had “ suicidal” tendencies, were engaged in

“ ongoing neighbour disputes” or had unproven accusations. One police note on a

prospective juror read “witness to parent’s domestic dispute. Dad is a drinker and

assaulted her mother.” When this practice first came to light in 2006, Ontario’s

Attorney General issued a Crown policy directive forbidding the practice but this

seemed to have little effect as the practice was later discovered province-wide in 2009.

Compounding the ' offensiveness' of this practice was that the Ontario Crown

introduced this system entirely for their own benefit and no information was shared

with the defense, creating a clear unfairness in the jury-selection process and suggesting

that some Crown prosecutors have “ a fantasy-land view of their disclosure obligations”

(National Post, 2009). The fallout from this scandal has seen at least three cases in the

Simcoe region being appealed, a murder trial suspended in Kingston, and potential

jurors discharged in Windsor.

The 2009 Privacy Commissioners’ report 6 which investigated jury vetting found that

fully 1/3 of the crown offices investigated (18 of the 55) had “ routinely to frequently”

engaged in jury vetting in defiance of the Juries Act, Criminal Code, and privacy

legislation. Vetting had occurred in 143 trials where a conviction was made since 2006

and the Ministry of the Attorney General had actually known about the practice since

1993 but made only weak attempts to discourage it. In her final report the Privacy

Commissioner made 22 recommendations to Ontario’s Attorney General to end the

practice but the ordering of a mistrial in a 2010 Nova Scotia case due to the same

practice gives a frightful glimpse into how widespread the practice may have become

throughout Canada.

A list of the Ontario crown offices that engaged in jury vetting 7 can be found online as

well as the range of background checks 8 engaged in.

6 Privacy Commissioner’s report www. ipc. on. ca/site_documents/po-2826-executive_summary. pdf 7 engaged in jury vetting http://www. ipc. on. ca/site_documents/PO-2826-KeyFacts. pdf 8

range of background checks http://www. ipc. on. ca/site_documents/range_of_bkg_checks. pdf

______________________________________________________________________________________

18 Courts: Rigging the Game MODULE FOUR

Legal Aid Ontario Boycott

Perhaps the single most damning critique of Western legal systems is the simple fact

that in every aspect, from paying fines to affording legal protection, rich people have a

much greater advantage than poorer people. For many lower income people the costs of

hiring a lawyer to represent you in court is unaffordable despite the fact that the

“ overwhelming point of view of lawyers and judges [is] that un-represented accused

lack the ability to defend themselves properly in the adversarial and technical

environment of the criminal courts” (Currie, 2006).

Since nearly every citizen requires legal representation in order to assure a fair hearing,

Ontario created Legal Aid Ontario to assist poorer citizens in affording the legal

representative needed to advocate their side in legal contests. Legal Aid Ontario assists

lower income citizens accused with an indictable offence by providing them with

government funds to reimburse a defense lawyer for a set number of billable hours.

Take the time now to go online and read Christopher Moore’s (2010)

article Legal Aid’s long march from donation to bargaining to understand

the social forces behind the creation of a Legal Aid system in Ontario.

http://www. lawtimesnews. com/201001186181/Commentary/That-s-

History-Legal-aids-long-march-from-donation-to-bargaining

This largely unseen world of Legal Aid gained larger attention in 2009 when Ontario

defense lawyers went on ' strike' by refusing to accept Legal Aid certificates of payment

for complicated homicide cases, especially those involving gangs and guns. This meant

that low income defendants with complicated charges could no longer find lawyers to

defend them using government-funds. The primary purpose of the strike or boycott was

to draw attention to the under-funded Legal Aid system in Ontario and the inadequacy

of Legal Aid’s preset rates of payment.

Go online and read a letter by Frank Addario, the president of the Ontario

Criminal Lawyers Association, who led the strike, to the Attorney General

for Ontario, which gives their reasons for the strike.

www. criminallawyers. ca/legalaidletter. pdf

______________________________________________________________________________________

MODULE FOUR Courts: Rigging the Game 19

As stated in Addario’s letter, the government, which funds both the prosecution and

Legal Aid, puts much more money on one side of the equation (the prosecution), an

imbalance heavily compounded by a defense lawyers’ need to cover overhead and

office costs (staff salaries, rent, internet, fax machines, office supplies, insurance fees,

etc. ) unlike a crown prosecutor. This unequal resource allocation by the Ontario

government results in a system where rates are “ too low to attract experienced

lawyers” (Mankin, 2011) and those lawyers who accepted Legal Aid cases were not able

to spend the time needed on cases nor hire needed experts in complex cases. As

Kostman and Pyzer (2009) explain,

[t]here is already a huge power imbalance between the state and the

individual in the context of investigating a crime. Obviously, an accused

person does not have access to a fraction of the resources the state may

use to investigate a crime and collect evidence. In theory, the presumption

of innocence counteracts this imbalance by placing a higher burden of

proof on the state.

However, the current deficiencies in the Legal Aid System work to carry

the power imbalance between the state and the accused into the

courtroom. We are left with a court system in which the Crown’s ability

to prosecute far surpasses the lower-income accused’s ability to defend

him or herself, both in terms of the tactics he or she may make use of

(such as the use of expert witnesses) and in terms of the experience of his

or her counsel [as junior counsel are more likely to accept Legal Aid]).

The legal defense of poorer clients has always relied on some defense lawyers

volunteering their time but the Criminal Lawyers Association felt the current Legal Aid

system was abusing this expectation creating an unequal playing field. As Pulat

Yunusov (2009) states:

A criminal lawyer who mentors me said Legal Aid only paid for two

hours for the bail hearing we did last week. He spent a day working on

it. The issue is simple. It’s the balance of power between the Crown and

the accused.

The Ontario Criminal Lawyers’ Association’s argument found judicial support in

hearings where judges overruled Legal Aid billing limits and forced the province to

directly pay defense counsel fees which sometimes resulted in rates $100/hr more than

Legal Aid would pay in “ an implicit rejection of Legal Aid Ontario rates”(Makin,

2011). When the province appealed the decisions, the Ontario Court of Appeal upheld

them stating that, “ judges are much better situated than the Attorney-General’s ministry

to decide how much lawyers should be paid to ensure justice is done” (Makin, 2011).

______________________________________________________________________________________

20 Courts: Rigging the Game MODULE FOUR

A primary force driving this imbalance has been the recent increase in governmental

resources and funding to state prosecutors and police, with a corresponding increase in

the number of indictable acts and investigation of crimes. Those lawyers who accepted

Legal Aid cases were expected to handle an increased number of such cases often

involving new laws and complex prosecutions.

A local example of this strike occurred when a Sudbury murder trial was delayed

because no defense counsel would accept Legal Aid payment to conduct such a

complicated and high-stakes trial. Sudbury defense lawyer Glenn Sandberg explained,

defense counsels need to “ be paid at a more appropriate rate and they [need to] have

access to something similar to the resources available to the Crown. Until those

inequities can be addressed, counsel cannot be retained and [the accused] remains

unrepresented. ”

As they had done in other situations the Criminal Lawyers’ Association began the

process to have a Sudbury judge mandate a more appropriate defense counsel fee but

Legal Aid responded by asking for a delay saying they were working on developing

measures such as hiring two ‘in-house’ defense lawyers so counsel could be provided

during the strike. Yet before any hearings could occur in the Sudbury situation, the

boycott ended on January 25, 2010 with a deal between the Criminal Lawyers

Association, Ministry of the Attorney General and Legal Aid Ontario. The agreement

included (Legal Aid Ontario, 2011 9 ):

 Increases in defense lawyer fees for the next three years.

 Development of new fee schedule for expert witnesses based on the amount paid

by Crowns.

 A new program for senior lawyers to mentor junior lawyers in cases.

 Creation of ‘block fees’ as an incentive for ‘early resolution and system

efficiency’ (Note: this means that lawyers would get paid the same amount for

finishing a case early as proceeding to trial which creates a huge monetary

reason for defense lawyers to push and accept plea bargains).

 A system where the parties would meet every three years to renegotiate the

agreement.

 Assurance that Legal Aid certificates would be accepted and that no boycott

would take place while the deal was in effect.

Continuing Problems with Legal Aid’s Accessibility

9 Legal Aid Ontario, 2011 http://www. legalaid. on. ca/en/news/newsarchive/1005-04_tariffincrease. asp

______________________________________________________________________________________

MODULE FOUR Courts: Rigging the Game 21

The 2010 Legal Aid agreement resolved the most pressing problems of defense

counsels but other fundamental concerns about the fairness of the system exists,

especially about the limits on who can access Legal Aid. The Ontario Legal Aid

program has decreased the type of cases covered and tightened the eligibility rules

resulting in Ontarians remaining unrepresented in the court process due to financial

obstacles (Hann, Nuffield, Meredith, & Svoboda, 2003; Tsoukalas & Roberts, 2005;

Currie, 2006; Trebilcock, 2008). In Ontario, as in other provinces, Legal Aid is only

available to accused who face a possibility of jail time and meet the increasingly narrow

Legal Aid financial criteria” 10

. Currie (2006) notes that financial eligibility guidelines

are too low as they are set below accepted poverty levels, thus excluding too many

people. As a 2005 report on Legal Aid across Canada states:

Restrictions in eligibility and a narrower focus on legal aid coverage may

have a direct impact on persons with a low income. Only the most

serious cases are covered. A plethora of lesser cases and first offences

are no longer covered in many of the jurisdictions. According to

anecdotal information, a large number of persons are appearing before

the courts unrepresented. They may also be more likely to plead guilty,

get convicted, and receive stricter sentences. What are the implications

for their future financial health, employment, and educational

opportunities? (Tsoukalas & Roberts, 2005)

A 2008 Legal Aid review report recommends that the court system would be much

more just and fairer if government compensation for defense lawyers was brought up to

an adequate level, financial eligibility was widened to include the working poor, and the

types of cases covered was increased (Trebilcock, 2008). For example, Currie (2006)

proposes that first time offenders who are not at risk of imprisonment but are at risk of

having a criminal record should receive legal representation because of the stakes

involved. Until Legal Aid is made an effective and universal service, innocent poor

people face a crippling financial obstacle in receiving a fair trail.

After many dark years the struggling institution is experiencing a period of reform. In

2015 the Ontario government committed to raising legal aid funding by close to $100

million (Taddese, 2014a). This has allowed the Legal Aid society to implement

strategies to help mental-health and aboriginal applicants, create a toll-free help line,

10 financial criteria http://www. legalaid. on. ca/en/getting/eligibility. asp

______________________________________________________________________________________

22 Courts: Rigging the Game MODULE FOUR

build more offices in court houses, provide mediation for divorcing couples and to

increase specialty clinics serving minorities, people with disabilities, low-income

tenants, injured workers and the elderly (Goar, 2015).

Some aspects of the reform have proven controversial like the amalgamation of 16

Toronto Legal Aid clinics into three large centres. Staff argue that these clinics have

become vital neighbourhood resources that assist locals with criminal law, immigration

problems, child support disputes, eviction notices and appeals to the Workplace Safety

and Insurance Boards, so closing those clinics "means denying the decades of

community building and trust and relationship building that has come out of that time"

(Taddese, 2014b).

A continuing problems remains in the government refusal to recognize Legal Aid staff

lawyers' right to unionize. In 2013 80% of staff lawyers voted to join a trade union but

the government refused to recognize this because the Ontario Labour Relations Act

does not cover lawyers. Legal Aid lawyers countered that prosecutors have their own

unions: the Ontario Crown Attorneys’ Association and the Association of Law Officers

of the Crown. Steven Barrett, counsel for Legal Aid lawyers, says there is "an element

of discrimination” in the refusal to grant voluntary recognition because two-thirds of

staff lawyers are women and the group includes other “vulnerable” lawyers from

diverse racial backgrounds (Taddese, 2013).

IN FOCUS

How Many Prisoners are Actually Guilty?

Like every human institution, the criminal justice system is prone to some degree of

error no matter how many checks and balances are in place. Therefore it is worth

considering how many innocent people end up being convicted because in those cases

the state has essentially committed the crimes of kidnapping, unlawful confinement, and

in the cases of executions, first degree murder. As the Algerian-French philosopher

Albert Camus (1957), wrote,

What then is capital punishment but the most premeditated of murders, to

which no criminal’s deed, however calculated it may be, can be

compared? For there to be an equivalence, the death penalty would have

to punish a criminal, who had warned his victim of the date at which he

would inflict a horrible death on him, and who from that moment onward

had confined him at his mercy for months and years. Such a monster is

not encountered in private life.

______________________________________________________________________________________

MODULE FOUR Courts: Rigging the Game 23

Unfortunately estimating how many prisoners are truly innocent despite court

convictions is extremely difficult and most figures come from judges, prosecutors and

others who are already invested in the legitimacy of the system. For example, a 1996

survey asked 188 judges, prosecuting attorneys, public defenders, sheriffs, and police

chiefs in Ohio and 41 state attorney generals to estimate the prevalence of wrongful

conviction in the United States. About 72 percent estimated that less than 1 percent—

but more than zero—of convictions were of innocent people (Huff, Rattner & Sagarin,

1996). The sociologist who carried out the survey then estimated conservatively that

0. 5 percent of the 1, 993,880 American convictions for index crimes in 1990 were

innocent. That would result in an estimated 9, 969 wrongful convictions for 1990.

Similar surveys have given even lower figures. It has been claimed that in Great

Britain, the wrongful conviction rate may be 0. 1%—or one out of every thousand

people (Rosen, 1992). Conservative Roman Catholic and Supreme Court Justice

Antonin Scalia has quoted a wrongful conviction rate of 0. 027 percent in his decisions

based on the research of Oregon Prosecutor Joshua Marquis (Liptak, 2008). The

0. 027% figure was been attacked because the methodology used to derive it involved

taking the number of DNA exonerations for capital crime cases, arbitrarily multiplying

that number by 10, and then dividing it by the total number of felony convictions over

the previous 15 years. As one sociologist pointed: “By this logic, we could estimate the

proportion of baseball players who’ve used steroids by dividing the number of major

league players who’ve been caught by the total of all baseball players at all levels:

major league, minor league, semipro, college and Little League—and maybe throwing

in football and basketball players as well” (Liptak, 2008).

Scalia has also dismissed the idea that any innocent person may have ever been

executed in America, because if such a tragedy had occurred, “we would not have to

hunt for it; the innocent’s name would be shouted from the rooftops by the abolition

lobby” (Kansas v. Marsh, 2005). This claim is also disputed by many sociologists.

Samuel Gross, a law professor at the University of Michigan, has calculated that a

minimum of 2. 3 percent of all prisoners sentenced to death between 1973 and 1989

have been exonerated and freed. The Innocence Project cites a study by Seton Hall’s D.

Michael Risinger that puts the percentage of innocents in prison for capital crimes at 3

to 5 percent. But both studies only look at data gleaned from those accused of crimes

that are eligible for the death penalty and there is some reason to think that homicide

cases yield “an unusually high incidence of false conviction, probably owing to the

combined difficulty of investigating without help from the victim, intense pressure to

get convictions in homicide cases, and the corresponding incentive for the guilty to

frame the innocent” (Kansas v. Marsh, 2005). On the other hand, virtually every

capital murder defendant goes to trial thus allowing for greater investigation into their

cases and reducing false convictions, unlike the 90 percent of violent-crime defendants

whose cases end in plea bargains.

The ability to prove someone has been wrongly convicted is very difficult because

______________________________________________________________________________________

24 Courts: Rigging the Game MODULE FOUR

appeal courts give “almost complete deference to findings of guilt by juries and trial

judges” ruling only on procedural errors, but the use of DNA evidence has proven

effective in overcoming this obstacle. A recent review of biological evidence in 31

randomly chosen Virginia closed rape cases from 1973 to 1988 led to DNA testing in

22 cases, two of which resulted in exonerations - a small sample size but an indicator

that the rate could be as high as 9 percent (Liptak, 2008).

Overall it is impossible to derive an established figure of wrongful convictions but a

range of between 0. 5 to 5 percent, depending on the crime and court system, would

seem reasonable. The reasons for wrongful convictions are easier to establish (see

Figure 5. 5). The Innocence Project (2008) has determined the most common causes of

wrongful convictions to be:

 Eyewitness Misidentification11 (especially in robberies)

 Invalidated or Improper Forensic Science12

 False Confessions/Admissions13

 Government Misconduct14

 Informants or Snitches15

 Bad Lawyering16

Figure 5. 5: Go to the following website to see a graph of the Factors

Leading to Wrongful Convictions.

http://www. innocenceproject. org/understand/factors_74_chart. php

What is notable about this list is how many wrongful convictions are not due to human

and forensic error but how many are due to wilful misconduct by police and

prosecutors. To give one non-DNA example, a federal judge in Boston ordered the

11 eyewitness… http://www. innocenceproject. org/understand/Eyewitness-Misidentification. php 12 invalidated… http://www. innocenceproject. org/understand/Unreliable-Limited-Science.php 13 false confessions… http://www. innocenceproject. org/understand/Unreliable-Limited-Science. php 14 government misconduct http://www. innocenceproject. org/understand/Government-Misconduct. php 15 informant for stitches http://www. innocenceproject. org/understand/Snitches-Informants. php 16 bad lawyering http://www. innocenceproject. org/understand/Bad-Lawyering. php

______________________________________________________________________________________

MODULE FOUR Courts: Rigging the Game 25

government to pay $100 million in damages to victims of the FBI’s ' outrageous' role in

framing four men for a 1965 gangland murder. The judge found that the FBI protected

the real killer, a mob hit man and FBI informant, and “allowed their employees to

break laws, violate rules, and ruin lives” (Taylor, 2007). To sustain this cover-up the

FBI allowed four innocent men to spend a combined total of 109 years in prison where

two of the men would die.

We can also draw a few general lessons about wrongful conviction cases (Weinberg,

2009):

 Black men are more likely to be falsely convicted of rape than white

men;

 Juveniles are more likely to confess falsely to murder;

 Exonerated defendants are less likely to have serious criminal

records;

 People who maintain their innocence are more likely to be innocent;

 The longer it takes to solve a crime, the more likely the defendant is

not guilty.

As of 2011, I have not found any estimates of the wrongful conviction rate in Canada

but the high profile overturning of the convictions of Donald Marshall, David

Milgaard, and Guy Paul Morin 17

and the discrediting of Ontario pathologist Charles

Smith 18

(whose expert testimony wrongfully convicted a number of innocent people in

the deaths of their own children) amply prove the need for such research.

17 Donald Marshall, David Milgaard, and Guy Paul Morin

http://www. cbc. ca/news/canada/story/2009/08/06/f-wrongfully-convicted. html 18 Charles Smith http://en. wikipedia. org/wiki/Charles_Randal_Smith

______________________________________________________________________________________

26 Courts: Rigging the Game MODULE FOUR

SECTION 4. 4: The Court System as Degradation Ceremony

In 1988, J. Smith, a professor at the Indiana Department of Criminal Justice and

Criminology discovered a student breaking-and-entering into a university office at night

and called the police. As the thief was being apprehended the professor noted that the

officers enjoyed making humiliating comments at the offender’s expense,

“ You are going away for a long time and young cute guys like you will

have plenty of boyfriends in the joint. You better pucker up sweety.

Ain’t that right? […] You aren’t very bright are you, college boy? ”

Witnessing this experience reminded the professor of his own encounter with the law

when he had to post a $35 bond for a traffic citation at court and the judge parentally

scolded him,

“ if you can keep your nose clean and stay out of trouble with the law for

45 days, it will be returned to you. Do you think you can do that Mr.

Smith?”

Together the two personal experiences caused him to theorize that degradation and

humiliation were vital to the criminal justice system from being arrested, to appearing

in front of a judge to finally being imprisoned. Building on Durkheim’s (1950) theory

that the presence of ' bad' people is a vital reinforcer of the commonly held rules for

' good' behaviour and Garfinkel’s (1956) theory of the ' degradation ceremony' where

' bad' behaviour is defined by official pronouncements of shame upon the offending

party, the professor wrote a paper entitled Humiliation, degradation and the criminal

justice system (1992) that described the shaming and degradation rituals that are the

heart of the court system and offered a critique of a shame-based system.

Take time now to go online and read Smith’s paper which is available

through the J. N. Desmarais’ Library online databases.

Smith, J. (1992). Humiliation, degradation and the criminal justice

system. The Journal of Primary Prevention, 12(3).

______________________________________________________________________________________

MODULE FOUR Courts: Rigging the Game 27

SECTION 4. 5: Degradation Ceremonies Counter-Tactics

When a defendant is found guilty by a court they are assessed and sentenced by a judge

based on three factors: general physical appearance, prior arrests, and social position

(employment, marital status, etc. ) (Wiseman, 1970). But there is also a voluntary

aspect to sentencing as the guilty person is allowed to speak and offer a counter-

narrative to the interpretation being placed on them by the court system and hence resist

the label being placed upon them by the elaborate degradation ceremony of the court.

According to Hester and Eglin (1992):

the court is a prime site where persons can be expected to explain

themselves, justify their actions, offer excuses for their behaviour, etc.

While some convicts do not resist the label being applied to them by the courts, or in

fact embrace the degraded label of ' criminal' or ' thug' as a positive label, research tells

us that self-image of many offenders resists the label of criminal and the shame that

accompanies it. The five most common techniques of neutralization used to resist the

shaming attempts of the courts are:

 the denial of responsibility for the act;

 the denial of injury to the victim;

 the belief that the victim ' had it coming' ;

 the blaming of society because it made the act necessary;

 the appeal to a higher morality that justifies the criminal act.

An offender tries to render their court-sanctioned degradation and humiliation

ineffective often by simply re-viewing their humiliation as a rationale “ for further

criminal activity” (Smith, 1992). One study of ninety-four sex offenders found that

eighty-six used neutralized accounts to excuse their actions with three-quarters using

involuntary factors (or external locuses 19

) such as an unexplainable breakdown in

mental functioning or not having been taught social skills (Taylor, 1976). Others used

voluntary explanations (or internal locuses) by admitting to taking an active role in the

offence but implying that the victim was partially responsible for the crime or saying

that the assault came out of a desire for a ' special experience' .

19 external locuses http://wilderdom. com/psychology/loc/LocusOfControlWhatIs. html

______________________________________________________________________________________

28 Courts: Rigging the Game MODULE FOUR

Jack Katz in Seductions of Crime (1988), argues that many offenders engage in as

much, if not more, labelling than the court system when they divide up potential

victims into ' worthy' and ' unworthy' , social acquaintances into ' suckers' who are too

quick to submit and ' cool' who break rules. They also label other offenders as

' snitches' , ' stand-up guys' , ' perverts' , and ' losers' . Viewed in this context the Western

court system becomes a labeling contest between the interpretive systems of the

criminal justice system and that of the offender.

Many offenders have forged a self-image that is resistant to criticism avoiding

accountability through blaming others, feeling entitled, and believing that the same

rules that apply to everyone else do not apply to them. Such offenders will have

developed these attitudes long before committing their first felony and their self-image

allows many convicts to offer the courts a combination of deeply-held neutralizing

statements. Judges are more likely to accept involuntary factors such as social

background as mitigating factors than a person’s explanation of their actions because so

many criminals have internalized neutralization statements as a counter to the justice

system' s labelling (Taylor, 1976).

White Collar Crime Neutralizations

Most offenders offer some form of neutralizing justification for their actions but the

accounts of white-collar offenders are especially interesting because they are often more

deeply invested in a ' non-deviant' self-image and thus more willing to resist their

transformation from the status of law-abiding citizen to convicted felon. Such middle

and upper-class offenders are most likely to experience shame at being labelled a

criminal and be fearful that such a label would represent their whole life. Accordingly

they are most likely to believe they are not ' real criminals' nor were their crimes ' real

crimes' . Michael Benson (1985) points to the fact that no matter what their emotional

responses to the charges were, the white-collar offenders in his study were nearly all

unanimous in denying basic criminality.

Benson’s research focused on how white-collar offenders attempt to defeat the labelling

of the degradation ceremony to deny their own criminality and justify their behaviour.

He states that accounts developed by white-collar offenders are the ones available given

the mechanics, history, and organizational context of the offences. In simpler terms

white-collar defendants will deny criminal intent rather than criminal behaviour because

before prosecution can proceed, the prosecutor must show that conscious criminal intent

was present. If the prosecutor can show criminal intent, and the trial goes ahead, then

the offender is portrayed as someone with a guilty mind. The image of the offender as

an upstanding member of the community will then be threatened. It is not surprising

then, that most white-collar offenders will admit that their behaviour could fall within

the conduct proscribed by statute, but they deny that their actions were motivated by a

______________________________________________________________________________________

MODULE FOUR Courts: Rigging the Game 29

mens rea (the Latin legal term for ' guilty mind' ). The prosecutors, however, will

attempt to show the offender to be an individual who deliberately chose to ignore the

law.

Below are some examples of the accounts given by white-collar offenders used to

justify their actions collected in Benson’s research.

Antitrust Violators

Benson (1985) states that four major themes characterized the accounts of those charged

with antitrust violations:

1. Antitrust offenders focused on the everyday character and historical continuity of

their offences. They would use the dubious nature of many financial transactions

and capitalism itself to justify their act.

Example: “ It was a way of doing business before we even got into the business.

So it was like why do you brush your teeth in the morning or something. It was

part of the everyday. It was a method of survival. ”

2. Offenders’ would characterize their actions as blameless because they did not

believe they had violated the antitrust law or simply felt that what they had done

was fine.

The offenders, in one instance, admitted conspiring with the competitors and

intentionally submitting non-competitive bids. When bidding is handled in this

way “an action that appears on the surface to be a straight forward and

conscious violation of antitrust regulations becomes merely a harmless business

practice that happens to be a ‘technical violation. ’ The offender can then refer to

his personal history to verify his claim that, despite technical violations, he is

really a law-abiding person. ”

3. Offenders were very critical of the motives and tactics of prosecutors. Offenders

portrayed prosecutors as being motivated by personal interest and using antitrust

prosecutions for political purposes. This is similar to claims by street offenders

that their arrest was motivated by a police officer’s personal reasons. These claims

allow offenders to feel rage, not embarrassment, as one anti-trust convict stated,

“ I never really felt any embarrassment over the whole thing. I felt rage and it

wasn’t false or self-serving. It was really (something) to see this thing in action

and recognize what the whole legal system has come to through its development,

and the abuse of the grand jury and the abuse of the indictment system. ”

______________________________________________________________________________________

30 Courts: Rigging the Game MODULE FOUR

4. Antitrust offenders often contrasted their crimes to the crimes of street offenders,

believing that their crimes were different because they were not premeditated

and/or served the higher cause of their employers’ interests or economic goals.

Tax Violators

Six of Benson’s offenders were convicted of income tax violations. Tax offenders were

more likely to have acted alone and would justify their motives as altruistic rather than

criminal, denying they set out to deliberately cheat the government for their own

personal gain, referring to their crimes as mistakes or committed under special

circumstances. These offenders also used the complexity of the laws (reason 2) and the

tradition of cheating on income tax (reason 1) as their excuse. They believed that they

were just unlucky to be caught and that they had been singled out (reason 3) but were

no more guilty than most. Only one tax offender violator distinguished between his own

crime and the crimes of real offenders (reason 4).

Violation of Financial Trust

Four of the offenders studied were involved in violations of financial trust. Three were

bank officers who were involved in embezzlement or misapplied funds and the other

was a union official involved in embezzlement.

This group was different from the other white collar offenders in that they explicitly

admitted responsibility for their crimes but tried to justify their actions by using

extraordinary circumstances as their reason and by explaining that the action went

completely against their normal behaviour.

Even though they admitted their guilt, they still tried to make the distinction between

themselves and the ' real' offender. Donald Cressey (1953) suggests that many

embezzlers who steal large amounts of money rationalize their behaviour by referring

to it as borrowing rather than stealing.

Fraud and False Statements

Ten offenders were charged with fraud or false statement charges. The members of this

group were the most likely to deny committing any crime, as Benson (1985) states,

[s]even of the ten claimed that they, personally, were innocent of any

crime, although each admitted that fraud had occurred. Typically, they

claimed to have been set up by associates and to have been wrongfully

convicted by the U. S. Attorney handling the case. One might call this the

______________________________________________________________________________________

MODULE FOUR Courts: Rigging the Game 31

scapegoating strategy. Rather than admitting technical wrongdoing and

then justifying or excusing it, the offender attempts to paint himself as a

victim by shifting the blame entirely to another party. Prosecutors were

presented as being either ignorant or politically motivated.

Three of the ten offenders admitted their crimes but focused on the harmlessness of the

crime or on the unusual circumstances that drove them to commit their crime.

Conclusion

Benson found two commonalities in looking at court degradation ceremonies involving

white collar crimes. The first was a consistent thread running through all of the

interviews about the necessity of such criminal practices given the realities of the

business world. Offenders again and again appealed to a higher set of rules based on the

concept of profit and survival, which is taken to define what it means to be in business

in a capitalist society. These rules were given precedence over the legislatively

determined rules, like criminal laws, which attempted to govern how to conduct one’s

business affairs. In contrast, the rules of capitalism did not just regulate behaviour;

rather, they constitute or create the criminal behaviour in question because if one does

not follow them, then one is not ' in business' .

Such ' higher law' arguments are commonly given in many cases involving gang-related

or organized crime where the in-group norms of the criminal association are held

superior to larger social values, but unlike those arguments appeals to the ' higher law

of capitalism' are more readily accepted by courts and politicians. As Linden (1996)

points out:

Republican officials believe that free enterprise works best if business

was left alone by government. Accordingly, they dismantled many of the

agencies and regulations which controlled financial industry. This move

was, of course, strongly encouraged by business people who ultimately

benefited by the government’s mistake. The result was a wave of

criminal activity in the savings and loan industry.

Secondly, (Benson, 1985) found that,

[m]ost judges have a widespread belief that the suffering experienced by

a white-collar person as a result of apprehension, public indictment, and

conviction, and the collateral disabilities incident to conviction—loss of

job, professional licenses, and status in the community—completely

satisfies the need to punish the individual. A fact seized upon up by

defence lawyers trying to present the offender as having suffered

______________________________________________________________________________________

32 Courts: Rigging the Game MODULE FOUR

sufficiently from the humiliation of being labelled as a criminal to avoid

fines or jail time.

Hagen (1987) points out that the comments made by judges about the sentencing of

white-collar offenders suggested that white-collar offenders experience sanctions

differently than other offenders and, therefore that lesser types of sanctions should be

given to white-collar offenders. Benson sums up his finding by stating:

If certain classes of offenders can commit crimes, be convicted, and, yet,

still, through the use of appropriate accounting strategies, avoid being

labelled as criminals, then one of the primary functions of the criminal

law and the criminal justice system—the symbolic separation of the

offender from the community—is negated. A moral environment is,

thereby, perpetuated in which the symbolic consequences of criminal

behaviour for some offenders can largely be ignored.

______________________________________________________________________________________

MODULE FOUR Courts: Rigging the Game 33

SECTION 4. 6: The Stigma of a Criminal Record

The power of a courts’ degradation ritual is not dependent on the convicted person

accepting the label given them by the courts, a conviction also attaches a very public

stigma to the person. As Creechan and Silverman (1995) states:

Where stigma is applied successfully and becomes all encompassing, it

impacts negatively on social relations and economic opportunities. When

this happens, stigma becomes increasingly difficult to deny. As one

becomes more and more broadly labelled as a thief, a drug abuser, or a

prostitute, there is increased likelihood that family members will

withdraw their support, friends will avoid contact, employers will deny

or take away jobs, and strangers will react with hostility. Moreover, the

probability arises that officials will increase surveillance and control.

Schwartz and Skolnick (1962) believe that the goal of a legal degradation ceremony is

to create a powerful ' status degradation' which continues to operate even when the

individual has paid his debt and the most obvious form of this continuing degradation is

the social stigma of having a criminal record. To test their claim, Schwartz and

Skolnick created four employment resumé folders for unskilled workers with identical

applications except for a criminal record:

The four folders differed only in the applicant’s reported record of

criminal court involvement. The first folder indicated that the applicant

had been convicted and sentenced for assault; the second that he had

been tried for assault and acquitted; the third, also tried for assault and

acquitted, but with a letter from the judge certifying the finding of not

guilty and reaffirming the legal presumption of innocence. The fourth

folder made no mention of any criminal record.

Copies of each folder were made and presented by an employment agency to one

hundred people who were hiring for resort hotel jobs. The reactions of the employers

were placed in two categories: a) a willingness to consider the applicant in any way and

b) those who made no response or refused to consider the applicant. Of all 100

employers contacted,

 one expressed further interest in the ' convicted' folder,

 three in the ' tried-but-acquitted' folder,

 six in the ' tried-but-acquitted-with-a-letter' folder,

 nine in the ' non-criminal-record' folder.

______________________________________________________________________________________

34 Courts: Rigging the Game MODULE FOUR

This study not only documented the stigmatizing power of a criminal record on

employability, but that any suggestion of criminal involvement had a similar effect.

Schwartz and Skolnick believed that the un-employability of convicts made having a

criminal record criminogenic (crime-causing) because money is required to acquire the

basics of food and shelter in capitalistic societies. J. Smith (1992) believes that the

' status devaluation' itself leads to more criminal behaviour:

The stigma of being an ex-con and the humiliation of applying for jobs

with outdated skills, and a hole in your work history that must be

explained to each potential employer combine to continuously humiliate

the recently released inmate. This continuing humiliation contributes to

the recidivism (prison return) rate.

The Toronto Star’s series on the criminal justice system gives a modern

Canadian perspective on this issue in The stain that won’t go away (go

online and read this article now), detailing how far ‘police checks’ for

employment can go and supporting Schwartz and Skolnick’s finding that

being in contact with the law even without being convicted can hurt

someone’s chances for employment.

http://www. thestar. com/SpecialSections/Crime/article/460766

The Canadian public, like their American counterparts, seem quick to notice and

condemn any criminal-record stigmatized individuals and will extend their

condemnation to those who associate with such people. When a new jail facility opened

in a Toronto neighbourhood, the media reactions from local citizens went beyond the

usual labelling of prisoners as ' bad people' and ' undesirables' as it even extended to

their visitors (Godfrey, 2011 20

):

Two female merchants with stores on Lake Shore Blvd. W. , near

Islington Ave. said they won’t feel safe once the jail is open.

“ These are all bad people who we are talking about, ” said one who

didn’t want her name used. “ They are being visited by a similar type of

people who will be driving around the area. ”

20 Godfrey, 2011 http://www. torontosun. com/news/torontoandgta/2011/01/08/16812906. html

______________________________________________________________________________________

MODULE FOUR Courts: Rigging the Game 35

Another woman said she’s worried that the jail is less than five-minutes

drive by car from her store. “ I think this is too close for my comfort, ”

she said. “ I have daughters and already I feel scared and the jail is not

even open yet. ”

These Torontonians, like most people, believe that stigmatizing offenders is a good idea

but excluding released offenders from both employment and social recognition prevents

rehabilitation and increases recidivism. The ambiguity of labelling in the Canadian legal

system can be seen in the fact that the name of a juvenile offender is withheld and their

record is wiped clean upon reaching adulthood but the opposite approach has been used

in the creation of sex offender registries, making sure that names and addresses of those

guilty of sex offences are known to the public. Such ambiguity recognizes the presumed

benefits and dangers of state-sanctioned labels.

An interesting argument in this regards is made by John Braithwaite (1989) for

reintegrative shaming based on traditional Aboriginal practices. Braithwaite suggests

that offenders need to be clearly labelled as ' bad' and ' deviant' for their punishment but

they also must be ' un-labelled' in order for their rehabilitation to occur. If such

labelling and unlabelling is done publicly, with atonement by the offender, and

forgiveness by the victim, the labelling would be reintegrative rather than simply a

disintegrative process.

Pardons and Labelling Criminals

The importance of ' labels' may seem academic but the Harper government took the

subject seriously enough to pass the ‘Eliminating Pardons for Serious Crimes Act’

which replaced the term ' pardon' with ' record suspension' . This symbolic change in

labels was meant “to strike any implication of forgiveness” (Carlson, 2011) and

eliminate the notion that a person can pay their debt to society and return to normalcy.

Now at best a Canadian' s criminal record is ' suspended' forever hanging over their life.

A pardon allows Canadians who have completed their sentence and demonstrated they

are law-abiding to have their criminal record kept separate from the main database so

they will not appear in a search on the Canadian Police Information Centre (CPIC). The

exception is pardoned sexual offences which still show up when applying to work with

vulnerable populations. This process is handled by the Parole Board of Canada,

formerly the National Parole Board until its name was also changed in the Eliminating

Pardons Act to the new, more patriotic, version.

National Parole Board Statistics show that about 40, 000 applications for pardons are

received each year and the majority are granted leading to accusations that pardons are

handed out “like candy”. The Parole Board of Canada responds that there is "a measure

of self-selection built into the process [because] people who know they are not eligible

______________________________________________________________________________________

36 Courts: Rigging the Game MODULE FOUR

would not tend to apply" and point out that 96% of the pardons granted since 1970 are

still in force because the recipient did not commit another crime (Canadian Press,

2011).

The new Act will make pardons much rarer by increasing the waiting period to 10

years (for indictable offences), quadruple the cost of applying for a pardon, and allow

parole boards the discretion to reject any pardon that would "bring the administration of

justice into disrepute". Even before the new rules come fully into effect the changes are

having a chilling effect. Until 2010 only 25% of applications were ruled invalid and

95% of pardons were accepted, under the new rules about 60% are dismissed as invalid

with only 10% granted.

Jared Church (2011), managing director of a commercial firm that helps prepare

applications says, "They' re nit-picking everything, they are overwhelmed with the new

requirements, so they' re finding any reason at all to return applications so they didn' t

have that extra work to do. " Church cites pardon bids being rejected over typographical

errors, unpaid parking tickets, minor traffic violations and noise complaints. Pardon

advocates also protest that while previously even the most complicated pardons

typically took less than a year to process now a two-year wait is the norm.

Stephen Harper may belong to the Christian and Missionary Alliance (an evangelical

denomination related to Pentecostalism) but under his government it is no longer

possible for a criminal to be ' pardoned' and it is far less likely that they will be granted

a ' record suspension' .

IN FOCUS 'A Tax On Broken Souls?'

The Conservatives' expansion of incarceration is very costly so they are downloading

some costs onto the convicts. It is often politically popular to say that criminals will

have to literally pay for their crimes but there has been a groundswell of opposition to

these policies. Some of this resistance arises for the fact that such fees are always

disproportionately punishing to poorer people and this is the population most likely to

be paying these charges. There are also fears that market concerns and cost-

effectiveness are trumping the moral aspects of criminal justice.

______________________________________________________________________________________

MODULE FOUR Courts: Rigging the Game 37

Here are two articles that discuss the pros and cons of two of these new increases:

1) The cost of pardon applications are being quadrupled from $150 to $631

http://www. ctvnews. ca/tories-move-to-quadruple-pardon-fees-despite-warnings-

1. 704712

2) A victim surcharge penalty is being doubled to a ' mandatory minimum' of 30%

percent of any fines being paid. If there is no fine, the court will collect $100 for each

summary conviction and $200 for each indictment.

http://www. nationalmagazine. ca/Articles/November/The-victim-surcharge. aspx

The lack of reintegration ceremonies in the legal systems means that ex-convicts are

ostracized from larger mainstream society. In this situation it is largely left to religions,

subcultures, and gangs or criminal outfits to instill basic social norms (like the gang

code of Thug Life 21

attempts to) and recognition of worth in ex-convicts. As former

chief justice Roy McMurtry noted in the 2008 report on the roots of youth violence:

A more effective model [is needed] to deal with youths in custody—one

where staff treat young detainees like humans, not worthless criminals.

It’s a system that requires a shift in mindset—a willingness to see youth

as having a problem, not just being one. (Zlomislic, 2009 22

)

Now go online and read the Toronto Star article Living with a criminal

record and watch the corresponding video A Canadian prisoner' s

perspective to get a feel of how Canadian prisoners, both men and women,

interpret their experience within the legal system. Pay particular attention

to the labels they accepted or rejected about themselves and how this self-

image affected their lives.

http://www. thestar. com/SpecialSections/Crime/article/460765

http://www. youtube. com/watch?v= 8yXO4wh46vM&feature= relmfu

21 thug life http://www. thuglifearmy. com/news/?id= 8 22 Zlomislic, 2009 http://www. thestar. com/investigation/article/723020--superjail-for-youth-raises-

troubling-questions

SOCI 2087 Module 5.pdf

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 1

The Prison Industrial Complex

MODULE FIVE CORRECTIONAL

INSTITUTIONS: THE PRISON

INDUSTRIAL COMPLEX

SECTION 5. 1: Functions of Correctional Institutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Outlines the functions of correctional institutions.

SECTION 5. 2: Beyond Warehousing: Rehabilitation and Restoration . . . . . . . . . . . . . . 17

An examination of rehabilitation and restorative justice in corrections.

SECTION 5. 3: The Prison Industrial Complex . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Examines the ‘prison industrial complex’ and the political trends towards the

privatization of jails and creation of super-jails.

Online Resources

Inmate security reclassification: Increasing reintegration potential

www. csc-scc. gc. ca/research/forum/e131/131k_e. pdf

Prisons poisoning natives

http://www. thestar. com/specialsections/crime/article/460763--prisons-poisoning-natives

Aboriginal Inmates: The Numbers Reveal a Critical Situation

http://www. oci-bec. gc. ca/rpt/annrpt/annrpt20052006info-eng. aspx

PIC in New York State

https://web. archive. org/web/20110913011919/http://www. theatlantic. com/magazine/ar

chive/1998/12/the-prison-industrial-complex/4669/2/

Big Money for Corporations and Rural Areas

https://web. archive. org/web/20100729123424/http://www. theatlantic. com/magazine/ar

chive/1998/12/the-prison-industrial-complex/4669/3/

________________________________________________________________________

2 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

PIC in California

https://web. archive. org/web/20100729123059/http://www. theatlantic. com/magazine/ar

chive/1998/12/the-prison-industrial-complex/4669/8/

Politicians can’t resist being tough on crime

http://www. thestar. com/specialsections/crime/article/460762--politicians-can-t-resist-

being-tough-on-crime

Solving crime? Tackle the root causes first

http://www. thestar. com/specialsections/crime/article/460770--solving-crime-tackle-the-

root-causes-first

Jail ' a lazy response' to poverty

http://www. thestar. com/specialsections/crime/article/460773--jail-a-lazy-response-to-

poverty

Has mass incarceration failed?

http://www. thestar. com/SpecialSections/Crime/article/460767

Getting tough on crime is toughest on the taxpayer

http://www. thestar. com/specialsections/crime/article/460704--getting-tough-on-crime-

is-toughest-on-the-taxpayer

Private prison companies

https://web. archive. org/web/20120130122306/http://www. theatlantic. com/magazine/ar

chive/1998/12/the-prison-industrial-complex/4669/4/

Problems occurring with private prison companies

https://web. archive. org/web/20120130145537/http://www. theatlantic. com/magazine/ar

chive/1998/12/the-prison-industrial-complex/4669/5/

Companies have cut deals with politicians

https://web. archive. org/web/20120130133527/http://www. theatlantic. com/magazine/ar

chive/1998/12/the-prison-industrial-complex/4669/6/

Mixed security records for private prison companies

http://www. daytondailynews. com/news/crime/security-records-mixed-for-private-

prison-firms-1224338. html?showComments= true&page= 3&more_comments= false

Private prison companies contribute to political spending & Political paybacks

http://www. justicepolicy. org/uploads/justicepolicy/documents/gaming_the_system. pdf

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 3

The Prison Industrial Complex

Making crime pay

http://web. archive. org/web/20050511053717/http:/www. cba. org/CBA/National/Cover

2001/Oct01. asp

You will be prompted to watch the following short online videos as you work through

this module:

The High Cost to stiff drug sentences

http://www. youtube. com/watch?v= tMdB73fTxqo&feature= relmfu

Michigan’s prison experiment

http://www. youtube. com/watch?v= 53g4XYJn0NY&feature= relmfu

Sentences that come with a cost

http://www. youtube. com/watch?v= vNJji0CVF48&feature= relmfu

Interview with Canada’s prison ombudsman

http://www. youtube. com/watch?v= 2Xh_PpJCMpM&feature= relmfu

________________________________________________________________________

4 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

SECTION 5. 1: Functions of Correctional Institutions

When I was hungry and you gave me nothing to eat, I was thirsty and

you gave me nothing to drink, I was a stranger and you did not invite me

in, I needed clothes and you did not clothe me, I was sick and in prison

and you did not look after me.

They also will answer, ‘Lord, when did we see you hungry or thirsty or

a stranger or needing clothes or sick or in prison, and did not help you?’

He will answer, ‘I tell you the truth, when you refused to help the least

of your brothers and sisters, you were refusing to help me’. (New

Testament, Matthew 25:41-46)

Statistics Canada estimates Canada’s population at thirty four million inhabitants. In

2008-09, the average count of adults federally imprisoned in Canada was 13, 147

(0. 04% of Canada’s population) with 12, 649 males (0. 08% of males in Canada) and

498 females (0. 003% of females in Canada). In 2000, the incarceration rate in Canada

was 118 per 100, 000 people placing Canada’s incarceration rate higher than the rates in

many Western European countries, but lower than the United Kingdom, Mexico, and

the United States (see Figure 5. 1).

There are about 285, 000 adult convictions each year and in 1/3 of those cases a term of

imprisonment is imposed. If the sentence is less than two years (' two years less a day' )

it is served in Provincial correctional institutions, if the jail sentence is longer than two

years, it is served in one of Canada’s 52 Federal penitentiaries (Correctional Service

Canada, n. d. ). 5. 0% of jail terms involve a federal sentence.

Figure 5. 1: Go online and look at the graph Comparison of International

rates per 100, 000 people; selected countries, 2002; (data: United Nations).

http://edu. learnsoc. org/Images/index. 33. jpg

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 5

The Prison Industrial Complex

IN FOCUS Prison versus jail

Colloquially the terms ' prison' and ' jail' are used interchangeably, but they refer to

two different institutions.

Jails are locally or provincially operated places of incarceration where people are held

in custody after their arrest but before bail or a trial, or for serving sentences of less

than two years. Jails do not have many amenities for people serving time there, since

they won’t be there for very long.

Prisons are long term incarceration sites for people serving sentences of more than two

years. They are also called penitentiaries and are administered by the Federal

government.

Because of the difference between jail and prison, it is not technically correct to call

someone in jail a “prisoner” or say “he was sentenced to jail for 12 years. ”

Classifying Prisoners

Inmates are assessed to determine the risk they pose to the public and to the security of

the institution, staff, and inmates following sentencing. The inmate’s security level is

reviewed throughout the sentence and can change over time and the level of security

risk may also affect their chances of parole. According to the Correctional Service of

Canada (2006), the three levels of security are defined as follows:

Maximum security: Inmate movement, association, and privileges are

strictly controlled because these inmates pose a serious risk to staff,

other offenders and the community. Inmates are expected to interact

effectively with other individuals and in highly structured groups such as

in educational and treatment programs and skills development programs.

Some inmates live in segregation units, due either to behavioural

problems or out of concern that they will be harmed by other inmates,

usually as a result of their crimes.

Maximum-security facilities are surrounded by high (20 feet) walls or

fences with guard towers in strategic positions and electronic systems

________________________________________________________________________

6 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

that ensure any movement within the perimeter is detected. Correctional

officers in the towers are supplied with firearms and there are additional

locked caches of firearms within the institutions in the event of a serious

disturbance. Various parts of the facility are separated by locked gates,

fences, and walls.

Medium security: Inmates pose a risk to the safety of the community.

They are contained in an environment which promotes and tests socially

acceptable behaviour. Inmates are expected to act responsibly under

regular and often direct supervision and participate in their correctional

program plans.

These institutions are usually surrounded by chain-link fences topped

with razor wire. Firearms are present but not normally deployed within

the perimeter. Many of these institutions have training centres and a

variety of educational and treatment facilities.

Minimum security: Inmates are non-violent and pose very limited risk

to the safety of the community. Many are on work-release programs that

allow them to hold jobs during the day. Inmates show the desire and

ability to get along responsibly with fellow inmates with little or no

supervision.

The institution perimeter is defined but usually there are no walls or

fences. There are no armed correctional officers, no towers, no razor

wire, or electronic surveillance equipment. Restrictions on movement,

association and privileges are minimal.

Figure 5. 2: Inmate population classification according to security level, as of March

31, 1999 (http://www. csc-scc. gc. ca/text/faits/facts07-content05_e. shtml).

Security

Men

%

Women

%

Maximum

1481

12

29

10

Medium

7560

60

129

42

Minimum

2708

22

96

31

Not yet classified

783

6

51

17

Total

12532

100

305

100

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 7

The Prison Industrial Complex

Each day of federal imprisonment costs on average $292 for a male prisoner and $556

for a female prisoner in 2009 (which rises by about $20 for men and $10 for women

per year). These costs are slightly less in Provincial prisons ($235 and $457

respectively). Annually, a maximum security male prisoner costs $147, 135, $93, 782

for a medium security, and $93, 492 for a minimum security male prisoner in 2009

(Public Safety Canada, 2011). The average cost of imprisoning a female is $203, 061

because their smaller numbers and different needs preclude the ‘bulk rate’ savings

available in imprisoning men.

Take time now to go online and read Inmate security reclassification:

Increasing reintegration potential to understand the role security

assessment plays for inmates and prisons.

www. csc-scc. gc. ca/research/forum/e131/131k_e. pdf

The Philosophy of Correctional Institutions

According to Gosselin (1982), “ In Canada, as in the rest of the world, the repressive

apparatus of the state and its keystone, the penal institution, is the voice of authority

that regulates social control. ” According to Correctional Service Canada their mandate

of social control is achieved by protecting society by removing guilty people from

public life, punishing criminals to deter future criminal acts, and reforming and

rehabilitating inmates in their custody to prevent future crimes. It is important to

understand that the emphasis given to these three major penal philosophies— removal

(incapacitation), retribution (deterrence), and rehabilitation—changes over time

according to public mood and correctional trends. The following chart (Table 5. 1)

looks at North American prison development from 1790-1995.

Table 5. 1: Stages of Prison Development in North America (Adapted from

Schmalleger, MacAlister, & McKenna, 2000)

Time Era Philosophy Economy

1790 Penitentiary Rehabilitation Industrial Revolution

1825 Mass Prison Warehousing Financial Panics

1876 Reformatory Rehabilitation Rapid Economic Growth

1890 Industrial Warehouse ‘The Long Depression’

1935 Punitive Retribution ‘The Great Depression’

1945 Treatment Rehabilitation Post-War Boom

1967 Community Rehabilitation Golden Era

1980 Warehouse Warehousing Recessions

Early 1990s Restorative Rehabilitation Globalization Boom

________________________________________________________________________

8 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

Late 1990s Just Desserts Retribution Globalization Bust

2000s War on Terror Retribution Financial Bubble

Post-2008 Overcrowding Retribution Great Recession

This chart (Table 5. 1) shows that correctional philosophies are generally the most

rehabilitative during economic up-turns and most punitive in recessions and

depressions. This likely occurs because it is expected that prison terms should be worse

experiences than having to survive the daily stress of surviving in capitalism outside the

prison walls.

A Tool of Capitalist Oppression?

It is not just Marxists who believe that imprisonment supports capitalist order but also

mainstream free market economists. Richard Posner from the University of Chicago

champions the idea that “the main function of criminal law in capitalist societies is to

prevent people from bypassing the market” (Posner, 1985) like any people who have

found profitable employment in the ' black markets' of drugs, stolen goods and

prostitution.

Hester and Eglin (1992) argue that prisons maintain capitalism by focusing on

individual sentences and thus ' individualizing' crime by ignoring large sociological

forces. The constant imprisonment of petty offenders serves to provide the illusion of a

working justice system (and the symbolic triumph of good over evil) distracting the

public from social inequality and the crimes of the ruling classes.

Steven Spitzer (1975) goes further, asserting that jail’s primary purpose is to handle the

' human wreckage' constantly produced by the stresses capitalism places on families,

communities and individuals. Spitzer refers to the two main types of such deviants as

social junk and social dynamite. The first group are those ' non-productive' citizens

who represent little long-term threat to the social order, such as the mentally ill or

unorganized homeless, but who still need to be periodically isolated from the larger

society. The second class is made up of ' disreputable and potentially disruptive persons'

who represent a greater potential danger to the social order and are subjected to more

severe legal controls. Spitzer states that incarceration serves both the state and

economic elites by ' managing' social dynamite through neutralizing individuals in

isolated jails or punishing their deviant behaviour until they seek proper capitalistic,

forms of social endeavours or become social junk.

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 9

The Prison Industrial Complex

Protection of the Public

Incarceration is said to serve the primary function of protecting members of society by

removing those individuals likely to commit crime. However, according to Jean-Paul

Brodeur (1996), the “protecting the public” rationale is an illusion. He illustrates this

by referring to the incarceration of individuals who abuse children and women:

Research has shown that the extent of the physical and sexual abuse of

women and children is considerable. Judging from the number of

persons serving sentences for such offences, the amount of protection

afforded to these vulnerable populations is so small as to be much

beneath what could be considered minimal.

The protection of society is short-lived as most convicted individuals must eventually be

returned to the community. They are returned from an environment that reinforces and

supports the values that lead to criminal behaviour, while serving as a training ground for

further criminal behaviour. The John Howard Society and the Association of Elizabeth

Fry Societies remind us that “most people in jail are considered non-violent, by police

and correctional authorities” and Juristat figures show that only 1/3 of adult Canadians

in correctional institutions are there for violent crimes. Add to this the warning from a

former Justice Secretary for the British Conservative Party that "[prison] can harden

some non-violent, low-risk individuals, who come out as greater threats to society" and

we can see how mass incarceration "risks creating a criminal underclass that moves

endlessly in and out of prison, committing more and more serious offences at each

turn" (Clarke, 2011).

Age of Retribution

Stephen Harper intends to leave his stamp on the Canadian criminal justice system with

his massive Omnibus Crime Bill - a compilation of nine separate bills that has been

called "the most comprehensive agenda for crime reform since the Criminal Code was

introduced” (Carlson, 2011). The Omnibus Bill contains two positive correctional

reforms, it codifies the rights of crime victims at parole hearings and lengthens the time

an offender must demonstrate crime-free behaviour during incarceration to be eligible

for parole, but the majority of the legislation is controversial: minimum sentences for

drug crimes, making pardons harder to get, removing condition sentences for many

property crimes and forcing prosecutors to publicly announce whether they will try for

adult sentences for youth. These changes join "a recent flood of policy changes seems

designed to stamp out any rehabilitative intent: cancellation of prison religious

providers, the reduction of already low prison wages, and the elimination of standards

________________________________________________________________________

10 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

mandated by the constitution in the Corrections and Conditional Release Act. Access to

college courses, widely available in U. S. prisons, is largely non-existent. Even

voluntary programs of university-level instruction have been forcibly cancelled" (Kerr,

2013).

Errol Mendes, a professor of constitutional law at the University of Ottawa,

summarizes this transformation, “The legislation is more based on punishment than

prevention, and that’s dramatically new. It’s one of the most punishment-focused in

Canadian history” (Carlson, 2011). Paula Mallea, a criminal lawyer and associate with

the Canadian Centre for Policy Alternatives (CCPA), is even blunter, stating that the

“crime bill will send us back to a 19th century punishment model” . The Harper

government would likely take such criticisms as compliments because most of the crime

legislation is directed towards increasing punishment through giving more prison terms

to more people for longer sentences. Specifically, the OCB reintroduces the role of

punishment as a deterrent and denunciation. In criminology this is called the

‘retributive’ model of punishment.

Retribution - Ideology v. Evidence

The Conservative retributive ideology comes from a worldview that views democracies

as overly liberal, decadent and ' soft on crime' ; a view best summed up by British

Conservative Prime Minister John Major' s injunction that Britain needs “less

understanding and more condemnation”. Stephen Harper' s own belief in this world-

view is evident in a YouTube video where he sarcastically comments that committing

murder in Canada should entail at least “some prison time” - his assumption being that

murderers are lightly sentenced or quickly paroled because Canada is a soft liberal

country. An evidence-base approach would note that Section 745 of the Criminal Code

sets a 15 year minimum limit before a murderer can begin to be eligible for parole. On

average Canadian murderers are jailed for over 25 years and those convicted of first-

degree murder spend 28.5 years in prison. Such averages are 10 years longer than

similarly convicted American murderers and 15 years longer than in many other

Western countries.

In the video Harper also complains that there is “always a loophole” or “the

punishment can be downgraded” in the Canadian legal system and this is why Canada is

“plagued” by crime. He seems to assume the existence of probation or conditional

sentencing is a symbol of weakness. Yet non-custodial sentences cause significant

humiliation to many offenders and their families and many conditional sentences are

longer than jail terms and have more stringent conditions than offenders on parole. The

Supreme Court of Canada addressed this very issue in the R. v. Proulx stating that

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 11

The Prison Industrial Complex

conditional sentences meet both punitive and rehabilitative objectives and they give a

strong measure of public denunciation.

The Montreal Gazette noted when Harper eliminated the “faint hope” clause, which

allowed a convict sentenced to life to apply for the unlikely chance of parole after 15

years, that it was “an example of naked vindictiveness" and that "with the faint hope

extinguished, there will be far less incentive for prisoners to set and follow

rehabilitation goals, or even accept prison rules. It is also inevitable that prison violence

will increase, since a reason for good behaviour will have vanished. " Similar flaws

apply to nearly every aspect of retributive policies and there is no evidence that they act

as a deterrent.

The most worrying aspect of political elites adopting such a worldview is that it

promotes what American critic Benjamin DeMott has called “junk politics.” Alex

Himelfarb (2011) summarizes DeMott' s concern with contemporary politics as"

in its refusal to lead citizens to higher ground, to challenge us, to inspire

us to find our better selves, it panders to our worst sentiments,

personalises everything, derides experts and evidence, tells us that we are

great as we are, that we have every right to feel morally superior. It

divides the world up into good and bad, black and white.

This world, to paraphrase sociologist Orrin Klapp, is destructively divided

up into heroes -- “hard-working, law-abiding tax payers” ; villains --

criminals, terrorists and would-be terrorists; and fools -- all the elites and

so-called experts who are soft on crime and soft on terror. This view gives

not much space to the idea of redemption or, for that matter, to

compassion, and brooks no debate on what the evidence might tell us or

about the costs of punishment.

And in the end, in the name of safety, we are less safe. In the name of

democracy, we are less free. And in our refusal to have the debate, to

move beyond our prejudices, our fears, our anger, we make Canada a

meaner and smaller place.

________________________________________________________________________

12 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

IN FOCUS

Victims of Crime, Retribution and Capital Punishment

Retribution is becoming the most prominent policy in most parties' election campaigns.

The emotional appeal of retribution is that we can assume the perspective of a victim of

crime and feel righteous anger. The Conservative Party has especially associated itself

with the Victim Rights movement and crime victims in generally; every one of their

crime policy announcements have victims of crime - grieving parents, widows of police

officers, even the 9-11 widows - surrounding the Minister making the announcement.

The Victim Rights movement has many valid concerns and most Canadian would be

surprised just how little role victims have in our justice system. At their heart

retributive politics go far beyond legal reform and encourage the public to partake in

feelings of not just of injustice and victimization but vengeance.

After a decade of Conservative rule an Angus Reid poll shows the number of Canadians

favouring the re-instatement of capital punishment rose from 48% to 63% (Radia,

2013). This psychological conditioning is not accidental. Tom Flanagan, former top

adviser to Prime Minister Harper (and also his former professor) states that "the long-

term goal of the Harper government is to transform Canada’s public philosophy by

instilling in the population his conservative values" (Mallea, 2010). Paradoxically it is

sub-urban and rural Canadians - two populations least effected by crime - whose

attitudes have grown most retributive, perhaps because those populations' views are

most influenced by the media while those who experience crime have more grounded

perspectives.

Yet the retributive assumption that all victims of crime want revenge is a disservice to

them - and may reveal something about one' s own dark urges. According to the

President of the Quebec Association of Victim Advocacy, “There is no evidence to

support the hypothesis that victims want harsher sentencing. In fact, studies show the

opposite [. . . ] Victims are not excessively punitive, any more than people who are not

victims. That is also the case among victims of violent crime” (Mallea, 2010).

The Federal Ombudsman for Victims of Crime, has a similar perspective, "Victims

understand, better than most, that nearly all offenders will eventually be released from

prison. Given their personal experiences, they know the impact violence can have,

which is why many victims sincerely hope that offenders will be rehabilitated while in

prison. The best protection victims, their families, and the community will have is if

the offender can learn to modify negative behaviour before he or she is released"

(Mallea, 2010).

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 13

The Prison Industrial Complex

Even people who are have lived through the horror of having a loved one murdered can

still oppose capital punishment. Read the following testimonies from 4th World

Congress Against the Death Penalty to expand your moral imagination beyond revenge

fantasies and lex talonis when thinking about victims of crime.

The Market Model - Promoting Punishment & Hiding Social Harm

The current emphasis on punishment has philosophical roots in neoliberal economics.

The rise of this ideology is reflected by the fact that the last two Prime Ministers,

Stephen Harper and Paul Martin Jr. , were economists while most previous Prime

Ministers were former Justice Ministers (John A. Macdonald, R. B. Bennett, Louis St.

Laurent, Pierre Trudeau, Jean Chrétien) or lawyers (John Diefenbaker, Brian

Mulroney).

The idea that increased punishment deters crime reflects a “bedrock economic model”

that “if you increase the price of something, demand for it goes down. Crime is

regarded the same way as any other market. ” Viewing crime through an economic lens

is "accepted by the Canadian Conservative government and every Chicago School of

Economics adherent. " The Chicago School is considered the premier promoter of neo-

liberal free-markets and Harper himself was a student of its Canadian counterpart ' the

Calgary School' . The problem with their hypothesis "that, if you exact a high enough

price for committing crime, people will decide not to commit criminal offences" is that

"this flies in the face of the evidence that offenders are not thinking about the

consequences of their actions when they commit crimes" (Maella, 2010). The only class

of criminals that evidence has shown that is deterred by the use of retribution are coldly

calculating white-collar criminals.

Another core neo-liberal belief is that the world consists of individuals making rational

choices and so the idea of a larger society is an illusion, a view summed up by

Margaret Thatcher’s famous claim that “there is no such thing as society. ” Neo-

liberalism "paints all social problems as individual problems [and] individuals are

solely responsible for the problems they face. " Illinois State University professor Jakeet

Singh (2014) writes:

This ideology is so seductive not only because it radically simplifies our

world, but also because it mirrors the two social institutions neo-liberals

actually believe in — the “free” market and law and order. Everything is

reduced to either a simplistic market transaction or a criminal case.

________________________________________________________________________

14 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

Sociologists differentiate between “personal injustices” and “systemic” or

“structural injustices. ” Personal injustices can be traced back to concrete

actions of individual perpetrators. Structural injustices, on the other hand,

are produced by a social structure or system. They are often hard to trace

back to the actions of specific individuals, are usually not explicitly

intended by anyone, and have collective, rather than isolated, victims [thus

they] are only clearly identifiable through macro-level societal analysis —

that is, sociology [. . . ], we often only learn about the collective nature of

the injustice through statistical inquiry, or by identifying

social/demographic patterns over time.

What should be clear, then, is that Harper’s seemingly bizarre vendetta

against sociology is actually an ideological attempt to prevent Canadian

society from being able to identify, and tackle, its structural injustices.

[. . . . ]Neo-liberal ideology is particularly good at creating structural

injustices. Indeed, one of neo-liberalism’s greatest capacities is to generate

systemic inequalities that are not easily identifiable, in fact are rather

difficult to discern, on the level of personal interactions and isolated cases.

Harper’s attack on sociology, then, should be viewed not only as an

attempt to further his ideology, but to cover the social damage that is left

in its wake. (Singh, 2014)

Retribution and Deprivation

Retribution is a long-standing function of prisons but it is not ' listed' in any official

Correction’s mandate. The prisoner is a citizen who has violated state law and so is

punished. Snider (1991) points out that correctional institutions have phased out such

things as whipping, the rule of silence, and bread and water meals, which were all

punishments of the body. While physical punishment has decreased, mental punishment

has increased. Snider cites the use of sophisticated methods of surveillance, the use of

drugs, operant and aversive conditioning programs and ‘pains of imprisonment’ - such

as the loss of autonomy, lack of privacy, loss of family relationships, high levels of

boredom, dehumanization, and deprivation of heterosexual relationships - as evidence

that retribution is still a part of Canadian correctional philosophy.

According to Gosselin (1982), modern prison environments are purposely impoverished

to:

 Restrict the space available for movement when the prisoner feels a wish to

move about;

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 15

The Prison Industrial Complex

 Restrict exchanges and verbal contact with other individuals when the prisoner

wishes to communicate with cell-mates;

 Reduce hygiene and the quality of life;

 Subject prisoners to the discretionary power of correction officers to award

privileges, punish for disciplinary infractions, and institute cell searches;

 Deprive privacy, as one is always under scrutiny and forced to witness the

humiliation of other inmates;

 Deprive liberty, particularly the freedom to see family and friends;

 Deprive goods and services which causes boredom through the uniformity of

food, dress, and activities;

 Deprive heterosexual relations forcing a dependence on auto-sexuality and

forced homosexuality (in Canada “ conjugal visits provide brief periods of

intimacy, emotionally charged with tremendous pressures and expectations, but

divorced from the everyday concerns of a normal relationship” (Marron, 1996));

 Deprive security, particularly through the close physical proximity of persons

with records of violent aggression (the in focus on degradation through physical

and sexual abuse in prison discusses this further).

At the low end of correctional deprivation is the loss of autonomy experienced in

having to obey the daily correctional routine. Forbidding inmates to make decisions

about their daily actions in correctional institutions makes

prisoners passive and lazy. In a maximum security prison, inmates are

told when to leave their cells in the morning, when to go to work, and

when to go to bed. Meals are served on trays. Prisoners forget how to

shop, cook, look for work, and generally fend for themselves. (Marron,

1996)

The following schedule depicts a typical inmate’s weekday:

06:45 Inmate count

07:00 Breakfast

08:00 Go to program, work, or back to the cell

11:45 Return to cell for inmate count and lunch

13:00 Go to program, work, or back to cell

________________________________________________________________________

16 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

16:30 Return to cell for inmate count and then supper

18:00 Go to recreation, cultural events, self-help groups

22:30 Night inmate count

23:00 Lock-up

*During the night Correctional Officers make regular cell checks

At the most extreme end of deprivation is solitary confinement. Section 2-30 (1)

(a) of the Penitentiary Service Regulations states: “ Where the institutional head

is satisfied that for the good of maintenance of good order and discipline in the

institution. . . it is necessary that the inmate should be kept from associating with

the other inmates. ” Yet this punishment is so extreme and open to abuse that it

has been legally challenged as being a form of torture. When Jack McCann had

been placed in solitary confinement for 754 days in a B. C. Penitentiary his

attorney argued that this period in solitary confinement infringed on his right to

freedom from cruel and unusual treatment or punishment under Section 2 (b) of

the Canadian Bill of Rights (McCann vs. The Queen, 1975). The court held that

prison administrators had the right to place inmates in solitary confinement with

no prior hearing, unless their civil rights were in jeopardy, but ruled that the use

of solitary confinement in this case did constitute “ cruel and unusual

punishment” (Jackson, 1983).

The book Rising Tide (1993) puts a human face on the psychological disintegration

some prisoners face in solitary confinement,

Donald O’Brey was an Ottawa-born, twenty-eight year old who had

endured 10 years of a life sentence for taking the life of another man. He

was neither a career criminal nor a sex offender. He had been active in

Christian religious circles and was generally highly regarded. His request

to go to Beaver Creek had been denied. In October of 1991, he had been

transferred to Frontenac Institution.

Within a few days of Donald’s arrival at Frontenac, he had been

harassed and threatened to such an extent by its inmates and so

unsupported by staff that he had been forced to check into the hole

[solitary confinement] for his own safety. In this dungeon within a

dungeon, which degrades even the hardiest of psyches, he remained for

over two months before being sent back to Warkworth. Instead of being

accorded reinstatement in the regular living units he had left, he was

double bunked in the onerous conditions of Reception. Within weeks he

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 17

The Prison Industrial Complex

was placed on a suicide watch. On Valentine’s Day, February 14, 1992,

Donald O’Brey could no longer endure his fate and despair, and he

ended his misery by hanging himself in his cell.

In the Millhaven Penitentiary Eddie Nalon bled to death on August 10 th ,

1975, after the panic button in his segregation cell failed to alert

custodial staff as it should have. Eddie’s desperate bid to bring attention

to the extension of his stay in solitary confinement by slashing his wrists

had proved fatal. Howie Brown, his neighbour in Millhaven at the time,

decided to initiate a fast and work stoppage to protest his unnecessary

death. August 10 th has since become PRISONERS’ JUSTICE DAY to

raise public awareness of the violent nature of our prisons and remind

everyone that sentencing people to serve time in our prisons is often

sending them to their death.

“ The number of homicides and suicides in penitentiaries is roughly eight times higher

than in the general population” (CanCrime, 2011). Prison deaths, however, are not

often publicized except when an exceptional number of them occur, such as during an

eight-month period starting March 1989 when five women died of suicide at the

notorious Prison for Women in Kingston; or the six deaths in six months at the British

Columbia Penitentiary in 1976. During the 1980s the suicide rate in Canadian federal

prisons was estimated at 103 per 100, 000 population, a rate 10 times that of the general

population, a surprising rate even when the nature of prison populations (consisting

largely of socially isolated troubled males) is taken into account.

A recent ombudsman report found that 18 non-natural deaths occurred in federal

prisons during a 12 month period in 2009/2010. A report by Correctional Service

Canada found 11 non-natural deaths between July and September of 2010 alone. Of 20

inmate deaths in custody studied during this three-month period:

 9 died by natural causes,

 3 by suicide (all hung themselves) and

 1 by murder (' shanked' by another prisoner),

 7 by unknown causes.

________________________________________________________________________

18 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

In 11 of the 20 cases security issues and safety lapses were identified such as:

 not passing information to prisoners in a timely manner, including threats

against them;

 confusion about who was to place calls to 911 leading to delays in treatment;

 CPR not being initiated by the on-site healthcare staff or correctional officers;

 inadequate provision of healthcare.

In terms of suicide and self harm, a 2010 Correctional Services report found that

between April, 2003, and March, 2008, 63 males and 3 females committed suicide

while 17 males and 3 females engaged in non-lethal self harm. Thus, during this five-

year period an average of 13 prisoners a year committed suicide.

Deprivation and neglect can serve as a ' back-door' way to bring physical retribution

back into prisons and just as every police force could devolve into an armed gang

without proper management so could every correctional institute turn into a violent

dungeon. Howard Sapers, Canada’s correctional investigator, illustrated this dangerous

dynamic by pointing out that the overcrowding of Canadian prisons is simultaneously

occurring with a rise in prison violence, stating that he, “suspects that there is a

correlation between the extent to which our correctional centres are crowded and the

number of these incidents that we’re seeing. ” Lyle Stewart of the Union of Canadian

Correctional Officers agrees,

Double-bunking is one of the most dangerous things for correctional

officers. It raises the tensions in institutions where the tension levels are

already very high. There’s no question that it increases inmate-on-inmate

violence, but it also increases the risk when correctional officers open

the cell door. Often times that’s when an inmate will choose to attack an

officer, but now you’ve got two inmates in there. (McKie, 2011)

It is difficult to find statistics on the number of prisoners or correctional officers injured

in violent prison altercations.

Canadian criminologist, Michael Chettleburgh (2011), refers to prisons as ' gladiatorial

schools' that teach violence and create prison gangs as prisoners often segregate

themselves into groups based on racial identity and then view the members of the other

gangs with hyper-vigilant suspicion. Chettleburgh’s characterization is supported by

former inmates who report that their experience in prison made them more racially

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 19

The Prison Industrial Complex

intolerant. Such gangs and the lucrative drug trade they fight to control within prisons

makes the prison environments volatile and dangerous which leads some prisoners to

create improvised weapons.

The following examples detail some of the specific incidents of violence and criminal

activity occurring within Canadian correctional institutes:

 Black-white race riot erupts at federal pen in Kingston

http://www. cancrime. com/2011/04/25/black-white-race-riot-erupts-at-federal-

pen-in-kingston/

 Hells Angels, corrupt staff behind prison drug smuggling

http://www. cancrime. com/2010/08/05/hells-angels-corrupt-staff-behind-prison-

drug-smuggling/

 Riot squad used after convicts attacked at Kingston Pen

http://www. cancrime. com/2011/05/27/riot-squad-used-after-convicts-attacked-

at-kingston-pen/

 Prison worker ambushed in violent attack by convict

http://www. cancrime. com/2011/05/27/riot-squad-used-after-convicts-attacked-

at-kingston-pen/

IN FOCUS

'A Preventable Death' - The Ashley Smith Story

Prisons are by nature totalitarian institutions but prisoners do have various human

rights derived through legislative acts concerning the treatment of incarcerated people,

the Canadian Charter of Rights and Freedoms, and basic global human rights. See this

Correctional Service Canada 1 webpage for an overview of legislations concerning

prisoner rights.

However, prisoner rights are publicly unpopular and hard to legally enforce, so they

are easy to ignore. The 2007 death of nineteen-year-old Ashley Smith illustrates this

situation. In Smith’s case her rights were ignored dozens of times at multiple

1 Correctional Services Canada http://www. csc-scc. gc. ca/text/pblct/rht-drt/01-eng. shtml

________________________________________________________________________

20 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

correctional facilities across the country and institutional rules were routinely violated.

The Office of the Correctional Investigator’s report into her death while in custody

concluded that:

 Ashley Smith, who had a history of self harm, spent some five years in the

youth justice system in New Brunswick before being transferred to the care

and custody of Correctional Service Canada (CSC) in October 2006, at age

18.

 The CSC’s treatment of Ashley Smith over the eleven and a half months

she was in the care and custody of the federal system set the stage for the

tragic circumstances that resulted in her death on October 19, 2007, at the

Grand Valley Institution for Women, in Kitchener, Ontario.

 Despite Ms. Smith’s well documented troubled history in the provincial

juvenile corrections and mental health systems, Ashley Smith was never

provided with a comprehensive mental health assessment or treatment plan

while under federal jurisdiction. The attempts that were made to obtain a

full psychological assessment were thwarted in part by the Correctional

Service’s decisions to constantly transfer Ms. Smith from one institution to

another.

 Immediately upon entry to the federal system, Ashley Smith was placed on

segregation status and maintained on that status for her entire time under

federal jurisdiction. She did not always receive the benefit of the legislative

safeguards requiring thorough, timely independent reviews of her

segregation status.

 The conditions of confinement in the various segregation areas

were at times oppressive and inhumane. She was often given no clothing

other than a smock – no shoes, no mattress and no blanket. During the last

weeks of her life she slept on the floor of her segregation cell.

 Her grievances concerning these conditions were inadequately addressed by

senior management and the few responses received were non compliant

with existing policy and regulations governing administrative segregation.

 Ashley Smith was the subject of over 150 security incidents, many

involving the deployment of irritant gas. A number of these interventions

resulted in the application of four-point restraints and forced injection of

medication, contrary to existing CSC policy.

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 21

The Prison Industrial Complex

 In less than a year, Ashley Smith was moved 17 times between three

federal penitentiaries, two treatment facilities, two external hospitals and

one provincial correctional facility. Nine of the 17 transfers of Ms. Smith,

across four of the five CSC regions, had nothing to do with addressing her

needs. Rather, these institutional transfers were implemented as a result of

administrative issues such as cell availability and staff fatigue.

 Most of these institutional transfers were done contrary to existing law and

policy with little or no regard for Ms. Smith’s mental health needs. On one

occasion, while in restraints, Ms. Smith was duct-taped to the seat of an

airplane.

 Ashley Smith was assaulted by a staff member at a federal psychiatric

institution resulting in her transfer out of that facility for her own safety. A

staff member was charged.

 Senior management at the highest levels of the Correctional Service were

aware of the on-going challenges presented by Ms. Smith, however, no one

person of authority took direct ownership or responsibility to ensure that

she was treated in a humane and lawful manner.

 Ms. Smith had been identified by a psychologist at a Grand Valley

Institution for Women as highly suicidal: however, staff monitoring Ms.

Smith in the 48 hours preceding her death, were not formally provided with

this information.

 In the hours just prior to her death, Ms. Smith spoke to a Primary Worker

of her strong desire to end her life. Ms. Smith died while under direct 24 hr

observation by correctional staff.

Source: Backgrounder: ' A Preventable Death' ; Office of the Correctional

Investigator 2

There is little doubt from this summary that Ashley Smith was a difficult, combative

inmate and had a pattern of being aggressive and resistant with correctional officers

(such patterns are discussed in Module Six). Yet Smith also bonded with one of her

nurses and continued to correspond with her even after being moved to another

location and Smith’s letters would lament the lack of human contact and recognition

2 backgrounder… https://web. archive. org/web/20110706181637/http://www. oci-bec. gc. ca/rpt/oth-

aut/oth-aut20080620info-eng. aspx

________________________________________________________________________

22 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

from staff. To understand the complexity involved in this case due to the antagonistic

behaviours on the part of Ashley Smith and the failures of multiple correctional

staff/institutions the following links are recommended:

Troubled N. B. teen shown in dramatic prison video 3

“ No one cared, ” says mother of woman who strangled self in prison 4

Ashley Smith family settles $11M suit 5

Ashley Smith charged over 500 times for behaviour in jail, court hears 6

3 troubled N. B. teen… http://www. cbc. ca/news/canada/story/2010/ 01/07/ashley-smith-fifth-estate. html 4 no none cared… http://www. cbc. ca/news/canada/new-brunswick/story/2009/03/04/smith-family. html 5 Ashley Smith family settles… http://www. cbc. ca/news/canada/story/2011/05/03/ashley-smith-family-

settles-suit. html 6 Ashley Smith charged… http://www. thestar. com/news/canada/article/993010--ashley-smith-charged-

over-500-times-for-behaviour-in-jail-court-hears

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 23

The Prison Industrial Complex

SECTION 5. 2: Beyond Warehousing: Rehabilitation And Restoration

Warehousing

The sixties and seventies were a time of massive prison reform in Canada, corporeal

punishments was taken out of prisons and human rights and community advocates were

allowed in. These reformist currents were sidelined in the 1980s and during this decade

many conservative governments came to power campaigning on retribution and looking

to reduce public spending. Soon a pessimistic penal criminology based on the concept

' nothing works' became influential (Martinson, 1974). The forces of fiscal austerity,

longer sentences (to fulfil their retributive campaign promises), and correctional

pessimism would combine to give rise to the ' warehousing' era of incarceration where

the incapacitation of prisoners at the lowest cost became the main goal of

imprisonment. This philosophy maintained some traditional rehabilitation programs,

like basic education and job training, but its overarching purpose was to “perform a

huge disappearing trick, sweeping huge swathes of the population under the carpet”

(Wilson, 2006).

Though governments in this era gave up on rehabilitating they embraced the idea of

imprisonment and embarked upon a massive expansion of ' mega' prison institutions.

This allowed for ' bulk rate' imprisonment and was used to “plug the gaps that emerge

when there are fewer community mental health services, nurses, hostels and drug

treatment programs” available because governments were unwilling to spend resources

on social services (Wilson, 2006). Prison building also served as a valuable plank in

many conservative election platforms because,

by relying on prisons, by building prisons, by passing legislation containing

longer sentences, politicians can show they act on crime, that they do something

about it, that something is presumably being done about law and order. No other

sanction fulfills this function as well on a political level. (Mathiesen, 1990)

While politically popular warehousing’s focus on incapacitation without rehabilitation

often led to over-crowding, the growth of prison gangs, and the creation of a “perpetual

prison machine” that endlessly cycled and recycled offenders, only offering protection

to society when the offenders were behind bars (Dyer, 2000). The correctional

discourses of rehabilitation and restoration that were marginalized during this era would

re-emerge in the next decade but these goals must be viewed as additions onto the

primary warehousing model that has become the primary Anglo-American correctional

philosophy.

________________________________________________________________________

24 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

Recidivism

The largest critique of warehousing is that it did nothing to break the cycle of

criminality and imprisonment by reducing recidivism. When the Canadian government

commissioned a major study to follow 42, 000 inmates released between 1975 and 1985,

they found that nearly half of all released prisoners (44%) were re-incarcerated during

their first year of release and that 37% returned to prison over the next 7 years

(Campbell, 1995). Studies from Britain and America report similar rates with 50% of

British adult males (45% of British females) being reconvicted after release, 45% of

American inmates being re-incarcerated and 65% of all released American offenders

being re-arrested for a new offence (Public Safety Canada, 2003; Bonta, Rugge, &

Dauvergne, 2003).

The Canadian government survey found that not all convicts were equally recidivist, as

risk characteristics between convict populations are not equal: non-violent convicts

were twice as likely as violent convicts to re-offend (30% to 14%), the recidivism rate

for women was only 1/5 that of men, and reconviction rates were higher for Aboriginal

male offenders than Non-Aboriginal males (58% vs. 42%) (Bonta, Rugge, &

Dauvergne, 2003). Nor were high recidivism rates equally spread throughout the

incarceration process: only a quarter of those on full paroles were re-incarcerated while

nearly half of those under post-release supervision were (Bonta, Rugge, & Dauvergne,

2003).

The Need for Rehabilitation

It is neither uncommon nor unfair to see prisoners as having violated a fundamental

level of social decency and therefore deserving of little sympathy but this perspective

misses two important factors. First, most prisoners will eventually re-enter society and

so it is necessary to rehabilitate them from their criminal behaviours and lifestyles to

prevent future crimes, and, secondly, that whatever their moral failings, prisoners still

deserve a basic level of care and dignity. Any survey of a prison population makes it

clear that an incarceration strategy that simply warehouses or punishes people

profoundly fails to address many core problems.

The average Canadian federal prisoner is a young male (53. 6%) with a juvenile record

(74. 3%), who tests at below the Grade 8 level in language and mathematics (68%) and

has never held a stable job (75%) (Correctional Service Canada, 1995). They were

likely using alcohol or drugs at the time of their offence (52. 2%) and a significant

number are users of cocaine and heroin (37%). A high proportion of their crimes,

including the most violent offences, occurred within their family or involved people

they knew within their communities and one-third of the offender population had

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 25

The Prison Industrial Complex

indications of family violence in their background (Correctional Service Canada, 1995).

Surveys of female prisoners reveal a similar portrait with one-third having

' considerable' emotional and substance abuse problems, one-quarter having

' considerable' problems with their family, spouses, and employers; and one out of ten

unable to function in the community due to ' severe attitude' problems (Correctional

Service Canada, 1997). Additionally, despite efforts to address the disparity, the gap

between the number of Aboriginal and non-Aboriginal offenders continues to widen.

Currently one in five offenders is of Aboriginal ancestry, one-third of the female prison

population is Aboriginal and the Aboriginal rate of imprisonment remains nine times

the national average (CBC News, 2009; Correctional Service Canada, 1997).

IN FOCUS

Systematic Racism In The Criminal Justice System

In October 1992, the Ontario government appointed a commission to investigate the

question of ' systematic racism' in the province’s criminal justice system. Some of the

findings were as follows (Commission on Systematic Racism in the Ontario Criminal

Justice System, 1994):

 It is clear from the evidence that racist language and attitudes plague

the environments of many Ontario prisons.

 One of the limitations of existing management practices is that racism

is simply not defined as a significant problem.

 Some prisons in Ontario tolerate and encourage segregation in the

allocation of prisoners among living units. In many prisons for

sentenced offenders this practice is linked to rehabilitation programs.

 The rehabilitation services available to black and other racial minority

prisoners are inadequate.

Over the past few years, the treatment of Aboriginal peoples in the criminal justice

system has received considerable attention, in part, due to the Donald Marshall

inquiry 7 . Canadians have also become more aware that there are a disproportionate

7 Donald Marshall inquiry

http://www. thecanadianencyclopedia. com/index. cfm?PgNm= TCE&Params= A1ARTA0005123

________________________________________________________________________

26 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

number of Aboriginal offenders sentenced to serve time in federal and provincial

correctional systems. According to the 2007 report of the Correctional Investigator,

Aboriginal people were incarcerated at a rate of 1, 024 per 100, 000 versus 117 per

100, 000 for non-Aboriginal people.

The marginal socioeconomic position of many Aboriginal people, as well

as the consequences of losing their culture and communities through the

process of colonization, likely contributes significantly to the conflict they

experience with the law. (Griffiths and Verdun-Jones, 1994)

With colonization came the imposition of ' white' law upon Aboriginal peoples,

beginning a pattern that still exists today. Very little attention was paid to the method of

social control that Aboriginal peoples used to maintain order.

Rather the criminal justice system, as represented by the RCMP and later

the courts and correctional services, became another way by which

Aboriginals were brought under the control of the federal and provincial

governments. (Griffiths and Verdun-Jones, 1994)

Moreover, as the Elizabeth Fry Society points out (Criminalization, Overrepresentation

and Justice, 2005):

 There are fundamental differences between non-Aboriginal Canadian

conceptions of justice and Aboriginal conceptions of justice. The

Canadian justice system is essentially experienced by its Aboriginal

population as a foreign and inappropriate system for the resolution of

conflict in Aboriginal communities.

 The cultural differences in the Aboriginal and non-Aboriginal notions

of justice leads to the misunderstanding of the actions and reactions of

Aboriginal people in the courtroom. Judges and juries misunderstand

their words, demeanour and body language, which can negatively

impact their sentencing. For example, the Cree First Nations people

speak slowly as a sign of respect and may use polite silence as a

response to a question if applicable.

 To require people to act in ways contrary to their most basic beliefs

and their ingrained rules of behaviour not only is an infringement of

their rights—it is a deeply discriminatory act.

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 27

The Prison Industrial Complex

 The overrepresentation of Aboriginal people in the Canadian criminal

justice system is indisputably the most egregious example of the racist

legacy of colonization.

Take time now to go online and read Aboriginal Inmates: The Numbers

Reveal a Critical Situation released by the Office of the Correctional

Investigator which discusses the disproportionate number of Aboriginal

people who are in Canadian prisons and how they fair worse than their

non-Aboriginal counterparts in prison (e. g. , less likely to get parole and

over-classified in terms of risk assessment).

http://www. oci-bec. gc. ca/rpt/annrpt/annrpt20052006info-eng. aspx

In trying to address the needs of Aboriginal people within the correction services,

Correctional Services Canada has focused on the development of appropriate

rehabilitation services to meet the growing number of Aboriginal people who are

incarcerated. If you wish to read about Correctional Service Canada’s Aboriginal prison

programs, see:

Canadian Indigenous prison program holds promise 8

Correctional Service of Canada: Aboriginal community development in corrections 9

Correctional Service of Canada: The Aboriginal Corrections Continuum of Care 10

The 2009 Annual Report from the Office of the Correctional Investigator of Canada

also raises concerns about mental health problems in the prison population, estimating

that ten per cent of offenders entering the federal prison system have a significant

mental health problem and 20 per cent of all inmates have a mental illness that requires

treatment (CBC News, 2009). The report noted that the number of mentally ill

offenders in the federal prison system has more than doubled in the last 10 years and

the head of Corrections Canada says penitentiaries have now become Canada' s "default

mental health system" (CBC Radio, 2011).

8 Canadian Indigenous prison programs… http://www. abc. net. au\news\stories\2007\06\29\1965194. htm 9 Correctional Service of Canada… http://www. csc-scc. gc. ca/text/prgrm/abinit/know/6-eng. shtml 10 Correctional Service of Canada… http://www. csc-scc. gc. ca/text/prgrm/abinit/plan06-eng. shtml#6

________________________________________________________________________

28 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

With these population characteristics it is hard to imagine that future criminal harm

reduction can be achieved without some rehabilitative intervention to facilitate the re-

integration of prisoners into society and to address pre-existing addictions, mental

health issues, emotional problems and lack of life skills. Synthesized findings based on

over 500 studies spanning five decades of research indicate that any kind of

rehabilitation based treatment reduces recidivism on average by 10% (Lipsey, 1992;

Lösel, 1995) and treatment approaches that follow empirically validated principles of

effective intervention (Andrews & Bonta, 1998) yield substantially higher reductions

ranging from 26% to 40% (Brown, 2000).

Correctional Rehabilitation in Canada

There have been periodic cycles of Canadian prison reform throughout the last century

but it was not until 1988 that “assisting the rehabilitation of offenders and their

reintegration into the community” (Correctional Service Canada, n. d. ) became a formal

part of the Corrections Services mandate. Previously, prison rehabilitation programs in

Canada were a patchwork of basic educational and vocational training, prison industry

jobs, inmate self-help groups (such as Alcoholics Anonymous), and locally developed

programs. This began to change as Correctional Service Canada began implementing an

' active interventionist' approach to rehabilitation aimed to reduce recidivism. This

change involved reforming the institutional environment, improving the attitudes and

skills of correctional staff, and funding a variety of new rehabilitation programs

(Correctional Service Canada, n. d. ).

Under this new mandate the traditional employability programs were supplemented with

programs that research indicated held the most promise for reducing recidivism by

“changing offender characteristics related to criminal behaviour—such as treatment for

sex offenders, substance abuse programs, family violence initiatives, and living skills

programs” (Office of the Auditor General of Canada, 1996). The body of research

indicated that while some factors related to criminal activity cannot be influenced (such

as age, ethnicity, and gender), a number of these factors are open to reform and it is

these factors that the Correctional Service hoped to influence with new rehabilitative

programs. The factors that were found to be both open to change and most likely to

reduce recidivism rates were (Office of the Auditor General of Canada, 1996):

 Employment. Many offenders lack the education or vocational skills to hold

steady employment.

 Marital/Family. Many offenders lack parenting skills and/or were involved in

unstable and abusive relationships and families.

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 29

The Prison Industrial Complex

 Associates/Social Interaction. Many offenders had social networks that enabled

and encouraged their criminal behaviour or substance abuse habits.

 Substance Abuse. Many offenders have significant problems with alcohol and

other drugs.

 Community Functioning. Many offenders have difficulties in managing their

finances and engaging in legal recreational activities.

 Personal/Emotional Orientation. Many offenders have serious problems with

impulsive behaviours (including sexual offences), anger management and

solving problems.

 Attitude. Many offenders maintain attitudes that are anti-social and/or

misogynist.

In order to address these common problems an array of interventional programs were

created, contracted out, or funded (i. e. , money was given to promising local

initiatives). Receiving the largest amount of this funding were 27 sex offender treatment

programs that ranged from an intensive one-year residential program in a psychiatric

centre to an intermediate five-month program offered within a regular institution by a

psychologist to a low-intensity ' relapse prevention' program offered in minimum

security institutions to prepare offenders for their eventual release (Office of the

Auditor General of Canada, 1996). Many sex offender programs use group therapy as it

allows peers and the therapists to confront the offender when he attempts to justify his

crimes, as denial and neutralizations are typical of this group. Another key feature of

sex offender programs is training the offenders to establish their ' crime cycle' by

learning to recognize the factors that led to their behaviour.

Substance abuse programs received the next largest funding and a national program for

offenders with moderate substance abuse problems was developed. This program began

with twenty-six three-hour sessions in an institutional setting followed by the second

program called Choices which consisted of five six-hour sessions in the community and

weekly maintenance sessions for another three months. Additionally, a variety of

locally developed programs based on differing treatment philosophies were funded.

The other major interventionist initiatives were living skills and family violence

programs. The living skills initiative consisted of 36 two-hour sessions of ' cognitive

skill' training designed to change the thought patterns that led to criminal behaviour and

also involved anger and emotion management components. The family violence

program was designed to address the one-third of the offender population with

backgrounds of family violence (Office of the Auditor General of Canada, 1996).

________________________________________________________________________

30 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

A 1994-95 audit of Correctional Service Canada documented that about 12 percent (or

$120 million dollars) of the department’s budget was spent on rehabilitative programs,

an increase of nearly 40% when compared to previous levels. A break-down of the

1994-1995 funding for Correctional Service Canada’s rehabilitation programs is

provided below in Figure 5. 3.

Figure 5. 3: Correctional Service Canada’s 1994-1995 Rehabilitation Programs

Adapted from: Office of the Auditor General of Canada, 1996.

Intervention Programs (focusing on behaviours) Millions

Sex Offender Programs 10

Substance Abuse 7

Locally Designed Programs 5

Living Skills 4

Other (Administration, Aboriginal Programs, Family Violence Programs,

Community, Psychological Counseling)

8

Total 34

Traditional Programs (focusing on employability) Millions

Education 19. 2

CORCAN (Employment Training) 16. 6

Vocational Training 5. 2

Total 41

Other Rehabilitation Activities Millions

Offenders with Mental Disorders 7. 5

Social and Cultural Programs (Visits, Recreation) 12. 5

Inmate Pay 20

Chaplaincy 5. 5

Total 45. 5

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 31

The Prison Industrial Complex

Rehabilitation: Therapy or Thera-punitive?

The increased focus of rehabilitation has been largely positive for prisons and jails but

it has had its critics. Audits have shown lop-sided funding and access to many Canadian

rehabilitation programs. Only 65 percent of the demand for relapse prevention

programs for sex offenders could be met because 17 percent of program expenditure

went to treat 20 offenders, while 83 percent was spent on the remaining 1, 800. A

nearly identical situation was found in the substance abuse programs, where 16 percent

of the expenditure was spent to treat 100 offenders and 84 percent was spent on 5, 000

offenders (Office of the Auditor General of Canada, 1996).

The competition to be awarded rehabilitation contracts has become big business for the

field of psychology, pharmaceutical companies and drug testing companies. For

example, Britain’s expansion of its correctional rehabilitative services involved hiring

10, 000 clinical psychologists and therapists to run 250 new cognitive-behavioural

treatment centres (Open Mind, 2005). Such lucrative profits have caused some to ask

what influence industry pressure is having on the awarding of contracts and some have

questioned whether officially prescribed psychiatric drugs are being disproportionately

given to women and minorities (Sim, 2005).

The article Private Family Visits in Canada, Between Rehabilitation and Stricter

Control notes that rehabilitative programs “inasmuch as they introduce a privilege” give

prison administrators more tools to control prisoners by giving them the ability to allow

or deny family visits and access to programs often using “unofficial criteria” (Vacheret,

2005). Finally there are those critics, like Christian Parenti, who believe that

rehabilitation gives a surface impression of a more enlightened correctional system

without changing the core failures of incarceration. As Parenti (1999) writes,

The discourse of liberal policy work operates on the assumption that rational

plans displace irrational ones. But in reality any soft form of control can easily be

grafted on the repressive form of police state. One could conceive of a regime

that routinely uses capital punishment, genetic fingerprinting, militarized police

and ladles out endless hours of anger management, therapeutic probation, public

shaming and elaborate forms of restitution. Therapy and the gas chamber are by

no means mutually exclusive.

________________________________________________________________________

32 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

IN FOCUS

Prison Farms and Privatization

One of the traditional rehabilitation programs offered by Correctional Service

Canada is CORCAN

(http://www. csc-scc. gc. ca/text/prgrm/corcan/organization-eng. shtml) which

provides employment training and opportunities to federal prisoners. CORCAN

aims to give prisoners vocational skills but it is also to reduce the costs of

incarceration as a majority of prison employment is focussed on institutional

operation and maintenance. Under CORCAN prisoners are employed in textiles,

manufacturing, and construction shops or printing and laundry services.

These shops and services are run in a businesslike manner. Perhaps the oldest

prison industries run by CORCAN are the six farms that have been providing work

for inmates since the 1880s. Approximately 300 inmates work on the prison farms

that are spread across Canada and part of their mandate involves supplying milk

and eggs to other correctional institutions.

In 2009, the Canadian government announced that the prison farm system was

being shut down as it was no longer an effective form of rehabilitation as it was “a

19th-century model” whose work skills were not valued in the contemporary

marketplace and whose operation was not monetarily efficient. This decision to

close the farms and replace the food they provided to correctional sites with

contracts to private food providers, like ARAMARK whose Correctional Services

(ACS) provides over 1, 000, 000 prison meals a day to over 600 North America

correctional facilities, spawned a movement to oppose it. Critics of the farm

closures point to both the benefits of the farms (like team work, nutrition, and

sustainable food sources) and to audits that show “the outsourcing of food service

operations” —like many other aspects of prison privatization—“has not met its

stated objectives” (Reutter, Hunter & Sample, n. d. ).

For more on this subject see:

Save our prison farms

http://saveourprisonfarms. ca/

Prison legal news

https://www. prisonlegalnews. org/

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 33

The Prison Industrial Complex

Restorative Justice

Restorative justice is an umbrella term that covers a variety of methods and theories but

the underlying philosophy is to “emphasize the importance of elevating the role of

victims and community members through more active involvement in the justice

process” in a system largely dominated by elite state actors (Umbreit, 1996). It

developed as a means to address the growing public dissatisfaction with a criminal

justice system that saw crime as solely an abstract offence committed against a nation-

state rather than involving the actual people affected. In some ways restorative justice

marks the reintegration of “ kin-based justice” as discussed in Module One. Howard

Zehr (1990) discusses this contrast:

In a mainstream or retributive justice model, crime is seen as a violation

of the state defined by lawbreaking and guilt. Justice determines blame

and administers pain in a contest between offender and the state directed

by systematic rules. In a restorative justice model, crime is seen as a

violation of people and relationships and creates obligations to make

things right.

Drawing on a variety of sources, including religion, psychology, women studies and

First Nation practices, restorative justice adopts a healing orientation that tries to repair

the social damage created by a crime instead of simply punishing the offender. This

orientation reframes crime not as a violation of state law but as a violation of people

and relationships. Restorative justice actively involves the victim and provides them

with a voice, it helps the offender to understand the harm they caused and seek

forgiveness, and it engages community stakeholders in helping both parties. Martha

Nussbaum (2004) succinctly summarizes restorative justice as “giving people something

good to do, creating new good relationships to the community, and strengthens the

sense of self as good and constructive rather than bad and antisocial. ”

Correctional Service Canada’s (http://www. csc-scc. gc. ca/text/rj/index-eng. shtml)

definition of restorative justice reflects this break with the traditional form of Western

justice by describing their restorative method as “non-adversarial, non-retributive

approaches to justice that emphasizes healing in victims, meaningful accountability of

offenders, and the involvement of citizens in creating healthier, safer communities”

whose ultimate goal is to “encourage accountability, reparation, and movement towards

understanding, feelings of satisfaction, healing and closure. ”

In 1996, Correctional Service Canada created a committee to explore emerging global

trends of restorative justice that largely dealt with populations that were clearly not

being served by traditional models of state justice such as young people and First

Nations. Since then, not only has restorative justice been integrated into Correctional

Service Canada, but it has been applied to non-criminal matters such as disciplinary

________________________________________________________________________

34 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

matters in schools, neighbourhood conflicts, and child welfare and to even larger scale

violent conflicts like war (European Best Practices of Restorative Justice in the

Criminal Procedure, 2010). In 2011 restorative justice projects are underway in every

Canadian province and territory under the auspices of the Correctional Service Canada,

National Office of Victims, and various local government partners.

The rapid growth of restorative justice practices in North America is due in part to the

high rate of satisfaction experienced by both victims and perpetrators who participate in

such programs as both US and Canadian restorative justice studies have documented

(Bradshaw & Umbreit, 1998; Umbreit & Bradshaw, 1999).

Participation

A 1990 study by Gehm found that out of 555 eligible cases less than half (47%) of the

victims were willing to participate in restorative justice. A later study showed that the

primary reasons for victims refusing to participate were (in rank order): not worth the

time and trouble involved, the matter had already been resolved, too much time had

passed since the crime, and they preferred to receive money than become involved in a

restorative process (Coates, Burns & Umbreit, 2004). Victims were more likely to

participate if the offender and victim were of the same ethnicity, the offender was a

minor, or if the victim was representing an institution (like a department store or

municipality).

Interestingly, studies have shown that victims of property and violent crimes react

differently to the passage of time—with victims of property crimes less likely to agree

to restorative justice as time passes but victims of violent crimes more likely to agree

(Wyrick & Costanzo, 1999). In regards to severely violent crimes, victim reasons for

wishing to participate in restorative justice are chiefly to seek information (58%), to

show the offender the impact of their actions (43%), and to have some form of human

contact with the person responsible for the crime (40%).

Offenders can also be reluctant to become involved in restorative justice as many

simply didn' t want to be bothered (Coates & Gehm, 1985). The Correctional Service

Canada states that offender participation in restorative opportunities “must be

voluntary” and there is no incarceration incentive to participate or become involved in

the process as it does not “have any direct impact on an offender' s sentence or a parole

decision” (Correctional Service Canada, 2011). Additionally, some prisoners are

advised by their lawyers not to participate though this advice is probably less common

as restorative justice becomes more accepted (Schneider, 1986). Offenders who did

agree to meet with their victims offered the following reasons (Umbreit, Vos, Coates,

& Brown, 2003):

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 35

The Prison Industrial Complex

 some benefit to themselves (74%),

 to apologize (38%),

 help victims heal (38%),

 contribute to their own rehabilitation (33%),

 to do whatever would benefit victims (26%),

 change how their victims viewed them (21%),

 spiritual reasons (18%).

IN FOCUS

Victims’ Role at Correctional Service Canada

As part of the restorative justice philosophy Correctional Service Canada has tried to

facilitate victims’ understanding and participation in the criminal justice system. This

FAQ (http://www. csc-scc. gc. ca/victims-victimes/faq-faq-eng. shtml) from Correctional

Service Canada’s Victim Service department outlines the basic rights of a victim to

remain informed about an offender, participate in sentencing and parole hearings, and

engage in Victim-Offender Mediation.

Criticisms of Restorative Justice

As with any innovation in the traditionally conservative realm of criminal justice,

restorative justice has not always been welcome or accepted. One of the largest

obstacles in replacing a purely retributive model of punishment with a process that

includes restorative elements is the deeply held emotional belief that restorative justice

is "soft on offenders” or just a "slap to the wrist of the offenders" (European Best

Practices of Restorative Justice in the Criminal Procedure, 2010). Correctional Service

Canada counters this critique by explaining that restorative justice,

increases offender accountability, offers a level of vindication and

restitution for the victim, and helps the community rebuild its confidence

in public safety and the justice system. Most offenders who have

________________________________________________________________________

36 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

participated in a restorative justice process have stated that it is much

harder to be accountable and acknowledge their crimes, face their

victims and community members rather than to simply ' do time' .

(Correctional Service Canada, 2011)

Although restorative justice has numerous roots in feminist criminological critiques,

some women’s rights organizations fear that re-interpreting crime to incorporate

community and family desire may undermine the protection of individual women and

insist that restorative justice should not interfere with the offender’s punishment. Such

fears are based in feminist criminology’s historical battles over the crimes of domestic

violence and sexual offences—crimes that were often over-looked or under-punished for

the ' greater good' of family and community stability (European Best Practices of

Restorative Justice in the Criminal Procedure, 2010).

Models of Restorative Justice

There are various models of restorative justice utilized across Canada but the Canadian

criminal justice system has used three primary restorative justice approaches:

 Victim-Offender Mediation (including Surrogate Dialogues),

 Community Conferencing and Reintegration Panels,

 Peacemaking and Healing Circles.

The following section gives descriptions of these three models and overviews on

relevant research.

Victim-Offender Mediation

This is a common form of mediation that provides victims and offenders with the

opportunity to meet in a structured environment with the assistance of a trained

mediator. A typical meeting involves the victim telling the offender about the crime' s

impact on their lives, including the physical, emotional, and financial harm and allows

them to ask any unresolved questions about the crime and the offender. The offender

has the chance to answer the questions and provide apologies. Both parties are

encouraged to develop reparative plans together.

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 37

The Prison Industrial Complex

In cases where either an offender or victim is willing to participate but unable to engage

in a face-to-face meeting with the other party, a surrogate victim-offender dialogue can

be created. Surrogate dialogues pair the willing party with a victim or offender from a

similar crime or case. These dialogues allow offenders to talk with someone not directly

involved in their particular crime but still able to express the harm done by their

victimization or describe the factors that lead them to commit a similar crime. These

dialogues can also be used to prepare a participant for a future victim-offender

mediation.

The majority of studies, across different countries and seriousness of offences, have

found high satisfaction outcomes by both victims and offenders in victim-offender

mediation. Typically, eight or nine out of ten participants report being satisfied with the

process and with the resulting agreement (Umbreit & Coates, 1992; Carr, 1998;

Roberts, 1998; Evje & Cushman, 2000; Umbreit, Coates & Vos, 2001). Surrogate

dialogue studies yielded lower satisfaction rates than for those participants who met face

to face (Dignan, 1990; Umbreit & Roberts, 1996).

The key variables associated with victim satisfaction in victim-offender mediation were

1) the victim felt good about the mediator, 2) the victim perceived the resulting

restitution agreement as fair, and 3) the victim had a strong initial desire to meet the

offender.

Community Conferencing

Community conferencing (or family group conferencing) is said to be rooted in the

indigenous ' kin justice' of the Maori culture of New Zealand where the offender' s

family is intimately involved in the process of holding the offender accountable. In

Canada, this model had been adapted to include not only the involvement of the

offender’s family but also to incorporate the victim, their family and supporters such as

concerned friends and neighbours. A major focus of community conferences is often

restitution, including monetary restitution or work for the victim and/or the community,

and a formal apology.

Despite early results from New Zealand in which only 53% of victims reported being

satisfied (Maxwell & Morris, 1993), more recent group conferencing studies have

yielded satisfaction rates ranging from 73% to 90% (Daly, 2001; Fercello & Umbreit,

1998; Ierley & Ivkor, 2003; Hayes & Daly, 2004). Victims in one American

community conference listed the most helpful component of their experience as the

opportunity to “ talk to the offender and explain the effect of crime on them and to hear

the offender’s explanation” and the worst aspect as the “ negative attitude of some

parents” who participated in the program (Fercello & Umbreit, 1998).

________________________________________________________________________

38 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

Peacemaking Circles

Peacemaking circles (also called healing, talking, community, and sentencing circles)

are rooted in those Canadian First Nation traditions that place responsibility for

addressing crime and its aftermath not with an individual but with a whole community.

The goals of such circles are to restore balance to communities destabilized by crimes

which are generational cycles of crime and by addressing not only the present criminal

problem but other underlying problems through broader discussions. By embedding

themselves in a broader community response, circles hope not to just heal conflicts but

also to rebuild the community.

Preliminary studies regarding peacemaking circles suggest that they have positively

impacted the lives of those who have participated in them. Victim satisfaction is cited as

"very high" in the Healing/Sentencing Circles Program in Whitehorse, Yukon Territory

(Matthews & Larkin, 1999). In an evaluation of peacemaking circles in Hollow Water

First Nation in Alberta to help sex offenders, their victims, families, and the

community, positive outcomes were also recorded (Lajeunesse, 1996). Having a voice

and a stake in the outcomes, generating mutual respect, and renewed community/

cultural pride were cited as primary benefits of participation. Some circles are also

designed as diversion programs to allow offenders to remain in the local community

instead of prison. Ninety-four individuals charged with either assault or sexual assault

were diverted to the Hollow Water Circle during the 1990s (Native Counseling Services

of Alberta, 2001).

The difficulties of implementing such a wide-ranging social process have been reported

in some cases. When three Minnesota school districts implemented the use of circles as

an alternative response to discipline problems, satisfaction was mixed (Riestenberg,

2001). Participants in the Hollow Water Circle, although largely satisfied with the

process, expressed concerns about the lack of privacy, public embarrassment, religious

conflicts between members and the difficulty of maintaining professionalism while

working with family and close friends (Lajeunesse, 1996).

Restorative Justice and Recidivism

Reducing recidivism is not a primary goal of restorative justice but results from studies

on the subject have shown some encouraging trends in this area. In a large survey of

619 juvenile offenders, those youths who participated in Victim-Offender Mediation

recidivated at a 32% lower rate than who did not and when they did re-offend they

committed less serious offences (Nugent, Umbreit, Wiinamaki, & Paddock, 2001).

When the survey was expanded to include a meta-analysis of fourteen studies with

9, 037 juveniles it reported that that Victim-Offender Mediation youth recidivated at

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 39

The Prison Industrial Complex

three-quarters less the rate of other young offenders (Nugent, Williams & Umbreit,

2003). A similar meta-analysis conducted by the Canadian government that included

both mediation and community conferencing found that both types of programs yielded

reductions in recidivism when compared to non-restorative approaches and gave better

long-term prognoses (Latimer, Dowden, & Muise, 2001). Community conferencing

involving British youths reduced their recidivism rates more than incarceration

(Brownlee, 1995).

Studies of recidivism following peacemaking circles are fewer but Matthews and Larkin

(1999) noted that studies done for the Whitehorse Circle showed a remarkable 80%

decrease in recidivism and that the Hollow Water study reported only two violent

offenders (approximately 2%) re-offended over the next decade whereas "recidivism

rates for sex offences [was] approximately 36%" (Matthews & Larkin, 1999). This

success is notable but it is in alignment with other studies that have found that

restorative justice practices are far more successful for reducing recidivism of violent

crimes than for other categories of offence (Sherman, Strang, & Woods, 2000; McCold

& Wachtel, 1998).

It should be noted that the results can vary for restorative justice programs as a

Honolulu study found no overall differences in re-offence rates for youths that

participated in restorative justice. However, results did show that non-violent youths

who went through restorative justice did not tend to escalate to violence in subsequent

offences while non-violent youths who did not participate in group conferencing had

significantly higher arrest rates for violent crimes (Walker, 2002).

Analyses conducted to sort out the best predictors of lessening recidivism through

restorative justice practices found that the following features most strongly correlated

with fewer future offences (Maxwell & Morris, 2001):

 having a meeting that was ' memorable' ,

 not being made to feel a bad person,

 feeling involved in the decision-making,

 agreeing with the outcome,

 completion of agreed tasks,

 offenders’ remorse and apologies,

 offenders feeling that they had repaired the damage.

________________________________________________________________________

40 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

IN FOCUS

Are Shame Based Punishments Restorative?

One of the most ancient forms of kin-based justice is the public shaming of offenders.

This has ranged from the creation of insulting songs to memorialize someone’s bad

behaviour to being branded with an initial by a hot iron (i. e. ' M' for murderer, ' T' for

thief, ' R' for runaway slave and ' H' for hog thief) in colonial Maryland. Modern

state-based legal systems have largely abandoned such practices but the practice has

partially continued in the ' world’s stupidest criminals' -style media programs. With the

dual rise in the 1990s of a retributive political atmosphere and restorative justice

practices, Anglo-American legal systems have begun to experiment with a return to

shame-based punishments. Some examples include:

 ' Johns' caught soliciting prostitutes in one Oakland neighbourhood now have

their faces plastered on bus stop signs and billboards donated by an advertising

firm (Stryker, 2005).

 A Houston couple who stole public funds were sentenced to jail, repaying the

money they stole, and having to spend every weekend for six years standing on

a street corner carrying a sign that read, "I am a thief. I stole $250, 000 from a

Harris County crime victims' fund" (KTRK-TV/DT, 2011).

 In 2009 the British Justice minister proposed a scheme to distribute leaflets to

homes announcing the court convictions of their neighbours to “give local

communities a greater role in the criminal justice system”. The justice minister

had already made offenders wear bright yellow jackets when doing community

service (Winnett, 2009).

The idea behind shame-based punishment is that the threat of bad publicity may act as

a deterrent to criminals more than any fine or jail sentence could. Like all deterrence

theories, shame-based punishments rely on the questionable concept that potential

offenders rationally weigh up probable punishments versus possible gains. Shame-

based deterrence also relies on the idea that offenders are moved by social disapproval

but the research of Cohen, Garafalo, Boucher, and Seghorn (1971) shows that not only

are some criminals immune to social disapproval but it actually excites some

offenders. These limits suggest that shame-based deterrence is only useful for

offenders who can both rationally foresee the cost of future punishment and who also

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 41

The Prison Industrial Complex

have some stake in social conformity (Wortley, n. d. ). Those involved in minor acts of

delinquency and white-collar crimes are two potential populations that might be

susceptible to such shame-based techniques.

Shame-based techniques have been traditionally avoided in Western justice systems

because they involve a variety of uncontrollable factors. Lawyers have expressed fears

of breaching a convict’s basic rights to privacy and dignity while police forces have

raised concerns about the dangers of vigilantism, either by the offenders’ victims or by

unstable people looking for a socially-accepted scapegoat. The internet can also cause

unpredicted consequences. For example, when Florida opened their mugshot records

to the public, one ex-convict downloaded all the photos and hosted them on his own

website allowing visitors to browse the mugshot by tags like Celebrity, Hotties,

Trannies, Tatted up, and WTF. The website became both extremely popular and

profitable and the site’s owner partnered with another company named

RemoveSlander. com that allowed people to remove their photo from the site for a

$400-$1, 250 fee when the true cost of removal was $20. One man who paid the fee to

have his DUI mugshot removed said, “ You know, I did make a mistake back then.

There’s a difference between having it available on the county jail website … than to

have it return on the first page in Google when you Google your name. It seems like

… extortion to me” (Kravets, 2001).

Beyond these practical concerns shame-based deterrence also raises deeper

implications of how such punishments affect both offenders and the society that uses

them. Martha Nussbaum (2004), in her book Hiding from Humanity: Disgust, Shame,

and the Law, acknowledges the nearly poetic appeal of shame-based punishments but

lists four key reasons why they should only be used on institutions and never on

people:

1. The humiliation involved can mark a person with a ' degraded identity'

giving them a long-term inability to recover self-respect because such

punishments do not condemn the act but the very person. Nussbaum notes

that groups like Alcoholics Anonymous are successful because they avoid

public shaming.

2. Officially inviting the public to punish people can invite a “deeply irrational

[. . . ] mob mentality” that encourages people to demonize others, indulge in

sadism and lead to moral panics.

3. Such techniques can start with a limited target of offences but history shows

that these ' lighter' penalties quickly ' net-widen' to situations where no

punishment would have been given and often “end up being used to

stigmatize whatever group happens to be unpopular at the time. ”

________________________________________________________________________

42 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

4. Most psychologists and criminologists agree that “stigmatization increases

law-breaking” by alienating already marginalized individuals, shattering

their self-worth, and encouraging them to identify with an anti-social label.

To Nussbaum “using shame to control crimes is like using gasoline to put

out fire. ”

Beyond the Prison Wall—Abolitionist Arguments

The idea of prison is so central to Anglo-American criminal justice and culture that it is

“a taken-for-granted presence [. . . ] that is difficult to imagine life without” (Davis,

2003). Despite this there is a growing movement within critical criminology that

proposes that prisons are more of a problem than a solution and call for the abolition of

imprisonment as a common correctional measure. This idea seems radical at first but is

well in line with the vast majority of accepted criminological research including

governmental studies. For example, in 1999 the Solicitor General Canada undertook a

comprehensive meta-analysis of fifty studies involving 336, 052 offenders to determine

whether prison reduced criminal behaviour. Their sobering conclusions were that:

1. Prison produced slight increases in recidivism.

2. Prisons should not be used with the expectation of reducing criminal

behaviour.

3. Lower risk offenders were negatively affected by the prison experience.

4. Prison officials must implement assessments to determine which prisoners

are being made worse by their incarceration.

5. Incarceration has enormous costs and should not be over-used.

6. The primary justification of prison should be to incapacitate and punish

chronic high-risk offenders.

Such findings have been repeated in every Anglo-American country as a majority of

studies show that imprisoning criminals momentarily protects the public but it does not

prevent future crime (North Shore News, 2008). A major study conducted in the US

comparing the recidivism rates of offenders sentenced to probation and offenders

sentenced to prison found that the rates of re-offending were the same for both groups

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 43

The Prison Industrial Complex

(Champion, 1994). In Britain, government studies have shown that longer prison

sentences are no more effective in preventing future offending than shorter sentences

(Brody, 1976). One Australian prison administrator has bluntly stated,

[prisons] are misused by society as an inappropriate means of social

control. . . they are, in the main, inhuman and unnatural places; . . . each

year they take large numbers of hopeless people and turn them into bitter

people; . . . they are part, among other things, of the systematic

destruction of (Aboriginal peoples); . . . they institutionalize and make

captive the people who work there . . . for hundreds of years the people

who work in the system, the influential people in the criminal justice

system as a whole—politicians and community leaders—have used prison

to perpetuate the longest running biggest social fraud in the history of the

modern world . . . that prisons serve a useful purpose in social control and

crime prevention. (http://www. acsa-caah. ca/Portals/0/Member/PDF/

en/documents/incarcerationcanada. pdf, n. d.)

As the above comment shows it is not just prison’s inability to break the cycle of crime

that condemns it but also their historical use as a tool in political oppression. Statistics

from every country show that it is a society’s impoverished groups who

disproportionately fill prisons and bear these burdens, and many of them already bear

the burden of colonialism and occupation. It is also an unmistakable global reality that

it is people whose lands have been colonized by Europeans or who are forced to come

to European countries, sometimes through enslavement, that disproportionately fill

every prison: it is African/Caribbeans in Britain, African-Americans in the US,

Aboriginals in Australia, Maori in New Zealand, Inuit and First Nations in Canada,

Lapps and Inuits in Scandinavia, guest-workers from Eastern Europe and Turkey in

Germany, Filipino guest-workers throughout Europe and the Gulf states, the Romany in

former Eastern Europe and Romany and north Africans in southern Europe (Heaven &

Hudson, n. d. ).

Nor would anyone deny that it is the poor and not the rich that pack prisons to

overcrowding. As some sociologists have commented it is easier to understand prison

as means of forcing people into the service industry and labour market by criminalizing

the poverty markets of drugs, gambling, prostitution, thieving, counterfeiting, and

piracy than as an institution concerned with justice. As Joe Sim (2009) writes,

[prisons] are part of a punitive continuum targeting those inside prisons

as much as those entrapped in the surrounding wastelands, they serve as

a constant reminder of what awaits them if they refuse to surrender to the

imperatives of an over-exploitative economic order.

________________________________________________________________________

44 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

Those who end up in prison rarely come out for the better. They must associate with

other convicts and gangs where they learn lessons in brutality, make criminal social

contacts, trade criminal techniques and often have continued access to drugs. The

overcrowding in prisons not only exacerbates tensions but makes rehabilitation difficult

and turns prisons into breeding grounds for disease. Even a short jail term can be tough

to recover from because when released “a third [of inmates] have lost their housing,

two-thirds have lost their jobs, over a fifth come out facing major financial problems,

and two-fifths lose contact with their families” (Morgan, 2004).

Some of this hardship may be considered a valid part of the ' pains of imprisonment' but

it is not borne by the individual alone. As Sykes (1958) conclusively documented more

than 45 years ago, imprisonment is a punishment also inflicted on the friends,

dependents, families, and communities of the offenders. Imprisonments, especially for

' poverty market' crimes like drug-selling and gambling, seem to magnify and enlarge

the harm caused by a criminal act not decrease it (Landreville, Blankevoort, & Pires,

1981). Even in the cases of imprisonment for violent crime, a restorative justice

approach asks if it would not make more sense to work to repair the harm done to a

victim rather than simply victimize the offender and their family.

Even in the cold discourse of economics that dominates the modern Anglo-American

political discourse it is hard to justify prisons. The cost of one federal male prisoner is

about $95, 000 per year and the cost of a female prisoner can be up to $350, 000 due to

the lack of “bulk rate” discounts and extra child care requirements (Prison Justice Day

Committee, n. d. ). From many viewpoints, including that of some victims, it would

appear to be more cost effective to place money into effective social services, including

job creation, than to pay such large sums to penalize a criminal after the damage is

done. As Dobbin observed in 1999, the cost to keep a child in school represents a

quarter of that required to lock up an offender.

If prison abolition still seems too far beyond the pale, Pat Carlen, a British critical

criminologist proposes a test case, suggesting that,

for an experimental period of 5 year, imprisonment should be abolished

as a ‘normal’ punishment for men and that a maximum of only 100

custodial places should be retained for women convicted or accused on

abnormally serious crimes. (Carlen, 1990)

In the place of the ' normal' punitive punishment of imprisonment Carlen believes a

whole variety of rehabilitative and restorative programs could be used, all funded by

the enormous wealth created through closing the prisons. Part of Carlen’s goal in this

proposal is to have Anglo-American countries,

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 45

The Prison Industrial Complex

stop seeing prison as a panacea for all social ill, and, instead see it as an

unusual and abnormal punishment which must be used sparingly rather

than promiscuously. (Carlen, 1990)

As Angela Davis writes, such a post-prison society, where only the truly dangerous

would be locked-up, would not simply mean more,

prison-like substitutes, such as house arrest safeguarded by electronic surveillance

bracelets [but] a continuum of alternatives to imprisonment—demilitarization of

schools, revitalization of education at all levels, a health system that provides free

physical and mental care to all, and a justice system based on reparation and

reconciliation than retribution and vengeance. (Davis, 2003)

And this is the deepest power of the abolitionist argument; it confronts governments

with their cultural and political addiction to prisons, to return to the challenge of

imagining a better society so that one day our descendants might have it.

________________________________________________________________________

46 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

IN FOCUS

Beyond Rehabilitation - Dangerous Offender Legislation

Even prison abolitionists agree that there is a small population of people that must be

' caged' for societies' safety. Since 1977 section 753 of the Criminal Code law has

allowed a convict who is designated a ' dangerous offender' to be kept in prison

indefinitely no matter what sentence the crime they were convicted of carried. While

the Parole Board of Canada must review the dangerous offender designation after seven

years and subsequently every two years, most dangerous offenders never again leave

prison. In 1997 a lesser designation of ' long term offender' was created requiring an

automatic 10-year period of community supervision after their sentence is completed for

such convicts.

In order to be given a dangerous offender designation a person must be convicted of a

serious violent offence and the Crown must submit an application to have them declared

as such. If the application is successful the person will be given a behavioural

assessment conducted by a panel of psychiatrists and other criminal justice and mental

health experts. The behavioural assessment looks at a wide variety of evidence

including correctional records, phallometric data, Children’s Aid records, and victim

impact statements. The major criteria for a dangerous offender designation are,

(i) repetitive behaviour of the offence they have been convicted of, (ii)

persistent aggressive behaviour (iii) brutal nature [. . . ] unlikely to be

inhibited by normal standards of behavioural restraint (iv) the likelihood

of causing injury, pain, or other evil to other persons through failure in

the future to control his or her sexual impulses.

Since 2008 an offender found guilty of a third conviction of selected violent offences

must prove that they do not automatically qualify as a dangerous offender. This

reversing of the onus has some critics worried that the legislation may experience a

' net-widening' that captures the wrong people by forcing them to prove they are not

dangerous and some have compared it to controversial American ' three strikes' laws.

During the 1980s, an average of nine people per year were designated dangerous

offenders. During the 1990s that number doubled to 17 and currently 25 new

designations are given a year. Other critics worry that such legislation transfers power

away from judges and evidence tested in the open court towards the state and its

forensic psychiatrists.

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 47

The Prison Industrial Complex

Dangerous offenders are almost always male (as of 2011 only 2 women have received

this designation; one committed suicide in prison and the other had her designation

overturned) and largely Caucasian. However, since the 2008 reverse onus clause a

population that was once 95% Caucasian is now 26% Aboriginal. The large majority of

dangerous offenders are sentenced for sexual assault (85%) that often includes

pedophilia (41%) and just 1% of the designations occurred after a conviction for

homicide. Recent prosecutions have tried to have recidivist drunk drivers designated as

dangerous offenders but none have been successful.

Most dangerous offenders have normal IQs, less than a Grade-8 education and were in

some form of relationship. Unsurprisingly, there is a strong prevalence of anti-social

personality disorders among dangerous offenders and 40% have been classified as

psychopaths. Dangerous offenders are likely to have a juvenile record (75%), a

previous period of incarceration (88%) and to have failed on a period of community

probation or parole (73%). Their victims are primarily females (86%) and those under

the age of 16 (59%). Brutality was evident in a majority (70%) of cases.

There were 458 dangerous offenders imprisoned in Canada as of April 2011. During

the three decades of this legislation 26 dangerous offenders have achieved parole and

been released where they will remain under supervision for the rest of their lives.

Sources:

(n. d. ). Dangerous Offenders And Long-Term Offenders. Retrieved from:

http://capl-acpd. org/RESOURCES/Dangerous_Offenders. pdf, n. d,

Bonta, J. , Harris, A. , Zinger, I. & Carriere, D. (1996). The Crown Files Research

Project: A Study Of Dangerous Offenders. Retrieved from:

http://www. blueshifthome. com/Recidivism/studies/Canada%20-

%20a%20study%20of%20dangerous%20offenders%20-%201996-01. pdf

Canadian Press (2004). Number of dangerous offenders in Canada growing. Retrieved

from: http://www. ctv. ca/CTVNews/Canada/20040516/dangerous040516/

CBC News (2010). Dangerous offender: what the label means. Retrieved from:

http://www. cbc. ca/news/canada/story/2010/10/21/f-dangerous-offender. html

Solicitor General Canada (2001). High-Risk Offenders - A Handbook for Criminal

Justice Professionals. Retrieved from:

http://www. publicsafety.gc. ca/res/cor/rep/2001-05-hnd-bk-eng. aspx#1e

________________________________________________________________________

48 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

SECTION 5. 3: The Prison Industrial Complex

One of the largest changes in the management of correctional facilities has been the

growth of what is termed the ' prison-industrial complex' in America. The prison-

industrial complex refers to the rapid growth of correctional facilities across North

America and the wide-range of industries that benefit from it. This growth is dependent

on government funds being made available for imprisonment and the relevant industries

have created powerful political lobbies to ensure both a steady flow of public funds in

building new prisons and a steady growth in the number of prisoners to fill them.

Since 1980 spending on American corrections at the local, state, and federal levels have

increased about fivefold causing companies to vie to receive money for building,

outfitting, and providing services for prisons (such as, electricity, water, laundry,

phone and food services). Many communities, especially rural ones or those who lost

important factory jobs to free trade, also compete with each other to have a prison built

in their town. What was once a niche business for a handful of companies has become a

multibillion-dollar industry with its own trade shows and conventions, websites, mail-

order catalogues, and direct-marketing campaigns (Schlosser, 1998).

Eric Schlosser (1998) explains the parasitical growth of the prison-industrial complex

and its wide-ranging repercussions:

Correctional officials see danger in prison overcrowding. Others see

opportunity. The nearly two million Americans behind bars—the

majority of them nonviolent offenders—mean jobs for depressed regions

and windfalls for profiteers. The prison-industrial complex (PIC) is not

only a set of interest groups and institutions; it is also a state of mind.

The lure of big money is corrupting the nation’s criminal-justice system,

replacing notions of safety and public service with a drive for higher

profits. The eagerness of elected officials to pass tough-on-crime

legislation—combined with their unwillingness to disclose the external

and social costs of these laws—has encouraged all sorts of financial

improprieties.

As prisons take up more and more space on the social landscape, other

government programs that have previously sought to respond to social

needs—such as Temporary Assistance to Needy Families—are being

squeezed out of existence. The deterioration of public education,

including prioritizing discipline and security over learning in public

schools located in poor communities, is directly related to the prison

“ solution. ” As prisons proliferate in U. S. society, private capital has

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 49

The Prison Industrial Complex

become enmeshed in the punishment industry. And precisely because of

their profit potential, prisons are becoming increasingly important to the

U. S. economy.

The prison-industrial complex is not a conspiracy, guiding the nation’s

criminal-justice policy behind closed doors. It is a confluence of special

interests that has given prison construction in the United States a

seemingly unstoppable momentum. It is composed of politicians, both

liberal and conservative, who have used the fear of crime to gain votes;

impoverished rural areas where prisons have become a cornerstone of

economic development; private companies that regard the roughly $35

billion spent each year on corrections not as a burden on American

taxpayers but as a lucrative market; and government officials whose

fiefdoms have expanded along with the inmate population.

Now go online and read the following pages from an article on the prison-

Industrial Complex (PIC) in America: PIC in New York State; Big Money

for Corporations and Rural Areas; PIC in California

https://web. archive. org/web/20110913011919/http://www. theatlantic. com/

magazine/archive/1998/12/the-prison-industrial-complex/4669/2/

https://web. archive. org/web/20100729123424/http://www. theatlantic. com/

magazine/archive/1998/12/the-prison-industrial-complex/4669/3/

https://web. archive. org/web/20100729123059/http://www. theatlantic. com/

magazine/archive/1998/12/the-prison-industrial-complex/4669/8/

The High Price of Being 'Tough on Crime'

This massive increase in the American prison population is driven by the ' tough on

crime' mentality that has becoming politically unchallengeable because opponents to it

are tarred as ' soft on crime' or weak. This mentality (and especially the ' war on drugs'

version) has resulted in longer sentences being given to people who have committed

non-violent offences and sentences given for crimes that would formerly have led to

community service, fines, or drug treatment—or would not be considered crimes at all

in non-American countries. The number of Americans incarcerated for drug offences

has increased an unbelievable 10 fold since 1980.

________________________________________________________________________

50 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

This mentality has also systematically lowered chances of parole, removed the

discretionary power of judges by mandating minimum sentences and has created a

constant flow of new crimes punishable by incarceration. At its core this mindset

promotes incarceration, the most expensive legal sanction, as the solution for a wide

variety of other problems ranging from homelessness to addiction problems at the

expense of using more appropriate means to address the underlying problems (e. g. ,

addictions counselling) (Davis, 1998).

In response, American jails and prisons have experienced an incredibly rapid boom.

Throughout the first three quarters of this century the US incarceration rate remained

fairly stable at about 110 prison inmates for every 100, 000 people. This began to climb

in the mid-1970s, doubling in the 1980s and then doubling again in the 1990s. While

America’s rate of violent crime fell steeply beginning in 1991 (declining by about 20

percent, ) the number of Americans in prison or jail has risen by 50 percent. The rate in

America (2011) was about 500 inmates per 100, 000 people (about 1, 000 per 100, 000

adult men) and the prison population continues to increase by 50, 000 to 80, 000 inmates

a year (see Figure 5. 4). Despite building over a thousand new prisons and jails in the

last twenty years America’s correctional institutions are more overcrowded than ever.

Figure 5. 4: Go online and look at the graph “ Incarceration rate of inmates

incarcerated under state and federal jurisdiction per 100, 000 population

1925-2008 per 100, 000 people. "

http://en. wikipedia. org/wiki/United_States_incarceration_rate#/media/File:

U. S. _incarceration_rates_1925_onwards. png

This overcrowding hit such a crisis point in 2011 that the US Supreme Court ordered

California to simply start releasing tens of thousands of inmates to avoid “ needless

suffering and death, ” citing the fact that California’s 33 adult prisons designed to hold

about 80, 000 inmates were packed with 145, 000 inmates leading to “suicidal inmates

being held for prolonged periods in telephone booth-sized cages, backlogs of up to 700

prisoners waiting to see a doctor for care and as many as 54 inmates sharing a single

toilet” (Vicini, 2011 11

).

In 2008 the United States has a staggering quarter of the world’s prisoners (2. 3 million

inmates) despite having less than 5 percent of the world’s population (International

Centre for Prison Studies at King’s College London). China has the second highest

11 Vicini, 2011 http://www. reuters. com/article/2011/05/23/us-california-prisons-court-

idUSTRE74M3DQ20110523

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 51

The Prison Industrial Complex

number of inmates with 1. 6 million. Even if we included the hundreds of thousands of

Chinese political prisoners sentenced to “ extrajudicial detention” China’s total might

only equal America’s absolute number of inmates despite having quadruple America’s

population (Liptak, 2008).

The potent combination of popular ' tough on crime' political platforms and the power

of the prison industry lobbies have created a situation that threatens to turn imprisoning

North Americans into a core pillar of the economy. A sample of this twisted situation is

that as the over-crowding of prisons starts to break down the American criminal justice

system, United States politicians continue to recommend more prisons to fix the

problem. But criticism of this situation is also growing. For example, California

Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, permanently

changed state law to allow qualifying defendants convicted of non-violent drug

possession offenses to receive a probationary sentence in lieu of incarceration

(Wikipedia). Despite being ' soft on crime' and opposed by conservative politicians and

law enforcement officials, this proposition won 61 percent of the vote. Yet even this

victory is undermined by the fact that inmates diverted into the probationary period

would be charged with new offenses if they were caught using drugs rather than simply

be re-imprisoned for the 90 days as they would have had they not been out on parole.

Thus, even reforms can serve to increase incarceration rates.

Go online and read Politicians can’t resist being tough on crime which

discusses how every political party wants to jump on the ‘tough on

crime’ bandwagon which is powered by high profile media crimes.

Notice how the article also touches on the role plea bargains (discussed

in Module Four) have in a system of tougher sentences.

http://www. thestar. com/specialsections/crime/article/460762--politicians-

can-t-resist-being-tough-on-crime

IN FOCUS

Conrad Black: My Prison Education

Harper’s adoption of an American-style prison system has its most unlikely critic in Conrad

Black, whose jailhouse letters about the failure of the US criminal justice system and the

failure of ' tough on drug' crime laws were surprising considering he is known as a staunchly

conservative thinker and capitalist.

________________________________________________________________________

52 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

Black is a “Canadian-born member of the British House of Lords, historian, Columnist, and

publisher who was for a time the third largest newspaper magnate in the world. He was

convicted of fraud in a US court in 2007 and sentenced to six and a half years’

imprisonment” (Wikipedia). While in the US prison system Conrad Black wrote the

following column:

It had been an interesting experience, from which I developed a much greater

practical knowledge than I had ever had before of those who had drawn a short

straw from the system; of the realities of street level American race relations;

of the pathology of incorrigible criminals; and of the wasted opportunities for

the reintegration of many of these people into society. I saw at close range the

failure of the U. S. War on Drugs, with absurd sentences (including 20 years

for marijuana offences, although 42% of Americans have used marijuana and it

is the greatest cash crop in California. ) A trillion dollars have been spent, a

million easily replaceable small fry are in prison, and the targeted substances

are more available and of better quality than ever, while producing countries

such as Colombia and Mexico are in a state of civil war.

I had seen at close range the injustice of sentences one hundred times more

severe for crack cocaine than for powder cocaine, a straight act of

discrimination against African-Americans, that even the first black president

and attorney general have only ameliorated with tepid support for a measure,

still being debated, to reduce the disparity of sentence from 100 to one to 18 to

one.

And I had the opportunity to see why the United States has six to twelve times

as many incarcerated people as other prosperous democracies, (Australia,

Canada, France, Germany, Japan, and the United Kingdom), how the prison

industry grew, and successfully sought more prisoners, longer sentences, and

maximal possibilities of probation violations and a swift return to custody.

Before I got into the maw of the U. S. legal system, I did not realize the

country has 47 million people with a criminal record, (most for relatively

trivial offenses, ) or that prosecutors won more than 90% of their cases. There,

at Coleman [prison], I had seen the courage of self-help, the pathos of broken

men, the drawn faces of the hopeless, the glazed expression of the heavily

medicated (90% of Americans judged to require confinement for psychiatric

reasons are in the prison system), and the nonchalance of those who find prison

a comfortable welfare system compared to the skid row that was their former

milieu. America’s 2. 4 million prisoners, and millions more awaiting trial or on

supervised release, are an ostracized, voiceless legion of the walking dead;

they are no one’s constituency.

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 53

The Prison Industrial Complex

He also offers Stephen Harper advice to stop Canada from following the same failed path as

the US for the criminal justice system:

The thinking goes that, through the enactment of guaranteed prison terms for

those who would threaten communities by getting involved in the drug trade,

we create a disincentive that will prevent people from getting into drugs in the

first place. Drugs will become less available and drug use less prevalent, and

organized crime will diminish.

Here in Canada, this thinking is the basis for proposed federal mandatory

minimum sentencing legislation. Unfortunately, like archaic cultures that clung

to the belief that the Earth was flat, those who support mandatory minimum

sentences for drug crimes are willfully ignorant of the near universal consensus

that mandatory minimum sentences are both extremely costly and ineffective.

While mandatory minimums and ' tough on crime' approaches have

traditionally received strong support from U. S. conservatives, the serious

negative consequences of mandatory minimum sentencing legislation is now

increasingly recognized. Several states have recently shown that they can save

on costs without compromising public safety by intelligently reducing their

prison populations.

In addition to their extreme cost, mandatory sentences also have failed to

reduce drug availability. In terms of reducing use, a recent World Health

Organization study demonstrated that tough drug laws do not translate into

stemming drug use. On the contrary, despite the strict mandatory minimum-

sentencing regimes that exist in many states, the United States has among the

highest lifetime rates of drug use. Heavy sentences for marijuana offenses are

especially absurd and unjust, given that 42% of Americans have been or are

users and marijuana is the greatest cash crop in California.

Conservative support for tough drug laws is paradoxical, given that the failure

of mandatory minimum sentencing schemes is explained by the free-market

economic principles that many conservatives hold dear—particularly the simple

law of supply and demand. This principle requires that effectively cutting drug

supply by taking a drug dealer off the street will have the perverse effect of

making it that much more profitable for new players to get into the market.

Clearly, we need new approaches to address the drug problem.

________________________________________________________________________

54 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

Failed mandatory minimum sentencing legislation is currently being repealed in

various U. S. states, including New York, Michigan, Massachusetts, and

Connecticut, and it will be a sad legacy for Canadian conservatives if we sit

quietly and ignore how U. S. society has been remarkably weakened by the

same laws our government is now hell-bent on enacting.

Source: Conrad Black: My Prison Education 12

and Wrong on Crime (retrieved from

http://www. nationalpost.com/todays-paper/Wrong+ crime/4782674/story.html)

Growth of the Canadian Prison Industrial Complex

Canada is also facing overcrowding problems as the Canadian public has a similar

infatuation with tough on crime politicians. Even with a $1. 7 billion building boom at

the Canadian correctional services, the already over-full Canadian prison population

was expected to grow by over 30% from 2011 to 2014 leading to further overcrowding.

Jason Godin, Ontario president of the Union of Canadian Correctional Officers sums it

up as, “ There’s no room at the inn. ” Howard Sapers, the federally appointed

correctional investigator, was just as candid, “ The system is struggling to keep its head

above water. They’ve been treading water for a long time and they’re running out of

energy. ”

The Canadian government has already begun adding dangerous criminals into medium-

security jails because maximum facilities are full (Contenta, 2008) and now is facing

the stark choice of double-bunking more prisoners in increasingly tense situations or

paying for even more new prisons in the middle of uncertain economic times. Canada

has thus far avoided the worst excesses of the US prison industrial complex, but, as in

many domains, it seems doubtful Canada can resist the immense power and profitability

of American methods.

Despite the social and economic dangers of the American prison-industrial complex,

reinforced by warnings from US and Canadian prison officials, it is hard to prevent its

spread north. This has been especially true under the Conservative government of

Prime Minister Harper who is proudly pro-American, pro-privatization, and owes much

of his success to being seen as tough on crime. The Harper government created the

twin pillars of tough on crime bills that set mandatory sentences and gave a massive

increase in spending public funds on prisons. A correctional watchdog website

comments,

12 Conrad Black: My Prison Education http://fullcomment. nationalpost. com/2010/07/31/conrad-black-

my-prison-education/

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 55

The Prison Industrial Complex

as expected, Ottawa unveiled another significant round of prison building

initiatives today, part of the Conservative government’s scramble to get

cells built swiftly enough to accommodate a surging prison population.

The number of convicts going to penitentiaries is spiralling upward

because of Tory get-tough tactics. The announcements today total $158

million in spending. (CanCrime, 2011)

In the first five years of Harper’s governance “ the cost of the federal prison system has

risen 86% from $1. 6 billion to $2. 98 billion per year” (Davis, 2011) and the staffing

for Correctional Service Canada has increased from 14, 663 to 16, 587 and was expected

to jump to 20, 000 in 2012. Projected spending for Correctional Services Canada for

one year (2011-2012 to 2012-2013) was expected to rise by $196 million (Tracking the

Politics of ‘Crime’ and Punishment in Canada, 13

2011). The extra spending on

corrections has to come from other departments and by cutting social programs and

government jobs, as Harper is committed to paying off Canada’s debts to private banks

(Conservative Party platform, 2011). To this extent, the Harper government has

announced that 687 civil servants were being laid off to save $172 million and that

more cuts will be made (Curry, 2011 14

).

Take time now to go online and read Getting tough on crime is toughest

on the taxpayer which describes the Canadian political will for being

tough on crime, the associated financial cost of this mentality and the

real reality of crime in Canada.

http://www. thestar. com/specialsections/crime/article/460704--getting-

tough-on-crime-is-toughest-on-the-taxpayer

Watch sentences that come with a cost 15

which is a short video that looks at the

American prison situation caused by tough on crime legislation for an example of what

likely will happen in Canada. Also, watch an interview with Canada’s prison

ombudsman 16

to hear about the prison situation in Canada and the dire straights we will

be in if more tough on crime legislation is enacted.

13 Tracking the Politics of ‘Crime’ and Punishment in Canada, 2011 http://tpcp-canada. blogspot. com/ 14 Curry, 2011 http://www. theglobeandmail. com/news/politics/tories-cite-deficit-in-eliminating-auditing-

jobs/article2067855/ 15 sentences that come with a cost http://www. youtube. com/watch?v= vNJji0CVF48&feature= relmfu 16 interview with Canada’s prison ombudsman

http://www. youtube. com/watch?v= 2Xh_PpJCMpM&feature= relmfu

________________________________________________________________________

56 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

IN FOCUS

The High Social Cost of Mass Imprisonment

Advocates for tough on crime legislation believe that there is a need for

more security while many critical criminologists believe that such legislation

creates more crime than it prevents by damaging individuals and their

families with incarceration. Such critics also claim that the money poured

into imprisonment could be used more efficiently and effectively by

spending it on reducing underlying social problems that are known to be

connected with crime such as, childhood poverty, addictions, and mental

health problems.

With the implementation of the Omnibus Crime Bill and various other

legislations, the use of incarceration is rising dramatically. There will be

longer sentences, more minimum sentences, more indictable offences,

tougher penalties for youth, less conditional sentences for non-violent

crimes, restricted availability of parole and the end of the practice of

counting each day spent in pre-trial custody as two days of a sentence

(custody conditions are often more severe than those in prisons).

Correctional Service Canada estimates a need for 2, 700 new spaces while

the Parliamentary Budget Officer believes that number is closer to 4, 200

(Carlson, 2011) and the NDP Justice critic estimates that the new marijuana

mandatory minimums will "incarcerate between 3, 000 and 5, 000 more

people in Canada by that one piece of legislation" (Vandermeer, 2011).

Already the number of inmates in federal prisons rose from 12, 000 to

15, 000 (i. e. from about 2003 to 2013)- an increase that was “policy, not

crime driven. "

The Conservatives' goal of mass incarceration is diametrical opposed to

their goal of fiscal prudence as imprisonment is a notoriously expensive

punishment. When the Harper government was asked to “provide

breakdowns of the costs of its planned corporate tax cuts and of its various

plans to bring in tougher crime legislation” they refused and were found to

be in contempt of Parliament, a testament to how sensitive the issue is

(Campion-Smith, 2011). Current estimates for the federal costs of housing

new prisoners range from $2 - 5 billion. The government has already

doubled funding to the federal prison system from $1. 6 to $3. 2 billion

between 2006 and 2014 and annual prison expenditure will reach $10-billion

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 57

The Prison Industrial Complex

by 2015-2016. Despite this "Canada’s ombudsman for federal inmates says

prisons have become more crowded, violent and worse at rehabilitation

under the Conservative government, despite a budget increase of 40 per cent

in the past five years" (Fine, 2013).

The Harper government has boasted that many of their ' tough on crime'

reforms will have "no federal costs" but this is because it will be primarily

the provinces that will be burdened with mass incarceration. Provinces are

expecting a 15% increase in the number of prisoners and are accordingly

preparing for costs - estimated at between $2 to 13 billion over the next five

years - needed to handle the flood of new prisoners. Ontario, Quebec and

Newfoundland have publicly stated that they will refuse to pay for the costs

associated with the Omnibus Crime Bill and the way theVancouver Sun

declared that “B. C. braces for Tories' new crime bill” makes it sound like it

was a natural disaster.

In 2011 the chair of the Canadian Bar Association' s National Criminal Justice

Section predicted that the increased reliance on incarceration “will have an

especially profound impact on northern residents, Aboriginal people and

people with mental illness” and this was borne out. A 2013 report found that

the incarceration of visible minority groups has increased by almost 75% in

the last five years - including 43% increase in the aboriginal prison

population. The rate of incarceration of aboriginal women increased by 80%

in the past decade with 1 in 3 women sent to federal institutions now being

aboriginal (Brosnahan, 2013). Aboriginal people represent 4% of the

Canadian population yet now comprise 1 /4 of the prisoners in federal

corrections institutions. The number of African-Canadians incarcerated in

federal prisons has increased 69% over the past decade - the highest rate of

any ethnic group in Canada (Brodbeck, 2013).

Correctional institutions in northern territories are already overfull. A new

Rankin Inlet jail is "expected to fill up instantly" and the "Baffin Correctional

Centre in Iqaluit houses more than 80 inmates right now, but it was made for

about half that amount" (CBCNews, 2011). Ontario and the Northwest

Territories are returning the 60 overflow prisoners they were housing for

Nunavut to make more space. None of the new Conservative legislation had

any alternative provisions for mentally ill convicts despite almost half of all

offenders required mental health care in the past year (Brodbeck, 2013). In

effect, prison wardens are replacing psychologists.

________________________________________________________________________

58 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

Go online and read Solving crime? Tackle the root causes first and Jail

' a lazy response' to poverty for how preventative measures could be

enacted for a safer, healthier society instead of becoming a country

bogged down with prison costs.

http://www. thestar. com/specialsections/crime/article/460770--solving-

crime-tackle-the-root-causes-first

http://www. thestar. com/specialsections/crime/article/460773--jail-a-lazy-

response-to-poverty

The strongest example of such criticism is the devastation caused by the American war

on drugs.

Take time now to watch the High Cost to stiff drug sentences.

Read has mass incarceration failed? and watch its companion video

Michigan’s prison experiment which gives a critique of what happened in

Michigan and how lives and families were devastated by tough drug

policies.

http://www. youtube. com/watch?v= tMdB73fTxqo&feature= relmfu

http://www. thestar. com/SpecialSections/Crime/article/460767

http://www. youtube. com/watch?v= 53g4XYJn0NY&feature= relmfu

Trends in the Prison-Industrial Complex

It has proven much easier to get ' tough on crime' legislation passed than it has been to

convince governments to give public funds for new prisons. In response, the prison-

industrial complex has offered governments two solutions to deal with the problem of

overcrowding while appearing to cut costs: the privatization of prisons and the

creation of super-jails. The following sections will describe these two solutions and

the controversies they created in Canadian experiments with them.

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 59

The Prison Industrial Complex

The privatization of prisons

The power of private prisons in the USA is a significant force that separates the

American prison-industrial complex from the growing Canadian prison-industrial

complex. Private prisons still rely on government funds to operate but they are expected

to both generate a profit while costing less. The claim is that large prison companies

could provide cheaper services by negotiating bulk rates from other service providers

(like food services) and saving salary costs by using non-unionized staff with lower

benefits and less pay. This would allow private companies to build new prisons at no

cost upfront to the government by recouping the cost in the government funds they will

be later paid for housing prisoners.

However, this privatizing sales pitch has a poor record of actually providing financial

savings when compared to publicly run facilities and private prisons have a much

poorer record in maintaining the health and safety of both prisoners and correctional

workers. Yet the lucrative nature of private prisons 17

for everyone connected—including

state officials who are often given a percentage of the profit and state safety inspectors

who get consultant fees—results in a situation where many officials are reluctant to

acknowledge the reality of private prisons and are quick to downplay the negative

reputation of some of the corporations involved.

Go online and read the following three pages from an article which

details the growth of private prison companies in the US, problems

occurring at the facilities and with private prison companies, and the

way these companies have cut deals with politicians for continued

business (in both running the prisons and in making sure more people go

to prison).

https://web. archive. org/web/20120130122306/http://www. theatlantic. co

m/magazine/archive/1998/12/the-prison-industrial-complex/4669/4/

https://web. archive. org/web/20120130145537/http://www. theatlantic. co

m/magazine/archive/1998/12/the-prison-industrial-complex/4669/5/

https://web. archive. org/web/20120130133527/http://www. theatlantic. co

m/magazine/archive/1998/12/the-prison-industrial-complex/4669/6/

17 Lucrative nature of private prisons http://www. youtube. com/watch?v= mZ3oJGqr6ls

________________________________________________________________________

60 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

Once a private prison is established they have proven difficult for governments to

regulate due to the language of the contracts and private prisons’ generally secretive

nature. This difficulty is illustrated in the 2010 case where two high-risk convicts

escaped an Arizona private prison and killed two retired vacationers (Ortega, 2011).

State officials investigated the prison and found that multiple massive safety violations

had led to the escape, including a broken security alarm that gave false alerts 200-300

times a shift but was left unrepaired for two years. The state immediately suspended the

contract with the company, threatened to cancel it, and transferred all high risk

prisoners from the facility to safer state-run prisons while refusing to send new

prisoners until the corporation fixed their security problems. By taking such emergency

steps Arizona had reduced the private prison to 71% capacity but the prison was

contracted with a guaranteed pay scale of 97% capacity so the company sued the state.

The state government only agreed to resume paying the full amount when the private

prison undertook major renovations and repairs. An important observation made in the

article describing the Arizona situation 18

was that once private prisons are created,

governments are then stuck with them because there are no state facilities to move

prisoners to if a private prison fails to uphold their side of a contract.

Despite the many serious safety problems with private prisons (ex. escapees, not

providing adequate health care or meals) the private prison companies continue to grow

and expand because of their political connections and lobbying. More and more stories

are coming from the US about people connected to the US criminal justice system

having serious conflict of interest problems, such as judges convicting more criminals

(e. g. , youth judges get payback for sending teens to private jail 19

) in return for bribes

from private jails.

Take time now to go online and read the following pages of an article

which looks at the mixed security records for private prison companies,

the political paybacks involved in private prisons, and how private

prison companies contribute to political spending in order to gain

favourable results.

http://www. daytondailynews. com/news/crime/security-records-mixed-for-private-

prison-firms-1224338. html?showComments= true&page= 3&more_comments= false

http://www. justicepolicy. org/uploads/justicepolicy/documents/gaming_the_system. pdf

18 in the article describing the Arizona situation http://tucsoncitizen. com/arizona-

news/2011/08/07/arizona-prison-oversight-lacking-for-private-facilities/

19 Youth judges get payback… http://www. nytimes. com/2009/02/13/us/13judge. html

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 61

The Prison Industrial Complex

Penetanguishene: Ontario’s private jail experiment

In Canada the privatization of prisons has not been warmly welcomed by the public or

professionals involved in the criminal justice system as many Canadians view prisons as

' guardian institutions' that should not be run for profit. John Conroy, a defence lawyer

with Conroy and Company in Abbotsford, B. C. and former chair of the CBA’s

(Canadian Bar Association) Imprisonment and Release Committee is blunt,

Private prisons are an abomination. The idea of putting people in cages

for profit is ridiculous. Once you put people in a private prison, where’s

the incentive to get them out again, or rehabilitate them? Private prisons

will do what it takes to make a profit. They’ll skimp on food, on health

care, on programs. They’ll skimp on anything they can and they’ll keep

people in for as long as possible.

Allan Manson, chair of the Canadian Bar Association’s Imprisonment and Release

Committee and professor of law at Queen’s University is equally scathing,

First and foremost, prisons are an integral part of the sentencing arm of

the criminal justice system. This is a function that ought to be entirely

within the control—and subject to the discretion—of the government, not

private agencies. It’s fundamental that prisons conform with the rule of

law, the legal framework, and the constitutional safeguards that exist in

Canada. It’s antithetical to those principles to place the control of prisons

in the hands of companies motivated by profit.

There is nothing wrong with empty beds at a public institution. But a

private entity fills its beds to make money, and making money is its main

objective.

The objections of both men point to a deep concern that prison companies increase their

profit by finding ways to create new offences and keep offenders locked away for

longer (Ryan, 2001). Yet, in Ontario the provincial Conservative government of Mike

Harris was ideologically committed to privatization and allowed the first private

correctional facility to be created in Canada for a ' trial period' of 5 years. Utah-based

Management and Training Corporation (MTC) won the contract with their bid of

providing services for $79. 95 per inmate per day while all the other bids were over

$100. The average cost in an Ontario-run prison was $140 per day at that time.

The 5-year trial period was put in to address the concerns of many citizens who were

fearful of giving an American corporation a long-term vested interest in shaping

Ontario’s criminal justice policy and of handing over a core government function to

corporations whose shareholders’ interests come before the general public’s. Additional

________________________________________________________________________

62 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

concerns surrounded, “ the loss of accountability, the threat to public safety, inadequate

programs to rehabilitate prisoners, social and economic effects of inferior private sector

wages” (Nathan, 2000 20

) and an over-reliance on security technology to replace

adequate staffing (Ryan, 2001). The proposal also met with hostility among the

correctional guards union in OPSEU (Ontario Public Service Employees Union) whose

president stated, “ Private employers always want to reduce staffing, slash benefits, and

cut rehabilitation programs for offenders” (Casselman, 2004 21

).

Some of the strongest opponents to Ontario’s private jail came from American

politicians who had already witnessed the growth of private prisons in their own state

like Ohio Senator Robert F. Hagan. In a letter dated Feb. 29, 2000 Hagan wrote to

Ontario Premier Harris:

Ohio’s experience with private prisons has been to date. . . wholly

regrettable. . . Given my district’s history with private prisons and reports

of similar events at other private prisons in the United States, I would

respectfully urge you to reconsider your position on the construction of a

private prison in the Province of Ontario. (Nathan, 2000 22

)

As part of the 5-year trial MTC would construct a private ' super-jail' , a 1000+

capacity super-jail, in Penetanguishene (a. k. a. Pentang or Central North Correctional

Centre), while a similar sized publicly run prison was also created. At the end of the

trial period both facilities would be compared in terms of cost and performance.

Take time now to go online and read “ Making crime pay” which

discusses the many concerns and controversies that surrounded the

creation of Ontario’s private prison and the setting-up of the public vs.

private prison experiment.

http://web. archive. org/web/20050511053717/http:/www. cba. org/CBA/

National/Cover2001/Oct01. asp

From the beginning it was clear that Penetanguishene had no magic trick that would

allow it to offer similar services to Ontario-run jails at half the cost so MTC cut corners

to save money in almost every way leading to complaints about the health care, staffing

levels, and the overall safety of the facility. Within a year “ laundry service, health

care, and food inadequacies led to an inmate riot in September 2002” (Bowe, 2010) 23

20 Nathan, 2000 http://www. lib. uwo. ca/programs/ generalbusiness/battlelines. html 21 Casselman, 2004 http://www. opseu. org/news/Press2004/june292004. htm 22 Nathan, 2000 http://www. lib. uwo. ca/programs/generalbusiness/battlelines. html 23 Bowe, 2010 http://www. thebarrieexaminer. com/ArticleDisplay. aspx?e= 2706829&archive= true

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 63

The Prison Industrial Complex

when 100 inmates removed concrete slabs from the shower privacy walls, wrapped the

blocks in bed sheets and smashed through steel doors with their homemade wrecking

balls in a bid to escape. No one was injured but substantial damage was done to the

facility and the OPP had to be called in to quell the riot (Toronto Star, 2002). The

prisoners then,

went on a hunger strike, complaining about a lack of coats to go outside

in cold weather, the lack of heat in the building and having only one

blanket to ward off the chill, and getting only one packet of sugar with

their black coffee and cereal at breakfast. Although these issues sound

petty, they can seem enormous when you are spending time behind bars.

(OPSEU, 2001 24

)

The private company (MTC) addressed inmates’ complaints by going over,

to the Barrie Jail and t[aking] coats from them. MTC staff also helped

themselves to bulletproof vests, two property safes, and a Ministry van.

It’s not hard to figure out why MTC’s bid was so low, especially when it

appears that they can shop for free at public facilities. (OPSEU, 2001 25

)

The five years that the Penetanguishene prison ran produced a constant litany of

criticism from the inmates, staff, and the public, which included complaints about:

 Allowing inmate fights.

 Increased attacks on correctional officers due to lack of staff. One

correctional officer and retired police officer who was attacked stated

that, “There shouldn’t have been just the two of us. There should

have been probably four or five and this is the shortcoming of private

prisons. They’ve got to economize some way and there’s only so

many paper clips you can save. The only other area you can cut back

on is either meals or the officers on duty.” (The Mirror, 2005)

 Not keeping to the signed contract for the number of staff required

on duty or for escorting prisoners out of the facility (e. g. , going to

the hospital).

24 OPSEU, 2001

https://web. archive. org/web/20130612212358/http://www. opseu. org/ops/ministry/locktalk/locktalknov2

301. htm 25 OPSEU, 2001

https://web. archive. org/web/20130612212358/http://www. opseu. org/ops/ministry/locktalk/locktalknov2

301. htm

________________________________________________________________________

64 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

 A 66% turnover rate for correctional officers.

 Mistakenly setting free an inmate in March, 2002 (Toronto Star,

2002).

 Consistent computer problems which affected the opening and

closing of doors. During one altercation between inmates the crisis

team had to take the long way around to get to the site as the

computer that controlled the closest door was not working. This

delay resulted in an inmate losing an ear.

 The super-jail’s waste disposal did not have a mechanical grinder so

it became clogged from toothbrushes and latex gloves, resulting in a

sewer backup at the facility and a dangerously elevated bacteria level

(well over the legal limit) in the town’s own sewer system.

 Guards charged with selling drugs inside the facility.

 Increased presence of crack-cocaine in the city attributable to poorly

suppressed prison trade.

 Unsanitary working conditions.

 Not answering the phone at the facility and refusing to give any

personal urgent messages to inmates.

 Not giving proper medications or medical care to inmates.

Some of these criticisms could be attributed to the fact that Penetanguishene was being

very critically watched by those who wanted it to fail but prison management was very

secretive and threatened staff with dismissal if they spoke publicly of their complaints.

Dr. Martin McNamara, the head of ER at a nearby hospital that treated injured

Penetanguishene prisoners stated that “ You have to go through an incredible maze to

get answers” and complained that “ several cases of prisoners being lost in the cracks

resulted in a number of [medical] close calls the first 14 months the jail was open”

(Bowe, 2004 26

). Also,

Dr. McNamara says that patients coming to the hospital from the prison are

admitted far later than they should be, have received sometimes inappropriate

care, and are not receiving adequate follow up. He says he has seen almost no

26 Bowe, 2004 http://www. prisonjustice. ca/starkravenarticles/sr030504_4. html

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 65

The Prison Industrial Complex

improvements, even after several meetings with the prison administration and

the government. (Bowe, 2004 27

)

Ryan Skillen who went to the jail after having surgery on his hand stated that,

his time at Central North Correctional Centre (CNCC) was hell on earth,

and it wasn’t until he was transferred to Ontario Correctional Institute

(OCI) in Brampton that he began receiving the required treatment. To

compound the problem, Skillen says his bandages—which contained “ a

mangled mess” —were not changed as regularly as required. About six

days into his incarceration, a nurse removed bandages on his hand where

he had 78 stitches, revealing a swollen and infected wound. (Bowe,

2004 28

)

In August, 2003, another Penetanguishene inmate died “ a few weeks after receiving a

cut on his hand.” Six months earlier, Dr. McNamara had complained about inmates

coming to the emergency department screaming in agony because they had not received

proper treatment at the prison (Bowe, 2004).

In 2006, after the five-year trial period, Premier Dalton McGuinty passed legislation

converting Penetanguishene into a public institution, because,

a performance evaluation found that a public jail of equivalent size had

better security, prisoner health care, and reduced repeat offender rates.

The report comparing the two prisons found the private jail also used

fewer staff and ran fewer programs to help inmates. (CBCNews, 2006 29

)

Ontario’s experiment with privatization showed that private correctional facilities were

not a better option than publicly run facilities due to safety and health concerns and the

fact that private sites did not produce lower recidivism rates or financial savings for the

same services. The private facility cost less but the money it saved was due to having

less programs, services, and staff which affected safety.

27 Bowe, 2004 http://www. prisonjustice. ca/starkravenarticles/sr050104_3. html 28 Bowe, 2004 http://www. prisonjustice. ca/starkravenarticles/CNCCconditions1004. html 29 CBCNEWS, 2006 http://www. cbc. ca/news/canada/toronto/story/2006/11/10/private-jail. html

________________________________________________________________________

66 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

IN FOCUS

Privatization Experts were in Bed with Private Jail Operators

The ethics breaches that have occurred in US private prisons because of the money

involved have also occurred in Ontario with the Penetanguishene private prison

' experiment' . In 2003, it was discovered that the two American experts, Charles

Thomas and Mark Hodges, who worked on the contract for Ontario’s first private

prison were also getting paid from the private company who won the contract. This

information was only learned after the two men were fined in Florida for unrelated

ethical violations,

Critics say the revelations raise new questions about the basis for

Canada’s tentative foray into for-profit corrections. But company and

government officials say the pair had a minimal role here and deny there

was even a hint of impropriety. Charles Thomas, a retired University of

Florida professor, and Mark Hodges, former head of the state’s private

prisons commission, both had links to Management and Training Corp.

(MTC), the Utah-based business that eventually won the right to run

Ontario’s so-called super-jail.

“This angers me to think these two characters have links to our provincial

government and with MTC, the operator of the super-jail, ” said Sharon Dion,

a community activist who [wa]s opposed to the private operation of the super-

jail in her hometown of Penetanguishene, Ont. “How can we have an open and

honest comparison of private versus public if some researchers and consultants

have their hands so deep into privateers’ pockets?”

Partnering and Procurement (PPI) hired Mr. Hodges and Mr. Thomas because

they were two of North America’s leading experts on private corrections, said

Howard Grant, the Ottawa firm’s president. Like the pair’s other public-sector

clients and employers, PPI had no idea they also did work for private

companies, Mr. Grant said. “We were horrified when we first got the call

[about their Florida troubles], ” he said. “They were the experts and they were

speaking everywhere. . . . Our assumption was that they had no conflict issues. ”

Mr. Thomas ran a respected research project on prison privatization and did

work for the commission that also regulated Florida’s private jails. He and Mr.

Hodges, who was executive director of the private prisons commission, sold

their expertise to several states and provinces.

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 67

The Prison Industrial Complex

At the same time, though, Mr. Thomas was receiving millions of dollars from

the corrections companies in consulting fees and donations to his research

project. The ethics commission fined him US$20, 000. It fined Mr. Hodges

US$10, 000. Among other transgressions, he was chastised for the way he

reported a trip he and his wife took to an MTC board meeting in Hawaii in

May, 1997. Just a month before that Hawaiian voyage, he and Mr. Thomas

had completed their contract with the Ontario government. In Hawaii, weeks

later, Mr. Hodges would talk about strategies MTC could follow in bidding on

such contracts. (National Post, 2003)

The practice of acting unethically and working both sides of the equation (i. e. ,

working for governments who are looking for help in developing private prisons whilst

working for private prison companies) is not likely to stop as the monetary punishment

was immensely incomparable to the amount the pair was paid by the private prison

company. ($20, 000 vs. Millions)

Despite the end of the privatization experiment, Warren Thomas, president of the

Ontario Public Service Employees Union (OPSEU) complained that many of the

problems that occurred at Penetanguishene were still occurring at the now public

facility 2 years later. Thomas called it the “ lingering stench of privatization” and

believed it was due to a “ mindset at the prison [that] was still worrying about the

bottom line” because managers had remained the same when the prison switched from

private to public (Bowe, 2008 30

).

The loss of the Penetang contract did not seem to unduly upset the MTC. Possibly this

was due to MTC executive Lane McCotter being given the lucrative job of acting as

one of four civilian advisers to oversee the reconstitution of Iraqi prisons after the US

invasion in 2003. McCotter, a former director of the Utah Department of Corrections

lead a criminal justice reconstruction team, under the direction of the United States

Justice Department which “ reviewed the entire Iraqi criminal justice system, supervised

reconstruction of the prisons, and trained Iraqi citizens to work in the prisons, including

the one at Abu Ghraib 31

” (Wikipedia).

30 Bowe, 2008 http://www. thebarrieexaminer. com/ArticleDisplay. aspx?e= 1128971&archive= true 31 Abu Ghraib http://en. wikipedia. org/wiki/Abu_Ghraib_torture_and_prisoner_abuse

________________________________________________________________________

68 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

Despite the failure of Penetang, Conservative politicians still appear dedicated to

bringing American-style privatized jails into Canada. As the 2007 article Privatization—

Harper Conservatives quietly eye options 32

notes:

Although Stephen Harper has been careful not to mention the word,

privatization appears to be quietly making its way onto the government

agenda.

A federal review of prisons is being carried out by Rob Sampson, who,

as a Mike Harris Ontario cabinet minister, was the chief architect of the

province’s short-lived experiment with private prisons and ' boot camps' .

Sampson served under Harris as privatization and then as correctional

services minister.

Sampson supported numerous privatization initiatives, including the

controversial privatization of Highway 407 on an ironclad 99-year lease.

He promoted the privatization of Ontario’s prison system despite

warnings, later substantiated by studies, that this could result in

decreased safety.

In April, federal public safety minister Stockwell Day set up a panel

headed by Sampson to review the operations of the federal prison system

and report back October 31. Although Day said, “ the question of

privatization is not on the table, ” when he appointed Sampson, it is hard

not to wonder about the panel’s biases.

Panelists include Sharon Rosenfeldt, co-founder of a group called

Victims of Violence; Serge Gascon, a former Montréal police

investigator; and Ian Glen, a former National Parole Board chairman.

Day proposes a “ Canadian solution” to federal prison problems, which is

likely to include a big increase in the prison population that the

Conservatives appear likely to create as with their tough approach to

criminal justice.

The same article notes that the panel’s ' tough on crime' recommendations could lead to

“ privatization by the back door.” As John Howard Society executive director Craig

Jones comments on the Conservative proposal to eliminate statutory release where

convicts serve the final third of their sentence in the community under conditions

similar to parole,

32 Privatization—Harper Conservatives… http://www. harperindex. ca/ViewArticle. cfm?Ref= 0067

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 69

The Prison Industrial Complex

[This] would bring about a surge in the prison population of about 50

percent […] You could construct a scenario where you bring in private

prisons through the back door because of emergency needs of housing a

sudden surge in the prison population.

Super-jails

Super-jails (or mega-jails) are large regional correctional facilities meant to warehouse

a large number of local and non-local inmates (of varying security classifications)

instead of placing them in multiple smaller facilities. Super-jails can be built from

scratch, produced by adding wings to pre-existing jails, or created by placing more

inmates into a jail through double-bunking or turning recreational areas and other

rooms into bed ranges.

Proponents for super-jails claim that one larger facility costs less than running 2 or 3

smaller jails. For example, in closing jails in Walkerton and Owen Sound in 2011 the

provincial government estimated that the cost for keeping inmates would be halved

from $300 to $124 per day. Critics of super-jails point to a variety of problems (The

Canadian Press, 2011 33

):

 Cost savings do not include any extra costs for the extra staff and

police needed for transporting prisoners or for keeping prisoners

overnight in outside communities in the case of bad weather.

 Prisoners will spend far more time traveling as their court

appearances will still be locally based.

 Family and friends need to travel further to the facilities increasing

their travel costs and lessening visits that keep prisoners in contact

with the outside world.

 Jail closures take jobs out of smaller communities and produce few

new jobs.

 Safety is compromised because of the overcrowding of prisoners and

reduction in staff ratios.

33 The Canadian Press, 2011

http://www. cp24. com/servlet/an/local/CTVNews/20110531/110531_superjail_critics/20110531/?hub= C

P24Home

________________________________________________________________________

70 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

The creation of super-jails by simply centralizing inmates from a surrounding region

into a pre-existing jail is widely disliked by inmates and staff due to overcrowding. A

2011 ' prisoner strike' in Collins Bay was due to inmates being tired of the stresses

created by double-bunking. Inmates refused to report to their correctional jobs because

of the increased tension and violence as cellmates can’t get along, forcing some inmates

to ask for protective segregation. That’s a dramatic step for an inmate to take, since

“ checking into seg, ” as its known, causes a permanent stain on a con’s reputation

(CanCrime, 2011).

Such double-bunking also caused a lack of resources for prisoners and inmates at the

facility, such as a lack of showers, washers, dryers, telephones, jobs, and programs. As

of 2011 nearly 10% of federal inmates were double-bunked and this number was set to

rise as Corrections Canada changed their rules in 2010 to allow for more double-

bunking to alleviate the need for more prisons.

Correctional Officers in the Canadian Prison Industrial Complex

The drive to create super-jails and private prisons shares its origin with the goal of

cutting down prison costs by reducing the numbers and/or salaries of corrections

personnel, so it is easy to understand why neither initiative has been warmly welcomed

by Canadian correctional officers or their union. The Ontario Public Service Employees

Union (OPSEU), which represents provincial correctional officers, has been a strong

critic of such solutions for placing profit above the safety of both correctional officers

and prisoners. OPSEU rejects the arguments that cameras and better lines of sight in

new prisons can substantially lower staff to prisoner ratio without creating a more

dangerous environment.

When the Roy McMurtry Youth Centre super-jail opened in 2009, complaints about

violence from prisoners and correctional officers started after only a few weeks of

being open and quickly the number of complaints increased to about 20 a week. The

super-jail facility was supposed to have about 200 full-time staff but was only able to

hire 166 because of money constraints leaving ' stressed-out' contract workers to make

up the difference. Bruce England, a youth services officer at the facility and president

of OPSEU Local 290, believed that Youth Centre was “unsafe not just for detainees but

frontline workers” and did not have “ enough staff to supervise the youths, let alone

oversee programming. ” England has personally seen three contract workers quit in the

middle of their shifts.

The secure nature of unionized jobs also makes Ontario correctional staff more willing

to complain about unsafe job conditions than their non-unionized counterparts. For

example, when a set of keys was lost at the Central East Correctional Centre super-jail

______________________________________________________________________________________

MODULE FIVE Correctional Institutions: 71

The Prison Industrial Complex

in 2010, Clark Moss, president of OPSEU Local 368 was not afraid to rebuke claims

by the Ministry of Community Safety and Correctional Services that the situation was

remedied.

Moss said the keys went missing Nov. 9, a Tuesday. Staff didn’t find out

about the incident until Nov. 12, a Friday. That only happened because

of the rumour mill, he said. A spokesman for the ministry told The

Examiner Tuesday the locks in question were re-keyed, making the lost

keys useless. Moss said that hasn’t happened yet. A metal piece has been

placed over part of some of the locks, so the keyhole can’t be accessed.

The concern isn’t just that the keys are in the hands of inmates, he said,

but that they could be made into weapons. Not only were guards not told

about the loss, he said, but at no point was a search of the facility done

in order to find them, and they’re still missing.

Moss said the facility has violated its own policies, cutting corners at the

expense of front-line workers responsible for keeping law and order in

one of the province’s biggest jails. The super-jail has 1, 200 beds. Last

year, Moss said, 56, 000 people were processed there. It houses everyone

from impaired drivers who have to spend a weekend in the clink to gang

leaders, murderers, and suspected terrorists.

Correctional officers are expected to be professional at all times, he said,

while inmates can act like criminals. They can be untrustworthy and

expected to be fashioning weapons, he said, and it’s expected that they’re

watching guards at all times. Correctional officers aren’t outfitted with

weapons, Moss said. They’re given a radio, and a pen and notepad, and

have to rely on institutional policies to keep them safe.

Correctional officers are often a forgotten element of the justice system,

Moss said. Money is dumped into courts, legislation is passed, and

police make more arrests. “ But where do you think they go?” Moss

asked. Morale is down at the super-jail, he said, and the mental and

emotional stress is taking its toll on officers. Most people don’t

understand how difficult it is to work with criminals each day, he said.

(Deeth, 2010 34

)

34 Deeth, 2010 http://www. thepost. ca/ArticleDisplay. aspx?archive= true&e= 2857449

________________________________________________________________________

72 Correctional Institutions: MODULE FIVE

The Prison Industrial Complex

The difficult job experience of “ work[ing] with criminals each day” has made some

OPSEU members into advocates of rehabilitation. In 2004 OPSEU president Leah

Casselman, a former youth correctional officer, stated that,

While we applaud the decision to build a new public facility, we question

the super-jail concept. [Premier Dalton McGuinty] still needs to

recognize that large “ super-jails” are not the answer. When the Liberals

were in opposition, they said that removing offenders from family and

community support would make rehabilitation more difficult.

(Casselman, 2004 35

)

Not all unions oppose super-jails as constructing new jails means more correctional jobs

and therefore more union dues and political power. In the US, the California

Correctional Peace Officers Association supports both the push for super-prisons 36

and

tough-on-crime legislation but their president Don Novey, vows to fight hard against

the private-prison companies anti-union tactics. “They can build whatever prisons they

want, ” Novey says, “ but the hell if they’re going to run them. ”

35 Casselman, 2004 http://www. opseu. org/news/Press2004/june292004. htm 36 Push for super-prisons http://www. theatlantic. com/magazine/archive/1998/12/the-prison-industrial-

complex/4669/9/

SOCI 2087 Module 6.pdf

______________________________________________________________________________________

MODULE SIX Correctional Institutions: 1

Inside the Walls

MODULE SIX CORRECTIONAL

INSTITUTIONS: INSIDE THE

WALLS

SECTION 6. 1: Cultural Aspects of Incarceration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Explains the cultural aspects of incarceration including the degradation ceremony, pains

of imprisonment, the inmate code, social types, and provides two explanations for the

formation of the cultural environment found in correctional institutes.

SECTION 6. 2: Female Incarceration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Describes the inmate society, social roles, and problems within women’s correctional

institutions.

SECTION 6. 3: Sexual Abuse in Correctional Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Examines the problem of sexual abuse in correctional facilities.

Online Resources

You will be prompted to read the following online readings as you work through this

module:

Prisons poisoning natives

http://www. thestar. com/specialsections/crime/article/460763--prisons-

poisoning-natives

________________________________________________________________________

2 Correctional Institutions: MODULE SIX

Inside the Walls

You will be prompted to watch the following online videos as you work through this

module:

Behind bars in San Quentin

https://archive. org/details/BehindBarsInSanQuentin-LouisTheroux

Miami Mega Jail

Part 1

https://www. youtube. com/watch?v= hze-hyKiVHg

Part 2

https://www. youtube. com/watch?v= F24jLf74xJQ

Jail in Columbia

http://video. google. com/videoplay?docid= -5954040311510225978#

______________________________________________________________________________________

MODULE SIX Correctional Institutions: 3

Inside the Walls

SECTION 6. 1: CULTURAL ASPECTS OF INCARCERATION

Skip Donahue: You know, people see movies about prison life but until

you’ve actually spent a little time here it’s hard to get the real flavor of. . .

of what it’s like. I think more Americans should spend time behind bars

so they would understand.

Defense Lawyer: Well, more Americans probably will. (Stir Crazy,

1980 movie)

Among nation-states that no longer torture or kill their criminals, incarceration is the

strongest sanction the legal system can proscribe for a convicted individual. Smith

(1992) describes the penalty of incarceration in blunt terms:

The society has stated that the offender is unfit to live with others. The

offender cannot be trusted to behave properly and has been told in official

terms, that society demands he/she be caged and controlled.

The primary purpose of this penalty is not to protect against any future predations by

criminals—or there would be no need to isolate people who commit ' victimless crimes'

like drug-use and gambling—but to remove ' unfit' citizens from the general population.

Such rejection and segregation is a form of ostracization which is always a humiliating

experience.

Sociological studies have proposed that the entire process of incarceration serves as a

status degradation ceremony to further the core humiliation of ostracization and when

a convicted person enters a correctional institution, a series of events occurs to strip

them of their previous social status and self-identity and replace it with the degraded

status of convict. The ceremony begins with stripping individuals of their prior (and in

the legal system’s judgment) defective self-concept. This process is similar to the

process of military ' boot camps' :

 fingerprinting; photographing; internal inspections;

 forced haircut; shaving;

 allocation of a institutional number;

 being stripped;

 removal of civilian clothing; mandatory uniform;

________________________________________________________________________

4 Correctional Institutions: MODULE SIX

Inside the Walls

 being subjected to taunts and threats.

Such procedures often serve dual purposes. For example, strip and body cavity

searches are necessary to detect smuggled contraband but they can also be used

punitively to humiliate people who have not even been convicted of a crime. The high-

rates 1 of strip-searches done by Toronto police on impaired drivers has prompted some

critics to wonder if the purpose is not safety but humiliation (Yelaja, 2011).

Jail Hazing

Some of the worst initiatory humiliations like violent hazing rituals are not conducted

by correctional staff, but by other inmates - though such rituals often happen with the

complicity of staff. These hazing rituals are often a problem in jails rather than prisons

because of the transient and homogenous nature of jail populations who are usually

awaiting trial or serving short sentences. Super-jails have proven especially dangerous

in this regard. In one Miami super-jail it was expected that new inmates would have to

fight to determine rank and bunks when entering a new cell block (Louis Theroux,

2011).

A similar situation was reported in Brampton’s 192-bed, ' state-of-the-art' youth super-

jail, where teenagers awaiting trial claimed they were beaten in hazing rituals that

correctional officers turned a blind eye to.

A Toronto teen arrived at the Jarvis Street youth court last month with

black eyes, bloodied clothing, and abrasions on his swollen head—an

alarming testament to the escalating violence inside Ontario’s new super-

jail for kids. The slight 17-year-old says he was brutalized regularly by

fellow inmates throughout the 13 days he spent at the Roy McMurtry

Youth Centre in Brampton awaiting a bail hearing.

“ From what we understand, nothing was done to prevent or stop the

attacks, ” his attorney Veronique Henry told the Toronto Star.

“ When they come in with injuries like my client did … you can’t say this

child is crying wolf. ” (Torstar News Service, 2009)

The extent of the violence can be seen in the fact that an ambulance was dispatched to

the super-jail eight times within a six-month period, suggesting injuries so severe they

could not be treated at the jail’s medical unit. Over 250 formal complaints with the 1 high rates http://www. cbc. ca/news/canada/story/2011/08/18/strip-searches. html

______________________________________________________________________________________

MODULE SIX Correctional Institutions: 5

Inside the Walls

Ontario Children and Youth Advocate have been lodged by 160 youths at the Brampton

facility including: being deprived of medication, being locked in isolation for days

wearing only boxer shorts, and being subject to excessive use of force by staff. Like

most jail populations these detainees have not been convicted of the anything but are

awaiting a bail hearing or trial. The union for youth services officers blames

insufficient staffing at the institution. The stiuation is so bad that the head of New

York’s Vera Institute of Justice (a non-profit national research and policy organization),

Christopher Stone (1998), believes that super-jails have become “ factories for crime, ”

The average inmate in the United States spends only two years in prison.

What happens during that time behind bars may affect how he or she will

behave upon release. The lesson being taught in most American prisons—

where violence, extortion, and rape have long been routine—is that the

strong will always rule the weak. Inmates who display the slightest hint of

vulnerability quickly become prey.

Stages of Transformation

Once bureaucratic and inmate-led initiations are over, a new inmate has entered the

world of the correctional institution where they will serve out their sentence. According

to Sykes (1958) the inmate must now cope with the collection of deprivations that

constitute incarceration. The degree to which the inmate can cope with these

degradations plays a large role in determining if they find themselves in conflict with

staff and other inmates, or in danger of self-injury, mental breakdown, or suicide.

This transformation from a persons’ previous identity to that of prisoner can be

difficult. The total loss of their socialization network combined with a radical re-

evaluation of their own self-worth can trigger a process in some inmates that resembles

the tradition 5 stages of grief documented in the Kübler-Ross model 2 : denial, anger,

bargaining, depression, and acceptance. Yet in this instance it is not the death of

another person that is being mourned but the loss of a prisoner’s former identity. The

following quotes illustrate this grieving process (Jose-Kampfner, 1991):

 Denial

Inmate C: When you first get here [to the prison], you think like a free person.

You still remember the smell of fresh brewed coffee in the mornings,

the smell of flowers. You feel like a free person. I was in a state of

shock for several months. I did not believe I was in prison.

2 Kübler-Ross model http://en. wikipedia. org/wiki/K%C3%BCbler-Ross_model

________________________________________________________________________

6 Correctional Institutions: MODULE SIX

Inside the Walls

Inmate D: At the beginning, I used to fantasize all the time. I kept thinking I was

not in prison, and that prison was my house with my parents and

sisters. Later on, I realized that it was a fucking dream, and I stopped

dreaming.

 Anger

Inmate F: I was angry like hell when it hit me I was in prison. I was mainly

angry at God for allowing this to happen to me. Angry at my family

that didn’t come to see me. I hated to be in this place. I still hate it,

although now it is different. I hate it, but I do not fight it anymore.

Inmate K: When I realized I was here to stay, I became very angry. I hate the

feeling. You feel powerless. I want to keep some dignity, so I learn to

be sneaky.

 Bargaining

Inmate H: I begged God, the staff, my cellmates, anyone one who would listen to

help me get out. I promised to give up drugs, change my life, start a

family, get a real job, become a Christian—anything—if I could just

get out. But nothing. I remember just laughing and laughing when I

finally admitted to myself that all those promises were lies.

 Depression

Inmate M: When it hit me that I was really in prison, and I was going to be there

for a long time, I was pretty depressed. I wanted to sleep all the time. I

wanted to escape my pain.

Inmate Q: I have mourned when major events in the family at home took place,

and I could not be there: the weddings of my brother and sisters, the

births of their children, big Christmas parties and special events,

graduations, and birthdays. Life goes on, and where am I? Stashed

away in an institution full of poor and lonely women.

______________________________________________________________________________________

MODULE SIX Correctional Institutions: 7

Inside the Walls

 Acceptance

Inmate U: Finally, you realize you’re sentenced to life, and you’re going to be

here permanently. There’s NO EXIT. You have to face reality and

accept that this has happened to you and that’s the way it is. So you

make a life for yourself in here—you do the best you can in a bad

situation. I have people here I love and, after so many years, we are

like family. I don’t deal with the outside, but it still affects my

everyday.

What I really mourn for are the family members who have suffered by

my hand: my family and the families of my victims.

Inmate C: Without hope, I could not survive. Hope keeps me alive in the worst of

circumstances. Hope to me is a creative, spiritual power that enables

me to thrive in the sewer. Without the belief we will one day be free,

we would be unable to endure the excruciating pain of being buried

alive, and we would die. When people lose hope in here, they kill

themselves.

Zombies and Robots

The primary purpose of modern correctional facilities in this era is warehousing

inmates for long stretches of time—sometimes whole lifetimes.

The jail is not trying to cure persons or engage them in any complex

enterprises. What is needed and wanted in a jail are prisoners who will

wait obediently wherever they are placed. Generally the method used to

convert free adults into this compliant and passive state is to give

commands—either short and polite orders or shouted threats—and to

back them up by applying whatever force is required to immobilize a

person. (Charon, 1999)

In such warehouses the twin pressures of boredom and obedience become large

psychological stressors for inmates to cope with.

Goffman (1961) describes the purpose of incarceration as one of mortification and

many inmate memoirs have echoed this in their descriptions of imprisonment in terms

of living death, being zombified, petrifaction (turning into stone), or general feelings of

a denser, slower existence. Inmates often learn to cope with boredom in a variety of

familiar but unproductive methods: habitual masturbation, watching television, using

any available drugs, dark rumination, and making small talk.

________________________________________________________________________

8 Correctional Institutions: MODULE SIX

Inside the Walls

A key aspect of boredom is the lack of autonomy prisoners have in directing their lives.

Part of this lack of choice is due to the needs of correctional officers to handle large

numbers of prisoners in an efficient and safe manner but it is also one of the

deprivations that constitute the pains of imprisonment as the prisoner sentence is “ a

statement to the offender that the society has rejected the person and has found that this

person is incompetent to handle even the simplest of decisions” (Smith, 1992). The

inability of the offender to make even the simplest of decisions is a constant source of

humiliation for the offender as it reduces them to a child-like status.

The overall pointlessness of warehousing and the infantilization of inmates are accepted

by both prison reformers,

Clearly, one of the major problems of inmates is irresponsibility. If

irresponsibility is the problem, then the society “ should make them

accountable. Locking up a slob makes them irresponsible and society

becomes totally accountable for every aspect of their lives. We totally

take over their obligations… We make freeloaders out of a freeloader. ”

(Chaleen, 1986)

and the inmates themselves:

Look, in here being a model prisoner means turning yourself into some

kind of semi-robot. But how do you undo it when you get outside?

(Swift, 1996)

It is also accepted that the combination of warehousing and degradation of incarceration

does little to prevent future criminal behaviour. As Smith (1992) writes:

The lack of freedom, autonomy, services, and goods, and the demeaning

treatment can lead to resentment and is sometimes later used to justify

crime. Either an offender will internalize the humiliation and accept the

shame showered upon him/her, resulting in a loss of self-worth and self

esteem, or the offender will seek to neutralize the degradation and shame

by applying certain techniques which will tend to justify the offending

behaviour. In either case, the result is a greater likelihood that the

offender will again offend against the society. (Smith, 1992)

______________________________________________________________________________________

MODULE SIX Correctional Institutions: 9

Inside the Walls

Prison Resistance

As would be expected many prisoners resist their status degradation and the pains of

imprisonment through both passive and active acts. Common methods of resistance

include (Ross, 2009):

 Passive aggressive behaviour. Such as pretending not to hear orders,

performing the task really slow or completing the order poorly;

 Monkey-wrenching. Unconsciously or purposefully breaking equipment or

defacing property to express frustration;

 Insubordination. Refusing to follow a direct order which usually incites

punishment from correctional officers;

 Degrading correctional staff through insults, masturbating in their presence,

smearing faeces, or assaulting them with bodily fluids (spitting or ' gassing' );

 Self injury—including any way an inmate finds to hurt/kill themselves

whether attempting escape, cutting or self-suffocation, or hunger strikes.

Such injuries can serve to “ demonstrate that the inmate, not the correctional

facility, has ultimate control over a person’s life. ” (Ross, 2009)

Resistance is usually met with increasing punishment from correctional officers and can

lead to escalating ' dominance fights' as inmates and staff become more aggressive in

their battle for control in the process of status degradation. The details of the Ashley

Smith case, as reported in Module Five, illustrate this common dynamic.

The ultimate form of resistance is prison riots or strikes, where prisoners collectively

refuse to obey correctional authorities. Many riots act as violent ' release valves' for

inmate stresses and tension and usually result in property damage and inmates

assaulting each other. Yet two such uprisings, at the Kengir Soviet labour camp and the

Attica Correctional Facility in New York, have become symbols of the resiliency of

human spirit in the face of crushing degradation.

________________________________________________________________________

10 Correctional Institutions: MODULE SIX

Inside the Walls

Prison Uprisings—Kengir and Attica

The Kengir uprising of 1954 occurred at a Soviet prison labour camp in Kazakhstan

where “ after the murder of some of their fellow prisoners by guards, Kengir inmates

launched a rebellion and proceeded to seize the entire camp compound, holding it for

weeks and creating a period of freedom for themselves unique in the history of the

Gulag” (Wikipedia). The unique features of the uprising include:

 a large, relatively complex propaganda campaign against prison authorities

before the uprising;

 a rare alliance between the criminal offenders and political prisoners;

 democratic formation of a provisional government;

 the creation of indigenous religious ceremonies, including prisoner

marriages;

 an explosion of inmate art and culture.

The alliance of political offenders and street offenders is one of the most unique

features of this uprising because traditionally common offenders “ exercise virtually

unchecked dominance over the politicals, robbing and abusing them at will” and Soviet

camp officials attempted to use this antagonism to their advantage requesting an

“ infusion of roughly 650 thieves into the roughly 8, 000-strong body of political

prisoners at Kengir . . . as an effective means of suppressing the politicals and preventing

them from uniting in a common cause” (Wikipedia).

The Soviet guards were having difficult controlling the political prisoners at Kengir

because they were not only united by ideology but also ethnicity, as the main block of

political prisoners were fierce Ukraine nationalists. The Ukrainian inmates set up a

regime of large-scale resistance including: a systematic policy of murdering informers,

a production line for producing improvised weapons, and a camp-wide command

hierarchy. When the 650 street offenders were imported to disrupt this organized

resistance, they instead were invited to a secret meeting by the Ukrainians and signed a

pact to join forces leading to the uprising.

The 1971 American uprising at Attica Correctional Facility in New York also saw a

similar alliance between political prisoners and street offenders. The uprising was a

response to a situation of massive overcrowding aggravated by the systemic racism of

white guards from small towns in upstate New York against prisoners who were mostly

urban African-Americans and Puerto Ricans (Thompson, 2011), but the spark was the

______________________________________________________________________________________

MODULE SIX Correctional Institutions: 11

Inside the Walls

news of the death of black radical prisoner George Jackson 3 killed during an escape

attempt from California’s San Quentin Prison.

On September 9, 1971, 1, 000 of the prison’s approximately 2, 200 inmates revolted and

seized control of the prison, taking 42 officers and civilians hostage and demanding that

a list of grievances be met before they would surrender.

Over five days, Americans sat glued to their televisions as this uprising

unfolded. They watched in surprise as inmates elected representatives

from each cellblock to negotiate on their behalf. They watched in

disbelief as these same inmates protected the guards and civilian

employees they had taken hostage. (Thompson, 2011)

The lack of atrocities performed on captured guards created a wave of public sympathy

toward the uprising. In response, the government and police waged a disinformation

campaign in the media falsely claiming that hostages had been castrated and had their

throats slit. Not only were such claims proven false but later court trials documented

that Muslim prisoners not only initially protected correctional officers from prisoner

retaliation, but were ready to die protecting them. Michael Smith, one of the

correctional officers held hostage has stated, “ I can recall hearing one of the Muslim

leaders instructing one of their men that if anyone tries to break through their Muslim

perimeter to kill or die protecting the hostages” (Al Jundi v. Mancusi, 2000).

After five days of progressing negotiations New York Governor Rockefeller authorized

an army of correctional officers, state police, and helicopters to violently retake the

prison resulting in thirty-nine men shot dead - twenty-nine prisoners and ten hostages

dead - every one of them killed by the incoming bullets of state forces. The Soviet re-

taking of Kergin had been even worse with an estimated five to seven hundred prisoners

killed.

American authorities eager to cover-up the slaughter and subsequent physical torture of

the survivors again used media-propagated disinformation about prisoner atrocities to

create a firestorm of negative media coverage that “ would reset the imagination of a

generation” (Thompson, 2011). As Heather Ann Thompson puts it:

We have all paid a very high price for the state’s lies and half-truths and

its refusal to investigate and prosecute its own. The portrayal of

prisoners as incorrigible animals contributed to a distrust of prisoners;

the erosion of hard-won prison reforms; and the modern era of mass

incarceration.

3 George Jackson http://en. wikipedia. org/wiki/George_Jackson_%28Black_Panther%29

________________________________________________________________________

12 Correctional Institutions: MODULE SIX

Inside the Walls

As America begins to rethink the wisdom of mass imprisonment, Attica

reminds us that prisoners are in fact human beings who will struggle

mightily when they are too long oppressed. It shows as well that we all

suffer when the state overreacts to cries for reform.

The Inmate Society

Correctional institutions in Canada have a large degree of autonomy from the other

components of the justice system and so the majority of Canadian jails and prisons are

perceived as alien places cut off from the rest of society. Goffman (1961) refers to

prisons as a total institution, which he defines as:

a place of residence and work where a large number of life-situated

individuals, cut off from the wider society for an appreciable period of

time, together, lead an enclosed, formally administered round of life.

In such isolation, inmates find themselves in a new world which has its own social

system, an unwritten code of conduct, various social roles, and a special language (an

argot) referred to as the inmate subculture. This subculture is passed on from one

generation of inmates to another and represents the values of all interpersonal

interactions within the institution.

One of the earliest and best known studies of inmate subcultures is the work of

Clemmer (1940). According to Clemmer, the convict code is the fundamental form of

social control among inmates and he called the process by which a new inmate is

assimilated to inmate subculture as “ prisonization. ” Clemmer’s research suggested that

those inmates who become the least prisonized will be the most likely to reform on the

outside.

Sykes and Messinger (1960) developed Clemmer’s idea and found that the most

important subculture rules of the post-World War Two era were:

 Don’t lose your head. Inmates are also cautioned to refrain from arguing,

[quarrelling, or engaging in] other emotional displays with fellow inmates.

The novice may hear such warnings as “ Play it cool” and “ Do your own

time. ”

 Don’t exploit inmates. Prisoners are warned not to take advantage of one

another expressed in phrases such as “ Don’t steal from cons, ” “Don’t welsh

on a debt, ” “ Be right. ”

______________________________________________________________________________________

MODULE SIX Correctional Institutions: 13

Inside the Walls

 Inmates are cautioned to be tough and to not lose their dignity. While rule

number two forbids conflict, once it starts, an inmate must be prepared to

deal with it effectively and thoroughly. Maxims include “Don’t cop out, ”

“ Don’t weaken, ” “ Be tough; be a man. ”

 Don’t be a sucker. Inmates are cautioned not to make fools of themselves

and support the guards or prison administration over interests of the inmates.

“ Be sharp. ”

 Don’t interfere with other inmates’ interests. Expressed in such maxims as

“ Don’t be nosy, ” “ Don’t have a loose lip, ” “ Keep off [the other inmates’

backs], ” and “ Don’t put [another inmate] on the spot. ” The goal was to

create an environment where everyone served the least amount of time in the

greatest possible comfort.

 Don’t snitch. For example, inmates are warned never [to betray another]

inmate to authorities [in other words, ] grievances must be handled

personally.

Dennis Cooley (1992) points out that, according to Sykes and Messinger, “ the greater

the number of prisoners who adopted the inmate code, the greater the stability of the

population and, therefore, the less potential for violence” but in his own interviews

conducted on 117 inmates from five prisons during the 1980s, this traditional inmate

code did not appear. What did appear, according to Cooley, was “ a set of informal

rules of social control that include both the traditional themes and new ones [but]

adherence to these informal rules does not necessarily bring cohesion and less

violence. ”

The four most frequently mentioned categories of the informal rules of social control

found by Cooley (1992) were:

1. Do your own time

This set of rules defines the public and private realms of prison life, recognizing

that mobility and anonymity in prison are restricted. It includes such rules as:

“ Don’t rat, ” “ Keep your nose out of others’ business, ” and “Don’t look in

somebody’s house. ”

________________________________________________________________________

14 Correctional Institutions: MODULE SIX

Inside the Walls

2. Avoid the prison economy

This category of rules warns prisoners of the consequences of doing business in

the informal prison economy. Cigarettes or drugs “ taken on the cuff” carry high

interest rates. Negotiation may be the first recourse for unpaid debts, but physical

assault or getting “ rolled off the range” (a form of punishment handed by inmates

to fellow inmates who break the informal rules) are common methods of sending

the message that unpaid debts are not tolerated.

3. Don’t trust anyone

This group of rules, which cautions prisoners to be wary of those with whom they

associate, is a consequence of the existing informant system run by prison

administrators. The fewer people to whom a prisoner divulges personal

information, the better.

4. Show respect

This set of rules prescribes how prisoners should interact during their daily

activities (“ don’t interrupt, ” “ keep the noise down” ).

Cooley notes that such rules—don’t ask for help, don’t engage in commerce, don’t trust

strangers—define proper behaviour, minimizing inmate friction, but they also alienate

prisoners by closing off lines of communication, pushing the population toward

atomization. This may be a sensible response in a prison but it also can create an

environment of distrust and alienation.

For example, if you cannot trust anyone, then nobody will lend anything, but if nothing

is lent then a black-market will emerge to fulfil those needs. Yet if the prison economy

is too predatory then stealing is the only recourse which then breeds further distrust

among prisoners. Similarly, rules discouraging seeking outside assistance promote

prisoners severing ties with others to avoid putting themselves in a position where their

safety may be jeopardized. The use of physical violence to enforce the rules further

alienates prisoners. As Kevin Marron’s 1996 exposé of Canadian prisons documents,

subculture rules are remembered long after a prisoner is released,

Prison teaches you to be selfish and suspicious of other people. Helen, a former

inmate at the prison for women, realized this change in herself when a

neighbour knocked at her door asking if she could spare some milk. Now she

was asking herself: “ What’s in it for me? What’s her angle? Is she trying to con

me?” One has to ask such questions in prison, because people are continually

______________________________________________________________________________________

MODULE SIX Correctional Institutions: 15

Inside the Walls

trying to con one another and it is dangerous to be perceived as an easy mark.

(Marron, 1996)

Take time now to go online and watch Louis Theroux’s BBC

documentaries Life behind bars (at San Quentin Prison) and Miami Mega

Jail to hear US prisoners speak about the code (of conduct), how they

have to act in prison and see the type of injuries meted out in cell

initiation rituals and for prisoner code violations. It is important to

remember that in Miami Mega Jail the prisoners we meet are awaiting

trial and have not yet been sentenced and as they repeat throughout “ are

innocent until they are found guilty. ”

Behind bars

https://archive. org/details/BehindBarsInSanQuentin-LouisTheroux

Miami Mega Jail

Part 1

https://www. youtube. com/watch?v= hze-hyKiVHg

Part 2

https://www. youtube. com/watch?v= F24jLf74xJQ

Social Types

Cooley (1992) also identifies a system of male ' social types' in the subculture with each

social type representing a pattern of compliance or deviance from the prison code.

1. Gorillas

The gorilla is someone who exploits other inmates by taking their possessions by

threatening or using violence. He preys on the weaker inmates, and, in most cases,

the victims will give in rather than fight.

2. Merchants

The merchant is an inmate who does not share scarce goods but exploits other

inmates by selling scarce goods at high prices. Other inmates call anyone who

violates the inmate code of “ don’t exploit other inmates” a merchant or a peddler,

and they are despised as a consequence.

________________________________________________________________________

16 Correctional Institutions: MODULE SIX

Inside the Walls

3. Real Man

The real man exemplifies compliance with the code—he is able to take it—he has

strength. He is usually aloof: “ the real man regains his autonomy, in a sense, by

denying the custodians’ power to strip him of his ability to control himself” (Sykes

1958).

4. Rats (a. k. a. Snitches)

The rat is an inmate who informs on a fellow inmate to the correctional staff. Sykes

states that there are two types of ratters. The first is the inmate who rats and

identifies himself to the correctional officers in the hope that he will receive better

treatment for his information. The second is the rat who prefers to remain

anonymous. This is usually the act of an inmate who wishes to get rid of another

inmate whom he perceives as a threat or whom he is threatening.

5. The Ball Buster

This term covers those inmates who challenge authority at every turn, and who

refuse to accept their loss of autonomy. This type of behaviour may not win the

admiration of other inmates because such rebellious behaviour upsets those in

authority, so everyone suffers as a result.

Other prisoner social types include the ' jailhouse lawyer' and ' jailhouse preacher' who

uses their spare-time to start reading the often revered, but rarely read, Criminal Code

and Bible. The passion of some jailhouse lawyers extends beyond their prison sentences

and some prisoners have been able to wed their personal experiences of the system with

formal academic training to become lawyers or criminologists. This fact is reflected in

the burgeoning school of Convict Criminology which “represents the work of convicts

or ex-convicts who are in possession of a PhD or on their way to completing one, or

enlightened academics and practitioners who contribute to a new conversation about

crime and corrections” (Jones, Ross, Richards & Murphy, 2009).

Indigenous and Importation Models

The subculture model posits that prison culture is a function of the harsh conditions that

exist within its walls and this is referred to an indigenous origin model. John Irwin and

Donald Cressey challenge this presumption by claiming that a prison culture exists but

that its principles are imported from outside which they call the importation model.

______________________________________________________________________________________

MODULE SIX Correctional Institutions: 17

Inside the Walls

A clear understanding of inmate conduct cannot be obtained simply by

viewing “ prison culture” or “ inmate culture” as an isolated system

springing solely from the conditions of imprisonment. (Irwin & Cressey,

1962)

This hypothesis is supported by the observation that many of the aspects of the prison

code exist outside the institution in Western ideals of masculinity and kinship. Few men

need an external code to tell them to “ keep their noses out of other people’s business”

or “ don’t weaken” and every schoolchild knows that ‘nobody likes a snitch. ’

Thomas (1973) has suggested a middle-ground explanation in the debate between the

indigenous and importation models by suggesting that pre-incarceration characteristics

such as social class, values, and attitudes affect an inmate’s assimilation into the prison

culture. Another blurring of prison subculture and larger societal cultural is also done

through the high imprisonment rate of some populations. For example, in 2006 one in

nine American black men aged 20 to 34 was imprisoned, a figure that helps explain

why some African-American forms of artistic expression have incorporated the slang

and values of inmate culture and visa versa. Far too many African-American families

have adapted to having imprisonment become part of their daily lives and with North

American incarceration rates set to climb indefinitely this blurring will continue

throughout society.

Another powerful force blurring the cultures on either side of the prison walls is prison

gangs. Prior to World War Two prison gangs were virtually unknown, the first large

gangs formed in the 1950s and 1960s in the notoriously corrupt states of California and

Chicago as a means of self-protection from both staff and other inmates. Today many

of America’s prisons and jails now serve as mass networking and recruiting centres

with new prisoners as a constant source of fresh recruits and ex-convict members

exporting prison values to outside life and gang leaders directing gang activity both

inside and outside of prisons as one continuum. A 1996 investigation by the Chicago

Tribune found that,

Many of the customs, slang, and tattoos long associated with prison

gangs have become fashionable among young people. In cities

throughout America, the culture of the prisons is rapidly becoming the

culture of the streets. (Schlosser, 1998)

This article also reports that classes taught at the Stateville prison law library include

the history and rules of one of the prison’s most powerful gangs (the Maniac Latin

Disciples) due to the demands of the prison population. This change in curriculum is a

dark mirror of the power of unions, feminists, and First Nation movements insisting

that universities offer courses that mirror their experiences.

________________________________________________________________________

18 Correctional Institutions: MODULE SIX

Inside the Walls

The negative aspects of gang culture are documented in many criminology texts but it is

worth noting that the line between gang and ethnic or religious subcultures are often

blurry, and some convict-oriented rehabilitation programs use the power of an inmate’s

ethnicity to fill the emotional, spiritual, and fellowship void many convicts experience

in prison. In Canada, Native-run programs emphasizing Native identity and restoring

Native culture have had some success in reducing recidivism by providing the precious

resource of meaning to some inmate’s lives. And in many countries around the world

efforts by Christians and Muslims to both recruit in prisons and improve prison

conditions have met with noticeable success. Muslim prison programs, convict-operated

and otherwise, emphasize the Islamic ideals of self-responsibility, dignity, cleanliness,

and pursuit of knowledge, and have strong religious prohibitions against alcohol,

pornography, and drugs. Such a change for converted inmates separates them from

traditional convict subculture and Muslim converts have had lower than average rates of

recidivism.

Take time to now to go online and read Prisons poisoning natives which

describes a personal account of the phenomenon of gang recruiting and

criminal education in Canadian jail facilities.

http://www. thestar. com/specialsections/crime/article/460763--prisons-

poisoning-natives

Go online and watch Jail in Columbia for an astonishing example of

complete gang domination inside a prison.

http://video. google. com/videoplay?docid= -5954040311510225978#

______________________________________________________________________________________

MODULE SIX Correctional Institutions: 19

Inside the Walls

SECTION 6. 2: Female Incarceration

The number of women starting federal prison sentences in Canada has grown by more

than 50% in the past decade causing an upsurge in discussions surrounding the subject

(Stone, 2010), yet this topic has been hotly debated in Canada since long before

Confederation. The calls to reform women’s prisons by prominent British jail reformer

Elizabeth Fry were slow to arrive in Canada. When Kingston penitentiary opened in

1835 there were no facilities for females and so the first three female offenders were

kept in the prison hospital. The female housing that was eventually built was deplorable

and all cells were underground. The Brown Commission of 1849 reported that the

entire female prison population had suffered for some years from an infestation of bugs

in their quarters. Unlike the men, women in Kingston had no library, no chapel, or

educational instruction.

Similar situations were found in female housing at local jails as women were housed in

the same institutions as males due to lack of funds. The first self-contained women’s

institution, administered and run by females in Canada, was the Fullum Street Female

Prison in Montreal, built in 1875. Throughout the nineteenth century the treatment of

female offenders continued to be affected by economics, public opinion, and the types

of crimes that women committed. Conditions were still very poor: there was

overcrowding, no work or rehabilitation, and very simple provisions for recreation. As

with male prisons, the mentally ill, the sick, and the aged were housed alongside the

inmates.

It was not until 1934 that a new prison for women was available and it became known

as P4W (prison for women) and was part of the Kingston Penitentiary. The prison was

maximum security, surrounded by a wall 16 feet high, topped by ten feet of wire

meshing, and topped again by six strands of barbed wire, despite the fact that few

female inmates fit that classification. The cells in this prison had no outside windows,

and there was no outside recreational area provided. In 1970, P4W was found to be

plagued by:

 poor physical conditions;

 inadequate programming;

 poorly trained staff;

 rampant abuse;

 intimidation;

 lack of proper segregation in regard to category of offence.

________________________________________________________________________

20 Correctional Institutions: MODULE SIX

Inside the Walls

The primary problem of women’s correctional facilities is that they are a ' correctional

afterthought' to the sheer number of male prisoners that constitute the primary focus of

correctional efforts. In 1997-98, females represented 9% of adult sentenced admissions

to provincial/territorial custody, and 5% of admissions to federal institutions. As a

result, correctional services for women were markedly poorer in quality, variety, and

availability than those for their male counterparts (Ross & Fabiano, 1985) and services

offered to women inmates are derived from male models of corrections (Chesney-Lind,

1997; Garcia-Coll, Miller, Fields, & Mathews, 1997). For example, at most of the

provincial correctional institutions for women one set of underclothes is issued at the

beginning of each week and collected at the end of the week—a practice more easily

accepted by men than women.

More dangerously, a lack of female correctional officers meant that women inmates had

male security officers until the last few decades—despite more than 80% of female

inmates in federal institutions having suffered either sexual or physical abuse at the

hands of men (Edwards & Matarazzo, 1993; Pollock-Byrne, 1990). This situation came

to public attention in 1994, when 8 inmates at P4W who had been involved in a brief,

but violent, physical confrontation with correctional officers were placed in segregation

before being taken out one at a time by an all male Emergency Response Team from

the next door Kingston penitentiary and strip searched. The following day the inmates

agreed to full body cavity strip searches in return for a shower, a security gown, and

cigarettes, before being housed in Kingston Penitentiary without access to a lawyer.

When a video 4 of their cell extraction and strip-search was obtained by the media there

was a public outcry.

This situation of women’s prisons as a ' correction afterthought' began to change in

1990 when the Task Force on Federally Sentenced Women issued a report entitled

Creating Choices which became the foundation of a new approach to corrections for

women serving a federal sentence. The two critical recommendations were:

 Close the Prison for Women (P4W) and replace it with five regional

facilities and one healing lodge for Aboriginal women;

 Develop a comprehensive community release strategy dealing with programs

and services available to women after their release.

4 video http://www. cancrime. com/2011/03/02/infamous-prison-for-women-strip-search-video-debuts-

online/

______________________________________________________________________________________

MODULE SIX Correctional Institutions: 21

Inside the Walls

In 1996, Madame Justice Arbour restated many of the conclusions of the Task Force

affirming that women offenders should have services and programs designed for them

specifically and not ones adapted from programs designed for males. By 1997, the five

regional facilities were operating and the Prison for Women in Kingston officially

closed in July 2000.

For more information on Institutions for Women in Canada go to: http://www. csc-

scc. gc. ca/victims-victimes/11-03-04/wi-eng. shtm

IN FOCUS Club Fed?

Some critics feel that the scales have now been tipped too far in the other direction

making women prison’s into ' adult daycares' . When a jilted prison lover sold photos

of serial killer Karla Homolka in a dress enjoying a birthday party while serving a 12-

year sentence for manslaughter for the torture and murder of two female teenagers it

sparked outrage. Homolka had started her sentence at P4W but in 1997 she was

transferred to Joliette, a minimum- and medium-security federal prison. Homolka’s

ex-lover stated that the institution had,

Ten cottages on the prison grounds [which] house eight to 10 inmates

each. There are no bars on the windows, and each inmate has a key to

her room and a key to her personal mailbox. There are guards on the

prison grounds.

You can take a long stroll on the grounds and not even think you were

inside.

Days after photos of the prison birthday party hit the newspapers Corrections Canada

transferred Homolka to the Regional Psychiatric Centre in Saskatoon. Joliette

managers have defended the correctional institution by saying they are mandated to

offer “ inmates a degree of independence to prepare them for life after release. ”

Source: http://www. truecrime. net/karla/

________________________________________________________________________

22 Correctional Institutions: MODULE SIX

Inside the Walls

The Female Inmate Society

A study was done on the inmate subculture of Ontario women inmates in 1993. Susan

Edwards and Anthony Matarazzo surveyed 220 women serving time in Provincial

Correctional Institutions in Ontario. The following table (Table 6. 1) illustrates some of

the rules and attitudes of women within the provincial institutions surveyed and their

basic similarity to male inmate codes.

Table 6. 1: Rules and attitudes of women within provincial institutions

AGREE

When inmates stick together, it is a lot easier to do time.

85%

In some situations, it is all right to inform on another inmate.

16%

If you reveal too much about yourself to any other inmate, the

information will probably be passed on to staff.

44% You have to be careful which inmates you get friendly with in jail.

81%

You have to be careful about what you say to other inmates.

89%

Inmates should share scarce goods rather than sell them.

58%

If an inmate informs on another inmate, she should never be trusted.

74%

Most inmates are not loyal to each other when the chips are down.

68%

Do you have a close friend in this institution?

62%

Heffernan (1972) describes three basic types of women in prison: the square who is not

really a criminal (for example, someone who may have shot her husband in a fit of rage

and who usually espouses conventional values), the lifer who is a repeat offender and

rejects prison authority, and the cool who is part of the criminal underworld and is

aloof, manipulative, and does not take part in prison life.

Pains of Imprisonment

Ward and Kassebaum (1965) suggest that women feel the pains of imprisonment

acutely, particularly the loss of freedom and the lack of emotional support, together

with the separation from their families and children. Women are often incarcerated long

distances from their homes and families because of the few available institutions for

______________________________________________________________________________________

MODULE SIX Correctional Institutions: 23

Inside the Walls

female imprisonment. According to Goff (2001) the disruption of family life is a major

issue facing women who are sentenced to a term in a correctional institution making

their children co-victims of their sentences:

At the time of their offense at least 50 percent of all incarcerated female

offenders are living with at least one of their children. As a result, many

have to make special child-care arrangements with family and friends.

Some lose custody of their children to the authorities.

To help address this problem when the new regional centres for federally sentenced

women were opened, the Mother-Child Program was created to allow the option of

having children living with their mother in the facility (Watson, 1995).

Giallombardo (1966) also suggests that females find the loss of emotional relations

during incarceration more difficult than men and, thus, become involved in sexual

relations to fill the void. In female US facilities about 27% of maximum security

prisoners report being sexually coerced and 5% report being raped. In female “ facilities

with less violent populations, ” 9% reported that they had been sexually assaulted and

none reported a completed rape (Struckman-Johnson & Struckman-Johnson, 2006).

The methods used by the perpetrators of prison sexual assault differ between men and

women. Physical force occurs more often in male units while female prison rapists tend

to use more mental and emotional manipulation. Correctional staff members in female

facilities are more likely to be involved in sexually assaulting inmates (Ellenbogen,

2009).

Anger and Self-Injury

Suspicion and mistrust of security staff and inconsistent rule enforcement were noted as

significant factors contributing to anger levels among incarcerated women (Rucker,

1991). Compared to their male counterparts, women are usually less aggressive and

present less of a threat to the correctional officers. Their anger and aggression is often

directed at themselves, including such acts as self-mutilation which often takes the form

of slashing or cutting their bodies with sharp instruments and attempting suicide.

According to Correctional Service Canada (2010),

non-suicidal self-injury (NSSI) may be defined as the deliberate

destruction of body tissue without suicidal intent and for purposes not

socially sanctioned and may include behaviours such as cutting, ligature

use, burning, hitting, swallowing sharp or indigestible objects, inserting

and removing objects, and head banging.

________________________________________________________________________

24 Correctional Institutions: MODULE SIX

Inside the Walls

An example of such behaviour is given in by Kershaw & Lasovich (1991) in their

description of Marlene Moore who committed suicide at Kingston Penitentiary:

She cuts herself with the savvy of a surgeon, once yielding a fifty-six

stitch wound without severing an artery. At the Prison for Women her

cornice self-mutilation became legendary, her scars ultimately became a

metaphor for her pain. By the time of her death at age thirty-one she had

slashed as many as a thousand times, disfiguring nearly every reachable

part of her body.

In a study by Power and Usher (2010) for Correctional Service Canada, 56 women

across 7 institutes were interviewed about their NSSI behaviours. They found that the

most common reason provided by the women about engaging in NSSI was they were

trying to cope with their negative emotions. The second most common reason was

trying to communicate with others about their problems and their need for care. The

most common emotions reported prior to engaging in NSSI were anger, depression, and

anxiety and after self-injuring, women most commonly reported feelings of relief,

followed by feelings of regret.

______________________________________________________________________________________

MODULE SIX Correctional Institutions: 25

Inside the Walls

SECTION 6. 3: Sexual Abuse in Prison

The Canadian Supreme Court has made clear that “ [b]eing violently assaulted in prison

is simply not part of the penalty that criminal offenders pay for their offenses against

society, ” yet this remains the case for far too many North American inmates as

approximately 1 in 4 male American inmates are assaulted during any 6-month period

(Ellenbogen, 2009). As one such inmate commented,

When I was sentenced I didn’t hear the part that stated, “you are hereby

sentenced to six years of hard labor to the Texas Dept. of Criminal

Justice—while there, you will be beaten daily, savagely raped, and

tortured mentally, to the point of contemplating suicide. ” (Ellenbogen,

2009)

Regrettably this situation is supported by public attitudes that feel that ' prison justice' is

the only real justice because the deprivations of incarceration are not perceived as

enough of a penalty for the crimes some offenders have committed. French (1979) and

Baro (1997) noted that men in prison were typically perceived as bad people who were

deserving of whatever happened to them in prison. There is also the question of

whether or not the state covertly encourages inmate violence. For example when the

23-year old who threw a pie at Prime Minister Jean Chretien had his nose broken by

another inmate while awaiting trial it could be said that the government got the revenge

it wanted without ever having to dirty their hands.

It is true that some criminals, especially violent ones, do not seem adequately avenged

by the legal system but it is hard to imagine a worse system than one that delegates the

job of such vengeance to convicted prisoners who chiefly administer it to the weakest

and least socially connected inmates. Even in the much lauded situations where inmates

assault, maim or kill child rapists (who fulfill the role of folk devil 5 in both the public

and inmate cultures), it is hard to imagine a more haphazard method than jail-house

rumours as a method of determining guilt and “ shivs 6 ” as the method of punishment.

The topic of male prison rape enjoys a similar sort of public approval or least comedic

value (e. g. , “ Don’t drop the soap” ). As Struckman-Johnson and Struckman-Johnson

(2006) note “in past decades, it was often assumed that prison rape was an unavoidable

and perhaps an appropriate part of prison life. There was no societal outcry for its

victims. ” Similarly, a public opinion poll published in the Boston Globe (Sennot, 1994) 5 folk devil http://en. wikipedia. org/wiki/Folk_devil 6 shivs http://observatory. designobserver. com/slideshow/dangerous-beauty-the-art-of-the-

shiv/4597/758/1#slide

________________________________________________________________________

26 Correctional Institutions: MODULE SIX

Inside the Walls

showed that one half of the respondents believed that most people were unconcerned

with stopping prison rape. Reducing prison rape to a joke or excusing it as justified

punishment makes the public complicit in a very brutal form of sexual assault.

Recognizing that there is a Problem

In 2001 a Human Rights Watch report offered a rare glimpse into the world of sexual

abuse in American prisons. The report found that certain prisoners are targeted for

sexual exploitation the moment they enter a penal facility based on their age, looks,

sexual orientation, and other characteristics, such as,

youth, small size, and physical weakness; being white, gay, or a first

offender; possessing ' feminine' characteristics such as long hair or a

high voice; being unassertive, unaggressive, shy, intellectual, not street-

smart, or ' passive' ; or having been convicted of a sexual offence against

a minor.

The report also documented actual cases of rape as submitted to them by

prisoners. A typical report reads:

A Florida prisoner whom we will identify only as P. R. was beaten,

suffered a serious eye injury, and assaulted by an inmate armed with a

knife, all due to his refusal to submit to anal sex. After six months of

repeated threats and attacks by other inmates, at the end of his emotional

endurance, he tried to commit suicide by slashing his wrists with a razor.

The violence in this report is not unusual; an analysis of approximately 2,200 physical

and 200 sexual victimizations reported by a random sample of 6, 964 American male

inmates found that serious physical injury occurred in 40% of physical assaults and in

70% of sexual assaults (Wolff & Shi, 2009). Statistics show that in the US

approximately 1 in 5 men at various US prisons has experienced pressured or forced

sexual contact and 10-14% have been coerced into oral or anal sex and between 2% and

5% of male prisoners are estimated to have been violently sexually assaulted

(Struckman-Johnson & Struckman-Johnson, 1996; Struckman-Johnson & Struckman-

Johnson, 2000; Wooden & Parker, 1982). An internal departmental survey of

correctional officers in one southern state found that line officers charged with the

direct supervision of inmates estimated that roughly one-fifth of all prisoners were

being coerced into participating in inmate-on-inmate sex.

______________________________________________________________________________________

MODULE SIX Correctional Institutions: 27

Inside the Walls

Such statistics on prison rape are highly speculative because countless rapes go

unreported each year and this under-reporting has many explanations. For some

inmates, admitting that they were raped or sexually assaulted is akin to admitting that

they are not a man. Inmates can also fear that by reporting the abuse, they risk being

labeled a ' snitch' , a connotation that can lead to further sexual abuse and violence and

because of the

negative consequences of reporting incidents, prisoners often attempt to

' protect' themselves and escape sexual assault by multiple inmates by

essentially becoming ' sex slaves' . A vulnerable prisoner will typically

seek out a larger, older and ' better established' inmate and will ' consent'

to various sexual acts and other menial tasks, such as making one’s bed,

in exchange for protection against being raped by other inmates. This is

often referred to as ' protective coupling' despite the fact the raped party

may be frequently ' rented out' for sex, sold, or even auctioned off to

other inmates. (Ellenbogen, 2009)

This protective arrangement is often accepted by correctional officers as consensual

despite the obvious fact that ' consent' to avoid rape by multiple men or violent assault

is anything but. Yet due to the nature of the arrangement these events are undetected

and unreported.

Prison rape also typically occurs when there is no prison staff around to see or hear it.

The Human Rights Watch report (2001) on male rape in prison has surmised that the

“ inadequate staffing and supervision of inmates . . . [is] . . . [a]nother casualty of the

enormous growth of the country’s prison population. ” Often prison officials fail to

make their rounds at regular intervals, and, when they do, they can neglect to make a

meaningful effort to determine precisely what is going on in the various areas of the

prison. As one inmate in the Human Right Watch report explained “ rapes occur

because the lack of observation make it possible. Prisons have too few guards and too

many blind spots.”

Even if prison guards are present, they will contend the rape was in fact consensual sex

without obvious visible physical injury, or that the prisoner was too ' weak' to stop their

own victimization and thus deserved it. Demond (1995) terms the victims of sexual

abuse in prison “ ignominious victims” because they are deemed unworthy of protection

from their abusers due to wider societal attitudes. In many cases, prison officials just

turn away and pretend that such violence is not occurring.

One former correctional officer admits being “ acutely aware” that many of the

prisoners were in danger of being raped; however, with no solutions to offer them, she

ignored the problem and pretended nothing was going on because admitting that such

behaviour exists in their institutions is a “ public relations nightmare. ” Prison officials

________________________________________________________________________

28 Correctional Institutions: MODULE SIX

Inside the Walls

often remain quiet and turn a blind eye to avoid having to report sexual abuse to higher

officials. Stephen Donaldson, former President of the U. S. based organization Just

Detention International (formerly known as Stop Prisoner Rape) insists that ignoring the

problem of prisoner sexual aggression “ will not make it go away, and will instead allow

it to fester and multiply.”

Several factors have begun shifting public opinion on this topic recently. Foremost, the

anti-rape movement initiated by women’s groups in the 1970s and 1980s has created a

degree of public sympathy for all victims of sexual assault, including male inmates.

Another influence has been lawsuits by prisoners who have been sexually coerced and

assaulted (Bell et al. , 1999; Man & Cronan, 2001; 2002; Springfield, 2000). Human

rights groups have also sparked public reaction by publishing reports of prisoner sexual

abuse (e. g. , Amnesty International, 1999; Donaldson, 1995; Human Rights Watch,

1996; 2001). In 2003, a coalition of religious, human rights, and political groups

passed a congressional act calling for an end to rape in American prisons and jails.

Despite these call for reforms and awareness, the subject of prison rape remains almost

completely undocumented in Canada. Currently, neither Correctional Service Canada

nor Statistics Canada record occurrences of inmate sexual victimization. It would be

hoped that Canadian prison rape does not occur as often as it does in the toxic prisons

and jails of the United States, but without official awareness this remains unknown.

For more on this topic see:

Ellenbogen, P. (2009). Beyond the border: A comparative look at prison rape in the

United States and Canada. Columbia Journal of Law and Social Problems, 42,

335.

Human Rights Watch Report (2001). NO ESCAPE: Male Rape in U. S. prisons.

Wolff, N. , & Shi, J. (2009). Contextualization of physical and sexual assault in male

prisons: Incidents and their aftermath. Journal of Correctional Health Care,

15(1).