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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):
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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.
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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
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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
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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.
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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
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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
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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;
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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.
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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
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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/
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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
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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
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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
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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).
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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
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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
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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.
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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
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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).
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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
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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
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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. ”
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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
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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.
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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).
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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.
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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;
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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
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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
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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.
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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
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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
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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.
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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
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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.
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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
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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.
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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
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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.
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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).
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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
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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.
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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/
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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
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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):
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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
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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.
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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).
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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
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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.
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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
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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. ”
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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
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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.
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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,
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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.
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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.
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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
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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
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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.
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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
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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.
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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.
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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.
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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/
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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
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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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.
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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
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68 Correctional Institutions: MODULE FIVE
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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
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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
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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
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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
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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
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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#
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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;
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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
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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
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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.
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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.
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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)
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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.
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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
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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
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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. ”
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MODULE SIX Correctional Institutions: 13
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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. ”
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14 Correctional Institutions: MODULE SIX
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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
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MODULE SIX Correctional Institutions: 15
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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.
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16 Correctional Institutions: MODULE SIX
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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.
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MODULE SIX Correctional Institutions: 17
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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.
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18 Correctional Institutions: MODULE SIX
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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#
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MODULE SIX Correctional Institutions: 19
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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.
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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/
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MODULE SIX Correctional Institutions: 21
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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/
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22 Correctional Institutions: MODULE SIX
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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
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MODULE SIX Correctional Institutions: 23
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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.
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24 Correctional Institutions: MODULE SIX
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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.
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MODULE SIX Correctional Institutions: 25
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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
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26 Correctional Institutions: MODULE SIX
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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.
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MODULE SIX Correctional Institutions: 27
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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
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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).