The sentencing of aboriginal and non-aboriginal youth under the Young Offenders Act: a multivariate analysis.

• Author: Latimer, Jeff
• Position: Canada

Introduction

Recent research from the Department of Justice Canada has indicated that Aboriginal youth in Canada were incarcerated at a rate 8 times that of non-Aboriginal youth (Latimer and Foss 2004). The problem was particularly acute in northern and central Canada. In Saskatchewan, for example, Aboriginal youth were 30 times more likely to be incarcerated than non-Aboriginal youth, and in the Yukon, Aboriginal youth were 18 times more likely to be incarcerated than non-Aboriginal youth.

Roberts and Melchers (2003) have noted that the problem of Aboriginal over-representation in the criminal justice system in Canada has been recognized in all principal correctional texts for years and is widely acknowledged in the general population. During the last decade, several noteworthy governmental initiatives have attempted to address the issue of Aboriginal over-representation, including the Royal Commission on Aboriginal Peoples (1996) and the Standing Senate Committee on Aboriginal Peoples (2003). Despite the recognition and attention, the problem has persisted for decades.

Why is this the case? A number of researchers have attempted to understand and explain this phenomenon. Boe (2002), for example, has argued that over-representation is due, in part, to population demographics. The Aboriginal population, in general, is much younger than the non-Aboriginal population in Canada. Consequently, there is a higher proportion of Aboriginals than of non-Aboriginals in the age group at highest risk for offending (i.e., less than 30 years of age).

La Prairie (1992, 2002) has maintained that, in addition to demographics and historical issues, Aboriginals are over-represented largely as a result of their low socio-economic status. Mainstream criminological theories have consistently linked poverty to a lack of education, employment, and criminal behaviour. Even within Aboriginal communities, it remains true that the more socially and economically marginalized the group, the higher the involvement in the criminal justice system.

Latimer and Foss (2004) found that a substantial proportion of Aboriginal youth in custody self-reported high rates of victimization, substance abuse, and organized gang participation. These factors are widely recognized as correlates of criminal behaviour (Latimer, Kleinknecht, Hung, and Gabor 2003; Andrews and Bonta 1998). In other words, a history of child maltreatment, drug and alcohol abuse, and involvement with antisocial peers places an individual at a significant risk for engaging in criminal behaviour.

Ultimately, at the root of Aboriginal over-representation rests a complex set of inter-related factors. One factor, however, that has not been well researched, particularly among youth, is discrimination at sentencing. Are Aboriginals treated differently (e.g., more harshly) by sentencing judges in youth court than non-Aboriginal youth? And is it possible that this may contribute to their over-representation?

Roberts and Melchers (2003) argued that discrimination at sentencing does not appear to be one of the causes of over-representation. La Prairie and Stenning (2003) also raised serious questions about the claim that over-representation is attributable to culturally insensitive and discriminatory practices. In Australia, Weatherburn, Fitzgerald, and Hua (2004) have also argued that the leading current cause of Aboriginal over-representation in prison is not discrimination but high rates of Aboriginal involvement in serious crime.

Previous research, however, has suggested that discrimination against Aboriginals may exist across several points in the Canadian criminal justice system, including at bail hearings (Aboriginal Justice Inquiry of Manitoba 1991; Moyer 2004) and sentencing hearings (Schissel 1993). Latimer and Foss (2004), using a snapshot method of counting all youth in custody on a given day, found that the median custodial sentence length for Aboriginal youth in custody was 212 days, while the median sentence length for non-Aboriginal youth in custody was only 182 days. Although it was not possible to control for factors typically considered in sentencing (e.g., criminal history, severity of the offence), this finding suggests that multivariate analysis needs to be conducted to determine why there was such a difference. Furthermore, previous research into Aboriginal over-representation has focused primarily, and most times exclusively, on adult offenders. Therefore, discrimination towards Aboriginal youth should hot be ruled out as a related factor, without sound empirical research.

Present research

The present research addresses the issue of discrimination against Aboriginal youth during sentencing. Specifically, this paper examines the sentencing under the Young Offenders Act (YOA) of Aboriginal and non-Aboriginal youth in five cities in Canada.

There are three quantitative indicators in the youth criminal justice system that may provide evidence of possible discrimination at sentencing. The first indicator is the overall use of custodial versus non-custodial sentencing options. The second indicator is the use of secure custody versus open custody. In the youth criminal justice system, secure custody is typically more restrictive, akin to an actual prison, while open custody is usually similar to a group home in a community setting. The third indicator is the actual length of custodial sentences. Young and Brown (1993) have argued that sentence length is one of the leading contributors to high incarceration rates.

In order to compare the sentencing of Aboriginal and non-Aboriginal youth across these three indicators, it is important to control for various factors that judges consider in determining a sentence. Manson (2001) has provided a general description of aggravating and mitigating factors typically recognized by judges. These include the following:

1. previous findings of guilt

2. actual or threatened use of violence

3. offending while subject to release or probation conditions

4. multiple charges

   In the area of sentencing, it is also generally accepted that there exists a phenomenon of "stepping up" sentences in youth court, which Carrington and Moyer (1995) labelled the escalation of control measures. In other words, with each subsequent finding of guilt, a judge will increase the severity of the sentence. For example, a prior custodial sentence has been strongly correlated with a new current custodial sentence (Carrington and Moyer 1995; Moyer 1996). Therefore, previous sentences may play a significant role in current sentencing decisions.

   In addition, previous research has also found that pre-trial detention is a factor in sentencing decisions in youth court (Moyer 2004). Youth held in custody until sentencing were more likely to receive a custodial sentence than youth who were released after arrest, even when controlling for other factors, such as offence severity and criminal history.

   Since it is generally recognized that the criminal justice system needs to respond to youth in a manner distinct from the traditional adult response, age may also be a factor in sentencing. A 12-year-old youth would very likely be viewed differently than a 17-year-old youth by a sentencing judge. This may also be the case for gender. A male youth might be treated differently than a female youth.

   Method

   In order to examine possible discrimination against Aboriginal youth at sentencing, the research was designed to answer the following three questions:

1. Are Aboriginal youth more likely than non-Aboriginal youth to receive custody?

2. Are Aboriginal youth more likely than non-Aboriginal youth to receive a secure custody sentence?

3. Are Aboriginal youth more likely than non-Aboriginal youth to receive a longer custodial sentence?

   In order to answer question one, logistic regression was selected with custody (yes/no) as the dependent variable and the following independent variables:

1. age

2. gender

3. Aboriginal status

4. prior findings of guilt

5. prior custodial sentence

6. seriousness of current offence (3)

7. violence used in current offence

8. number of current charges

9. subject to release/probation conditions at time of offence

10. current administration of justice offence

11. detained on current offence prior to...