Accessing drug treatment courts do age, race or gender matter?
| Author | Calum Smee,Sarah Lumsden,Zachary Allard,Joshua Watts,Kelly Gorkoff,Michael Weinrath,Melissa Cattini,Michael Bellan |
| Published date | 01 December 2018 |
| Date | 01 December 2018 |
| DOI | http://doi.org/10.1177/0004865818757586 |
| Subject Matter | Articles |
Article
Australian & New Zealand
Accessing drug treatment
Journal of Criminology
2018, Vol. 51(4) 619–637
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courts do age, race or
The Author(s) 2018
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gender matter?
DOI: 10.1177/0004865818757586
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Michael Weinrath
Department of Criminal Justice, University of Winnipeg, Canada
Kelly Gorkoff
Department of Criminal Justice, University of Winnipeg, Canada
Joshua Watts
Department of Criminal Justice, University of Winnipeg, Canada
Calum Smee
Department of Criminal Justice, University of Winnipeg, Canada
Zachary Allard
Department of Criminal Justice, University of Winnipeg, Canada
Michael Bellan
Department of Criminal Justice, University of Winnipeg, Canada
Sarah Lumsden
Department of Criminal Justice, University of Winnipeg, Canada
Melissa Cattini
Department of Criminal Justice, University of Winnipeg, Canada
Abstract
To ensure equitable access to diversion from custody, Canadian drug treatment courts
should accept referrals whose age, gender, and Indigenous race proportions are similar to
probation or custody admissions. Of particular concern are Indigenous offenders, who are
Corresponding author:
Michael Weinrath, University of Winnipeg, 515 Portage Avenue, Winnipeg, MB Manitoba R3B 2E9, Canada.
Email: m.weinrath@uwinnipeg.ca
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Australian & New Zealand Journal of Criminology 51(4)
over-represented in Canada’s community and institutional corrections systems. To examine
the influence of these extra-legal factors, we assessed referrals to the Winnipeg, Manitoba
drug treatment court (N ¼ 288). Provincial corrections data from Statistics Canada’s adult
key indicator report, eight years of official records drug court data (2006–2014), and local
male sentenced inmate admission data were analyzed. Age, gender, and Indigenous status did
not influence referral. Indigenous male referrals to the drug treatment courts were generally
higher risk than females or other males. Correctional institutions data showed that
Indigenous male inmates had more convictions for violence and higher street gang member-
ship rates, thus attempting to increase drug court referral poses significant challenges. In
Manitoba, substantial custody reductions of offenders overall and Indigenous male offenders
in particular will require more radical solutions than the drug court.
Keywords
Aboriginal Canadians, diversion, drug treatment court, female offenders, Indigenous
Canadians, Indigenous over-representation, intermediate sanction, program referral
Received 30 December 2017; accepted 15 January 2018
Introduction
Drug treatment courts (DTCs) throughout the Western world are used to ostensibly offer
an alternative to custody for addicted offenders. There is good evidence that they reduce
the likelihood of reoffense but their impact on the use of incarceration is more conten-
tious (Latimer, Morton-Bourgon, & Chre´tien, 2006; Mitchell, Wilson, Eggers, &
MacKenzie, 2012; Small, Allard, Sevigny, Pollack, & Reuter, 2013). DTC’s have been
critiqued for restrictive eligibility criteria, high attrition rates and coercive practices, and
legitimating greater use of state scrutiny under the guise of “therapeutic surveillance”
(Fischer, 2003; HIV/AIDS Network, 2011; Small et al., 2013). Limiting drug court access
to lower risk or less serious offenders, for example, potentially limits diversion from
custody. Much drug court research to-date has focused on recidivism, while referrals,
an important component of program success, have not been as well studied. Since DTC
operation is intended to reduce incarceration rates, admissions should reflect target
populations (i.e. those likely to get custody), but referrals should also indicate fair and
consistent use of criteria; drug courts should not discriminate in their consideration of
different groups. Attributes such as age, gender, and race should not matter, but sen-
tencing studies have found that they do and hence should also be considered in drug
court research (Balfour, 2013; Franklin, 2013; Tonry & Lynch, 1996). Intermediate
sanctions, such as the drug court, are intended to capture offenders whose offense sever-
ity and risk falls somewhere below the threshold of a required prison sentence, but risky
enough that they are not suitable candidates for probation (Tonry & Lynch, 1996).
Using available aggregate data and official records data from the Winnipeg,
Manitoba DTC and Manitoba provincial corrections, this paper appraises how well
the DTC is operating as an intermediate sanction. We pay particular attention to the
Weinrath et al.
621
potential influence of age, gender, and race; in the case of Manitoba, Indigenous
Canadians are of primary interest.
Literature review
Age, gender, and race in the criminal justice system
Canadian data have generally shown that younger individuals, particularly males, are more
likely to be involved in the criminal justice system (Brennan, 2012; Johnson & Lazarus,
1989; Lee, 1984), a finding that has endured over time and has considerable cross-cultural
support (Farrington, 1986; Marvell & Moody, 1991). In Canada, those charged tend to be
under 30, and admissions to custody drop off sharply after age 40 (Statistics Canada, n.d.).
At the point of sentence age has also been viewed as a mitigating factor, whereby youth is
linked to a not yet developed maturity, garnering some relief at the point of sentence.
Youth has also been observed as influencing harsher sentencing when interacting with age,
via a “racial threat” hypothesis (Mahony, Jacob, & Hobson, 2017; Steffensmeier, Ulmer,
& Kramer, 1998). It is argued that young black or Hispanic males are seen as a threatening
group by court actors and have received punitive sentences beyond what defendants of
differing ages or ethnicities receive, even controlling for current offense(s) and prior crimes.
This thesis has not been rigorously tested outside of the United States. In Canada, young
Indigenous and Black males may be subject to over-policing (Comack, 2012; Hayle,
Wortley, & Tanner, 2016) but racial threat has not been a research focus.
Canadian research has indicated that gender is also an important correlate of crime,
with women much less likely than men to be charged and incarcerated, and even when
jailed, their sentences are shorter (Mahony et al., 2017). They are more likely to receive
probation or a conditional sentence. At least some of these findings are due to objective
factors, such as females being first-time offenders more often and facing less multiple
charge prosecutions than males (Kong & AuCoin, 2008). Recent statistics show that
they make up 23.7% of all offenders charged. From 2000–2015, the proportion of cases
in adult court by adult women increased 4%, a negative trend, while males declined. In
2014–15, adult women made up 13% of admissions to provincial correctional institu-
tions but only 7% to federal institutions. Race influences proportional representation
within the female offender population: Indigenous women make-up less than 5% of
Canada’s female population but comprise 38% of admissions to provincial custody and
39% for federal (Mahony et al., 2017).
The at times more lenient sentencing of women has been attributed to gender-
stereotyping. On the one hand, females do not present as risky or as dangerous as
males, and thus may be considered more worthy of protection by the courts (Leiber,
Beaudry-Cyr, Peck, & Mack, 2017; Leiber & Mack, 2003; Steffensmeier et al., 1998).
On the other hand, role-based explanations provide evidence that women can be sen-
tenced more harshly when they deviate from socially approved feminine behaviors.
Women offenders perceived as violent and aggressive, for example, have been found
to be punished more harshly because they violate traditional feminine norms of peace-
able activity (Comack & Balfour, 2004; MacDonald & Chesney-Lind, 2001).
Furthermore, women may end up more closely regulated in prison and probation sys-
tems if they are not white and middle class (Balfour, 2013; Williams, 2007).
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Australian & New Zealand Journal of Criminology 51(4)
Indigenous over-representation in prison is a problem in Canada and other nations
(Jeffries & Bond, 2012; Mahony et al., 2017; Roberts & Reid, 2017). While some have
argued that this is due to biased practices by the criminal justice system (Roach &
Rudin, 2000), a form of “institutional discrimination,” others have maintained that
Indigenous offenders are generally charged and sentenced fairly; it is the severity of
their crimes and prior criminal histories that lead to their incarceration (Stenning &
Roberts, 2001). To test this assumption, multivariate analysis sentencing studies have
been conducted in Canada, Australia, and the US (Jeffries & Bond, 2012; Weinrath,
2007; Welsh & Ogloff, 2008) whereby Indigenous status is considered controlling for
prior record, offense severity, and other factors. These investigations have shown little
in the way of institutional discrimination at the point of sentence, however. Sanctions
are largely consistent with offense type and criminal history. Such analyses are unable to
capture other potential impacts of systematic discrimination, however. Police bias in
stopping and then charging Indigenous peoples ends up accelerating their acquisition of
criminal histories, which leads them to a greater likelihood of custody over the long term
(Comack, 2012; Samuelson & Monture, 2008).
Subsequent to a Royal Commission on the status of Aboriginal Peoples published in
1996, concerns about the over use of...
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