Policy Issues Regarding the Overrepresentation of Incarcerated Aboriginal Young Offenders in a Canadian Context

AuthorRaymond R. Corrado,Sarah Kuehn,Irina Margaritescu
DOI10.1177/1473225413520361
Published date01 April 2014
Date01 April 2014
Subject MatterArticles
YJJ520361.indd
520361YJJ0010.1177/1473225413520361Youth JusticeCorrado et al.
research-article2014
Article
Youth Justice
2014, Vol. 14(1) 40 –62
Policy Issues Regarding the Over-
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DOI: 10.1177/1473225413520361
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Aboriginal Young Offenders in a
Canadian Context
Raymond R. Corrado, Sarah Kuehn and Irina
Margaritescu
Abstract
Over-representation of visible minority youth in youth prisons is evident in most advanced industrial and
liberal democratic countries. In Canada, federal and provincial governments have initiated policy strategies to
counteract the over-representation of Aboriginal offenders. One critical national initiative, the 2003 Youth
Criminal Justice Act (YCJA), explicitly acknowledges the special status of Aboriginal youth. The current
study examines (1) whether the YCJA has reduced the over-representation of Aboriginal young offenders in
prison, and (2) whether the risk factor and offence profiles of incarcerated Aboriginal young offenders differ
from Caucasian young offenders. Policy implications for Canada and other countries are discussed.
Keywords
Aboriginal young offenders, juvenile justice system, racial minority group, Youth Criminal Justice Act
Introduction
Numerous studies have shown that both young and adult Aboriginal1 offenders are vastly
over-represented at all stages in the criminal justice system in Canada and other countries
with substantial Aboriginal populations such as Australia and New Zealand, particularly
at the remand (i.e. held in custody pending court appearances) and custody sentencing
stages (Bateman, 2011; Cunneen and White, 2007; Fitzgerald, 2009; Latimer and Foss,
2005). In Canada, Aboriginal young people constitute only 6 per cent of the youth popula-
tion (Kong, 2009). Yet, they reflect approximately one quarter (24%) of remands and
nearly one third (30%) of the youth custody population. In other words, Aboriginal young
Corresponding author:
Sarah Kuehn, Department of Criminology and Criminal Justice, Slippery Rock University of Pennsylvania, Slippery Rock,
PA 16057, USA.
Email: sarah.kuehn@sru.edu

Corrado et al.
41
people are eight times more likely to be sentenced to prison than their Caucasian counter-
parts (Bateman, 2011; Calverley et al., 2010; Latimer, 2004; Yessine and Bonta, 2009).
Furthermore, previous research has indicated that Aboriginal young people are also more
likely to receive longer sentences than their non-Aboriginal counterparts, regardless of
their criminal history and offence severity (Latimer and Foss, 2005). Their adverse situa-
tion in terms of remand and custody also applies to the front end of the criminal justice
system in Canada. Research has shown that legislated diversionary measures have not
worked as well for Aboriginal than for Caucasian young offenders (Rudin, 2005).
Similar, and sometimes even larger, disproportionalities are evident for Aboriginal
populations in Australia and New Zealand and the Native population in the United States
(Bateman, 2008; Hogg, 2001; Kempf-Leonard, 2007; Latimer, 2004; Weatherburn et al.,
2009). For instance, in Australia, the majority of young people incarcerated are Aboriginal
(54 per cent), while Aboriginal people only represent 2.4 per cent of Australia’s popula-
tion. Further, Aboriginal young people are up to 40 to 50 times more likely to be held in a
detention center, depending on the jurisdiction in Australia (Blagg, 2009; Cunneen, 2008;
Cunneen and White, 2007). The situation for adult Aboriginal offenders is equally con-
cerning. Research has shown that the imprisonment rates for Aboriginal adult offenders
have risen much faster than the rates for non-Aboriginal offenders in Australia. In fact,
Aboriginal adult offenders’ imprisonment rates are now more than 13 times higher than
the rates for their non-Aboriginal counterparts (Fitzgerald, 2009).
While there is some disagreement on the exact causes of Aboriginal’s over-representation,
there is a growing consensus that their involvement in the criminal justice system is not
caused by a single factor such as increased offending rates or discriminatory practices by the
police (Blagg, 2012; Cunneen, 2006; Fitzgerald, 2009; Harding, 1991). Rather, their adverse
situation can only be explained by a ‘complex mix of ‘push’ and ‘pull’ factors, involving mas-
sive over-policing and racist law and order politics on the one hand, and a greater level of
offending and social disorganization on the other’ (Blagg, 2012: 3). It is therefore critical to
discuss Aboriginal’s over-representation in the context of the tragic multi-century history of
colonialism and the negative impact on Aboriginal families and communities as well as the
manifestations of such tragedy through the attitudinal and institutional racism of the present.
As Cunneen (2006: 334) states:
An adequate explanation involves analysing interconnecting issues which include historical and
structural conditions, of colonisation, of social and economic marginalisation, and institutional
racism, while at the same time considering the impact of specific (and sometimes quite localised)
practices of criminal justice related agencies.
Without exception, the above-mentioned countries have adopted specific policies to
respond to this shared, tragic, and ongoing situation of Aboriginals in the criminal justice
system. In Australia, for example, an emphasis was placed on increasing self-governance
and decision-making of Aboriginal people and minimizing the contact of Aboriginal
young offenders with the formal criminal justice system through diversionary measures
(Blagg, 2012). More specifically, youth justice conferences promised to be effective alter-
natives to reduce juvenile detention and divert Aboriginal young offenders away from the
formal criminal justice system while holding them accountable for their actions (Cunneen,

42
Youth Justice 14(1)
2008). Indigenous Sentencing Courts were introduced to provide a more culturally appro-
priate and inclusive forum for sentencing Indigenous (young) offenders (Cunneen, 2008;
Marchetti and Daly, 2007). Sentencing circles used in Canada are also operated in some
Australian jurisdictions (e.g. areas in New South Wales). Their underlying premise is that
the involvement of the community is critical to resolving the conflict and related problems
in the community as well as applying meaningful and culturally appropriate consequences
to offenders (Cunneen, 2008).
Another example of policies addressing the over-representation of Aboriginal people in
the US is the Disproportionate Minority Contact initiative, which establishes a range of
options for states to implement to reduce not only Aboriginal criminal justice involvement
but also that of other minorities. These include diversionary measures, alternatives to
secure confinement, and training on cultural competency (Hanes, 2012; Kempf-Leonard,
2007).
Various strategies have also been initiated in Canada to counteract Aboriginal over-
representation in the criminal justice system and custody, in particular. Most importantly
for Aboriginal young people, while the 2003 Youth Criminal Justice Act (YCJA) man-
dates diversion for all first-time and non-serious offenders and the restriction of remand
and prison to the most serious and/or violent young offenders, it also explicitly directs
youth court judges to consider the special needs of Aboriginal young offenders at the sen-
tencing stage including alternatives to prison (Bala and Anand, 2009).2
However, many of these policies addressing the over-representation of Aboriginal
offenders have been unsuccessful, and, in some cases, have even pronounced their adverse
situation in the criminal justice system. For instance, in Australia, Aboriginal young
offenders’ involvement in the criminal justice system continues to be high (Blagg, 2012;
Cunneen, 2008; Fitzgerald, 2009). While there has been a general decline in the imposi-
tion of detention sentences to young offenders, it has been slower for Aboriginal than
non-Aboriginal offenders (Bateman, 2011). Further, there has been evidence that
Aboriginal young offenders are less likely to receive bail and access to diversionary pro-
grams than non-Aboriginal offenders. For example, only 55 per cent of young Aboriginal
people were diverted from court compared to 80 per cent of non-Aboriginal young offend-
ers in 2007 (Blagg, 2012). Further, the level of participation and consultation of Aboriginal
people and organizations in establishing and implementing conferences for young offend-
ers remain unclear (Cunneen, 2008). Overall, Aboriginal young offenders’ over-
presentation in the criminal justice system is higher than it was before reforms were initi-
ated (Blagg, 2012). In this regard, Cunneen and McDonald (1997: 30) criticize a ‘massive
missed opportunity’, due to the lack of commitment by the government, to effectively
implement reforms and decrease the number of Aboriginal young offenders appearing in
court through diversionary measures.
This article examines the impact of the YCJA’s culturally specific sentencing policy on
the Aboriginal youth prison population in Canada. In addition, this article explores the
issue of whether a sample of incarcerated Aboriginal young offenders has different risk
factor and offence profiles than a sample of incarcerated Caucasian young offenders,
which might explain why Aboriginal youth...

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