Trouble in the big house

How mandatory minimum sentencing could make it worse for women in prison

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If the views of Julian Fantino, the former chief of the Toronto and Ontario police forces and now a Conservative MP, are anything to go by, the Conservative government is hell bent on sending more people to prison. “In some cases, the Charter has been exploited and the rulings that have followed have, in fact, benefited some criminals, absolutely,” said Fantino, in a TV interview last November. His attitude echoes the Conservative government’s anti-crime philosophy, which has resulted in legislation like last February’s Truth in Sentencing Act, which removed the two-for-one credit that prisoners received for time served prior to their conviction.

Now the Tories are proposing the establishment of mandatory minimum sentences for a flurry of offences. For example, Bill S-10, which was on the agenda in the House of Commons and Senate in December, would impose mandatory minimum sentencing for growing marijuana (currently, the law sets only maximum penalties). It’s an expensive venture. This week the Harper government announced that it intends to invest $2 billion over five years to absorb the influx of inmates.

This stance has confounded criminologists and opposition politicians alike, who say the hardline agenda will drive more people into prison for longer, and flies in the face of StatCan reports that show police-reported crime rates have been falling. And, critics say, mandatory minimum sentencing would worsen an already increasing problem in Canada’s justice system: the boom in women in federal prisons.

According to the annual report of the Office of the Correctional Investigator, two thirds of the 500 federally sentenced women offenders suffer from substance abuse. Thirty per cent have serious mental health concerns, compared to 14.5 per cent of male offenders. Twenty-five per cent engage in self-harming behaviour, which is also significantly higher than men. The mandatory-minimum legislation, experts say, will only make things worse.

Asked if women’s prisons have the capacity to deal with a further influx of prisoners, correctional investigator Howard Sapers, author of the report, says bluntly: “No.” Sapers says that some women are already being housed long-term in segregation cells, which are meant for short-term confinement of high-risk prisoners. And, he says, because of severe space shortages, prisons are having to double-bunk women in segregation cells.

Predictably, such population pressures exacerbate tensions in prisons. “There are women who have become quite violent in prison, but most of those women weren’t violent in their community,” says Kim Pate, executive director of the Elizabeth Fry Societies of Canada, a women’s justice advocacy group. “Particularly Aboriginal women, who are resistant to authority, but aren’t necessarily violent until put in positions where they are treated in dehumanizing ways.”

For decades Aboriginals have been disproportionately represented in prisons. The female Aboriginal offender population has increased by almost 90 per cent since 2000, and represents the fastest-growing offender group under federal jurisdiction. One in three federally sentenced women is Aboriginal, despite representing only three per cent of the female population in Canada.

Michelle Mann, an Ottawa-based legal consultant who specializes in Aboriginal justice, says that once inside prisons, Aboriginal female offenders face discrimination in the form of routine over-classification in what is known as the Custody Rating Scale, under which they are incarcerated in a facility with a “higher security level than required.” (According to Public Safety Canada, as of April 12, 2009, 73 per cent of female Aboriginal prisoners were serving time for a violent offence, compared to 45.8 per cent of non-Aboriginal female prisoners.) They are also placed in segregation more often than non-Aboriginal offenders. Mann says the systemic over-classification of the offenders serves to aggravate underlying conditions, such as addiction and mental illness, and does little to rehabilitate the women.

But problems exist for all such female prisoners. According to Jula Hughes, a lawyer and law professor at the University of New Brunswick, “when you have a high-needs prisoner, either you meet their needs in prison—and that’s an expensive thing to be doing—or you don’t meet their needs and then you see horrific effects from unmet needs: prison violence, suicide, further criminal offences, and unsafe environments for people who work in prisons.”

Jason Godin, Ontario regional president of the Union of Canadian Correctional Officers, told Maclean’s he’s seeing those conditions now, but Corrections Canada isn’t taking the problem of women offenders seriously and it’s compromising the safety of his staff. “I can tell you the most number of hostage takings of staff members have been by female offenders across the country,” says Godin.

Indeed, the numbers point to a rapidly deteriorating situation. In November, Quebecor Media, Inc. Agency published the results of an internal Corrections Canada report that showed a 140 per cent year-over-year increase in the number of times staff used force—including removal of clothing, pepper spraying, and chemical injections against federally imprisoned women: 311 incidents in 2009 compared to 130 incidents in 2008 and 128 incidents in 2007. Sapers says use-of-force incidents are due to a handful of particularly high-needs offenders who have “serious mental health issues.” But, he says, the use of force is yet another symptom of the underlying problem: the needs of two at-risk groups—women with mental illnesses, and those who are violent—are not being met by the justice system. “Correctional officers are not specifically trained to be psychiatric workers or social workers, and they don’t always have the adequate clinical or professional backup on site.”

The tragedy, according Shoshana Pollack, associate professor in the faculty of social work at Wilfrid Laurier University, is that many female offenders want to get into federal facilities in the belief that they will get help. “Women request a federal sentence over [a] provincial [one], with the hope they’ll get access to treatment, either because waiting lists are long or they don’t have access to it in their communities,” says Pollack. But she says, inside, women have little to no access to rehabilitative services. “The main function of the prison is to maintain the security,” says Pollack. “They’re not treatment centres, and although there’s been a lot of rhetoric about prisons for women being therapeutic and treatment-oriented, the fact is the main purpose of the prison is to punish and control.”

If there’s an exception to that rule it may be the Okimaw Ohci Healing Lodge in Maple Creek, Sask. Opened in 1995, it is located in the Necaneet First Nation, a small community of 150 located 150 km west of Medicine Hat, Alta. The Healing Lodge was born out of the 1992 Corrections and Conditional Release Act, federal legislation that called for culturally relevant strategies for Aboriginal offenders. The healing lodge is successful, if lower rates of recidivism among former inmates and safer work environments for staff are any indication. And yet, a 2008 Healing Lodge audit found that Corrections Canada does not have any policy framework in place to support the construction of similar lodges. Okimaw Ohci, which can serve approximately 40 inmates, remains the only one of its kind.

Meanwhile, other prisons struggle with high rates of recidivism and an increasingly problematic offender profile. In an effort to protect themselves, female inmates turn to gangs, a trend well documented by Corrections Canada. “Some of the anecdotal stories that we hear, particularly from younger women, particularly in the western provinces, if you didn’t go into a prison with some affiliation with a gang, you’ll certainly leave with an affiliation with a gang,” says Kate Rexe, director of the Sisters in Spirit of the Native Women’s Association of Canada. “It’s simply a protection factor when you’re inside, and a protection factor when you’re outside.”

Given the increasing problems for Canada’s female inmates, what will mandatory minimum sentences accomplish? Nothing positive, says Joseph Di Luca, vice-president of Canada’s Criminal Lawyers’ Association. “Mandatory minimum sentences failed in the States, and, ironically, they are recognizing that,” says Di Luca. “The only thing it meant is crowded prisons, housing a disproportional amount of groups, namely black and Aboriginal communities.” Yet, says Di Luca, Canada is following a similar course by “marching straight into mandatory minimum sentences.” Something, he says, that will result in a prison system that “simply warehouses people.”