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

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 population (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 people are eight times more likely to be sentenced to prison than their Caucasian counterparts (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 situation 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 population. 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 concerning. 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 massive 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 alternatives to reduce juvenile detention and divert Aboriginal young offenders away from the formal criminal justice system while holding them accountable for their actions (Cunneen, 2008). Indigenous Sentencing Courts were introduced to provide a more culturally appropriate 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) mandates 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 sentencing 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 imposition 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 programs 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 offenders in 2007 (Blagg, 2012). Further, the level of participation and consultation of Aboriginal people and organizations in establishing and implementing conferences for young offenders remain unclear (Cunneen, 2008). Overall, Aboriginal young offenders’ over-presentation in the criminal justice system is higher than it was before reforms were initiated (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 continue to be incarcerated at disproportionately high rates in Canada.

Aboriginal Offenders and Canada’s Youth Justice System

A main objective of the 2003 YCJA is to reduce the use of the formal youth criminal justice system for minor offences through alternative measures such as diversion. While alternative measures were encouraged under the YCJA’s predecessor, the 1982 Young Offenders Act (YOA), the latter law did not legally mandate their use unlike the current act.³ Under the YOA, a substantial number of first-time and non-serious offenders, including probation breaches or failure to appear in court, received prison sentences (Bala and Anand, 2009; Doob and Sprott, 2005). Somewhat surprisingly, Canada’s youth incarceration rate was double the rate in the US and 10 to 15 times higher than the adult incarceration rate in Canada (Department of Justice Canada, 2011). Moreover, young offenders received even longer custody sentences than adults for their most frequent offences in youth court (including theft, break and enter, mischief, common assault, and possession of stolen property) except for robbery (Hogeveen, 2005). More disturbingly, Aboriginal young offenders’ court and prison rates under the YOA were overwhelmingly disproportionate: Aboriginal young offenders constituted approximately 6 per cent of the youth population, yet accounted for almost half of the admissions to both remand (44%) and prison (46%). It is similarly disconcerting that only approximately one fifth (21%) of the court cases that utilized alternative measures involved Aboriginal young offenders (Kong, 2009; Reitano, 2004).

A key theoretical and policy issue was whether these disproportionate involvements of Aboriginal young people in Canadian youth criminal justice reflected either discrimination, or their higher prevalence of risk factors for serious offending and more serious offence profiles compared to non-Aboriginal young offenders. Regarding the latter explanation, Aboriginal young offenders were disproportionately characterized by inter-related individual and environmental risk factors that have been commonly identified as correlates of youth offending, including high levels of poverty; family conflict; lower levels of education; substance abuse problems; and psychological and emotional problems (Corrado and Cohen, 2002; Corrado et al., 2011). In addition, Aboriginal people were three times more likely than non-Aboriginal people to experience violent victimization and higher incidents of physical and sexual abuse, particularly from relatives, friends, neighbours or acquaintances (Bateman, 2011; Brzozowski et al., 2006). Very importantly, incarcerated Aboriginal young offenders disproportionately were confirmed and suspected of having Fetal Alcohol Spectrum Disorder and Attention Deficit Disorder (Corrado et al., 2008; Latimer and Foss, 2005).

In Canada, this complex profile has been explained by the uniquely destructive historical policies of various British colonial and Canadian governments across four centuries. Parallel to the historical context of Aboriginal people in other countries, the more recent 20th century policies in Canada included cultural assimilation, the destruction of traditional Aboriginal families resulting from children forcefully being removed from their families and sent to largely Christian residential schools. The consequences from Aboriginal children being routinely victimized in these schools have been causally associated with the loss of identity and self esteem and, in turn, inter-generational poverty, cycles of abuse, family adversity, high suicide rates, and high rates of substance abuse. The latter, in particular, has been perceived as a form of self-medication related to both direct trauma and inter-generational family-based trauma (Bombay et al., 2009; Paletta, 2008).

Ultimately, it has been commonly asserted that this pattern of risk factors for serious and violent offending explains why Aboriginal young people in Canada have been at a higher risk of criminal behaviour and involvement in the criminal justice system (Bala and Anand, 2009; Latimer and Foss, 2005; Rudin, 2005). Another hypothesis is that racial discrimination and cultural bias of the English-based common law youth justice system, underlying the YOA and the YCJA sections involving serious and violent offences, have resulted in the disproportionate rates of incarcerated Aboriginal young people along with other minorities (Bala and Anand, 2009; Rudin, 2005).

The YCJA included the first explicit principles directed at the historical over-representation of Aboriginal young people in the Canadian youth criminal justice system. The YCJA’s Declaration of Principles states that any measures imposed on young offenders should ‘respect gender, ethnic, cultural and linguistic differences and respond to the needs of Aboriginal young persons and of young persons with special requirements’.⁴ In addition, sentencing section 38(2) (d) of the YCJA, which is equivalent to section 718.2(e) of the Criminal Code, instructs judges that, ‘all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of Aboriginal young persons’.

The Supreme Court of Canada discussed the extent of the section 718.2(e) in R. v. Gladue [1999] 1 S.C.R. 688 and recognized that this provision was a response to the ‘acute problem of the disproportionate incarceration of Aboriginal peoples and the failure of incarceration to reduce offending’.⁵ Both sections 718.2(e) of the Criminal Code and 38(2)(d) of the YCJA direct that the culturally specific status and distinct history of Aboriginal offenders should be considered at the sentencing stage. This specific consideration does not mean an automatic sanction discount. Rather, systemic and culturally specific background factors of Aboriginal offenders should be taken into account and sanctions imposed accordingly. This regulation applies especially to offenders who commit less serious crimes and who can be held accountable through community-based sanctions, even if they have a significant record of prior offending (Rudin, 2005).

The Impact of the YCJA on the Youth Justice System

There is a consensus that the YCJA has affected or, at least accentuated, dramatic reductions in court referrals and custodial sentences and a corresponding drastic increase in the use of diversionary measures in all regions of Canada (Carrington and Schulenberg, 2004). In effect, on average, it has been more serious young offenders who have been sentenced to custody (Bala et al., 2009; Bateman, 2011; Doob and Sprott, 2005). Fewer young people were admitted to custody for property crimes (27% in 2007/08) and the largest proportion of youth was incarcerated for violent crimes (39% in 2007/08) (Kong, 2009). These numbers reversed the custody composition under the YOA, where the majority of young offenders (36%) were incarcerated for property and less than one third (29%) for violent crimes (Kong, 2009).

However, despite the YCJA’s general success, Aboriginal young people remained disproportionately over-represented regarding remand and custodial sentences (Bateman, 2011; Calverly et al., 2010; Kong, 2009; Latimer and Foss, 2005). Although the absolute number of Aboriginal young offenders sentenced to custody started to gradually and consistently decline in 1998/99 under the YOA and then this decline accelerated with the implementation of the YCJA, it decreased at a lower rate than for Caucasian young offenders. There was also a slight increase in the number of Aboriginal young offenders on remand during the first year of the YCJA, while remand rates for Caucasian young people declined (Brzozowski et al., 2006; Doob and Sprott, 2005). A study conducted immediately after the implementation of the YCJA revealed that Aboriginal young offenders were almost eight times more likely to be incarcerated than their Caucasian counterparts (Latimer and Foss, 2005). Moreover, Aboriginal offenders were more likely to receive secure custody (i.e. the most restrictive form) and they were less likely than Caucasian young offenders to receive community sanctions. Even controlling for the severity of the offences committed by Aboriginal young people, Aboriginal offenders had higher custody sentence rates. Finally, Aboriginal custody rates for the least serious offences or administrative offences also were three times higher than those of Caucasian young offenders (Rudin, 2005).

This continued adverse situation for Aboriginal young offenders under the YCJA is similar to their counterparts in Australia. As mentioned previously, one hypothesis for the continued disproportionality of Aboriginal young offenders sentenced to custody under the YCJA was that they were more likely to have a more serious current offence profile than Caucasian young people sentenced to custody. A related hypothesis was that, while in general the risk factor profile was similar for both Aboriginal and Caucasian serious and violent young offenders, certain key risk factors such as lack of educational attainment and substance abuse were more prevalent for Aboriginal young people (Corrado et al., 2008). A large study of incarcerated young offenders in British Columbia was utilized to assess these hypotheses.

Methodology

Participants, sample, and research instruments

The data used in this analysis came from the Study of Incarcerated Youth in British Columbia and was collected from 2005 to 2009 at the Willingdon Youth Custody Centre. Because this research drew on a sample of incarcerated youth in Canada, the types of youth offending included murder, sexual assault, assault, robbery, property offences, drug offences, and administrative offences (e.g. probation breaches). Researchers approached all available offenders at this youth custody centre in Vancouver, which is the largest in British Columbia, to participate in this study. Approximately, seven per cent of those approached refused to participate in the interview process. The final sample in this analysis was 404, which included 154 Aboriginal (38.1%) and 250 Caucasian (61.9%) incarcerated young offenders.⁶ The gender ratio was 87 girls (21.5%) to 317 (78.5%) boys. The research instruments utilized in this project included a series of semi-structured interviews.

Procedures and measures

In order to examine whether Aboriginal young offenders were likely to have more serious offence and/or risk profiles than Caucasian offenders, binary comparisons were conducted, generally using t-tests on the mean of the two groups (Aboriginal versus Caucasian). Robust tests (e.g. Mann-Whitney) and tests of proportions were employed where t-tests were not appropriate. In addition, a logistic regression involving 11 predictor variables and ethnicity as the dependent variable was conducted. This statistic was utilized since these variables did not meet the required assumptions for a discriminant analysis. In other words, logistic regression analysis was used to assess if the two groups of offenders had a distinct risk factor and offence profile. Because the study sample dependent variable was unbalanced, i.e. more Caucasian than Aboriginal offenders were included in the analysis, the sample was weighted for the logistic regression.

Because several predictor variables included multiple indicators, four indices were created for the logistic regression model. These indices were necessary to ensure the appropriate ratio of covariates and observations required for the logistic regression analysis. First, the family history profile, which included alcohol problems, drug problems, experienced abuse, mental health problems, and criminal records of family members, constituted the family profile index; the value of this variable increased with the greater number of reported problems of family members. The second index variable involved multiple indicators of youth’s school problems: ranging from 1−21, it included such behaviours such as skipping classes, cheating, intimidating or bullying other students, fighting, stealing, using or selling drugs, destroying school property, and carrying a weapon. The third delinquency index range was 1-6: a score of 1 was based on minor delinquency, e.g. minor shoplifting, vandalism, or using fake ID cards to get in somewhere; a score of 2 for moderate delinquency, e.g. theft or breaking and entering; or a score of 3 for serious delinquency, e.g. using a weapon while fighting, committing robbery, or assaulting others. If youth were involved in more than one type of delinquency, their scores were added up. For instance, if a young person committed minor, moderate, and serious acts of delinquency, he or she got a score of 6. The fourth index, the serious use of alcohol/drugs, ranged from 1−8 depending on characteristics of the youth’s substance use that were thought to represent risk factors for abuse (e.g. using alcohol or drugs in the past to feel better or using drugs and alcohol at the same time) and related harmful consequences reported by the young person (e.g. gotten in trouble when drunk or drinking or not being able to remember what happened).

Results: Differences between Aboriginal and Caucasian Young Offenders’ Profiles

Sample demographics

Of the 404 incarcerated young offenders used for this analysis, approximately two thirds were Caucasian (61.9%) and about one third (38.1%) were Aboriginal. The large majority of the sample were boys (78.5%), while girls represented about one fifth (21.5%) of the sample. The mean age of both ethnic groups was 16, with an age range of 13−18 for Aboriginal and 12−19 for Caucasian young people.

Aboriginal young people continued to be highly and disproportionately involved in youth corrections in British Columbia; again, while Aboriginal young people made up 6 per cent of the general population, they were more than one third (38.1%) of this sample (Table 1). More disconcertingly, while girls constituted slightly less than one fifth (18.8%) of the Caucasian sample, they were slightly more than one quarter (26%) of the Aboriginal sample. The difference was highly significant. There were no significant age differences between the two subsamples; most youth were between 15 and 17 years of age.

Table 1.

Demographics.

	Aboriginaln (%)	Caucasiann (%)
Ethnic	154 (38.1)	250 (61.9)
Gender:
Female	40 (26.0)	47 (18.8)
Male	114 (74.0)	203 (81.2)
Mean age	16.0	16.0

Educational profile

Not unexpectedly, less than half of the young people in both groups were attending school prior to entering custody. Grade nine was typically the highest completed grade for youth who were not enrolled in school (Table 2). Equally large majorities of young people in both groups had attended alternative schools. In Canada, alternative schools are typically for students who have been expelled or are directed there by administrators in lieu of attending regular schools because of either discipline problems or the desire to access smaller teacher to student classes (e.g. because of learning disabilities). In both groups, the most common reasons for not being enrolled were having either dropped out or been expelled. School changes for other reasons than grade changes were common; on average, there were five school changes for Aboriginal young people, and a slightly higher number (6) for Caucasian youth (Table 2).

Table 2.

Comparisons of educational profiles.

	Aboriginaln (%)	Caucasiann (%)	Test statistic	Sig.
Attending school (yes)	70 (45.5)	102 (40.8)	−0.918	0.179
Been to an alternative school (yes)	125 (81.2)	203 (81.2)	0.008	0.497
Last grade completed	Mean = 8.8	Mean = 8.6	0.725	0.469
Changed schools other than for grade changes (yes)	Median = 4	Median = 5	−1.497	0.135

Living situations

Only a minority of youth lived with one or both of their natural parents before entering custody (Table 3). Very importantly, significantly more Caucasian youth lived by themselves, while a substantial number of Aboriginal young people lived with relatives or in government care (either foster family care or group homes). Regarding the latter, nearly three quarters (71%) of Aboriginal young people were placed in foster care compared to more than half (57.3%) of the Caucasian youth. In addition, Aboriginal young people had significantly higher numbers of different foster care placements, and were placed in foster care at an earlier age than Caucasian young people. Another indication of the problematic living situation of both groups of offenders was the near unanimity (approximately 90%) of youth who reported having left and/or been kicked out of their homes for more than a day.

Table 3.

Comparisons of family and other living situations.

	Aboriginaln (%)	Caucasiann (%)	Teststatistic	Sig.
Foster home (yes)	106 (71.1)	138 (57.3)	2.75	0.003
No. of foster care placements	Median = 5	Median = 4	2.010	0.044
Age of first foster care	Mean = 8.0	Mean = 10.1	−3.735	<0.001
Living situation:
With both parents	9 (5.9)	24 (9.6)	1.332	0.091
With mother	34 (22.2)	64 (25.7)	0.789	0.215
With father	9 (5.9)	19 (7.6)	0.669	0.252
Foster parents	37 (24.2)	21 (8.4)	−4.363	<0.001
Step parents	1 (0.7)	3 (1.2)	0.541	0.294
Adopted parents	4 (2.6)	4 (1.6)	−0.703	0.241
Alone	5 (3.3)	28 (11.2)	2.829	0.002
Relative	21 (13.7)	17 (6.8)	−2.295	0.011
Friend	13 (8.5)	32 (12.9)	1.345	0.089
Group home	11 (7.2)	6 (2.4)	−2.312	0.010
No fixed address	9 (5.9)	11 (4.4)	−0.656	0.256

Note: Bold indicates statistically significant at the .05 level.

Family profile

Adverse family profiles were evident for Aboriginal and Caucasian young people (Table 4). Family members included parents, siblings, aunts, cousins and grandparents. More than three quarters (77.3%) of Aboriginal young people and two thirds (66%) of Caucasian young people reported that at least one of their family members had a criminal record. More than half of the youth indicated a substance abuse problem in their families. However, Aboriginal young people were significantly more likely to report that at least one of their biological parents had both a criminal record (55%) and been the victim of physical abuse (78%). Nonetheless, physical and sexual abuse was common for both groups’ families. While slightly less than the lowest standard significance level (0.10), Aboriginal young people reported a higher frequency of family alcohol problems, and Caucasian youth reported higher levels of family mental health problems and drug problems. Yet, Aboriginal young people had a significant and slightly higher summary family profile index score (3.37) than Caucasian young people (2.94).

Table 4.

Comparisons of family profiles.

	Aboriginaln (%)	Caucasiann (%)	Test statistic	Sig.
Biological parents family profile:
Alcohol problem	85 (79.4)	107 (72.3)	−1.035	0.096
Drug problem	56 (67.5)	103 (75.7)	1.331	0.092
Physical abuse	61 (78.2)	72 (66.7)	−1.720	0.043
Sexual abuse	23 (54.8)	28 (58.3)	0.341	0.367
Criminal record	86 (55.8)	118 (47.2)	1.688	0.046
Mental illness	25 (47.2)	47 (59.5)	1.394	0.082
Family profile index (1−6)	Mean = 3.370	Mean = 2.941	2.535	0.012

Note: Bold indicates statistically significant at the .05 level.

Substance abuse

The ten most common substances reportedly used by study participants are presented in Table 5. Nearly all young offenders had used alcohol and marijuana. Furthermore, approximately two thirds of the all youth had taken ecstasy along with ‘hard’ drugs such as crack cocaine, and nearly half had used both crack and crystal meth. On average, all youth had used 4−5 different drugs. Both Aboriginal and Caucasian young offenders typically started drinking and using marijuana around 12 years-old, and other drugs at 13.

Table 5.

Comparisons of drug usage profiles.

	Aboriginaln (%)	Caucasiann (%)	Test statistic	Sig.
No. of different drugs tried	Mean = 4.4	Mean = 4.9	−1.784	0.075
Age of first drug use	Mean =10.7	Mean = 11.1	−1.190	0.235
Substances ever used
Alcohol	150 (98.0)	244 (97.6)	−0.290	0.386
Marijuana	152 (99.4)	242 (96.8)	−1.679	0.047
Ecstasy	128 (83.7)	216 (86.4)	0.755	0.225
Cocaine	97 (63.4)	181 (72.4)	1.896	0.029
Crack	75 (49.0)	119 (47.6)	−0.279	0.391
Crystal Meth	66 (43.1)	117 (46.8)	0.717	0.237
Prescription Pills	62 (40.5)	111 (44.4)	0.763	0.223
Mushrooms	54 (35.3)	100 (40.0)	0.944	0.173
LSD	36 (23.5)	60 (24.0)	0.108	0.457
Heroin	26 (17.0)	53 (21.2)	1.032	0.151

Note: Bold indicates statistically significant at the .05 level.

Experienced abuse

Physical trauma was reported for approximately half of the young people from both groups, with girls far more likely to have been abused than boys (Table 6). There were no statistical differences between Aboriginal and Caucasian young people. In contrast, while far fewer young people overall reported having been sexually abused, almost one fifth (18.8%) of the Aboriginal and slightly more than one tenth (11.4%) of the Caucasian young offenders mentioned this victim experience. This difference was statistically significant. However, while girls were far more likely to have been sexually abused than boys, and Aboriginal girls (51.9%) more than Caucasian girls (40%), the latter difference was not statistically significant.

Table 6.

Comparisons of abuse profiles.

	Aboriginaln (%)	Caucasiann (%)	Test statistic	Sig.
Physical Abuse:	66 (50.8)	100 (46.1)	−0.846	0.199
Female	21 (70.0)	25 (71.4)	0.126	0.450
Male	45 (45.0)	75 (41.2)	−0.616	0.269
Sexual Abuse:	24 (18.8)	25 (11.4)	−1.910	0.028
Female	14 (51.9)	14 (40.0)	−0.930	0.176
Male	10 (9.9)	11 (5.9)	−1.230	0.110

Note: Bold indicates statistically significant at the .05 level.

Criminal history

As discussed above, one hypothesis concerning the over-representation of Aboriginal versus Caucasian young people was the likelihood that the former youth had more serious criminal histories and current offence profiles. This hypothesis was not supported in this study given that there were no such statistical differences in these key sentencing criteria. Both groups had the same proportions of violent and non-violent charges; more than half of the young people in both groups were charged with at least one violent offence (Table 7). More specifically, when comparing their most serious charges, there were no substantial differences for violent offences (e.g. homicides and assaults), property offences, drug related offences, and administrative offences. On average, Aboriginal young offenders were charged with an average of 2.3 offences and Caucasian young offenders with 2.6. Similarly, regarding criminal histories, both groups reported having been in contact with the police for the first time at age 11 along with a similar median number of arrests (three arrests for Aboriginal youth and four arrests for Caucasian young people). Both groups had one prior prison sentence, received, on average, at the age of 14. Their self-reported delinquent behaviours were also very similar. Nearly the entire sample reported having committed minor (e.g. minor shoplifting, vandalism, or using fake ID cards to get in somewhere) and moderate delinquency (e.g. theft or breaking and entering). Approximately three quarters of the young people in both groups reported having been involved in serious and violent delinquency, such as using a weapon while fighting, committing robbery, or assaulting others. While these results suggested that our sample overwhelmingly included the most serious and violent young offenders, there were no significant differences between the two groups in terms of their criminal history and current charges.

Table 7.

Comparisons of criminal histories and current charges.

	Aboriginaln (%)	Caucasiann (%)	Test statistic	Sig.
Age of first contact with police	Mean = 11.5	Mean = 11.3	−0.794	0.428
Number of times arrested	Median = 3	Median = 4	−0.203	0.839
Previous prison sentences	Median = 1	Median = 1	1.078	0.281
Age of first prison sentence	Mean = 14.3	Mean = 14.5	1.025	0.306
No. of current charges	Mean = 2.3	Mean = 2.6	1.556	0.120
Delinquency:
Minor/moderate delinquency	152 (99.3)	246 (99.1)	−0.173	0.432
Serious delinquency	136 (91.3)	230 (93.9)	0.975	0.165
Violent serious delinquency	119 (77.8)	208 (84.2)	1.619	0.053
Administrative charges:
Administrative plus another offence	77 (55.4)	123 (55.4)	0.002	0.499
Administrative offence only	25 (17.2)	32 (13.6)	−0.978	0.164
No administrative offence	34 (23.6)	64 (27.8)	0.902	0.184
Current charge violent (yes)	73 (53.7)	131(61.8)	1.5	0.067

As mentioned above, one of the objectives of the YCJA was to reduce the use of prison for non-serious and first-time offenders, particularly for administrative offences such as probation breaches or failure to appear in court. Incarcerated young offenders with administrative charges were only a minority of the sample for both Aboriginal (17.2%) and Caucasian (16.6%) young people. Equally important, while this minority had an administrative offence as their most serious charge, these young offenders nonetheless very likely had lengthy criminal histories of more serious offences.

Regression Results

Logistic regression analysis assessed whether there was a different risk profile for incarcerated Aboriginal young offenders compared to Caucasian young offenders. All 11 risk factor variables were entered into the regression analysis simultaneously (see Table 8). The Pseudo R² for this model (.106) indicated that the model explained approximately 10.6 per cent of the variance in the dependent variable, ethnicity (Caucasian/Aboriginal). The Hosmer and Lemeshow test for this model was not significant (.822), which indicated a good fit for the model.

Table 8.

Logistic regression results for ethnicity.

	B	S.E.	Wald	Exp(B)	Sig.
Age	.004	.111	.001	1.004	.970
Gender^a	−.050	.338	.022	.952	.883
Enrolled in school	.284	.263	1.167	1.328	.280
No. of school changes	−.045	.025	3.228	.956	.072
School trouble index (1-21)	−.050	.039	1.601	.951	.206
Family profile index (1-6)^b	.216	.088	6.036	1.241	.014
Foster care^b	.597	.286	4.356	1.817	.037
Delinquency index (1-6)	−.116	.104	1.241	.890	.265
No. of previous custody sentences	.044	.046	.936	1.045	.333
No. of arrests (0-15; >15)	−.300	.282	1.131	.741	.288
Substance abuse index (1-8)	.099	.067	2.194	1.105	.139

Note: Bold indicates statistically significant at the .05 level.

Caucasians were coded as 0.

Coefficient comparison test revealed significant difference between Aboriginals and Caucasians.

Only 2 of the 11 risk predictors, the family profile index and foster care, were significant at the 0.05 level in this model. Aboriginal young offenders were significantly more likely than Caucasian young offenders to score higher on the family profile index, i.e. they reported more frequently that one or more of their family members had problems such as substance abuse problems, mental health issues, and criminal records. In addition, these Aboriginal youth were more likely than their Caucasian counterparts to have been in foster care.

Discussion

The absence of significant differences between these two groups on nine risk factors was not unexpected. Given the pervasiveness of the family, education, and living arrangement risk factors for both groups, the extensive drug abuse of both groups of youth quite likely was related, in part at least, to self-medication in response to their mental health problems and trauma experiences. Consistent with the extensive literature on gender differences in risk factors, girls in both groups were significantly more likely to have reported sexual abuse (Chesney-Lind and Pasko, 2004). These risk factors have all been related to increased likelihoods of school discipline problems, poor school performance, and dropout rates, which then increased the likelihood of serious and violent offending (Corrado and Cohen, 2011).

Family problems in general, and criminal parents in particular, have consistently been among the strongest factors explaining serious and violent offenders (Farrington, 2010; Farrington and Welsh, 2007; Farrington et al., 2008). In this study sample, Caucasian incarcerated young offenders came from adverse family situations, including experienced physical and sexual abuse, criminal activity, and substance abuse histories. However, incarcerated Aboriginal young offenders had statistically significant, and arguably theoretically critical, higher inter-generational family adversity: higher family profile index scores and foster care placements. These two risk factors have been strongly correlated, i.e. higher scores on the family profile index increased the likelihood of more foster care placements. In turn, higher levels of foster care placements have been strongly associated with substantially higher involvement in juvenile and adult criminal justice systems, including disproportionately higher prison sentences (Corrado et al., 2011). There is no definitive explanation of why higher foster care placements were so strongly predictive of higher frequencies of prison sentences.

The results of this study support previous research that Aboriginal young people are characterized by a risk factor profile that puts them at a higher risk of offending and getting involved in the criminal justice system. However, solely using this risk factor paradigm to explain the disproportionate over-representation of Aboriginal young offenders in the criminal justice system neglects the broader socio political context and the manifestations of the tragic multi-century history of colonialism and its negative impact on Aboriginal families. Strategies that aimed at the expropriation of the land, disrupting Aboriginal communities, and the forced removal of Aboriginal children from their families and communities as well as cruel assimilation strategies that prohibited the practice of Aboriginal culture and language and the experienced abuse in Canadian residential schools have ‘broken’ generations of Aboriginal families. The destructive, inter-generational impact on Aboriginal people and their families includes unresolved grief and trauma, and a greater risk for mental illness, family conflict, child mortality, suicide and self harm, a lack of education achievement, poverty, unemployment, and substance abuse (Blagg, 2012; LaPrairie, 2008; Rudin, 2005). While identifying and addressing these risk factors with early interventions is deemed a promising and common strategy to prevent crime, the inherent danger is ‘an over-determined descriptive criminology, deprived of any social/human dimension. It is an anti-sociological methodology in denial’ (Presdee, 2004 in Case, 2006: 174). Again, focusing solely on interventions that identify and address these risk factors neglects the structural, political, and historical context in which they occur. This might lead to an even greater marginalization and criminalization of Aboriginal young people (Case, 2007; Cunneen 2008).

In addition to early intervention strategies, Canada and other countries increasingly use risk assessments at almost every decision point in the juvenile justice system, especially for the preparation of youth pre-sentencing reports. In this regard, Maurutto and Hannah-Moffat (2007) indicate that there have been concerns from judges, prosecutors, and defence lawyers about the appropriateness of using risk assessments instruments and risk-based sentencing for young offenders, and, particularly, for minority groups such as female and Aboriginal young people. The concern is that the classification of criminogenic risks and needs contradicts the legally mandated principle of proportional sentencing under the YCJA. Further, they claim that these risk assessments ‘introduce speculation and morally laden subjective assessments that reflect white, Western middle class judgement’ that ‘could result in more intrusive and punitive dispositions for marginalised youth’ (Maurutto and Hannah-Moffat, 2007: 467). This concern might explain why Aboriginal young people continue to be disproportionately over-represented regarding remand and (secure) custodial sentences and are less likely than Caucasian young offenders to receive community sanctions under the YCJA despite its culturally specific sentencing policy. Feld comments in this regard that:

From their inception, juvenile justice policies inexorably expanded the authority of the state to intervene in the lives of the poor and minority youth, failed to address the economic and social circumstances that give rise to their disproportionate over-representation in the criminal justice system, and thereby perpetuated injustice and inequality. (Feld, 1999, in Kempf Leonard, 2007: 840)

Similarly, Case (2006) criticizes the current risk factor approach for neglecting the impact of gender, age, ethnicity, class, local area, and type of offending. He suggests in this regard to shift the focus of juvenile justice from the risk factor approach, which emphasizes aggregate correlates of crime, to a more holistic and sensitive methodology that considers not just the risks but also ‘the expressed needs of young people, identification of factors that increase the likelihood of young people expressing need (for support, services, and guidance), and the identification of factors that encourage positive and pro-social behaviour’ (Case, 2006: 175). In other words, it needs to be asked ‘what kinds of risk factors have what kind of impact upon what kinds of people under what kinds of circumstances and why?’ (Case, 2007: 98). Rather than imposing more punitive interventions and sanctions based on Aboriginal young offender’s quantitative higher risk of offending, this more qualitative and holistic criminal justice approach would address the underlying causes of their over-representation, such as their social and economic marginalization grounded in historical processes, and, eventually, improve their adverse situation in the criminal justice system.

It is not unexpected, therefore, that despite the recent YCJA explicit directives toward rectifying destructive federal/provincial/territorial policies towards Aboriginal families and their children, the situation of Aboriginal young people in the criminal justice system has not improved. In this context, Rudin (2005: 51) asserted that:

Changing the sentencing regime for Aboriginal people cannot occur simply by legislative fiat or a way of a decision of the Supreme Court of Canada. The institutional pressures to move an already overburdened criminal justice system along means that there must be some real changes in the way information is gathered and presented regarding Aboriginal people for change to truly occur. Doing things the way they have always been done but with passing reference to the circumstances of Aboriginal people will change nothing.

More importantly, these real changes require solutions outside of the criminal justice system. While solutions that include separate Aboriginal justice systems such as Aboriginal sentencing courts promote self-governance aspirations and community inclusion, it is likely that these systems will have the same problems that plague the traditional justice system (LaPrairie, 2008). Instead, complex, multi-level, and community-based solutions are necessary to address the inter-generational economic and social adversity many Aboriginal youth and their families face. Thereby, it is important to not simply view Aboriginal young people as powerless recipients of unfair criminal justice policies, and their social and economic disadvantage as an accumulation of risk factors that explain their over-representation in the criminal justice system. Rather, the historical context and contemporary effects of colonial policies and experienced inter-generational trauma should be emphasized (Cunneen and White, 2007). In this regard, Cunneen refers a post-colonial perspective that shifts the focus from the traditional criminal justice system to the creation of culturally sensitive youth justice and self-governing and self-determining Aboriginal communities (Cunneen, 2011, in Blagg, 2012: 2)

Most importantly, the hypothesis that the continued disproportionality of Aboriginal young offenders sentenced to custody under the YCJA occurred because they were more likely to have had both more serious current offence profiles and prior criminal histories than Caucasian young people sentenced to custody was not supported in this study. However, the alternative explanation, that judges have been discriminating against Aboriginal young offenders in their custody sentencing, does not have strong historical support in Canada. Both Canadian parliaments and the Supreme Court of Canada have been explicit in recognizing consistently the disproportionate number of Aboriginal young people and adults in prisons, and both have emphasized laws and policies focused on this outstanding issue. Further, few if any Aboriginal leaders have argued that Canadian judges have been engaged in discriminatory sentencing. Instead, most of these leaders have asserted that macro political and economic based explanations have injured and continue to damage Aboriginal families with the result that Aboriginal young people generally have been traditionally at higher risk for serious and violent offending than most Caucasian young people (Royal Commission on Aboriginal Peoples, 1996; Rudin, 2005).

With respect to restricting prison sentences to the most serious and violent offences, Canadian provincial and territorial youth court judges historically have not been subject to external political influences such as the media, political parties, crime focused interest groups and governments compared to their counterparts in many US states (Corrado and Turnbull, 1992). Therefore, it was arguably not unexpected that these Canadian judges responded accordingly. Furthermore, several Supreme Court decisions confirmed the narrow interpretation of the eligibility criteria for prison sentences for young offenders (Bala et al., 2009). Similarly, in most provinces and territories, other key youth justice decision-makers including police officers, youth probation officers, and youth correction officers also adjusted their pre-sentencing input criteria and post-sentencing decisions consistent with the YCJA sentencing criteria and treatment plans (Alain et al., forthcoming). Again, the latter included special treatment focused sentencing considerations for serious Aboriginal young offenders. However, one provincial study did reveal that the resources to implement special treatment programing often were either not available or not accessed (Kuehn and Corrado, 2011).

While it is beyond the scope of this article to discuss the discriminatory practices and over-policing of Aboriginal communities at the front-end of the criminal justice system, it has been commonly asserted that these policies contribute to the over-representation of the Aboriginal people in the criminal justice system. As mentioned above, previous studies confirm that Aboriginal young people are treated differently than their Caucasian counterparts. They do not benefit as much from informal and less intrusive criminal justice measures and receive more punitive outcomes when police officers and judges make discretionary decisions (Brzozowski et al., 2006; Cunneen, 2008; Cunneen and White, 2007; Rudin, 2005). For instance, Aboriginal young offenders are less likely to receive diversionary measures such as police caution, conferencing and other restorative justice options (Blagg, 2012; Cunneen, 2008; Cunneen and White, 2007; Snowball, 2008). However, it is less clear in Canada if their differential treatment is based on discriminatory practices. Therefore, more research in Canada is necessary to examine how discretionary decisions at the front end of the criminal justice system are made and how Aboriginal young people are charged and processed compared to their Caucasian counterparts.

Limitations

This study had several limitations. First, most of the self-report data used was not confirmed by other sources and therefore false memory, impression management, and social desirability validity concerns remained. However, prior to interviewing young offenders, research assistants reviewed prison and court files to be aware of the young people’s criminal history and as much relevant background information as was available. This procedure ensured that research assistants could at least clarify conflicting information that the youth provided during the interview, such as family information and current charges. In general, self-report data has provided critical insights into young offenders’ subjective perceptions, particularly in terms of their (undetected) delinquent behaviour, family background, experienced abuse, school problems, and substance abuse (Knight, Little, Losoya, and Mulvey, 2004).

Second, the study sample included only the most serious and violent offenders, who constituted a small minority of all young offenders. The findings reported here have limited generalizability to most young offenders. Third, the results may not be directly generalizable to other provincial jurisdictions and national systems. Youth justice systems in Canada are provincial jurisdictions; therefore, there have historically been fundamental differences in how young people have been processed, especially in terms of sentencing, youth justice history, local court culture, and the availability of community programs. British Columbia and Quebec, despite distinctively different youth justice philosophies and systems, have had among the lowest custody rates (Bala and Anand, 2009; Trépanier, 2004).

Conclusion

There is a consensus among Canadian researchers that the YCJA and related provincial/territorial laws and policies have been effective in reducing the absolute number of young offenders given prison sentences including Aboriginal young offenders; yet the latter’s historical over-representation in youth custody has not changed despite the Act’s emphasis on alternative and culturally specific sentences for these young people. This continued disproportionality suggests that additional strategies need to be considered.

For Aboriginal young offenders in Canada and elsewhere, the policy challenges include how to mitigate the negative impact of colonial and post-colonial laws and policies on Aboriginal families. In other words, whether in Australia, Canada, the United States, or New Zealand, policies to reduce the inter-generational transmission of Aboriginal family disruption and other social indicators of inequality such as poverty, chronic ill health, mental illness, intrafamily abuse, and intimate community violence, all strongly associated with serious and violent Aboriginal young offender’s disproportionality in these countries’ prisons, arguably require more innovative strategies. Explicit policies are likely needed that integrate Aboriginal cultural and historical distinctiveness and complex, inter-generational risk and need profiles beyond just youth criminal justice agencies. In Canada, for example, the YCJA jurisdiction is limited to youth 12 to 18 years of age and custody sentences are reserved for youth 14 and older. Aggression and violence, along with other forms of serious delinquency for children under 12 years of age, are under the legal jurisdiction of family/children welfare laws and ministries along with related government and non-government agencies. One result has been the frequent and disproportionate use of foster care placements to respond to serious Aboriginal delinquency and early adolescent Aboriginal young offenders (12−15 years of age). A series of research reports on this issue in British Columbia was recently published by the Representative for Children and Youth, a politically independent oversight institution responsible for reviewing incidents of harm to vulnerable children and youth and making premeditative recommendations to the provincial government and Parliament (British Columbia Representative for Children and Youth, 2006, 2007 and 2009). Consistent with this study’s findings, the central importance of the key relationship between family problems and foster care placements in general, and specifically for Aboriginal families, was described in these reports. Yet, there were no systematic statistical analyses of the interrelationships between the sets of family problems, education problems, and health problems related to foster care placements on the one hand and serious youth criminal justice involvement on the other. Equally important, there was no attempt to examine why youth placed in foster care had such disproportionate levels of custody sentences. These analyses would be critical to developing policies and related case management strategies for serious delinquent Aboriginal children initially, and Aboriginal serious young offenders sentenced to incarceration subsequently. For example, in a related federal government report, it was argued that there was the need to develop early, integrated intervention strategies for both Aboriginal and Caucasian young people at risk and their families (Corrado et al., 2011). Examples of such strategies exist it Quebec, Sweden, France, and the United Kingdom and include parenting classes, home visiting programs, day-care or preschool programs, community programs, and multi-systemic therapy (Farrington and Welsh, 2003; Trepanier, 2004). As previously mentioned, however, these interventions need to be individualized and focus on the empowerment and expressed needs of Aboriginal families. Also vital are policies that provide education, health assistance as well as housing, income, and employment assistance and opportunities to prevent their economic marginalization (Case, 2006; Corrado and Cohen, 2011).

It is also critical that foster care families have adequate training and resources to respond to the child’s distinctive needs. The foster care family resources are an even greater policy concern when sensitive cultural issues discussed above for Aboriginal young people and families are being considered.

Another concern increasingly evident in Canada is youth Aboriginal gang involvement, which has become more frequently associated with incarcerated Aboriginal young offenders (Cohen and Corrado, 2011; Totten, 2009). Policies targeting this pathway would involve providing access to education and training programs that offer alternative but equally materially, emotionally, and culturally rewarding and reinforcing life-styles (Cohen and Corrado, 2011).

An additional treatment consideration for incarcerated Aboriginal young offenders is restorative justice programing. Although Canada has been using Restorative Justice (RJ) based community programs for decades, especially for first-time and non-serious offenders (Corrado, Cohen, and Odgers, 2003), they are infrequently utilized for serious and violent offenders, unlike the programs in New Zealand (Maxwell and Morris, 2006; Morris & Maxwell, 1998). There have been two main limitations to using RJ programs for these offenders. The first was the focus on the victim and repairing the harm rather than emphasizing the traditional risk factors discussed above and examined in this study. Second, unless systematic screening was undertaken to assess whether at least minimum levels of empathy were evident, then the RJ group and philosophy context potentially could have the opposite intended outcome: further victimizations of vulnerable youth by callous and unemotional young offenders who typically excelled at the manipulation of vulnerable youth (Corrado et al., 2003). Even so, RJ programs have considerable potential for other young offenders, especially Aboriginal young offenders, given that RJ principles generally reflect key principles from Aboriginal cultures. However, in most jurisdictions in Canada, the provinces have not systematically provided these resources, apparently in part because of the practical challenges of obtaining community involvement and serious fiscal/budget restraints (Corrado et al., 2003; Walgrave, 2007).

In addition to budget and resource limitations, Aboriginal people might be reluctant to participate in Restorative Justice programs that are embedded in the Criminal Justice system. Considering the tragic history of government agencies forcing people onto reservations, removing children from their families and forcing them into residential schools, and banning the practice of Aboriginal cultures, customs, and languages might make Aboriginal people suspicious of programs that are controlled by the state, even if they are based on Restorative Justice principles (Cunneen, 2008).

Most importantly, it needs to be recognized that there is not one homogenous Aboriginal culture and Aboriginal crime problem that can be easily fixed. Solutions are multi-faceted and should represent Aboriginal leadership and decision-making. This requires that Aboriginal people and communities are not viewed as ‘passive recipients of government policy’ (Blagg, 2012: 4). Rather, a framework for empowerment and self determination is needed, which enables Aboriginal leaders and communities to be active participants in developing and implementing strategies, which reform criminal justice policies, address the needs of Aboriginal young offenders, and improve the lives of Aboriginal young people and their families (Blagg, 2012).

It is beyond the scope of this study to address the full range of risk factors and other explanations of why Aboriginal young people have continued to be disproportionately sentenced to prison, let alone attempt to provide a comprehensive set of recommendations. Nonetheless, this study’s findings and the limited number of themes discussed in this conclusion can arguably be considered consistent with the thoughts of one of Canada’s most prominent First Nations leaders. Mary Ellen Turpel-Lafond is deeply involved with serious and violent young offenders as a renowned youth court judge in one of the two Canadian provinces, Saskatchewan, with the highest proportions of incarcerated Aboriginal young people and, currently in her second term, as the Representative of Children and Youth in British Columbia. Ms Turpel-Lafond says:

One cannot erase the history of colonialism, but we must, as an imperative, undo it in a contemporary context…. We have to accept that there are profound social and economic problems in Aboriginal communities today that never existed pre-colonization and even in the first few hundred years of interaction. Problems of alcohol and solvent abuse, family violence and sexual abuse, and youth crime − these are indications of a fundamental breakdown in the social order in Aboriginal communities of a magnitude never known before. A reform dialogue or proposals in the criminal justice field have to come to grips with this contemporary reality and not just retreat into a pre-colonial situation. (Turpel-Lafond cited in Rudin, 2005: 27)

Footnotes

Funding

This research has been funded by a series of successive grants from the Social Sciences and Humanities Council of Canada.

Notes

Author biographies

Raymond R. Corrado is a Professor at the School of Criminology, Simon Fraser University, BC, Canada. He is also a Visiting Fellow at the Faculty of Law, University of Bergen, Norway.

Sarah Kuehn is an Assistant Professor of Criminology and Criminal Justice at Slippery Rock University, PA, USA.

Irina Margaritescu recently received a Master of Science degree in Statistics from Free University Berlin, Germany.

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