Lately, pundits, politicians and reformers (the critics) are clamoring for changes to the criminal justice system. The critics claim the criminal justice system is not working as it should. The critics know the criminal justice system is not working because the results are skewed. The critics point to data that shows Indigenous, Black and poor people are being arrested, charged , accused, convicted, sentenced and jailed more often and for longer than the rest of the population. Sadly, it appears that Indigenous, Black and poor people are arrested, convicted and jailed more often than the rest of the population. But can those skewed results be fixed by the criminal justice system? Or do such skewed results point to a more insidious problem in our society?
The critics continue that, If the data shows Indigenous, Black and poor people are more often jailed than the rest of the population, that result must be caused by their social and economic conditions. The critics assume that a certain percentage of the population causes crime. Thankfully, most of the population does not commit crimes and that holds true for the Indigenous, Black and poor people as well. The percentage of the population that commits crimes is more or less constant. Therefore, the critics assume, the social and economic conditions that Indigenous, Black and poor people grow up in, force or encourage them to turn to crime more often than the rest of the population. The critics go on and claim that the social and economic conditions that Indigenous, Black and poor people are born into, raised in and grow up under, prevent them from developing the attitudes and skills needed to succeed in our society. That failure to succeed is understood and, it is claimed, can be predicted. The critics say the fix is affirmative action, reparations and more subsidized education. All of which are necessary and welcome. But those fixes are not the aims of the criminal justice system. Indeed the structure of the criminal justice cannot address any of those social and economic conditions. The aim of the criminal justice system is to promote and foster a peaceful and just society. That aim is achieved by deterring crime. The criminal justice system does not and cannot ensure equal outcomes for everyone.
Here it may be helpful to briefly set out the basic criminal justice procedure.
The way the justice system works is that peace officers arrest persons thought to be committing crimes. The arrested persons now become suspects. The facts of what the witnesses have seen and heard are set out in a report to the prosecution. The facts that were seen and heard are alleged to be crimes as defined by the law. The police report is sent to the prosecutor. The prosecutor decides, if, based on the report, there is a substantial likelihood of a conviction. And, if so, the case is referred to the court process for a judge or jury to hear the facts as seen and heard by the witnesses and decide if the accused actually committed the crime as alleged. The suspect is now the accused. If the judge or jury decide that the facts the witnesses have seen or heard amount to a crime and the accused did it, the accused is convicted. Once the accused is convicted they are sentenced and thus become convicts.
The justice process does not concern itself with fair outcomes for all. It only concerns itself with a fair outcome for the persons that are caught up in the process. That is, each person in the process is sought to be more or less treated the same. It comes down to similar sentences for similar crimes for convicts in similar circumstances. At this point in the process the critics clamor for different results for Indigenous, Black and poor persons because their social and economic background drives them to crime more often than the rest of the population. But that may not be true. A poor social and economic background does not impel criminal behavior more often than the rest of the population. It is not known how much crime is committed by the rest of the population. It is only known that Indigenous, Black and poor people are more often convicted of crimes than the rest of the population. But that does not mean Indigenous, Black and poor people commit more criminal acts than the rest of the population.
The real issue is: Do Indigenous, Black and poor people commit more crimes than the rest of the population? They end up in jail more often and for longer but that does not mean they commit more crimes. It is wrong to assume that because the rest of the population does not end up in jail as often as Indigenous, Black and poor people, that they are not committing crimes with the same frequency as Indigenous, Black and poor people. The data that may prove that has simply not been developed. It may well be that the rest of the population commits crimes with the same, or greater frequency and with the same severity as Indigenous, Black and poor people do. It could well be that the crimes of the rest of the population are not being investigated as vigorously. And not being investigated as much, are not subject to process through the criminal justice system.
For example, a landlord who evicts a tenant representing he is moving into the house he owns, but has no intention to do so and does not. They only evict to move in new tenants at a higher rent. The whole scenario was fraudulent. Rarely are those fraudulent landlords on the criminal court docket. If they are, not nearly as often tenants paying the rent with a cheque that bounced. Or take the example of a boiler room operation to drive up the price of publicly traded shares? That is criminal misrepresentation. Are there hundreds of cases going through the criminal courts prosecuting fraudulent stock brokers? The answer is No! Perhaps once in awhile but not nearly as often as break and enters? Yet pump and dump is a favorite scheme to defraud unknowing investors. Then there are sales of business with false income statements. Those cases are rarely seen in the criminal courts? When is the last time a money launderer went to jail? If the rumors are true, billions of dollars are laundered each and every year. The examples are euphemistically called “white collar crimes” as if they are somehow a lesser evil than what is usually seen in the criminal courts.
These white collar crimes are in the criminal courts so seldom that there are not even statistics that show how often they happen. How much undetected white collar crime goes on is only a guess. The skewed results where Indigenous, Black and poor people end up in jail more frequently than others could well be the result of social focus. The criminal justice system only singles out the types of crimes that Indigenous, Black and poor people commit but does next to nothing to drag white collar criminals into the criminal justice system. To properly prosecute white collar crime is difficult. The essence of white collar crime is secrecy but its victims are damaged the same as the victims of other crimes. But little is done and few resources are deployed to deter it.
The reality is that crimes are likely committed at the same rate by all people, regardless of race, ethnic origins, or gender. The problem is that peace officers focus on those crimes which can be readily seen or heard, where the offenders can be easily arrested and processed and where the offenders have few resources to defend themselves. . The skewed results cannot be fixed by tinkering with the justice system. The fix needs a new attitude. Society needs to invest in enforcing the laws against all crimes, not just those it is focusing on now. Perhaps the slogan to defund the police should be changed to re-fund the police to add white collar crime investigators to the police forces. In that case the conviction rates of Indigenous, Black and poor people would soon be matched with the conviction rates of white collar criminals.