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Implicating the System: Judicial Discourses in the Sentencing of Indigenous Women
Indigenous women continue to be overrepresented in Canadian prisons; research demonstrates how their overincarceration and often extensive experiences of victimization are interconnected with and through ongoing processes of colonization. "Implicating the System: Judicial Discourses in the Sentencing of Indigenous Women" explores how judges navigate these issues in sentencing by examining related discourses in selected judgments from a review of 175 decisions.
The feminist theory of the victimization-criminalization continuum informs Elspeth Kaiser-Derrick’s work. She examines its overlap with the Gladue analysis, foregrounding decisions that effectively integrate gendered understandings of Indigenous women’s victimization histories, and problematizing those with less contextualized reasoning. Ultimately, she contends that judicial use of the victimization-criminalization continuum deepens the Gladue analysis and augments its capacity to further its objectives of alternatives to incarceration.
Kaiser-Derrick discusses how judicial discourses about victimization intersect with those about rehabilitation and treatment, and suggests associated problems, particularly where prison is characterized as a place of healing. Finally, she shows how recent incursions into judicial discretion, through legislative changes to the conditional sentencing regime that restrict the availability of alternatives to incarceration, are particularly concerning for Indigenous women in the system
The feminist theory of the victimization-criminalization continuum informs Elspeth Kaiser-Derrick’s work. She examines its overlap with the Gladue analysis, foregrounding decisions that effectively integrate gendered understandings of Indigenous women’s victimization histories, and problematizing those with less contextualized reasoning. Ultimately, she contends that judicial use of the victimization-criminalization continuum deepens the Gladue analysis and augments its capacity to further its objectives of alternatives to incarceration.
Kaiser-Derrick discusses how judicial discourses about victimization intersect with those about rehabilitation and treatment, and suggests associated problems, particularly where prison is characterized as a place of healing. Finally, she shows how recent incursions into judicial discretion, through legislative changes to the conditional sentencing regime that restrict the availability of alternatives to incarceration, are particularly concerning for Indigenous women in the system
414 pages, Paperback
Published March 15, 2019
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Displaying 1 - 2 of 2 reviews
May 12, 2019
Implicating the System is an excellent resources for any criminal defense lawyer doing legal aid files. Kaiser-Derrick surveys over 170 cases ranging from small scale summary offenses to second degree murder. Throughout, she emphasizes the victimization-criminalization continuum and how, particularly for Indigenous women, criminalization is often tied directly to victimization.
The biggest weakness of the book was in the very early part where it was overly academic. I think Kaiser-Derrick spends more time than necessary going into the theory. Ultimately I think being too theoretical is a problem because, as the book emphasizes overall, sentencing is about the lived experience of an offender and their unique story. Thankfully, after covering the theoretical stuff, Kaiser-Derrick remains focused on the women who form the content of her analysis.
A significant portion of the book is devoted to Conditional Sentence Orders (CSOs) and how problematic the Harper government's limitation on these kind of sentences has been. Jail effectively replicates the colonial experience for Indigenous women which often compounds substance abuse and mental health issues. Withdrawing CSOs as a sentencing option for 'serious personal injury offenses' has increased the overrepresentation of Indigenous women in custody considerably. This directly opposes the spirit of the Gladue and Ipeelee decisions from the Supreme Court of Canada.
In addition to being an excellent resource on sentencing Indigenous women, I think there is much to be said about the conclusion. Kaiser-Derrick notes that the Criminal Code is meant to represent our values as Canadians. In reality, the emphasis on retribution reflects a deeply European view of justice. As we move forward to advance reconciliation, Code reform ought to reflect those values shared by all Canadians. This would mean a greater incorporation of restorative justice and Indigenous principles of justice into our justice system.
Good read. Good reference material. Worth checking out.
The biggest weakness of the book was in the very early part where it was overly academic. I think Kaiser-Derrick spends more time than necessary going into the theory. Ultimately I think being too theoretical is a problem because, as the book emphasizes overall, sentencing is about the lived experience of an offender and their unique story. Thankfully, after covering the theoretical stuff, Kaiser-Derrick remains focused on the women who form the content of her analysis.
A significant portion of the book is devoted to Conditional Sentence Orders (CSOs) and how problematic the Harper government's limitation on these kind of sentences has been. Jail effectively replicates the colonial experience for Indigenous women which often compounds substance abuse and mental health issues. Withdrawing CSOs as a sentencing option for 'serious personal injury offenses' has increased the overrepresentation of Indigenous women in custody considerably. This directly opposes the spirit of the Gladue and Ipeelee decisions from the Supreme Court of Canada.
In addition to being an excellent resource on sentencing Indigenous women, I think there is much to be said about the conclusion. Kaiser-Derrick notes that the Criminal Code is meant to represent our values as Canadians. In reality, the emphasis on retribution reflects a deeply European view of justice. As we move forward to advance reconciliation, Code reform ought to reflect those values shared by all Canadians. This would mean a greater incorporation of restorative justice and Indigenous principles of justice into our justice system.
Good read. Good reference material. Worth checking out.
December 10, 2021
Well documented argument for transformation -"Inside and outside the system, we must consider deeply and honestly what (and whose) system of values our current criminal justice law and institutions communicate to those vulnerable to and ensnared within this system. Given that the crisis of the overincarceration of Indigenous peoples (and particularly women) persists and intensifies, which communities and whose “communal values” are truly reflected within this system? How can we shift and reorient this value system, this criminal justice system, to actually function as a decolonizing force (to whatever limited extent that may be possible through the system)? Or rather, given that the criminal justice system (and particularly its prisons) actively functions as a colonizing force as the system of control over Indigenous peoples and (therefore inherently cannot be a decolonizing institution), how might we push the justice system to reflexively see itself and its harms more clearly, and then to see outside of itself, by minimizing its own interventions and harmful impact, and diverting more criminalized Indigenous persons out of the system?"
Displaying 1 - 2 of 2 reviews