Tag Archives: Ashley Smith

The Conservatives’ Push to Incarcerate the “Mentally Ill”

Say one thing, do the opposite.  That sums up the Canadian government’s approach to the treatment of the mentally ill in the criminal justice system.

“(I)ndividuals with mental health issues do not belong in prisons but rather in professional health facilities.”  Those were the promising words of the Minister of Public Safety, Vic Toews, in the House of Commons on Thursday, November 8, 2012.  He made this sweeping and dramatic claim in the wake of the release of the Ashley Smith videos, which portrayed her horrendous and inhumane treatment while she was in custody.

Toews’s comments might give an observer hope – hope that soon we will stop putting people with mental health problems in jails.

But in reality, the actions of the federal government lead to a different, bleaker conclusion, because every new criminal law and bill that has been introduced by the current government increases both the number and the length of the stay of mentally ill people in our prisons.

The most recent venture was announced on November 22, 2012.  In the new year, the Conservatives intend to introduce a bill that will ensure that persons who suffered from a major mental disorder at the time of the commission of a crime stay in custody longer.

In our courts, a person who is found to have been suffering from a major mental disorder at the time of the commission of the crime may be declared to be to be “not criminally responsible,” or NCR, by the courts if this person was unable to “appreciate the nature and quality of his actions” at the time of the offence.

People who are found NCR receive an indefinite sentence.  Once a bed in a mental health institution becomes available, then that person is transferred from a jail to that institution to serve their sentence while receiving treatment.  A panel of experts then annually reviews the inmate’s progress to determine if her mental illness is under control, and if it is safe to release her.

The Conservative government proposes to both decrease the frequency of these reviews and to change the standards so that it is harder to release a person, even if they are deemed safe.  As a result, people who have been found NCR but do not pose a threat will spend more time in the already scarce spaces of our mental health institutions.   That will mean more people with mental health illnesses will spend a longer period of time in jails, awaiting access to an overburdened mental health facility.

This proposal is directly aimed at people with mental health problems.  Despite that, it will not be the worst offender for putting the mentally ill in jail.  A string of other laws previously enacted by the current government have already exacerbated the situation.

Take, for example, the supposed “Truth in Sentencing Act” of 2009, which restricted a judge’s ability to give more than 1:1 credit for pre-trial custody when counting how much time a person should spend in jail upon conviction.  Before this legislation, lack of mental health services and unacceptably restrictive conditions in pre-trial detention (such as lengthy solitary confinement, prolonged and ongoing lock-downs, unavailability of doctors, therapists, or medication, and toilets overflowing in overcrowded cells) could be considered by a judge to reduce the amount of time a person ultimately serves in prisons.  The law, however, radically removed this discretion from judges, effectively forcing longer sentences on all people, including the mentally ill who, in the well-informed opinion of the judge, would be better rehabilitated in the community.

Worst yet are the mandatory minimum sentences, which came into force earlier in November of this year.  Mandatory minimums force judges to impose a minimum jail term, even where they might believe that a jail term or a lengthy jail term would be detrimental to a person’s mental health, his rehabilitation or reintegration.

And yet another law, which came into force on November 20, 2012, eliminates conditional sentences (also known as house arrest) for a wide range of offences, including non-violent ones such as theft over $5000.00, motor vehicle theft, and breaking and entering.

Conditional sentences have traditionally been used not only to reduce the high cost of imprisonment, but also as a valuable tool for enabling rehabilitation and reintegration of offenders, and as a means of keeping families whole, ensuring that people can continue their employment and to receive the kind of support that will improve their mental health.  The elimination of conditional sentences means that more people with mental health problems will stay in jail longer.

At anytime, 25-40% of the incarcerated population suffers from a mental disorder.  These health problems cannot and will not be remedied in jail.  On the contrary, the mental health of these people will often be more acute than before they entered state custody.  But our government ignores the victimization of the mentally ill and the cost to society, and persistently makes laws that incarcerate more people with mental health problems for lengthier periods of time.

Ultimately, our government says one thing when the spotlight is on the suffering of people with mental illness, and does quite the opposite when it comes to legislative action.

In other words, people with mental health issues may not belong in jail, but that’s where they’re going.

There is little to no logical connection between the government’s words and their actions.

They do not seem to appreciate the nature and consequences of their actions.

It seems that our legislators could use a good dose of medication and therapy.

But I won’t recommend jail.

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November 30, 2012 · 10:04 pm

New Policies Won’t End Police Abuse of Power. What Will?

It’s a familiar cycle: police violence, followed by a public outcry, followed by one or more investigations (or, in very rare circumstances, an inquiry), denial of responsibility by the perpetrators and their forces, a slew of recommendations, some of which may develop into policies, a few rare ones that lead to legislation, and, finally, a burdensome and lengthy implementation process. By the time the implementation stage is reached, the memory of the initial tragic events is a blur to most people. The state actors who engaged in the aggression have indignantly rationalized their actions. And in the interim, there have been more acts of unacceptable and unjustifiable state violence.

Many such events have occurred in Canada in the past few years: police violence and abuse of power during the G20; the death of Ashley Smith while in the custody of an oppressive, neglectful and abusive prison system; the R.C.M.P. beatings of prisoners (on the radar only because they were caught on video). But despite all the effort, thought, cooperation and money that goes into reviewing or investigating these horrific abuses of power, there is not a smidgen of a hope that there will be enough fundamental change so that we can avoid the same tragedies in the future.

When there are investigations, and if such investigations are lead by civilians, as opposed to the police (who often excuse the wrongful or criminal behaviour of their brethren), they usually end with a list of recommendations. These recommendations rarely lead to new policies and laws. But even if new policies are implemented in response to the recommendations, what then?

Here is where I get cynical.

Changes in laws and policies are useful and are indicators of our moral compass. But they achieve little. They give false hope.

Law and policies, alone, do not make for a just society. They do not prevent police abuse of power or prison guard disdain and apathy.

During the G20 summit in Toronto, the police knew that what they were doing to protestors and non-protestors alike violated our basic Charter rights. They knew that nearly all the people they were detaining or arresting had not committed a criminal offence. They knew that threatening rape, breaking off someone’s prosthetic leg, leaving people in the pouring rain, holding handcuffed people without food, water, or bathrooms, or caging them in cold, crammed cells was all illegal, contrary to existing policies, and otherwise inhumane and unacceptable in our society. Yet they did it all anyway.

So far, the police have rationalized their behaviour. They continue to reject criticism. They do not see themselves as answerable to the people they harmed or to Canadians, in general. They ignore the call for accountability.

For any police officers who were disgusted by what was going on –and I have no doubt that there were many– none have had the courage to come forward. That is a sad but not surprising reality, as speaking up against their brothers would be career suicide. I hope that, in time, some of them will work up the courage to break ranks and describe what they know.

As for the guards and prison officials in Ashley Smith’s case, had they wished, they could have seen that her deteriorating mental condition was a direct result of her incarceration. They could have seen the oppressive and horrendous consequences of her mistreatment and prolonged solitary confinement.

Yet they went about their daily business. They ran the jails, but did not care for the inmates. There were plenty of regulations in place to prevent a death like Ashley’s, but none of them helped in the face of the tired, frustrated, apathetic, resentful or short-sighted institutional staff.

History and experience teach us that governments and the police can ignore, interpret and revise rules, policies, and rights to suit their own ends. In Western democratic societies, we have placed obstacles to prevent such abuse of power. But those procedural safeguards and entrenched rights are often seen merely as that- obstacles to overcome. They were overcome during the G20, and they will be overcome again, unless a much more fundamental transformation takes place.

What will lead to such a transformation? What is that key factor that will ensure that abuse at the hands of the state does not occur?

Empathy and empathy training. They are the only means and hope for fundamental change.

If people in power are trained to deal with others with empathy, then even bad laws, such as the Regulation under the Public Works Protection Act which was enacted for the benefit of the police during the summit, would cause less harm and damage. If a cop has empathy and basic human respect for others, he won’t threaten, mock, or use abusive language, even when attempting to search people under a Regulation that should have never been revived from its war-time tomb.

If people in authority exercise empathy, they will jump to the rescue of those who need them, regardless of institutional rules or protocol. With empathy, they will not dehumanize another because she or he is drunk, is black, is homeless, is Native, is a prostitute, or is the voice of dissent.

But our individualistic, legalistic society distrusts such apparently vague and relational principles. We don’t trust one another to treat each other with respect and empathy, so we rely solely on the rule of law- a cold, “objective” law. We’ve surrendered our rights and well-being entirely to laws and policies. We’ve put our trust and hope in our governments and their ability to legislate what’s good. We’ve abandoned notions of community, of taking care of one another, of empathy.

But without empathy, even good laws and policies will be put to bad use.

People fear that an officer with empathy will be weak. We expect our police to be tough, and we equate being tough with being uncaring, even callous. But there is nothing that supports the notion that an officer cannot do his or her job competently and properly– cannot investigate, apprehend, and arrest someone– while at the same time respecting a person as a human being, despite the officers’ dislike of the actions attributed to that person.

Police can arrest an alleged thief without beating her up or mocking her. They can calm a street person who may be breaching the peace and is off his medication without dragging him to an isolated area, beating him, or shooting him. They can deal with protestors whom they want dispersed without acting like there is an epic battle taking place at the corner of Queen and Spadina.

Kettling at Queen and Spadina Photo by Jonas Naimark

 What police officer would want his own family members subjected to those same conditions that protestors and by-standers were subjected to during the summit? What jail guard would want her own ill child jailed and then shipped from institution to institution without any help?

Empathy and compassion would not make a weak police force. On the contrary, in our democratic society, such qualities would make for better policing. Treating others with dignity would even have the added benefit that the police and many members of society want: more convictions against people who have committed offences, whose charges will not be stayed (dismissed, basically) because the cops broke the accused’s jaws, beat him up, denied him medical attention, and then lied about it.

If every weapon-carrying or other representative of state power treated those under his/her control with empathy, our entire system, including our jails, would be not only more humane, but also more effective. The people leaving those institutions might come out with better conflict resolution skills, a greater trust in other human beings, a clearer hope, or a greater determination to change.

The police attempt to engage our empathy when they break laws or breach our rights. “The police had a tough job to do under very difficult circumstances,” is an oft repeated slogan of the police when describing what occurred during the G20. And, in fact, we (the courts, the media, the public) often do treat officers with empathy when they break the laws. If every individual officer and every police force is trained to incorporate that same level of empathy into their own work, then we would have much better relations with our police, far fewer breaches of fundamental rights, no more criminal activity than we do now, and a far more civil society.

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Filed under collaborative justice, criminal justice, Police abuse of power, Police oversight, Policing with empathy