Incarcerating cultural difference: race, national responsibility and criminal sentencing
Bibliographic record
Abstract
This project is a case study that examines the emergence, applications and implications of section 718.2(e) of the Criminal Code of Canada. This section of the Criminal Code states: "A court that imposes a sentence shall take into consideration the following principles: ... (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders." In 1999, the Supreme Court of Canada released R. v. Gladue and the meaning of section 718.2(e) was interpreted judicially and thus acquired the status of legal precedent. The Court reasoned that Canadian judges who sentence Aboriginal offenders must recognize the historical and systemic disadvantage that First Nations communities have endured and must consider remedial or "restorative justice" principles in the application of alternative sanctions. Recent sentencing decisions that follow this provision have also considered the impact of systemic racism against the Black community in Canada. Consequently, in several of these cases, judges have attempted to reduce sentences for Black offenders, recognizing how structural disadvantage and systemic racism have impacted their lives and their "crimes." These more recent sentencing cases mark the first decisions that attempt to extend and apply the provisions set out in the Criminal Code to a racialized community other than Aboriginal peoples. I understand section 718.2(e) as one form of legal compensation aimed to address the over-incarceration of Aboriginal peoples in Canada. I demonstrate that over-incarceration rates have been explained in ways that rely upon cultural difference paradigms. In particular, the impact of colonization on Aboriginal peoples and its legacy is most often anchored and transformed in law as being a fundamental problem of cultural difference. In this project, I maintain that section 718.2(e) simply follows this racist logic rather than address fundamental historical and structural questions. Through an analysis of the national and legislative history preceding this provision, as well as the case law identified above, this project addresses the implications of cultural difference paradigms that operate in the application of this sentencing provision. I show how this sentencing provision works through cultural difference frameworks in order to: (1) incarcerate certain populations based on a white settler logic of liberal legal compensation operationalized through legal strategies and legal reasoning in the context of sentencing hearings; (2) circumscribe the terrain of (possible) legal compensation the nation and law is willing to concede to and consequently, works to foreclose the range of reparations claims that can be made in name of the nation and (3) delineate the moral frame through which justice can be imagined. This project is motivated by the idea that it is necessary to investigate what appear to be anti-racist and/or anti-colonial legal incentives (incentives that identify a nation's own role and complicity in past injustice) and examine how they ultimately work to consolidate a particular version of the nation that is upheld by the implementation of individual and group justice.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.004 | 0.006 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.001 | 0.001 |
| Science and technology studies | 0.021 | 0.013 |
| Scholarly communication | 0.004 | 0.003 |
| Open science | 0.001 | 0.006 |
| Research integrity | 0.002 | 0.004 |
| Insufficient payload (model declined to judge) | 0.004 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".