Let Us Rid our Justice System of a “Stereotypical Offender” Narrative - A. Avril

When you hear the term “offender” who do you think of?

Is it a man? A woman? Are they part of a racialized minority? Poor? Otherwise vulnerable?

If one thing is for certain, I bet they are not a wealthy CEO of an international corporation (1).

More than likely, they are a male, who is part of a racialized minority, of which there are broader social circumstances which come into play which may suggest how they come to be in the position they are in (2). Maybe they committed a robbery? Drug offences? Some other type of street crime?

Much like the image of an offender cast above, there are various social constructs which come together to create what is termed as a stereotypical offender. A stereotypical offender is one who is seen as most likely to have committed a crime, based on their social characteristics and constructions (3). Such factors can include their race, ethnicity, gender, the clothing they are wearing as well as how they carry themselves (4).

The news media may most often portray the stereotypical offender, by repeatedly noting certain populations as “offenders”, furthering the marginalization of vulnerable populations. In Winnipeg, this is most often seen in the pronunciation of Indigenous names, images, or social locations being synonymous with (gang related) crime in mass media messaging. Such constructions cause anxiety and fear among the general population and allow for the continual reproduction of stereotypes and racist attitudes within society (5). Notions of the stereotypical offender leave much to be considered in the bias of criminal sentencing.

Unfortunately, in Canada, Indigenous men may fill the role of a stereotypical offender within the social fabric. Currently roughly 30% of Indigenous men are incarcerated at both provincial and federal levels, though they only account for 4% of the population (6). R. v. Gladue [1999] attempted to address this trend over incarceration before it became the crisis that is it today (7). Similarly, Gladue addressed the specific considerations of sentencing Indigenous offenders (8). Of which, many considerations may fall on deaf ears, as Gladue becomes a habit in sentencing, rather than specific consideration of the differing experiences of Indigenous peoples (9). With such a disproportionate population of Indigenous men and women incarcerated, it leaves one to question how many are, in fact innocent?

Race has been seen as a potential factor for decades contributing to wrongful convictions. American data suggests with a sample 1,900 exonerations, 62% of Black individuals were exonerated on robbery charges (10). Hispanic individuals were most likely to be exonerated regarding drug crimes, while white individuals were most likely to be exonerated from child sex abuse (11). Each of these categories of offences and racial groups, are stereotypically used by the media. Many could turn to Chris Hansen and his series called To Catch a Predator to see many white men suspected of child pornography and other various child sex offences (12). Similarly, the media portrays Hispanics as part of gang life which is usually associated with illicit drugs and migrant violent crime (13). When further considering this construction, non-white individuals were also most often constructed as possible murders, before their white counterparts (14). Murder is frequently considered one of, if not the worst, Criminal Code offence possibly sentencing someone to life (15).

Whiteness can also be a factor in the allocation of false guilty verdicts among white jurors (16). Fukurai, Butler, & Krooth (1993) note "[t]he problem of the effect of racial composition on a jury and its verdict is most noticeable when the trial involves a blatantly racial issue" (17). This leaves one to further consider the impact of social constructions on the representation of a defendant. Though possibly non-malicious in nature, it cannot go unnoticed how such may allow for the replication of the status quo, oh so loaded with racial undertones.

In terms of Indigenous populations, Audra Simpson notes the ability for Canadian society to continually reframe the way Indigenous peoples are viewed, noting “states do not always have to kill, their citizens can do that for them” (18). Such allows for the mass incarceration of Indigenous men, and loss of Indigenous culture, while at the same time maintenance of stereotypical attitudes by dominant settler narratives through colonial mass media (Examples include CTV and Global news, among others).

Issues of race further compound when structural issues such as one feeling the necessity to plead guilty, as to have to wait in remand for their trial to come about (19). Where social factors may compound, and low income individuals are forced to choose between attempting to meet their own sustenance, or getting themselves out of prison and reducing their freedoms (20).

The construction of the victim is also of some consideration. Society has constructed white prosocial female victims to be among some of the most ideal in society (21). Ideal victims are those who are seen as worthy of public sympathy (22). Nis Christie created the concept, and notes that an old lady walking alone, getting groceries after caring for her sick sister and is robbed in broad daylight would be among some of the most ideal victims (23). The construction of a victim may lead those within the criminal justice system, such as police, to pick a “stereotypical offender”, to satisfy public desire for the case to be closed and someone to be held accountable (24).

If one thing is for certain, there has to be increased scrutiny as to who and how we consider an individual criminal. Though such constructions may not be intentionally malicious on the part of justices, juries and other criminal justice practitioners, it is essential that such constructions are addressed as to not convict innocent individuals. The over incarceration of Indigenous peoples cannot continue at the rate which it has. Notions of stereotypical offenders continue to allow for the maintenance of the status quo, allowing for the criminalization of those who are innocent, and not critiquing the very system which consistently fails many “stereotypical offenders” every year.

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Endnotes

1. Ivancevich, J. M., Duening, T. N., Gilbert, J. A., & Konopaske, R. (2003). Deterring white-collar crime. Academy of Management Executive, 17(2), 114-127.

2. Gekoski, A., Gray, J., & Adler, J. (2012). What makes homicide's newsworthy?: UK National tabloid newspaper journalists tell all. The British Journal of Criminology, 1212-1232. [Gekoski et al.,].

3. Esqueda, C., Espinoza, R., & Culhane, S. (2008). The effects of ethnicity, SES, and crime status on juror decision making: A Cross-cultural examination of European American and Mexican American mock jurors. Hispanic Journal of Behavioral Sciences, 30(2), 181-199.

4. Ibid.

5. Gekoski et al., supra note 2.

6. Department of Justice. (2019, September 11). JustFacts: Indigenous overrepresentation in the criminal justice system. Retrieved from https://www.justice.gc.ca/eng/rp-pr/jr/jf-pf/2019/may01.html

7. R v Gladue, [1999] 1 S.C.R. 688

8. Ibid.

9. Canada. Department of Justice. Research and Statistics Division. (2017). Spotlight on Gladue: Challenges, experiences, and possibilities in Canada's criminal justice system. Ottawa: Department of Justice Canada.

10. Gross, S. R., Possley, M., & Stephens, K. (2017). Race and wrongful convictions in the United States. Retrieved http://www.law.umich.edu/special/exoneration/Documents/Race_and_Wrongful_Convictions.pdf [Gross et al.,].

11. Ibid.

12. McCollam, Douglas. (2007). The Shame Game. Columbia Journalism Review, 45(5), 28-33. https://uwinnipeg.idm.oclc.org/login?url=https://search-proquest-com.uwinnipeg.idm.oclc.org/docview/230342367?accountid=15067.

13. García, F. (2018), American cinema's return to the borderlands: Migrant criminalization, critical identity politics, and nativism in the trumpian era. Journal of American Culture, 41: 279-296.

14. Gross et al., supra note 10.

15. Criminal Code RSC 1985, c C-46, s. 235(1).

16. Sommers, S. R., & Ellsworth, P. C. (2001). White juror bias: An investigation of prejudice against Black defendants in the American courtroom. Psychology, Public Policy, and Law, 7(1), 201-229.

17. Fukurai, H., Butler, E. W., & Krooth, R. (1993). Race and the jury: Racial disenfranchisement and the search for justice. New York: Plenum Press.

18. Simpson, Audra. (2014). “The Chiefs of Two Bodies: Theresa Spence and the Gender of Settler Sovereignty”. Unsettling Conversations, #RACE2014yeg. (57: 47) https://jeremyjschmidt.com/2015/01/12/audra-simpson-the-chiefs-two-bodies-and-the-gender-of-settler-sovereignty/

19. Euvrard, E., & Leclerc, C. (2017). Pre-trial detention and guilty pleas: Inducement or coercion? Punishment & Society, 19(5), 525–542.

20. Albonetti, C. A., & Baller, R. D. (2010). Sentencing in federal drug trafficking/manufacturing cases: A Multilevel analysis of extra-legal defendant characteristics, Guidelines Departures, and Continuity of Culture. Journal of Gender, Race & Justice, 14(1), 41-72.

21. Gekoski et al., supra note 2.

22. Christie, N. (1986). The Ideal Victim. In E. A. Fattah (Author), From crime policy to victim policy (pp. 17-30). New York, NY: St. Marten's Press.

23. van Wijk, J. (2012). Who is the ‘Little old lady’ of international crimes? Nils Christie’s concept of the ideal victim reinterpreted. International Review of Victimology, 159-179.

24. Gekoski et al., supra note 2.