Humanity, Race, and Indigeneity in Criminal Sentencing: Social Change in America, Canada, Europe, Australia, and New Zealand

Abstract

The role of systemic racism in criminal justice is a growing matter of debate in modern Western democracies. The United States has garnered the most attention given the salience of its racial issues and the disproportionate attention that American society garners around the world. This has obscured major developments in Canadian society with great relevance to increasingly diverse Western democracies where racial and ethnic minorities are vastly over-incarcerated. In recent years, the landmark Anderson and Morris decisions recognized that the systemic racism that Black people face in Canada should be considered as mitigation at sentencing. These historic decisions partly stem from Canada’s recognition of social-context evidence as mitigation for Indigenous defendants under a groundbreaking 1996 legislative reform that remains little known outside Canada’s borders. While Australia and New Zealand have also recognized certain mitigation principles for Indigenous defendants, Canada is arguably the country that is now making the most concerted effort to tackle systemic racism in criminal punishment.

Conversely, the U.S. Supreme Court rejected this approach in McCleskey v. Kemp, an influential 1987 precedent holding that statistical proof of systemic racism is essentially irrelevant to sentencing. In fact, Canadian law has adopted remedies to racial disparities that American experts and activists have advocated to no avail for decades. The situation might someday change in America, as suggested by the Washington State Supreme Court’s 2018 abolition of the death penalty in State v. Gregory, which deviated from McCleskey in finding evidence of systemic racism persuasive. However, Gregory was only decided under state law and it is too early to tell whether more American states will inch toward the developments occurring in Canada.

These ongoing shifts should be situated in a wider historical context, as they do not merely reflect modern debates about systemic racism or Canada-specific matters. This Article captures how they are the next step in the long-term, incremental evolution of criminal punishment in the Western world since the Enlightenment. For generations, the principles of individualization and proportionality have enabled judges to assess mitigation by considering a defendant’s social circumstances. Considering evidence of systemic racism or social inequality as mitigation at sentencing is a logical extension of these principles. The age-old aspiration toward humanity in criminal justice may prove a stepping stone toward tackling the over-incarceration of minorities in modern Western democracies.

Keywords: Criminal law, criminal procedure, punishment, sentencing, criminology, constitutional law, death penalty, mass incarceration, race, systemic racism, Indigeneity, Indigenous, Eighth Amendment, dignity, human rights, United States, Canada, Europe, Australia, New Zealand, comparative law, legal history