So I’ve said it before, and I’ll say it again: mandatory minimums are racist. When we finally strip away the facile understanding of ‘racism’ as an intentional discriminatory act by a bad person against someone else, we are able to recognize that people, institutions, and traditions can be racist. The lack of intentionality is immaterial with respect to whether or not an action is racist – a better yardstick to use is whether or not it has the same effect that an intentionally racist (or “really” racist) action would. Put another way – I can be racist without even trying, and so can a non-conscious entity such as an institution (or even a non-entity like a policy).

Judged by this metric (which is arguably far more useful and accurate than the one used to detect ‘classic racism’), mandatory minimums serve to exacerbate existing racial disparities by removing the capacity of the system to take societal factors into account. In other words, they’re racist:

The legislation, a medley of 10 bills on the Harper government’s tough-on-crime agenda, includes mandatory-minimum-sentencing rules that will curtail judges’ abilities to deal out alternative sentences. That could undo a decade-long effort to find culturally specific ways of diverting inmates such as Mr. Findlay away from serial engagements with the justice system. Native Canadians make up less than 4 per cent of the general population, but they account for 22 per cent of prison inmates. Many of those are young men who have grown up in poverty and high unemployment, and who have lower-than-average education levels.

Shawn Atleo, National Chief of the Assembly of First Nations, said recently that aboriginal children are more likely to go to jail than to graduate from high school. More will go to jail after C-10, and many will end up in the gangs that flourish in western and northern jails, where more than 70 per cent of inmates are aboriginal. “What we’re doing with C-10,” says Jonathan Rudin, program director of the ALST, “is to increase our reliance on things that don’t work.”

As much as I disagree with (and dislike) the current government, I simply cannot bring myself to believe that they are intentionally trying to trap First Nations Canadians into a cycle of poverty and despair in which many spend their most productive developmental years in detention, but again the intent is completely meaningless. The bill that they are propagating does not have the capacity to determine intent, and as such its effects will be the same as if Mr. Harper was on an anti-Native crusade. Even if one cannot fault the ostensible intention of the bill – punishing criminals – one simply cannot (or at least should not) ignore the fact that this approach places an undue burden on the people who can least afford it. There’s also the fact that it may result in releasing more criminals than it locks up, but that’s an efficacy argument rather than an ethical one.

And far beyond these kinds of esoteric, highfalutin arguments about the definitions of racism and institutions and equivalence, there is the fact that these kinds of policies end up with nakedly, undeniably racist consequences:

Incidentally, just the day before the tragic killing [of black teen Ramarley Graham], the New York City media was buzzing about the 2011 marijuana arrest numbers. There were more than 50,000 marijuana arrests in 2011, the second-most in NYC history and the most in more than a decade.  The NYPD bust more people for small amounts of marijuana than any other crime in the city. And these 50,000 arrests are overwhelmingly young black and Latino men – even though, according to the government’s own data, they are no more likely to use or sell marijuana than young whites.

The amazing thing is that 7/8 of an ounce of marijuana is decriminalized – if police find marijuana in your belongings, they’re supposed to just give you a ticket, instead of arresting you, unless the marijuana is being smoked or in “public view.” So if under an ounce is supposed to not lead to arrest, why are 50,000 arrests happening a year? Because the NYPD stops and frisks more than 600,000 people – mostly young black and brown men – and then tricks them into emptying their pockets. And when marijuana is then pulled out, the police arrest them for marijuana in “public view.”

Laws like the ones contained in Bill C-10 are not about reducing crime, and I don’t think the government has claimed otherwise. They are about punishment of ‘criminals’ – a process that creates an ‘other’ class and then inveighs against them. There is no group that is easier to ‘other’ than those who are already ‘othered’, meaning black and Native kids (and, to a certain extent, Latin@s – a much bigger issue in the USA than here, but still an issue here). What this approach leads to is the deepening of pre-existing racist attitudes about what criminals ‘look like’, which inform the kind of decisions borne of ‘gut instinct’ that lead to the disproportionate harassment and jailing of people within visible minority communities. It leads to race being used as a qualification for ‘reasonable suspicion’, rather than as a moderating factor that can inject nuance into judicial decision-making. It leads to increased alienation of groups that are already deeply cynical and suspicious of the intentions and actions of the majority, which only serves to deepen their ‘othering’.

All of this happens not because the government is made up of evil racists who hate brown-skinned people, but because of their staunch refusal to accept the fact that those attitudes are a part of the cultural background ‘noise’. Because of their reticence to consider that these ideas intersect with their axiomatic ideology in ways that all but ensure that our historical white supremacy is strengthened and bolstered and preserved for future generations to ‘enjoy’. Because of their inability to consider the viewpoints of those who disagree, preferring instead to demonize and dismiss rather than develop and debate.

Because there is no mandatory minimum of brains or human decency to form government.

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