Publications, opinions, and speeches
Race-based data in the criminal justice system
Published on 18/08/2021
This article by Dr. Mai Phan is part of our series, “Advancing justice,” which explores the relationship between human rights, poverty, racism, and the criminal justice system.
Over the past year, Canadian law enforcement has begun to engage with Indigenous, Black, and racialized communities over concerns regarding unfair treatment, systemic racial bias, and over-representation in the criminal justice system. Calls are growing more urgent for public sector organizations to systematically collect, analyze, and report race-based data to better understand and address issues in policing, court decisions, and incarceration experiences in Canada. The COVID-19 pandemic has thrown into sharp relief the dire consequences of structural inequalities and institutional blind-spots on our collective health and heavy burdens carried by marginalized communities. However, currently, we lack a comprehensive evidence base to inform systems change, guide policy-making, monitor the effectiveness of programs, or support decision-making.
There are strong arguments for race-based data in the criminal justice system (Owusu-Bempah, 2011). It is hard to dispute that we need to better understand the impacts of how we currently administer justice and be more accountable to the public. The Royal Commission on Aboriginal Peoples (1996), Commission on Systemic Racism in the Criminal Justice System in Ontario (1996), the Truth and Reconciliation Commission (2015), and numerous other inquiries, reports, and studies (Owusu-Bempah et al., 2021) have called attention to structural inequities and persistent racial disparities in justice outcomes.
The stakes are high with significant implications for Charter rights and human rights as well as the long-term social, fiscal, and health costs of over-policing and over-incarceration. The legitimacy and effectiveness of the administration of justice are called into question if there is wide-spread mistrust and lack of public confidence in its fairness. We need to ask ourselves: Is everyone being served and protected equally, or do we punish, surveil, and otherwise limit opportunities for communities to thrive and foster? How well does the criminal justice sector reflect the population that is served at each level of the system?
In response to calls for action, the Ontario government established the Anti-Racism Act, 2017 and associated regulations to require key criminal justice areas to collect race-based data for the purpose of identifying and addressing systemic racism and advance racial equity. This includes the Ministry of the Solicitor General responsible for regulating use of force by police services, and the Ministry of Attorney General in bail decisions, youth justice, and the Ontario police complaints body.
Some police services have also undertaken race-based data collection in specific areas to better understand policing outcomes, such as Ottawa Police Service’s traffic stops data collection and the Toronto Police Service’s Race and Identity-Based Data Collection Strategy. At the federal level, the Canadian government announced its commitment to improve and promote disaggregated race-based data as a necessary component to addressing systemic racism in all federal institutions. Of significance, Statistics Canada and the Canadian Association of Chiefs of Police have begun work to explore the collection of race data in police-reported crime statistics on victims and accused, with planned consultation across the country (Statistics Canada, 2020).
These are much-needed developments and long past due. However, it’s worthwhile to take a pause and consider what conditions need to be in place before we proceed to collect and use race-based data to inform the way we achieve public safety and justice. Significant culture change is required to prepare the justice sector to responsibly use race data and achieve equity goals.
First, we must be clear what those goals are and what success looks like. Let’s start by unpacking the complexities of “race” as a concept, how we might go about to measure and interpret it for the purposes we set out, and what it means in relation to the criminal justice sector.
A clear acknowledgement and understanding of the harms of systemic racism is a precondition to being able to properly use race-based data as part of solutions to dismantle systemic barriers to equity. This includes recognizing how colour-blind policies and past reticence to collect race-based data was another form of upholding a status quo that serves only a segment of the population and excludes everyone else.
Finally, we will present some best practices for collecting, managing, and using race-based data for equity purposes. We will consider how to reconfigure the ways that decisions are made and who is at the table, and centre the voices, perspectives, and needs of impacted communities and groups in data-related matters.
What are we measuring and why do we want to measure it?
Race-based data is often used as a short-hand to mean different things: racial background, ethnic origin, ancestry, or other social identity markers, such as religion or place of birth, that may be used to racialize an individual or group as “other” or “foreign” and subject to differential adverse treatment. Ontario’s Anti-Racism Data Standards defines race-based data to include information about race, ethnic origin, Indigenous identity, and religion. For the criminal justice system, each of these social identities may have different significance at different times, in different places, and in specific aspects. For example, the collection, management, and use of Indigenous identity have particular social, legal, and political implications that require meaningful engagement and partnerships with communities.
The issue of race data could be considered a double-edged sword; it may be used to revive the idea of biological “races,” long disputed and shown as false by scientists (Roberts, 2011), and reinforce stereotypes connecting race and crime. Today, it is generally accepted that race has no scientific basis and is instead a powerful socially constructed idea. As such, the social impacts of race are very real, and racist stereotypes and narratives persist, and even thrive, in the absence of any data. As a social and political phenomenon, the challenges of measuring, collecting, and interpreting race data are significant. We have to ask:
- What is it about race that matters for understanding criminal justice functioning and impacts?
- What categories are meaningful and useful across different operational contexts and regions?
- How do we make sense of trends and patterns observed?
The answers to these questions must be grounded in a clear purpose for data strategies: to promote equity and fairness and remove systemic barriers to justice. This means that how we define, measure, and use race data should be consistent with anti-racism principles that include transparency, accountability, and inclusivity with a focus on systemic change. It is a reminder that when we collect and produce racial criminal justice statistics, we are really attempting to measure the impacts of historic and systemic racism – the unconscious biases and institutional policies and practices that produce unequal outcomes for people. These include barriers to employment (i.e., recruitment, promotion, and retention) and inclusive participation in the administration of all aspects of the criminal justice sector, including police services boards, parole boards, juries, judges, and lawyers.
Common metrics are critical to making the data interpretable and useful for cross-national reporting and comparisons across different parts of the system. There are operational and technical considerations that vary across different areas of the criminal justice system and that affect the manner of data collection that is feasible. For example, corrections may have the resources and processes in place to enable collection of self-reported race, whereas police officer perception of race may be more feasible and appropriate given the operating context that police work in (see Anti-Racism Directorate, 2018).
Clarity of purpose is critical for the legitimacy of race-based data collection in the criminal justice system. The history of misuse and mistrust when it comes to race data cannot be under-stated. To get it right, we need to begin with acknowledging the harms of systemic racism and settler colonialism as well as understand the role that data and race statistics (and lack of) had played in perpetuating those harms.
In the past three decades, anti-racism advocates, commissions, independent auditors, and international bodies have called for disaggregated data as a necessary part of solutions to address systemic barriers and inequities in Canada. Importantly, there is critical need for an honest reflection on and acknowledgement of the legacy of settler colonialism and slavery in Canada (Owusu-Bempah & Gabbidon, 2020) and the exclusion, collusion, oppression, and discrimination against classes of people. It entails understanding racism as systemic, built into how we do things, our culture and language, how we organize and define social reality, and goes beyond simple individual prejudices and unconscious biases.
The intersecting issues of systemic racial biases and structural marginalization create a perfect storm for populations who are more likely to experience poverty, poor mental health, trauma, addictions, and homelessness, etc. Indigenous, Black, and racialized communities are not just over-policed but are also under-served and chronically under-invested. In this regard, systemic racial biases and the over-representation of Indigenous and Black individuals in the criminal justice system have come under greater scrutiny. Despite decades of evidence pointing to the need for criminal justice and social reforms, we continue to see persistent and growing racial disparities in Canadian jails, courts, and the devastating impacts this has for families and communities, including the victims of crime.
Race, statistics, and power
Logically, “race data” could not exist without the emergence and acceptance of the concept of “race” as a social and political category that is applied in a particular way to distinguish groups of people for different treatment and bureaucratic management and control. Hence, long-standing resistance to collecting race data was rooted in the idea that race-based statistics are inherently racist, and there is some truth to that.
By the time that national censuses became formally established as a crucial part of government bureaucracies in the 18th and 19th centuries, “race” as a powerful idea was already entrenched within systems of economic production and laws, and manifested in everyday practices and social relations. When formal slavery was finally abolished in 1863, technological and administrative advancements in the United States enabled the creation of race statistics to systematically track the progress and conditions of free Black people. In Canada, where slavery was prohibited in 1833, race data appeared in censuses conducted by early colonial administrations to track the numbers of “Indians” starting in 1613 and “Negroes” in 1772 (Statistics Canada, 2000).
The invention of racial crime statistics really emerged with the release of the 1890 U.S. Census (Muhammad, 2012). It was significant in that it was the first census to reflect 20 years of freedom from slavery and included a generation of Black people who had been born since abolition. This period also coincided with the professionalization of universities, the emergence of social sciences as a new academic discipline, and pseudo-scientific ideas of racial differences that were influential at that time and generally accepted by the predominantly White scholars and students.
In this context, Muhammad (2012) shows how racial statistics were used selectively to support and advance racist views that Black people were inherently inferior and unfit. High rates of poverty, low literacy rates, high mortality and morbidity, unemployment, and incarceration rates were interpreted as evidence of individual moral deficiencies, weak family structures, and impoverished communities (Mirchandani & Chan, 2007). Unequal media portrayals of victims of crime were prevalent, with often sympathetic coverage of White victims while ignoring or blaming racialized victims (Millar & O’Doherty, 2020). Population-specific experiments involving Indigenous children and their communities were conducted to further exploit and extract information in harmful ways (Mosby, 2013) and reflected racist beliefs.
In these ways, racial statistics, and crime statistics in particular, was yet another tool used to deny full humanity and citizenship to Indigenous and Black peoples and helped to maintain systems of White supremacy and dominance.
Strategic ignorance: A colour-blind approach
The history of race-based statistics in the years leading up to and including the Second World War and in the United States prior to the Civil Rights Act, 1964 has been a serious cautionary tale that has shaped policy in those different contexts (Muhammad, 2012; Bleich, 2000). In official statistics since 1945, Statistics Canada has avoided the language of “race.” Instead, by adopting the language of visible minority and multiculturalism as official policy, it minimized the legacy and impacts of systemic racism and colonialism on the well-being of Indigenous, Black, and racialized communities in all spheres of social life. Rather than seeking to understand and address systemic racism, policy-makers were more comfortable to focus on immigrant integration issues, poverty, and cultural differences as factors standing in the way of progress within certain communities.
The lack of race-based data had the effect of maintaining unequal outcomes of discriminatory systems and practices (Sullivan & Tuana, 2007). We cannot change what we do not see happening. This began to change with the Abella Commission on Equality in Employment (1984) which acknowledged the barriers and discrimination that existed in employment and resulted in the establishment of the Employment Equity Act (EEA), 1986.
The EEA included a requirement for certain federal employers to collect data to monitor and track the progress of protected groups in employment opportunities, a result of a politicized process (Grundy & Smith, 2011) that introduced the official collection of race-based data in the form of “visible minority” status (defined as “persons, other than aboriginal peoples, who are non-Caucasian in race or non-white in colour”). This category has been widely criticized for lumping together groups which each had unique histories and different experiences of systemic racisms in Canada, and who may in fact be the majority in some local areas like Toronto and Vancouver.
Anti-racist scholars, activists, and community-based organizers have long recognized the value of race-based data and statistics to shine a light on the impacts of the criminal justice system. Debates for and against race-based data in the criminal justice system raged on throughout the 1980s and 1990s in academic and community forums, with various stops and starts in commitments by different official committees and police services (Owusu-Bempah, 2011).
Inconsistent, incomplete, and piecemeal reporting of the experiences of Indigenous, Black, and racialized people continues to hinder efforts to mitigate systemic inequalities, such as meeting requirements for Gladue pre-sentence reports for Indigenous accused (Kong & Beattie, 2005). Lack of clear records, data, and government inaction in relation to murdered and missing Indigenous women and girls prolonged the crisis and trauma of loss experienced by Indigenous communities (National Inquiry into Missing and Murdered Indigenous Women and Girls, 2019).
Needless to say, we need a comprehensive and consistent national framework to guide race-based data collection throughout every aspect of the criminal justice system, from policing to courts, corrections, and post-release programs. The framework should be flexible enough to enable and empower stakeholders and communities to have timely access to reliable data and be part of evidence-based decision-making to improve policies, programs, training, and operations.
Using race-based data for equity
Central to the success of race-based data in the criminal justice system is the inclusion of the voices, perspectives, and values of those with lived experiences in the most impacted communities. From the beginning, models existed for using race data to challenge the prevalent negative stereotypes and racist narratives.
The work of early anti-racist intellectuals highlighted how race data could be used to promote understanding of communities and advance their well-being. At the inception of harmful racial statistics, prominent Black scholars such as W.E.B. Du Bois (1898, 1903) and Ida B. Wells (1895) offered powerful counter-narratives by pointing to the ways opportunities were blocked for Black people, the poor services and lack of adequate healthcare as well as the racial violence they faced. In other words, they highlighted how systemic biases, failures, and barriers that Black communities and individuals experienced significantly affected their outcomes.
Through a deeper and more intimate understanding of the experiences of Black migrants to Philadelphia, Du Bois’ (1899) work humanized their struggles and gave context to the numbers. By centering the experiences of Black people and using a strength-based lens, Du Bois and sympathetic social reformers attempted to advance racial equality and inspire greater investments in Black communities, organizations, and Black-owned businesses.
Since then, much work has been done and successes demonstrated to build on best practices in the use of race-based data to address community safety issues and better support historically marginalized communities. Experiences in other jurisdictions that have had longer histories and greater experience with race data in criminal justice, such as the United States and the United Kingdom, suggest that the fears and concerns of opposition to such collection have not borne out.
In Canada, the First Nations Information Governance Centre has actively led the way to develop data sovereignty and governance models to empower Indigenous communities through data. The Black Health Equity Working Group has also developed a community-centred framework for data governance to advance the health and well-being of Black communities (EGAP, 2021).
We can no longer afford to operate blind to the inequitable impacts of the criminal justice system. We need better data to understand its effectiveness and fair treatment for all communities, inform meaningful solutions, and develop targeted programs and services to better support people. Finally, transparency, openness, and accountability would help to build trust and legitimacy in a system that is able to demonstrate it is willing to learn and respond to the needs of a complex society.
Advancing justice podcast: Interview with Dr. Mai Phan
For the transcript of the conversation, visit the podcast page.
Anti-Racism Directorate (2018) Data Standards for the Monitoring and Elimination of Systemic Racism. Ontario: Ministry of the Solicitor General. Retrieved from https://www.ontario.ca/page/anti-racism-data-standards-order-council-8972018
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