‘This needs action’: NDP, experts call for solutions to racial bias in federal prison risk assessments

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Ottawa must address systemic racism in prisons, which is being perpetuated by risk assessments that are biased against Black and Indigenous inmates, opposition and legal critics say.

The unfavourable risk scores contribute to the overrepresentation of Black and Indigenous men in prison, they say, something the Liberal government has vowed to address at a time when discrimination – particularly in the criminal-justice system – is under intense scrutiny.

“This needs action,” NDP public-safety critic Jack Harris said. “It’s something that the government has to respond to. The fact this has been done by somebody outside the system as opposed to the system itself is a condemnation of the effort that should’ve been done sooner and more effectively.”

Bias behind bars: A Globe investigation finds a prison system stacked against Black and Indigenous inmates

How we did it: How The Globe uncovered systemic bias in prisoners' risk assessments

Mr. Harris said he plans to bring a motion to the House public safety committee to examine the issue. The committee is set to meet on Monday, where both Public Safety Minister Bill Blair and Correctional Service of Canada (CSC) commissioner Anne Kelly are scheduled to appear.

Jonathan Rudin, program director of Aboriginal Legal Services of Toronto, said a recent Globe and Mail investigation of risk-assessment scores “confirms what people have suspected,” but until now, they had no detailed information on inmate scores.

“To have data that shows this is incredibly powerful,” he said.

The investigation looked at a database of all CSC inmates between 2012 and 2018. After accounting for variables such as age, offence severity and criminal history, it found that Black and Indigenous men were likelier to receive worse scores on risk-assessment tools compared with white men.

The Globe’s analysis – the first looking at CSC data on this scale – found that Black men were almost 24 per cent more likely to end up with the worst security classification score compared with white men. It also discovered that Indigenous men were close to 30 per cent more likely than white men to receive the worst reintegration potential score. And it found that both groups were less likely than white men to reoffend given their current scores.

The scores have wide-ranging consequences for prisoners, helping to determine their placement, the kinds of services they can access and their likelihood of being paroled.

According to the Office of the Correctional Investigator, a watchdog group, in early 2020 Indigenous people accounted for 30 per cent of inmates in the federal system, despite making up roughly 5 per cent of the Canadian population. Black people, meanwhile, accounted for close to 10 per cent of federal inmates, though they represent about 4 per cent of the country’s population.

In an e-mailed statement Sunday, Craig MacBride, a spokesperson for Mr. Blair, said “we know there’s more work to do to address systemic racism and barriers within our justice system.” Mr. Blair’s office has previously said the minister would be meeting with the CSC’s Ms. Kelly to discuss prison issues such as risk assessment, but offered no timeline.

Every person handed a sentence of two years or longer becomes the responsibility of the CSC. When they are taken into custody, inmates go through a battery of testing and are administered standardized risk assessments. These structured questionnaires are used by parole officers to set an inmate’s security classification, affecting which prison the inmate goes to and what kinds of treatment they can access. They’re also used to determine a reintegration potential score, which factors into parole decisions.

Mr. Rudin said the CSC can’t be trusted to simply study the issue internally, given its response to the 2018 Supreme Court of Canada decision in Ewert v. Canada. In that case, the Supreme Court found that the CSC had not done enough to ensure its psychological risk assessments were reliable for Indigenous inmates. At the time, the court ordered the CSC to conduct research to bridge that gap.

Two years later, there is little evidence this has happened, Mr. Rudin said. “They didn’t really fix it. And if they are fixing it, we have no idea what they’re doing.”

On Sunday, CSC spokesperson Anick Charette listed in an e-mailed statement a number of recent initiatives by the agency to address the overrepresentation of incarcerated Indigenous and Black people. In July, the agency established a joint committee with the Parole Board of Canada to examine systemic racism, she said, and the CSC is in the process of “developing a national approach to working with ethnocultural offenders.”

She also said CSC employees undergo mandatory training on unconscious bias and on working with certain inmate groups. In addition, she said the agency has continuing research on some of its core classification tools, which includes consulting with Indigenous communities while developing risk assessments.

“This is something that CSC takes seriously and is committed to work on in concert with others at all levels of our criminal-justice system,” Ms. Charette said.

Concerns about discrepancies in risk scores have been raised for years. In 2016, the Office of the Auditor-General found that Indigenous inmates were ending up in higher security classifications more frequently than other groups. And, in 2019, the issue of risk ratings came up frequently in a Senate committee report about prisoner human rights.

The Globe analysis centred on two custodial risk-assessment scores: the security classification, which skews against Black men, and the reintegration score, which is skewed against Indigenous men. Unlike the psychological scores in question during the Ewert trial, custodial scores are applied to every federal inmate.

Instead of going back to court for another fight that could take years, Mr. Rudin wants a parliamentary committee to demand that the CSC publish data on its risk scores each year to hold them accountable.

“This data exists,” he said. “It’s frustrating when the people that have the data don’t do that work.”

The investigation shows how systemic discrimination can arise from seemingly neutral tools such as risk assessments, said Lisa Kerr, a law professor at Queen’s University. It shines light, she said, on the “extraordinary power” we put in the hands of prison officials responsible for administering sentences.

With these risk assessments, inmates are being punished three times, she said. “You’ve already been punished for things you’ve been convicted of. You’re now going to have a more severe punishment because you have a criminal history. And then we’re also going to consider the socioeconomic factors again that already went into punishment the first time.”

The Globe’s findings have several implications for the legal system, Prof. Kerr said, including in constitutional law, where the data could be used as evidence that risk assessments are violating inmates' constitutional right to equality. “Race, national origin, family status – those things are not supposed to determine your life trajectory."

Toronto-based criminal defence lawyer Andrew Vaughan, who often represents racialized clients, said he was surprised at how much worse Black inmates' security levels were compared with their white counterparts.

Mr. Vaughan has seen first hand how risk scores can affect a person’s time in prison. “These are things that really affect Black people.”

“That’s what it comes down to," he said. "They’re spending more time in custody, they don’t get to the halfway house as quick. Because of their classifications, they can’t get the help that people in better classifications can. It’s self-fulfilling.”

Mr. Vaughan said he was disappointed by the lack of action on criminal-justice reform, promised by the Liberals when they first came into office in 2015. “They haven’t done anything.”

Editor’s note: (Oct. 26, 2020): An earlier version of this article misspelled the last name of the Public Safety Minister's spokesman.

A Globe investigation finds a prison system stacked against Black and Indigenous inmates.

Tom will answer reader questions about the investigation on Thursday, Oct. 29 at 1:30 p.m. ET on the Globe’s Facebook page