MARYN MARSLAND
and ALEX STRANG
There is something that we need to speak out on before it is too late. People are dying in police custody. And it needs to stop.
Dr. Chris Milburn, in his Nov. 16 opinion piece, “‘Criminal element’ sent to ER puts docs in dicey spot,” talks about the difficulties faced by medical professionals, corrections officers and police when dealing with people in custody who must be medically evaluated.
As part of this discussion, Dr. Milburn states that a perfect system — one in which people in custody never die — is impossible to attain. With this, we can agree. Locking up people who are sick, intoxicated, or otherwise in need of help and compassion, is inevitably going to lead to suffering, harm, and, as experience has demonstrated, death.
Of course, police and frontline medical professionals have very challenging roles that require a difficult and careful balancing of protection of the public when dealing with volatile situations that require quick responses. Sometimes, in these moments, mistakes are made. This is human.
However, the takeaway is not to celebrate the relatively small number of deaths and applaud the system for not being even more harmful. Rather, the fact that people are dying at all should raise alarm bells. The challenge of frontline workers in the system includes extremely difficult situations. It is not the inevitable mistakes that are the issue. It is the system. And it is a system we do not just have to accept as we find it.
In addition to this need for a broader reframing, there are a few elements of Dr. Milburn’s opinion piece that include explicit factual errors.
First, he discusses the role of spit hoods in policing. These tools, which do appear, as he describes them, as “cruel and unusual,” involve the placing of an impermeable hood over some or all of the head to prevent spitting. Being hooded by the police is psychologically traumatic and physically dangerous.
Dr. Milburn was inspired to write his piece by the case arising from the tragic death of a man in custody by asphyxiation after being left in a spit hood. This is only one example of the well-documented harm arising from police use of spit hoods, and many have called for a ban on their use.
Spit hoods are dangerous and unnecessary. The main argument given for their use — protection from infectious diseases — is unfounded. There is little evidence or risk of infectious diseases being transmitted through spit. For example, a 2018 study in the Journal of Viral Hepatitis found that the risk of contracting hepatitis C from spit was negligible, and very low for hepatitis B, and a study in HIV Medicine found there was no risk of contracting HIV by spitting.
In a 2012 case out of Saskatchewan, a Canadian judge noted, “Those who get arrested on a regular basis know the police are terrified of getting spit on … If we want to deter suspects from spitting on police officers, we need to educate these officers about the real risks involved, and not perpetuate their anxiety by repeating urban myths.”
It is troubling that a medical professional in a position of trust would feed into such harmful, stigmatizing and unhelpful myths.
It is also essential to note that the people Dr. Milburn is seeing in his ER, the ones he refers to as “criminals,” are legally innocent. They have not been convicted of an offence and may not even be charged with one. They are simply people the police have brought in for medical attention, often involuntarily. Many are intoxicated or suffering from mental illness and may in fact need help. To label people who act out in crisis as “criminal” and resort to harmful and dehumanizing devices such as spit hoods is a far cry from the “help” these people need.
Humans are humans and all are worthy of dignity and respect. There is no “them” and “us.” The people that Dr. Milburn puts within his label of “criminal element” are no less deserving of having their needs met and their human dignity, bodily integrity and safety protected and respected.
Finally, so much of what leads to the “criminal behaviour” that Dr. Milburn is so concerned about accountability for is not a matter of personal responsibility, but rather, is rooted in the ongoing traumas of a society ingrained with racism, colonialism, ableism and classism. Blaming behaviour stemming from social problems as the poor choices of individuals ignores the fact that freedom of choice is dependent on the freedom to choose. Dr. Milburn plays into a false idea that people who are affected by these social problems are to blame for their own oppression or marginalization.
Putting people in custody for behaviour that is disrupting the peace in a public place because they are, say, homeless, and so have no private place to be, or because they have a mental illness for which they cannot afford treatment, is helping no one.
When a legally innocent person then ends up dead or harmed by the arrest, it is not “a testament to just how good our system is” that only “such a tiny percentage of them die while in custody.” It should instead beg the question of why this person was in custody in the first place, and why the rest of society has failed them so deeply.
As Dr. Milburn rightly points out, the solution to this cannot lie in small tweaks to the system to address the surface flaws. The changes need to go deeper, to recognize the disproportionate effect on those marginalized in our communities, and to rethink what behaviour we are criminalizing and to what end we are locking people up. This is a complex task, and one that will take time. But its complexity does not excuse inaction.
Meantime, there are things that can be done to address some of the most grievous flaws or misapplications of the current system. There are elements of it, such as spit hoods, that are leading to more harm without helping anyone. And that needs to stop.
First they came for the people of colour, and I said nothing because I was not a person of colour.
Then they came for the mentally ill, and I said nothing because I was not mentally ill.
Then they came for the impoverished, and I said nothing because I was not in poverty.
The reality is, they probably will not come for people like us or Dr. Milburn. Our privilege protects us from that. Which is all the more reason we must speak now.
Maryn Marsland and Alex Strang are students at Dalhousie law school.
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