Canadians are facing a crisis in the justice system. Prison populations are soaring. The costs are no longer affordable. Yet people are feeling less safe and secure. What Canadians want and need is "satisfying justice" - a response to crime that takes victims seriously and helps them heal, a response that calls offenders to account and deals with them effectively, a response that "gets tough" on the causes of crime and does something about them. It is clear that filling our jails has just not been working.
In fact, a top level document has put government leaders on notice:
..." continuing to do business in the same way will inexorably lead to further crowding and degraded prison conditions, program effectiveness and security measures.... The current strategy of heavy and undifferentiated reliance on incarceration as the primary means of responding to crime is not the most effective response in many cases, and is financially unsustainable"
(Rethinking Corrections: A Discussion Paper Prepared by the Corrections Review Group, 1995, Government of Canada, obtained through the Access to Information Act).
At the Church Council on Justice and Corrections, we have been asking this question: what can be done instead of jail to meet the many demands of justice?
Of course, we all want protection from violent behaviour. But when we are told in this same report that, from the best available knowledge:
... punitive imprisonment does very little, if anything, to reduce our overall risks and that other, less expensive means may be as effective, or more so;
... and when we are told that 84 per cent of admissions of provincial inmates and 37 per cent of the federal penitentiary offender population are in prison for non-violent offences;
... and when we are told that Canada incarcerates individuals at a higher rate than any other western democracy except the United States;
... that we use custody as a response to youth crime considerably more than the national average in other comparable countries;
... and that our adult prisons are filled to overcapacity so that we will soon have to build more, at great expense, if we don't change our way of going about the business of doing justice;
... and when we are told that rates and length of incarceration not only fail to reduce recidivism and the overall crime rate, they sometimes increase them;
... and when we are told that the annual cost of our adult correctional systems was about $2 billion in 1992/93, that it costs $52,953 a year to keep an offender in penitentiary instead of $10,951 for supervision in the community, and that the federal prison population is growing at a rate which suggests a 50 per cent increase over the next 10 years if we continue to do business in the same way; then we feel a need to stop and ask ourselves:
Why are we doing this?
Couldn't all that money be put to better use to make us secure?
How can we get SMARTER about getting tough?
What can we do instead?
Rate of Incarceration for Federal Institutions in Canada
Correctional Services Canada - Information Management System - Year End Count
Many government jurisdictions here in Canada and elsewhere have been asking similar questions. They want to decrease the size and costs of their prison populations. In Canada, however, all the governments' efforts to date to provide alternatives to imprisonment have failed to halt in any significant way these mounting numbers, already high by international standards. These escalating rates of increase in prison population are no longer sustainable, either fiscally or socially. The traditional average yearly increase of 2.5 per cent has jumped in recent years to over 4 per cent, a trend which is expected to worsen, leaving less money for other essential programs in the field of health or education and, as the Rethinking Corrections paper noted, "grim implications for the quality and values of society generally".
Diversion programs can be instituted either before or after a charge is laid. These programs are based on the belief that in many cases the full weight and cost of the criminal justice system is not required to achieve the objectives of the law or the community. Sentencing options must be responsive to the needs of victims and address public safety. They must also allow courts to dispose of cases in a variety of ways that do not always include imprisonment unless that sanction is clearly warranted.
Solicitor General, Herb Gray
Oct. 1, 1995
Yet, the truth is that effective community measures do exist in Canada and elsewhere. Some jurisdictions around the world have succeeded in reducing their use of prisons.
Therefore, we set out to track down and describe a range of the best examples we could find. We wanted to illustrate to victims of crime, to justice decision-makers, to members of the public what can be done that would bring about satisfying justice while reducing our country's reliance on incarceration, wherever the evidence shows this to be ill-founded and counter-productive. While we recognize that long-term crime prevention initiatives remain the best path to safe communities, this compendium deals exclusively with initiatives, programs and legislative measures responding to crime which has already occurred. We wanted to identify safe community options that attempt to repair harm from crime and reduce the use or length of imprisonment.
We found that many voluntary agencies have recognized for years the futility and destructiveness of prison sentences vis-à-vis the crime problem. They recognized the need to ensure that the response to crime is social as well as legal. Many have sponsored community-based measures which are safe, and sometimes satisfying for victims, to which the criminal justice system can refer, in order to reduce the use or length of imprisonment.
We also found that, in some communities, individuals or groups have spontaneously rallied in the aftermath of a tragic crime to struggle together and to work out some real solutions for community protection and satisfying justice beyond mere incarceration.
Most importantly, we found that in pockets of the world, including examples in Canada, some communities as a whole are trying to forge an entirely different kind of partnership with their local justice officials. Some are aboriginal communities drawing on their own traditions. Others are urban groups of citizens who want more ownership for their own justice work to ensure the safety and well-being of their neighbourhoods, schools and communities.
Out of this latter movement, as average citizens wrestle with the real problems, there is beginning to emerge a call for a fundamentally different approach to justice. People who know the facts about individual situations want lasting solutions to the problems they are uncovering; and they often want healing for both victims and offenders, and for the community's overall sense of trust and well-being. From this perspective, they are shedding a whole new light on the role of incarceration. It has very little positive contribution to make to what matters most to them about crime. And theirs are the initiatives we have found that stand to make the greatest inroads into forging new models for the "satisfying justice" we all ultimately seek, and by the same token reduce wasteful expenditures on imprisonment.
In this compendium, we present a selection of "a hundred and one things we can do instead of putting or keeping someone in jail". It is based on information that individuals and organizations forwarded to us after hearing about our search. They do not by any means provide an exhaustive listing of all the valuable programs and services that are currently available. We hope they do provide a balanced representation of the most creative, innovative and satisfying types of initiatives that came to our attention. Where we found several initiatives of a similar nature, we chose to use an example and a story that we thought could most vividly illustrate how it works and how it feels. Our aim is to spark innovative thinking about justice and generate enthusiasm for experimenting responsibly with new solutions to an old problem. For every entry selected, we have listed a contact person who can provide further details about each initiative's strengths, limitations and potential difficulties. As well, some information will be useful in finding out where other comparable programs already exist and where some guidance might be obtained before undertaking a similar initiative.
There is some tremendously good news about all the initiatives featured here. For the individuals benefitting from them, they do in fact avoid the use of imprisonment altogether, or frequently reduce, to varying degrees, its length. The heartening finding is that the most conclusive evidence gathered to date reveals that this has not increased rates of recidivism or overall crime in the community (see for example Ekland-Olson et al., 1992; Lin Song, 1993; Julian Roberts, 1995).
The bad news is, however, that in many jurisdictions, including all of Canada's, the use of these more cost-effective justice options has failed to reduce the overall use of imprisonment as a sentence. They have failed to halt the continuing increases in prison populations and costs. They have even failed in some instances to halt the continuing escalation of population overcapacity. According to the government document, "Rethinking Corrections", in federal penitentiaries this overcapacity recently doubled in the span of only one year and concern about this situation has been publicly expressed by the Auditor General. All jurisdictions in Canada are presently operating institutions at close to full capacity or in excess. Nor is this likely to change as things stand now. Meanwhile, community options are sometimes not funded on the basis that they increase overall criminal justice costs. Yet, on their own they would be more cost-effective, especially if dollars spent on prisons are reallocated to dollars spent on community programs. What is the problem? Some of the factors behind it are discussed in the section of this compendium entitled Conclusion.
The millions of dollars that we waste on building new prisons and maintaining our old ones is, generally speaking, money wasted. In no other area of public tax funds expenditure do public monies get less scrutiny in terms of positive effectiveness than in the area of penal policy.
Michael J.A. Brown, Principal Youth Court Judge
Auckland, New Zealand.
But of equal concern is our finding that some of these alternatives and community measures, while remaining safe to use without increasing recidivism or crime rates, are not providing victims or communities with what we are calling "satisfying justice". And this may also partly explain why they are not reducing the calls for incarceration and why governments have not been inclined to take the actions that would more effectively decrease its use.
In addition, the manner in which many of these measures are presently structured does not contribute significantly to a perception that sentences other than incarceration are a more appropriate, effective or desirable response to criminal behaviour. Prison remains the cornerstone of criminal policy in the mindset of the public and of judicial decision-makers. Its symbolic hold on our collective psyche overpowers all rational evidence to the contrary. Yet on a practical level prisons fail to provide satisfying justice to victims and communities and are often harmful to those who live and work in them, with devastating and long-lasting effects on the children of prisoners (Council of Europe, 1991; Roberts, 1995). As a mere symbol, it is one we can no longer afford.
We need to call our decision-makers to account for this. We need to call for responses to crime and sentences that protect us effectively when that is required, and that spend our money in the ways that will be the most satisfying for our real justice needs and in the long-term best interests of our communities.
In presenting this compendium of justice options that could help to reduce the use of imprisonment in Canada, we have chosen, therefore, to particularly highlight the initiatives that meet this criterion, while providing "satisfying justice" to victims and communities. And we have asked of all entries the following kinds of questions:
- what are the ways in which this initiative does or does not provide "satisfying justice"? .
- does it protect us enough?
- could it be used in more serious cases?
- if a period in prison was still a component of the sentence in this initiative, what was the purpose for which it was used? Was it really necessary? Or is there another means for achieving this purpose that could have been used instead that could have been as effective or more so, less harmful, less costly?
As a preamble to the description and listing of the entries, we begin by providing a framework for reflecting on this newly coined phrase, "satisfying justice". There are a number of ways in which prison itself does not provide it and can work against the effectiveness of some of the accompanying measures that occasionally attempt to compensate for that. This leads us to a logical question: then why has Canada continued to use imprisonment so much? In the conclusion, we list a number of uses that the prison sentence and prison institutions serve in our society and the importance of finding strategies to more cost-effectively fulfil all of these functions. Strategies to limit the costs of incarceration, as the government has tried to do up to now, by addressing only one of these purposes, i.e., protection from violent crime, or by providing alternate ways of fulfilling only one of these functions i.e., to more cost-effectively punish low-risk, non-violent and primarily property offenders, without questioning fundamental premises, are bound to be neutralized by the other "uses" of imprisonment. Other means are needed.
As we will see in the concluding chapter, a few other countries have assembled the political will to develop these means.
It is our hope that this compendium will provide some helpful ideas, tools and inspiration to help Canada as well take some significant further steps in this much needed direction.
"A surprising number of judges feel that much of this activity of processing and reprocessing petty social misfits does very little to prevent or control crime," said Judge David Cole of the Ontario Court's Provincial Division.
"They are beginning to challenge the theory and practice of sentencing in Canada today."
Judge Cole, co-chairman of a recent provincial inquiry into systemic racism in the justice system, said the belief that prison sentences will deter or rehabilitate is particularly suspect.
As corroboration, he quoted from a dozen recent decisions in which judges questioned the sense of relying on prison as heavily as Canada traditionally has.
The public seems to think the criminal justice system can prevent and control crime, said Judge Cole. "Public expectation, all too frequently fuelled by opportunistic politicians, mostly overrates that part."
Judge David Cole
Globe & Mail - March 5, 1996
What Do We Mean by Satisfying Justice?
(i) Satisfying Justice - Not!
The best way to understand what we mean by "satisfying justice" is to begin by examining what it is not. We start, therefore, with a story that powerfully illustrates some of the dimensions of crime currently overlooked by our criminal justice system. The story concerns a woman who was working in a convenience store when it was robbed by a man wielding a knife. From their strictly legal point-of-view, the courts considered the absent owners of the convenience store as the only "victim" in this case. This woman's story was told to us by Wendy Keats of MOVE Inc., a New Brunswick initiative (see entry in Section Two of the compendium).
Elizabeth had been extremely traumatized by the armed robbery during her shift at the convenience store. The crime scene had been absolute chaos. The masked robbers had screamed death threats as they held her captive with a knife to her throat. She had wet herself from sheer terror.
Even months after the robbers had been caught, life did not return to normal. Word had got out about her fear-induced loss of bladder control, and customers and co-workers teased her mercilessly afterwards. Not only did she have to cope with fear and shame, but past traumas in her life returned to haunt her. She became ill with bulimia and lost 85 pounds. Insomnia kept her awake night after night.
Friends and family quickly became impatient with her. "Look, you didn't get hurt. Let it go. What's your problem?" (This impatient response to a victim's torment is typical.)
Elizabeth herself couldn't understand the unrelenting torture. Why did she suffer nightmares every time she closed her eyes for a few moments? Why couldn't she resume her life? As her health deteriorated, her marriage broke down and her relationship with her children changed dramatically.
Meanwhile, Charles, the 21-year-old offender, was serving five years for the offence in a federal institution. He had been raised in a violent environment by a family deeply involved with drug and alcohol abuse. His string of surrogate fathers were mostly ex-offenders and addicts themselves. He and his sisters were victims of continuous abuse and poverty.
He had committed minor offences as a juvenile, but this was his first serious crime. To him, the offence was the result of an extremely bad acid trip. Completely out of his mind on booze and drugs, Charles had no idea of the trauma caused by his actions.
Charles first learned of Elizabeth's situation when he became aware of her insistence that the court allow her to submit a victim impact statement. She had not been invited by the courts to submit a statement as she was not identified as the victim. The convenience store was.
As Elizabeth fought for her right to somehow be included in the process, her anger and frustration grew. She was terrified that Charles and his accomplice would come back to get her as they threatened they would. She was isolated from her family and friends by this time. She was frightened, emotionally haggard, and physically sick.
Finally after two years and many counselling sessions, Elizabeth realized that she had to find a way to "let it go". She realized that, in order to do that, she had to try to find the answers to the questions that haunted her.
So when Charles' parole hearing came up, she travelled by bus for four hours to the institution... alone and suffering from pneumonia. During the hearing, Charles turned around and tried to say something to her, but victims and offenders are not allowed to speak to each other during these hearings, and he was cut off.
Back on the bus, she kept wondering, "What did he want to say to me?"
At this point, she contacted the National Parole Board with a request for a face-to-face meeting and they referred her case to MOVE. I was the assigned mediator.
When I first met Elizabeth, I asked her why she wanted to meet her offender. "I cannot live like this anymore" she said. "I have to get the answers to my questions. I have to find out whether he is coming back to get me or my family. I have to tell him how I feel. I have to look him in the face and tell him how he has changed my life."
All valid reasons for mediation. And so I went to see the offender.
Charles was amazed by Elizabeth's fear. "Doesn't she know I wouldna' never hurt her? Don't they give them convenience store clerks some training that tells them to just hand over the money and nobody will get hurt?" he asked incredulously.
"Doesn't she know that every robber says "don't call the cops or I'll come back an' git ya"? That's just the way it's done. Gee, I'm really sorry about this... I had no idea."
Without hesitation he agreed to meet with Elizabeth to try to do whatever he could to make up for what he had previously thought of as just a bad night ... too drunk... too stoned... and one for which he felt he was the only one paying a heavy price. By this time, Charles had been in prison for two years and it was no picnic. He slept with a knife under his pillow because there were so many stabbings going on around him. Like Elizabeth, he lived in daily fear.
The mediation was arranged to take place in a room within the prison itself. Neither of them slept the night before... each racked with doubts and fears. By the time the two of them came together, face to face across a 30-inch wide table, they were both peaked with emotion.
However, the controlled process of mediation soon took its effect and the story telling stage began. Elizabeth said everything she had been thinking for the past two years. Charles listened intently, and when it was his turn, he answered most of her questions as his own story unfolded. As the dialogue continued, they started to chuckle about a detail. This broke the tension and they really started to talk: face to face and heart-to-heart. They had shared a violent experience, albeit from entirely different perspectives. A relationship had been formed that night that, until now, had been left unresolved.
Elizabeth got the answers to all of the questions that had haunted her that day. She learned that Charles had never intended to come back and harm her, and that he was genuinely sorry for what he had done. They struck an agreement about how they would greet each other on the street when he is released from prison and returns to their home town. As they finished, they stood up and shook hands. "You know" Elizabeth said, "we will never be friends, you and I - we come from different worlds, but I want you to know that I wish you the best of luck and when I think of you I will hope that you are doing okay. I forgive you."
Leaving the prison, I asked her how she felt. "It's over. It's closed. It's done."
Five months later, she tells me that she has not had even a single nightmare since. "I don't feel like the same person anymore. There is no more fear. It's just gone."
I have learned from Charles's case manager that he is doing well. Staff feel it was a maturing experience for him and that there is a much better chance of him responding to rehabilitative treatment and taking life more seriously. No guarantees. He's twenty three years old. My own guess is that he will never forget this experience, and that it will have a profound affect on future decisions.
After the mediation, Elizabeth requested that a letter be sent to the National Parole Board. She no longer wants to be used as a reason to keep Charles incarcerated. "If they want to keep him in prison, that's their business, but I don't want it done because of me. For me, this matter is over. I am healed."
[end of story]
A Framework for Understanding What Has Gone Wrong
The experience of justice the current system usually provides is seldom any better than what happened to Elizabeth. We invite you to reflect at some length on why this may be so, and how this is contributing to the dissatisfaction and frustration with the criminal justice system. This can help us to understand what needs to be put in place to provide possibilities for a justice experience that is more "satisfying".
For a long time, the criminal courts have concentrated their attention almost exclusively on the behaviour of the accused. They have been preoccupied with proving that a law has been broken and determining who broke that law and what the penalty should be. They have paid very little attention to the harm that crime does to people - to victims (direct and indirect), to families, to neighbourhoods and communities. Until quite recently, criminology has also focused almost entirely on the study of the criminal's behaviour, giving us "explanatory models" that concentrate on identifying contributing factors. The following description of the repercussions this has had draws partly on an article by Tony Peters and Ivo Aertsen, two contemporary Belgian criminologists, because their analysis is highly consistent with our observation of the Canadian situation as well (Peters et al., 1995).
What has happened can be understood as follows. The emphasis of the "explanatory models" has generated further research and intervention strategies which have also focused exclusively on the offender. The relation between the offender and the victim of the crime has been neglected. This may go a long way towards explaining why the more recent field of research about victims has found that contact between the victim and the administration of criminal justice has been primarily a source of revictimization, frustration, disappointment and annoyance rather than a contribution to the solution to the victim's problems.
"Generally, after the facts (primary victimization), a secondary victimization follows through the contacts with the police and the judicial system. It stigmatizes the victim in the role of a loser and an outcast".
(Peters et al., 1995)
The administration of justice concentrates on pointing out to the accused that what has been transgressed is a social standard and that, following a specific hearing which is often reduced to a battle between lawyers about technicalities, he or she will be punished if convicted.
The Process Overlooks the Victim
The implications and consequences of the offence hardly get any attention. Ironically, this is so despite the fact that the administration of criminal justice is initiated mainly because of the victim's complaint and the fact that the police investigation depends largely on the victim's information. The offender is confronted with the consequences of his or her action strictly in relation to legal definitions that could technically either get him off the hook or further incriminate him. Meanwhile, what the victim is now going through in the aftermath of the crime is largely neglected.
Alberta and Manitoba studies confirm international research that the public may not be expecting harsh penalties for property offenders and that practices such as mediation and restitution would receive considerable public and crime victim support. According to research by Burt Galaway, 90 per cent of a sample of 1238 persons in Alberta contacted in 1994 chose education and job training over prisons vis-a-vis where additional money should be spent for the greatest impact on reducing crime. Sixty eight per cent preferred repayment to a four-month jail sentence for someone who burglarized their house and took $1100 worth of property. (the question also stated the burglar had one previous conviction for a similar offence and would be getting four years probation plus one of the above choices). Manitoba had almost identical results.
The formulation of the official charge and the subsequent trial hinge on the exact knowledge of the facts and circumstances related by the victim. But the sentence which follows ignores the victim's needs and problems; sentences have consisted primarily of fines and prison terms to which offender-tailored variations have sometimes been added. The possibility of giving the sentencing process, and the disposition itself, a meaningful content and orientation in relation to the specific repercussions of the offence has almost completely been left aside.
An administration of criminal justice which merely enforces the law without affirming as part of its central task the need to attend to reparation for the victim and the community raises a serious question about whether it is contributing in any way to restoring peaceful relations between citizens. Society is entitled to expect this from the criminal justice system. As could be seen in the story above, an administration of criminal justice which does not put emphasis on Charles' responsibility towards Elizabeth is bypassing the actual meaning of what happened when the crime happened, for the offender as well as for the victim. As a consequence of this, many opportunities for quickly solving some of the problems the victim may be facing, some questions and needs for which only the offender initially holds the key, almost always get lost in the process.
The criminal justice process describes the complaint against an accused by laying a charge that is phrased in the language of the Criminal Code. This categorizes, labels and "characterizes" the behaviour, often in a manner so broadly framed that it is suggestive of many more allegations than the offender may feel are fair. (Terms like "sexual assault" or "fraud" can cover a range of actual behaviours that vary considerably in terms of the degree of seriousness and stigma that is implied). Within this current framework of the system, the offender quickly loses any sense of responsibility as he or she is soon encouraged to reinterpret the whole situation in order to protect oneself against the entire range of allegations. The offender is unable to identify with this legal characterization of what happened, especially if he or she is already in a disadvantaged socio-economic position vis-à-vis the victim, or the rest of society as is often the case for those actually brought before the courts.
At the same time, the accused is rarely confronted with the needs and problems of the victim, or with the emotions and concerns of members of the community who are disappointed in the behaviour, and worried for this person's future. Instead, an adversarial legal system takes precedence, whereby the offender is expected to concentrate on a defence and to reduce his or her responsibility to a minimum.
The offender becomes entangled in a battle against the administration of criminal justice. He or she wants to "get off easy" with the lightest sentence possible. This of course does not foster a conducive context for the offender to think about the victim's situation or feel confident that if he takes full responsibility for his actions he will find support and acceptance from the community, "a way back in", or a way in, if he or she has in fact never "belonged" in the first place. When the offender is given a punitive sanction, and more particularly is sentenced to imprisonment, that person becomes even less likely to consider there is any obligation to the victim; the offender concludes he has already "paid" his debt through the sentence.
This situation is of course very infuriating and doubly injurious for victims, and it can lead to escalating calls for tougher penalties as they are often perceived as the only satisfaction victims can get out of such a system. But a more repressive policy will clearly not fix these problems. According to Peters and Aertsen, failure to sufficiently punish the offender is not the greatest problem facing many victims, as we saw in the story. They are much more affected and traumatized by the complete lack of interest and empathy for what has happened to them, especially by services like the police and the judicial system. They have the right to expect that concern for the injustice and pain they have suffered will be an important part of what is attended to by all the officials with whom they have dealings, whether or not a judicial proceeding ever ensues. In fact, how victims are treated by justice officials at every stage can have much more impact on public perception of the criminal justice system than how much or how little an offender is eventually punished.
"The health of a community improves when its members participate in conflict resolution. When they leave the task to others, the quality of community life declines. Gone is a collective sense of caring, of respect for diverse values, and ultimately a sense of belonging. Gone as well is the community's natural capacity to prevent crime, redress the underlying causes of crime, and rebuild the broken lives and relationships caused by crime."
Judge Barry Stuart, Yukon Territories
The Process Overlooks the Community
But the neglect of the victim in the criminal justice process is only one of the major drawbacks in sentencing. The other is that it also overlooks the community context of the offence. This means that it fails to consider the initiatives that could be taken to prevent crime in the future. For a justice process to be more satisfying, it should be deciding not only who has some responsibility but also what in society or the particular community contributed to the offence, and it should be focusing on what could be done to avoid the situation in the future (as do coroners' inquests).
"Restricting sentences only to the punishment of the crime - incident by incident - is closing the stable door after the horse has bolted."
Not only is it too little, too late, but it limits attention to only the crime reported and prosecuted which is a minute proportion of all the crime taking place in a community. (Roberts, 1995). It is also well established that this remaining minority of all the offenders reflects a disproportionate concentration on the most oppressed or disadvantaged groups in a given society and the current sentencing process does not deal with any of the underlying factors contributing to this. Safety in the community depends on far more than this.
Community members are also left with many more unanswered questions than the current judicial process ever addresses. The next story is but just one small example:
A young offender in an Ontario city was involved in a frightening stabbing attempt at his school. He has finished his closed custody sentence, is now on probation and continuing psychiatric treatment, and the justice system expects that this is enough for the community to accept him back without fear or anger: he has paid his debt, the job is done. But how is the community supposed to cope with his living among them again, how will they know if they are safe, if he is sorry, if they can trust him again? What is likely to happen to him, and his family, if he just gets feared, and ostracized, and scapegoated for the rest of his life? What effects does this continue to have on his already traumatized victims - the one he tried to stab, the students who saw, all the parents and neighbours who heard about it, etc.? Or on the whole sense of safety in that community and school, on its real protection from him in the future? Or on others who are perhaps also a potential threat, and are in this community that is now full of suspicion and fear and remains unable to talk openly about dealing with such problems among its young people. What if he just moves away from that community: will he have to run from the memories all his life? Can he ever heal? Can the community he left ever heal? -- Yes, he "paid his debt", but the job of "justice" is certainly not done, --not for the victims, not for the community, not for the offender and his family...at least, not the job of "satisfying justice".
[end of story]
Community members need an opportunity and a safe process to help them discuss with an offender their feelings and fears, to hear what he has experienced, to express their misgivings and hopes, to comfort those who have been hurt, to make up for it in some way and to help prevent it from happening again in their community. Is there not a role some of them can play in this? Some of them may be willing to help.
"Whether it is fighting heart disease of adults or combatting the precocious deaths of young Canadians in traffic accidents, prevention has become a significant and substantial part of the job. No longer would any politician believe that putting resources into hospital intensive care units could be a complete response to the problem."
At a Harvard Law School conference November 19, 1995 entitled "Police, Lawyers, and Truth," New York City Police Commissioner William J. Bratton stated that the criminal justice system places extraordinary pressure on the police by emphasizing "winning and losing more than truth and justice."
Comparing the criminal justice system to a production line, civil rights lawyer, Michael Avery, said police perjury is caused "by the same thing that causes workers in any industry to cut corners when the demands of production managers are unrealistic. The product of the criminal justice system is not justice, public safety, or stopping crime. It's arrests and convictions. The problem is how to change production managers and the message they're putting out."
The Process is Adversarial
Standing in the way of achieving satisfying justice is the current adversarial nature of the criminal justice system. And, as we shall see, this is very difficult to avoid in a system where the major purpose of sentencing is to punish. The potential result of an admission or finding of guilt is the deprivation of certain rights and liberties for the express purpose of "punishing". Punishment, as can be seen in the dictionary, is the deliberate infliction of pain, for the express purpose of causing pain as retaliation, justified in law because the person has done something bad enough to deserve it. Many people don't think about punishment this way. Many think of other things when they call for more punishment. But this is what the package comes wrapped up in, and we must not forget that. The only reason this has remained acceptable in our modern world of human rights is because we believe in it as a means to some positive purpose. The possibility of prison or a criminal record is always a threat. Consequently, what is set in motion in our civilized country is an adversarial process to safeguard against the risk of mistakes, of unjustified violation of these human rights. And what we get today is a legal industry that turns the search for justice into a game of technicalities played between two lawyers in court. What we get is an offender who is encouraged to plead not guilty, to deny everything, to make no amends to the victim, to show no remorse. The entire system concentrates on the rights of the accused more than on the victim's need for support and reparation. And it can only be so, when what is at stake is the deliberate, legally justified infliction of pain as retaliation which is always intertwined with any other goals. On the other hand, the resulting stigmatization isolates offenders, reinforces criminal identity in a subculture, and isn't even a deterrent (Mathiesen, 1990). And what happens rarely includes any of the positive qualities and community processes that we are now learning are needed if we are to realistically pursue the objectives most people are seeking in good faith when they talk about the need for punishment, or imprisonment as the punishment they know best (processes like "reintegrative shaming", as presented in sections one and two of this compendium) .
Yes, we need to express abhorrence sometimes, and set limits, and exact consequences which may feel painful, but to do so through the legal sanction of punitive imprisonment is to use a tool that simply cannot work. All that is learned from punishment in this system is how to avoid it, by lies and omissions. Dealing with all these matters in an adversarial manner flies in the face of everything we know about all the things we are trying to achieve. It flies in the face of human growth, personal change, moral responsibility, relationships and community strengthening. It flies in the face of any real solidly grounded public protection. To the contrary, it fuels what makes people feel like enemies of each other. And, especially, it flies in the face of what victims need most.
Our adversarial system actually stands in the way of meeting many of the needs that are most fundamental for victims. It stands in the way because it's adversarial, and the continued massive threat of the use of prison as punishment makes it more likely that it will continue to be so.
It gives victims no other way of expressing their feelings and needs except to denounce the skimpiness of a sentence that never seems like enough. And it puts them through a process that seems to humiliate them.
Communities are equally trapped in this dynamic because there is no way of knowing, from the mere pronouncement of the length of a sentence, if real worries and concerns are being properly addressed.
(ii) Satisfying Justice: Towards a New Definition of "Justice"
The increasing awareness of how the criminal justice system really works has very far-reaching implications. Indeed it is not merely a matter of additional insights which can be added to existing knowledge; the offender-centered "explanatory models" themselves must be "widened" to include those insights. They throw a whole different light on the existing knowledge. They cast into question some fundamental assumptions. They call for a profound redefining of theories about crime and of the choices that face us for criminal justice policy.
What do we seek when we seek justice as an irate and frightened victim or exasperated community? We seek:
- the shared sense of what is right and wrong;
- the holding to account for wrongdoing;
- the affirming of the importance of the rights of the person injured;
- the prevention of other wrongdoing or harm;
- and, of course, respect for the rights of accused and convicted persons, and some sense of "proportionality" between the gravity of the misconduct and any legal coercion society may be entitled to exert in response.
As we have seen, the current system gives more attention to the law that has been broken by a crime than it does to the harm that has been done to people. Yet, as in Elizabeth's case, what many victims want most, in addition to their safety, is quite unrelated to the law. It amounts more than anything else to three things:
- victims need to have people recognize how much trauma they've been through - they need to express that, and have it expressed to them;
- they want to find out what kind of person could have done such a thing, and why to them;
- and it really helps to hear that the offender is sorry - or that someone is sorry on his or her behalf wherever possible.
The crux of the crisis we are facing in sentencing practices is the crisis of public misunderstanding of how it all works, a misunderstanding that leaves judges boxed into using tools some probably know are obsolete. An impediment to satisfying justice seems to be that people see no other way to satisfy their very real and legitimate need for "denunciation".
And yet in truth, within the current system, very few people are satisfied anyway, no matter where they stand in their various allegiances. We have to do something about the fact that we're caught in this [tough vs. lenient] measurement when the missing link isn't about that at all. It's about all the human needs and feelings and worries we have when we're affected by a crime. But we're so boxed in by the current approach to sentencing that even the people who don't "believe in jail" can find certain sentences too lenient - because we have no other way of knowing if the community and the victim are getting what they need.
"Constantly in my work, where the behaviours and situations of our young people, many jobless and ill-educated, have the potential to induce a depressing effect on my own outlook on life, I am affirmed in my belief in the innate goodness of people by the common sense, the compassion and the cooperation of victims."
Marie Sullivan, Manager of youth services,
Auckland, New Zealand
How Can We Increase the Possibilities of Achieving the Real Justice Canadians Seek?
It would appear from all we have learned in seeking examples of "satisfying justice" that the only way we can break out of the current impasse in order to significantly develop some new directions in sentencing, and curb the needless growth of incarceration, is to encourage safe experimentation with processes in which victims and other community members can start to participate to have a say in what is done.
Some emerging models are paving the way for this, and some of the best examples we found are described in each of the sections of this compendium.
We know of course that this is not a panacea. It is a very difficult challenge, because we face many conflicting interests and pitfalls. There will be problems and we have to be careful to make sure everybody's rights and interests are protected. But overall, the communication process and community mediation possibilities that these models provide give an opportunity for victims to be supported, for offenders to get some important messages in a safe environment and for members of the community to work at the problems of living together which the offence brings to light. Ideally, this process could be instituted and encouraged at points prior to the intervention of the formal criminal justice system, in the schools and through the various community and social services. But for present purposes, we have selected examples that have introduced its fundamental principles and benefits into the criminal justice process, at various points, with some implications, at least potentially, for reducing the use of incarceration. Even when they do not reduce the length of imprisonment, they provide a better experience of "satisfying justice", to some extent at least.
We cannot stress enough that we do not believe that a whole range of new "alternatives" alone will be effective in achieving any fundamentally new directions of real significance that increase overall satisfaction with the experience of justice for victims, communities and for offenders. We found several examples of good alternatives that are frequently used but have not changed the basic climate around the justice system; and they have not changed the basic perception of imprisonment as the normative sentence, as the only sentence that really means the offence is being dealt with seriously. This is one of the reasons they have not been effective in reducing the use of imprisonment overall, and have tended to become popular as "add-ons" to a prison sentence rather than a genuine alternative to it. (Other reasons are discussed in the Conclusion in the final section of this compendium.)
Church Council on Justice and Corrections
No matter what the sentence, if the PROCESS of handing it down is still stigmatizing, labelling and scapegoating and doesn't include some good expressive justice for victims and communities, we will just be adding more bureaucracy to the same old problems.
If Canada wants to significantly move beyond its ineffective reliance on imprisonment to deal with crime, we must encourage the further development of approaches that provide the experience of "satisfying justice". We believe our society will have to reach beyond its current thinking about crime, and beyond the "negative" philosophy that currently stands in the way of progress. The justice system will have to provide possibilities at least for people to have an opportunity to connect what they do to seek justice back to the soul of our common humanity. While this is already happening in select individual cases, the decision-making process we generally have tends more to bring out the worst, in all the people, and keeps us entrenched in desperate competition for the individual good - and not working for the common good.
What is called for is no less than a fundamental shift in direction to change the way we see the whole picture of what justice is about.
That big picture, some communities are discovering, is one with a new more positive purpose, an overall healing purpose, for victims and communities as well as offenders and their families. But there are a million and one variations possible on how to go about introducing this different approach, while simply bearing in mind what we really want to accomplish for people affected by crime, such as suggested by the following "benchmarks" for the "family group conference sentencing" in Australia (see Section Two) that is seeking what is referred to there as "transformative" justice:
- How can we get the offender to understand the impact on the victim?
- How can we get the offender to acknowledge the wrongness of his/her behaviour?
- How can we acknowledge the harm to the victim?
- How can we get the victim to understand he or she is not at fault?
- How can the community show disapproval of the behaviour, without making a scapegoated outcast of the offender?
- How can the community be involved in the process of holding offenders accountable?
- How can we involve the victim in defining the harm done and how it might be repaired?
- How can we involve the offender in repairing the harm?
- can the community be involved in repairing the harm?
"Problem-solving for the future is seen as more important than establishing blame for past behaviour. Severe punishment of offenders is less important than providing opportunities to empower victims in their search for closure, impressing upon the offender the real human impact of their behaviour and promoting restitution to the victim. Instead of ignoring victims and placing offenders in a passive role, restorative justice principles place both the victim and the offender in active and interpersonal problem-solving roles.."
The key message is not that custody should never be used, but that its proper purpose is safety, not punishment, and that it should not be made to carry all the other functions for which it is both useless and costly. Neither does this mean that there shouldn't be consequences for illegal activity, and that they won't sometimes be painfully demanding. But the consequences should make sense and take seriously the real problems that must be faced.
Finally, the most important guideline for new directions in sentencing which are energetic and helpful is to stop concentrating all the attention on the offender.
All the decision-makers in the justice system should make it a point to add to their standard checklist of considerations in each case "what does the victim need?", "what does the community need?", "how can my function be used to help make this happen?". Then, we would go a long way towards getting the public better value for its money, for its safety and for its health. Towards that goal, we conclude this description of satisfying justice by reprinting Howard Zehr's Restorative Justice Yardstick .
A Restorative Justice Yardstick
1. Do victims experience justice?
- Do victims have sufficient opportunities to tell their truth to relevant listeners?
- Do victims receive needed compensation or restitution?
- Is the injustice adequately acknowledged?
- Are victims sufficiently protected against further violation?
- Does the outcome adequately reflect the severity of the offense?
- Do victims receive adequate information about the crime, the offender, and the legal process?
- Do victims have a voice in the legal process?
- Is the experience of justice adequately public?
- Do victims receive adequate support from others?
- Do victims' families receive adequate assistance and support?
- Are other needs - material, psychological, and spiritual - being addressed?
2. Do offenders experience justice?
- Are offenders encouraged to understand and take responsibility for what they have done?
- Are misattributions challenged?
- Are offenders given encouragement and opportunities to make things right?
- Are offenders given opportunities to participate in the process?
- Are offenders encouraged to change their behaviour?
- Is there a mechanism for monitoring or verifying changes?
- Are offenders' needs being addressed?
- Do offenders' families receive support and assistance?
3. Is the victim-offender relationship addressed?
- Is there an opportunity for victims and offenders to meet, if appropriate?
- Is there an opportunity for victims and offenders to exchange information about the event and about one another?
4. Are community concerns being taken into account?
- Is the process and the outcome sufficiently public?
- Is community protection being addressed?
- Is there a need for restitution or a symbolic action for the community?
- Is the community represented in some way in the legal process?
5. Is the future addressed?
- Is there provision for solving the problems that led to this event?
- Is there provision for solving problems caused by this event?
- Have future intentions been addressed?
- Are there provisions for monitoring and verifying outcomes and for problem solving?
(Source: Howard Zehr, Changing Lenses, Scottdale, Pennsylvania: Herald Press, 1990)
iii) Reducing Imprisonment and Satisfying Justice: Intersecting Goals
What started as a search for measures that contribute to reducing incarceration quickly led us to a difficult dilemma: on the one hand, we found few measures that have reduced prison populations to date in most of the jurisdictions that have used them; on the other hand, we found many worthwhile initiatives that could. Yet some of the reasons they are not having the desired impact are quite varied in terms of the quality of intervention or experience of justice they are providing. For example:
- We found programs that use "alternatives" for the primary purpose of relieving prison overcrowding and to avoid building new prisons. They don't, however, reduce the use of existing prison bed space.
- We found single initiatives, and entire programs, that provide opportunities for some individuals, often young offenders, to avoid going to prison by undergoing interventions to address the health, social, economic or educational issues underlying or accompanying their criminal behaviour. They tend to focus on the offender although some also address issues related to victim and community. These too, however, fail to reduce the use of existing prison bed space, and they have not prevented the population of young offenders in Canada, as a whole, from receiving, by and large, longer sentences of custody than do adult offenders for the same type of offence. And now, ironically, as community funds are cut due to the rising prison budgets, it is tempting and not at all uncommon for social workers to push for increased custody as the principal means through which young people can access the services they need.
- We found other interventions that include, in addition to or instead of the above, one or several "reparative" elements that do emphasize the need to "make amends", to the victim or to the community. Some of these also provide an opportunity to address "collateral needs", the variety of emotional and social needs ensuing from the criminal behaviour, for some or many of the people involved or affected. This can include people affected only indirectly, through the offender, the victim or the surrounding community, and can also include attention to related social problems in the community. As we have seen, these particular kinds of intervention appear to be key to the experience of satisfying justice. We believe they are the most effective, for this reason, in reducing the use or length of any imprisonment that may be brought about primarily in symbolic deference to victim or community dissatisfaction regardless of the practical irrelevance of the prison sanction requested for the particular purposes sought. (As Elizabeth said: "If they want to keep him in prison, that's their business, but I don't want it done because of me.") Nonetheless, while many of these features have gained acceptance as worthwhile elements of the justice system, they have not shifted the emphasis away from incarceration as the centrepiece of sentencing. Instead, they have tended overall to become "add-ons" that are incidental to its continued use, rather than a replacement for it that is sufficient in itself to "do justice".
As we sought to organize this listing of initiatives that could be helpful to the attempt to reduce the use or length of incarceration, we realized that some of the factors presently neutralizing their impact must be referred back to the attention of government leaders. They must be urged to introduce more vigorously directed legislative and policy measures. This is discussed in the What Can We Do section of the Conclusion. But we also realized that many of the initiatives have some but not all of the elements of what is needed for satisfying justice, and ultimately, therefore, for what is required to reduce our country's reliance on imprisonment for the functions that it cannot effectively fulfil. They could be used to much greater advantage if they also addressed these other dimensions.
We have concluded that there is a link between reducing imprisonment and satisfying justice. On the one hand, the call for incarceration will only subside if experiences of genuinely satisfying justice are otherwise provided at the same time as the illusions about imprisonment are being debunked. On the other hand, the use of incarceration does not itself contribute to an experience of satisfying justice in most cases. As such, it continues to perpetuate the very forces and factors that will actually undermine the efforts to reduce its use.
This should come as no surprise to those who are familiar with the research. But some communities have drawn similar conclusions from their own experience over time. The community of Hollow Water, Manitoba has carefully explained this as follows in a statement about the role of incarceration in their attempts to deal with serious incidents of sexual abuse. We find it an appropriate way to conclude our reflection on satisfying justice.
Community Holistic Circle Healing Program - Hollow Water First Nation Position on Incarceration
"In our initial efforts to break the vicious cycle of abuse that was occurring in our community, we took the position that we needed to promote the use of incarceration in cases which were defined as "too serious". After some time, however, we came to the conclusion that this position was adding significantly to the difficulty of what was already complex casework.
As we worked through the casework difficulties that arose out of this position, we came to realize two things: (1) that as we both shared our own stories of victimization and learned from our experiences in assisting others in dealing with the pain of their victimization, it became very difficult to define "too serious". The quantity or quality of pain felt by the victim, the family/ies, and the community did not seem to be directly connected to any specific act or acts of victimization. Attempts, for example, by the courts - and to a certain degree by ourselves - to define a particular victimization as "too serious" and another as "not too serious" (e.g. "only" fondling vs. actual intercourse; victim is daughter vs. victim is nephew; one victim vs. four victims) were gross over-simplifications and certainly not valid from an experiential point of view; and
(2) that promoting incarceration was based in, and motivated by, a mixture of feelings of anger, revenge, guilt and shame on our part, and around our personal victimization issues, rather than in the healthy resolution of the victimization we were attempting to address.
Thus, our position on the use of incarceration has shifted. At the same time, we understand how the legal system continues to use and view incarceration - as punishment and deterrence for the victimizers (offenders) and protection and safety for the victim(s) and community. What the legal system sometimes seems to not understand is the complexity of the issues involved in breaking the cycle of abuse that exists in our community.
... The legal system promotes the belief that using incarceration, as a punishment and a deterrence, will break this cycle and make our community a safe place. As we see it, this simply has not - and will not - work.
Our tradition, our culture, speaks clearly about the concepts of judgement and punishment. They belong to the Creator. They are not ours. They are, therefore, not to be used in the way that we relate to each other. People who offend against another (victimizers) are to be viewed and related to as people who are out of balance - with themselves, their family, their community, and their Creator. A return to balance can best be accomplished through a process of accountability that includes support from the community through teaching and healing. The use of judgement and punishment actually works against the healing process. An already unbalanced person is moved further out of balance.
The legal system's use of incarceration under the guise of specific and general deterrence also seems, to us, to be ineffective in breaking the cycle of violence. Victimization has become so much a part of who we are, as a people and a community, that the threat of jail simply does not deter offending behaviour. What the threat of incarceration does do is keep people from coming forward and taking responsibility for the hurt they are causing. It reinforces the silence, and therefore promotes, rather than breaks, the cycle of violence that exists. In reality, rather than making the community a safer place, the threat of jail places the community more at risk.
To make matters worse, community members who are charged with violent acts have, historically, remained in the community, often for months, awaiting a court hearing. They are presumed by the legal system to be innocent until proven guilty. In this period of time there is no accountability to the community and, unknown to the outside, re-offending often occurs.
If and when people are incarcerated they do not seem to receive any help while away from the community. They return from jail not only further out of balance but are told by probation and parole workers - and therefore, to a certain degree, believe - that they have "paid for their crime". As a result the community is more at risk than before the people were put in jail.
In order to break the cycle, we believe that victimizer accountability must be to, and support must come from, those most affected by the victimization - the victim, the family/ies, the community. Removal of the victimizer from those who must, and are best able, to hold him/her accountable, and to offer him/her support, adds complexity to already existing dynamics of denial, guilt, and shame. The healing process of all parties is therefore at best delayed, and most often actually deterred.
The legal system, based on principles of punishment and deterrence, as we see it, simply is not working. We can not understand how the legal system doesn't see this. Whatever change that occurs when people return to our community from jail seems to be for the worse.
... we are attempting to promote a process that we believe is more consistent with how justice matters would have been handled traditionally in our community. Rather than focusing on a specific incident as the legal system does at present, we believe a more holistic focus is required in order to restore balance to all parties of the victimization. The victimizer must be addressed in all his or her dimensions - physical, mental, emotional, spiritual - and within the context of all his or her past, present, and future relationships with family, community, and Creator. The legal system's adversarial approach does not allow this to happen.
The adversarial approach places victim against victimizer. Defence lawyers advise their clients to say nothing and acknowledge no responsibility. Not following this advice "weakens" the case. Because they are feeling very vulnerable, and because they have been told historically that they should trust lawyers to protect their interests, victimizers find it very difficult to disregard this advice. At the same time, Crown Attorneys, to make their case, put the victims - often children -on the witness stand and expect them to participate in a process that in many ways, as we see it, further victimizes them. The court room and process simply is not a safe place for the victim to address victimization - nor is it a safe place for the victimizer to come forward and take responsibility for what has happened.
The adversarial approach also places the victimizer against his or her community. As we see it, this goes against the very essence of the healing process. For us, healing (breaking the cycle) is based on (1) the victimizer taking full responsibility for his/her actions, (2) the victim understanding and integrating this into day-to-day living, and (3) the COMMUNITY being able to support, assist, and/or hold accountable all the parties of the victimization. Until this can happen, and as long as incarceration is seen as the solution, the community will not be a safe place.
We do not see our present position on incarceration as either "an easy way out" for the victimizer, or as the victimizer "getting away". We see it rather as establishing a very clear line of accountability between the victimizer and his or her community. What follows from that line is a process that we believe is not only much more difficult for the victimizer, but also much more likely to heal the victimization than doing time in jail could ever be.
Our children and the community can no longer afford the price the legal system is extracting in its attempts to provide justice in our community. We can no longer talk about punishment and deterrence. We have to talk about BREAKING THE CYCLE - NOW! We see this as clearly the responsibility of the community rather than of the legal system.
...We have begun to break the cycle of violence and abuse in our community, but the issue of a safe place (1) to disclose, and (2) to take responsibility is in a delicate balance. Incarceration is only appropriate [in these cases of serious violence - ed.note] if a victimizer is unwilling or unable to take responsibility for his or her behaviour, and/or the community cannot hold accountable and offer support to all parties of the victimization. Without these, the healing process cannot begin. Incarceration, however, will never be an ingredient in the HEALING of ourselves or our community."
How the Compendium Is Organized
As the previous chapter on the meaning of "satisfying justice" indicated, The Church Council faced quite a dilemma and challenge in organizing the compendium. We wanted to present the individual entries for the compendium in an order that could provide a helpful listing that does justice to all of them despite the fact that we found ourselves, in view of the complexity of the issues, with a diverse array of criteria and initiatives.
It became important to highlight the features of various initiatives that offer some elements relevant to a strategy for reducing prison populations in the future, while recognizing that other equally relevant features may still be absent. Based on our analysis, this has meant that we have considered not only to what extent an initiative is presently reducing the use of imprisonment, but also whether it addresses related safety and bio-socio-economic intervention needs, as well as whether it also addresses what we are calling "justice" needs: does it have a reparative orientation for victim and community, does it attend to related social, emotional and practical repercussions for others affected by the events, does it provide an opportunity to experience "satisfying justice"?
Accordingly, the sample initiatives listed have been organized into four sections, for which they have been selected on the basis of the following guidelines:
- A selection of initiatives that attempt to repair harm from crime, attend to related needs and avoid or significantly reduce the use of custody.
- A selection of initiatives that attempt to repair harm from crime and attend to related needs, with some implications for the reduced use or length of custody.
- A selection of initiatives that attempt to avoid the use of custody, with or without some reparative elements.
- A selection of initiatives that attempt to reduce the length of custody by alleviating the enforcement of imprisonment.
As well, we thought it would be helpful for readers looking for programs, initiatives and cases relevant to their field of work or interest to provide an appendix in the compendium where we group many entries according to type of offence or group served by a program.
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