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Justice I: Crime, Punishment and Canada
Reverend Brian J. Kiely,
Unitarian Church of Edmonton, November 5, 2000
In our Unitarian Universalist Statement of Principles we boldly
affirm, ‘Justice, equity and compassion in human relations.” Now
that sounds nice, but what the heck does it mean? A quick look at
a dictionary shows several definitions of the word “justice”,
the two most important being: “just conduct or fairness and,
the law and its administration”. But I suspect most would agree
that those two prime definitions are often in conflict. Sometimes
the administration of law seems anything but fair, with court decisions
being seen as either too lax or too harsh depending on point of view.
Over my next three sermons I will explore some of the layers that
make up our principle by looking at the idea of justice from three
directions. This week we’ll explore criminal justice in Canada.
Next week we’ll look at the larger scale of economic justice
and world order. Finally, in three weeks we’ll consider the
very intimate side of the theme as we look at the personal moral
dimension of justice.
I have never been the victim of a violent crime unless you want
to count the time Johnny Arsenault cold-cocked me in grade one. I’ve
never even been in a close relationship with someone who became the
victim of such a crime. There has been the odd theft and a swindle
here or there, but nothing that has made me nervous about crime.
I walk the streets with little fear. No one in my circle has ever
been killed or assaulted. None has suffered a car jacking or a home
invasion. So crime has left me pretty much alone. On the flip side,
over the last ten years in partnership with a woman working in or
around the realm of corrections, I have had many opportunities to
meet offenders both in and out of prison, but always in safe situations.
Those facts make it pretty easy for me to hold a liberal view of
criminal justice in this country. It’s easy to be open-minded
when the issue has never touched me. It also makes it hard for me
to take an outraged “How dare they?” stand when I see
victim’s rights groups calling for stiffer penalties. I don’t
agree, but then, I have not shared their experience or their pain.
It is tempting to defer to those who have been harmed and who want
some kind of settling of accounts, some kind of retribution, some
kind of vengeance. It is tempting, but I don’t think it’s
right. It is not an impulse to which we should surrender.
Victims must be heard, must have their say, but the administration
of justice must remain a rational exercise. There has to be a careful
weighing of contributing factors, including impact on victims. Justice
must be meted out dispassionately by cool heads and governed by philosophies
that take a longer view. But dispassionate need not be uncaring.
Our principle speaks of “justice, equity and compassion”.
By naming three points, the principle implies the need for balance
in our efforts to deliver criminal justice. Justice, equity and compassion
are three ‘goods’. Each has its place in the equation
as we strive to balance the law, the need for fairness and the impulse
to be merciful.
The key here, is the idea of balance. In the sometimes polarized
Canadian debate over justice, balance often is lacking.
On the one hand are the small ‘c’ conservative views
most often given voice by Stockwell Day and the Alliance’s
most vocal justice critics Chuck Cadman and Val Meredith. Their view
builds on a religious and philosophical base that is essentially
Calvinist in nature. That is: Human beings are born sinful. We need
to be saved from ourselves. The first order of justice is to punish
wrongdoers. This sets an example for the rest of us warning us off
temptation. If in the process, the offender sees the light and comes
to God, so much the better, but the first task is to protect the
righteous and the innocent.
Sentences should be substantial and unyielding. Time sentenced should
be time served, and while that time should not be inhumane, neither
should it be overly comfortable.
There is also a darker side to this conservative view, for their
approach allows vengeance into the equation. And vengeance, while
satisfying for some, is neither cool nor rational. I have heard many
people -- even good liberals, speak of how harshly they would respond
if their lives or especially if the lives of loved ones were threatened.
I have visualized violent responses myself. But I know that on cooling
down, that violence would feel terrible.
This approach to justice is driven primarily by the impact of crime
on the victim and society. Alliance MP Chuck Cadman caught the public
eye as the father of a young man slain at a party. Displeased with
the sentence given, Cadman has become a crusader for harsher justice,
especially for young offenders. The concern for rehabilitation, for
understanding the causes of crime or the state of mind of the offender
are of no account. The prime emotion is a desire to avenge and punish.
It plays to our fears.
Over against that view is a more liberal philosophy with roots that
go back to the Enlightenment, the Renaissance and even ancient Greece.
It is a view we Unitarians share and promote, although it is not
exclusively or even originally ours.
UU minister Forrester Church observes in A Chosen Faith: In the
early nineteenth century, both Unitarians and Universalists rebelled
against ... (Calvinist) determinism. Sin became a dirty word... Liberal
theologians responded by claiming that we were born good. Any evils
that manifested themselves during the course of our lives were the
fault of environment, education, lack of opportunity, poor nurture,
bad example, or discrimination. These were the things that led us
to fall, not sin.
In this view, there is no Original Sin. We are born essentially
good or at worst, neutral. We are responsible for our actions, but
sometimes the degree of responsibility is reduced by the circumstances.
Supporters of this view seek to understand and explain criminal behaviour.
The goal of justice is correction, not punishment. The highest achievement
is the successful reintegration of the offender into society.
I find it an attractive approach. As I have come to know more about
the justice system and its workers, I was surprised to discover that
a majority of people working in courts and jails share this outlook
to greater or lesser degrees. “Lock ‘em up and throw
away the key,” is no longer a guiding philosophy of our criminal
justice system. It is far from perfect in execution, but on the whole,
I think we are looking and heading in the right direction.
At polar extremes both views have problems. They can both lack balance.
A strict approach leaves little room for the compassionate and merciful
corner of our principle. Justice is law. The only equity given serious
consideration is the fairness to the victim.And the mention of mercy
usually earns a retort like, “How merciful was she to the victim?”
The liberal pole in this debate is not without its flaws either.
Forrester Church notes:
The problem is that even as a theology based upon evil and sinfulness
tends to stint on goodness, one based upon goodness may be equally
obtuse when it comes to evil and sin. Too much mercy can squeeze
out justice; and too much attention to our better nature can blind
us to the awesome human capacity for evil.
With the goal of reintegration comes the risk of reoffense. Good
humane people to try to find the hidden danger signs before approving
release. In Canada we have sentencing guidelines that are more liberal
than our neighbours to the south, though not as liberal as some European
jurisdictions. We believe in the essential goodness of human nature.
That requires a greater willingness to risk, to take a chance that
rehabilitation has worked. They try to minimize the gamble. Usually
they get it right.
A second factor in the justice system is the belief, backed up by
considerable research, that short sentences or alternative sentencing
models have a greater chance of rehabilitating than do longer ones.
With a liberal view in a conservative climate the justice system
is stuck in the middle of these two polarities. When a sentence seems
harsh, as in the original term given to Robert Lattimer, the liberals
cry foul. When a Donald Marshall or a is unjustly found guilty and
sentenced to a long term we lament the miscarriage. When we observe
that aboriginals make up 16% of the prison population and only 3%
of the nation, we cry discrimination and racism. And well we should,
for all of those things are regrettable facts. But sometimes we overlook
the real presence of evil in our desire to do good.
On the other side of the coin, anytime a released prisoner reoffends,
or when a Karla Holmoka is photographed celebrating a birthday, or
a Paul Bernardo tries to work the faint hope clause, the conservatives
are up in arms decrying the un-vengeful nature of the justice and
correctional services.
With pressures like that, it’s a wonder that anyone would
be willing to sit as a judge or serve Corrections Services Canada!
In the last decade or so, the conservatives have made the most inroads,
thanks to a media that loves to splash a suffering victim all over
the television or page one.
Canadian prison populations grew dramatically during the 1990's
despite a stable or declining crime rate. According to the Canadian
Criminal Justice Association, “Incarceration is perceived as
the norm, as opposed to one of a series of options available to courts.
Incarceration is presented as the best means of ensuring public protection...
Rates of parole are declining...Social and mental health services
have suffered major cutbacks (and) The public has become very intolerant
and punitive.”
We are in the middle of a conservative swing in criminal justice,
and that troubles me. As a religious liberal I want to see that principle
of “justice, equity and compassion” at play.
For me that means we must have good laws and reasonable sentencing
practices. The public does need protection from those who would do
harm. However we also should have good mental health services outside
the prison systems as well as inside. It is no surprise that inmate
populations increased at the same time that mental institutions were
being emptied across the country. Those who were once in care are
increasingly in the can. Is that a humane response? I think not.
It’s not cheaper either.
Despite pressure from the right there are positive signs. In Alberta
we are experimenting with native sentencing circles. Prison staff
are receiving more substantial training in conflict resolution, anger
management and even counselling skills. Outside organizations like
Elizabeth Fry and John Howard work in the community both to aid in
reintegration of offenders completing sentences and to help them
avoid reoffending. And probably most important, there are substantial
numbers of employers willing to give released prisoners a chance.
I have never been harmed by crime, but that does not mean that justice
is an arm’s length proposition for me or you. I believe we
all have a responsibility, especially in an election year, to look
at the root and nature of crime in Canada. Too many of our so-called
criminals are themselves victims of oppression, addiction, mental
illness and abuse. That does not justify their acts, but it can explain
them, and it can engage in us both a compassionate response and an
urge to seek a broader moral justice that would eradicate some of
these causes. As citizens, we make the world in which some people
turn to crime. Sure there are dangerous and even evil people out
there. There are some people who should never be released from custody,
but those are very few in number. Far more of our prisoners are the
products of a culture where the gap between rich and poor is growing,
and that will be the main theme of next week’s sermon.
Criminal justice in this country does not need to be harsher or
more vengeful. Our methods must be based on sound research into the
effectiveness of strategies for dealing with offenders. Cooler heads
must prevail. We need not ignore or deny evil, but neither should
we respond to crime in equally evil ways.
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