Most people have very little direct contact with criminal justice. Even indirect knowledge is limited largely to what appears in the media and that is usually only the very tip of the iceberg, sensational cases such as murder, rape, armed robbery and drug trafficking.
Underlying that pinnacle of violence and organized crime is a vast mountain of lesser offences, petty offenders and a system grappling with better ways of dealing with them than incarceration.
In broad terms, the alternative is frequently referred to as restorative justice, a very large umbrella for initiatives aimed at diverting people from the retributive world of the criminal courts.
In the Introduction to his paper: “A Future Where Punishment is Marginalised [sic]”, John Braithewaite, a distinguished British criminologist argues punishment is rarely the correct response to crime.
The assumption it is the correct response “seems grounded in a failure of imagination and ignores the practices that citizens of all cultures utilize instead of punishment in responding to wrongdoing,” he wrote. “We might do better to follow the lead of many Native American peoples who believe in putting the problem rather than the person at the center [sic] of this deliberation. The “right” punishment of the wrongdoer is rarely going to be the best solution to the problem.”
A (very) brief history of Western retributive justice
As the forgoing passage suggests, restorative justice is not a new concept. Prior to the rise of the modern Western nation-state, history is full of examples of restorative justice as in the case of First Nations people, which Braithwaite references.
It also shows up in the Judaeo-Christian tradition. In The Bible, restitution is prescribed for a number of offences. For example, Exodus 22 prescribes: “If a man steals an ox or a sheep and slaughters it or sells it, he must pay back five head of cattle for the ox and four sheep for the sheep.... A thief must certainly make restitution, but if he has nothing, he must be sold to pay for his theft.”
These religious underpinnings undoubtedly found their way into later forms of common law. In 600 A.D., English offenders were required to pay restitution to their victims and a fine to the King to “buy back the peace.” Similar conditions existed in colonial America including the proviso that an idigent offender could be forced into labour to pay off his debt.
Braithwaite posits that the Western retributive system of justice can be tied to the Middle Ages. Queen’s Counsel Maureen Maloney nicely summarizes the hypothesis in a paper titled “From Criminal Justice to Restorative Justice: A Movement Sweeping the Western Common Law World.”
“Punishments were harsh, cruel and public because the state did not have a sufficiently large apparatus to regulate the population or indeed to catch most criminals given the lack of a police force and very weak institutions,” Maloney wrote. “Therefore, Braithewaite hypothesises that the brutal public punishments were a show of strength designed to hide the underlying weakness of the ruling elites, with the hope of creating deterrence.”
It did not. Crime rates remained high throughout the Middle Ages.
As nation-states matured and prosperity grew for a wider range of people, crime rates dropped and punishments became less severe, but our western systems of justice remained largely retributive in nature.
Many observers note that since the 1970s things have perhaps regressed. The “tough on crime” policies of the Reagan era in the United States and subsequent neo-conservative governments there brought mandatory minimums, longer sentences, the war on drugs, three strikes legislation and privatized prisons. Canada’s most recent government also went down this road. Braithwaite attributes this to globalization increasing insecurity within modern Western nation-states.
Changing direction
Nevertheless, it has also been during the last 30 years that Canada has developed many restorative justice programs and inter-agency relationships to facilitate non-retributive alternatives. In fact, the concept has been codified in the Criminal Code, Section 718, which lays out the purposes and principles of sentencing. In addition to denunciation, deterrence and separation from society, the Code prescribes rehabilitation, reparations (restitution) and promoting a sense of responsibility as the primary purposes of sentencing. Furthermore, Section 718.2, judges are instructed that “(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.”
Nobody denies there are offenders who must be incarcerated, but Nancy Morrison, a former justice of the Supreme Court of British Columbia who hails from Yorkton, says that should be the exception, not the rule.
“There are some people who cannot be let out into society ever again,” she told Yorkton This Week. “But they are few; we know the names, Russell and Picton, Bernardo, Olson, but I never thought our laws should be made for a few totally dangerous psychopaths, when the majority of people in our jails are there for reasons that all of us really are aware of. Some have come from incredibly damaged backgrounds. I can’t tell you the number of pre-sentence reports, hundreds, that I dealt with over the years where, in almost all cases, the background would shock anybody reading them.”
Underlying causes of crime
Society has long recognized the connection between poverty and crime. There is a long list of factors, lack of education, learning disabilities, mental illness, sexual abuse, addictions, fetal alcohol spectrum disorder etc. And it is perhaps an oversimplification and a chicken-and-egg situation, but the correlation between poverty and other factors is unmistakable.
The workhouses of England were developed as a solution to the problem and formed the foundation for the modern welfare state. At the heart of the theory is the concept that taking care of the least of our brothers serves the greater good. Specific programs, such as the workhouses, psychiatric hospitals, employment subsidy schemes, food stamps, alcohol and drug addiction treatment etc., have come in and gone out of fashion, but the principle is sound. There are underlying causes of crime that can be addressed to reduce the risk of people turning to crime as a solution to their problems.
In fact, crime is at an all time low and trending downward in Canada. Nevertheless, the courts are still very busy places. At the point a person does become involved with the criminal justice system, the question becomes what can the system do to help keep that person from winding up back before the court.
Restorative justice in Saskatchewan
The answer is complex, time-consuming and resource-intensive. Saskatchewan’s own Alternative Measures and Extrajudicial Sanctions Program Manual is a 75-page document. Alternative Measures (AM) is the adult program while Extrajudicial Sanctions (EJS) applies to youth. In practice, alternative measures is used to refer to both adults and youth.
The manual defines restorative justice as “An approach to justice that focuses on addressing the harm caused by crime while holding the offender responsible for his or her actions, by providing an opportunity for the parties directly affected by crime—victim(s), offender and community—to identify and address their needs in the aftermath of a crime. It supports healing, reintegration, the prevention of future harm, and reparation, if possible.”
The first opportunity for a matter to be referred to alternative measures lies with the police. If an investigating officer feels an accused is a candidate for AM, she may refer the case directly to Crown.
Staff Sgt. Greg Nichol, commander of the Yorkton municipal RCMP detachment, believes strongly in the value of the process.
“I think restorative justice is excellent,” he said. “I think the more people that we can divert outside of court for minor criminal offences saves the courts’ time, it saves the members’ time, it’s more meaningful for the offender and the victim. I stress it here with our members every chance I get.”
If police do not make the referral, any number of others may. The Crown itself can initiate the process. Defence lawyers, AM coordinators and caseworkers, court workers or the defendant himself may also suggest its use. In Yorkton Provincial Court, the judges often query the Crown as to whether an accused may qualify.
Once approved by the Crown, the case is referred to a qualified AM service provider. In the Yorkton area, this is handled by the Yorkton Tribal Council Justice Unit. It is a “status blind” service, which will be covered in more detail in Part II of this feature in the March 16 edition of Yorkton This Week.
The case worker reviews the case then consults with the accused, the victim(s) and other potential stakeholders, who may end up being participants in a facilitated meeting. This could include people such as friends and family members of both accused and victim(s), elders, pastors, police, victims services, community groups, school officials, mental health service providers, etc., virtually anybody who can provide support for the accused or victim(s).
A facilitated meeting may take the form of a victim-offender mediation; community justice forum (for youth); or community justice conference (adult); or various types of circles (i.e., peacemaking, sentencing or healing circles). All are designed to reduce crime by increasing the offender’s accountability to victims and communities.
Of course, victim participation is completely voluntary. If a victim does not want to be involved directly they may have a friend, family member, lawyer or other person represent them. Some AM agencies even have surrogate victims. In cases where there are no personal victims or when it is not possible to have a representative for the victim(s), an accountabilty conference might be held.
Whatever format the facilitated meeting takes the goal is to come to some kind of agreement that addresses the harm done. This can take many different forms, from an apology to restitution to community service to counselling and treatment programs and a virtually limitless combination tailored to the needs of the various stakeholders.
Morrison tells the story of a youth artist she sentenced to 200 hours of carving under supervision of the elders on his reserve. After that, she was amazed by how many youths who appeared before her turned out to be talented carvers.
“I didn’t fall for it every time, but what I liked about it was the involvement of the community.
Next week: Restorative justice in the context of First Nations, crime prevention and the future.
