The Ontario Court of Justice on Finch Avenue West near Dufferin Street is a sleek, low-slung building on a desolate corner in north Toronto, but even at 8:30 in the morning the place teems with people: guards, police officers, judges, lawyers, court reporters, victims’ rights advocates, translators, psychologists. “I want to show you something I think is important for you to see,” a judge (who asked to remain anonymous) told me as he led me downstairs from the suite of offices reserved for judges, with faux mahogany desks and framed diplomas and standing closets full of robes, past guards and huge steel doors to the holding cells below, where little distinction is made between small-time criminals and serious offenders. “This is the blunt edge of the criminal justice system. You would think by now, in the twenty-first century, we would have thought of something better.”
And blunt it is: the holding cells are thick, windowless blocks. Despite the high-tech, centralized surveillance system—guards sit in front of monitors and control the locks on the various doors—this could be a medieval dungeon. Upstairs, in one of the main courtrooms, a robed judge sits before the Crown attorney, lawyers and police officers, and a small crowd, mostly relatives of the accused. The offenders in custody sit in an enclosed booth to the judge’s side as he sifts through motions and decides which cases should proceed to trial.
Once one sees the defendants looking nervous and sheepish in the booth, and hears the cases as the judge burns through them one after another, it becomes obvious that a substantial number of these crimes—petty thefts, street-level disputes, and drunken episodes—do not exactly involve big-time evil. One skinny, fidgety, embarrassed-looking guy had stolen infant formula from a drugstore and sold it to feed his crack habit. The only really terrible case that morning was one in which the boyfriend of a single mother had been molesting her eight-year-old daughter.
“The guiding principle is restraint in sentencing, of doing the least possible if someone is not dangerous,” the judge said to me. “I have come to the conclusion that for the most part jail is useless. I typically impose thirty, sixty, or ninety days, but if I can make a choice between thirty days and no days I choose no days. Custodial sentences don’t seem to deter crime, so why bother inflicting the pain if the person is not dangerous? ”
Over the past forty years, what the judge calls the blunt side of the justice system has been used with greater frequency and vehemence in the United States and Canada. Here, the number of inmates rose from ninety per 100,000 population in 1972 to 140 per 100,000 and rising at present, mainly due to mandatory minimums for gun and drug crimes, and the curtailment of non-custodial sentences. In the US during roughly the same period, the numbers expanded from ninety-eight to 500 per 100,000, in large part because of the war on drugs. Yet, at the same time, violent crime has plummeted: homicide rates peaked in Canada at three per 100,000 in 1975 and now hover below two. Meanwhile, homicides in the US, which reached a historical high of ten per 100,000 in 1980, now sit at five. These statistics reveal that we are, even in liberal Canada, punishing more people—more harshly—for fewer and less serious crimes.
The annual cost of our federal prison system has risen by 86 percent over the past six years, to $3 billion (in the US, the prison economy is about $70 billion a year). But these numbers only reflect administrative costs; the societal toll of our addiction to punishment is harder to calculate. When young offenders are sentenced to prison, they are removed from the workforce during some of their most productive years, leaving behind broken, impoverished families. Because jails are filled with disproportionate numbers of black inmates (37 percent of the US prison population) and Aboriginals (20 percent of the Canadian prison population), incarceration ravages whole communities. Punishment is almost always collective, with the sins of the parents visited on their children.
Given this crisis, why do we keep locking people up? Why does any sentence short of prison seem, to many of us, to not even count as punishment? Perhaps our impulse to punish overreaches our desire to deter crime or our need for safety; it is, rather, an expression of our ancient longing for retribution.
In the ’70s, Ted Bundy raped and murdered at least thirty women, sometimes defiling their corpses. A decade later, Jeffrey Dahmer raped, murdered, and, in some instances, cannibalized seventeen young men and boys, many of whom he lured back to his Milwaukee, Wisconsin, apartment from gay bars. Around the same time, Paul Bernardo committed countless rapes and sexual assaults in southern Ontario, and then, with his wife, Karla Homolka, kidnapped, raped, tortured, and murdered three women, including Homolka’s younger sister. In 2009 and 2010, Russell Williams, the commander of the Canadian Forces Base in Trenton, Ontario, sexually assaulted and murdered two women. And in the summer of 2011, Anders Breivik bombed a government building in Oslo, killing eight people, and later gunned down sixty-nine others at a Labour Party youth camp.
These extreme cases constitute a vanishing fraction of even the worst violent crimes, but they form a model of absolute, uncomplicated evil against which lesser infractions are measured: this is crime in its pure state. We naturally view these stories through the lens of the victims, identifying with their suffering and the grief of their families and friends; we look upon the perpetrators as incomprehensible aliens. The only satisfying outcome is swift, decisive punishment. In such instances, punishment is an attempt to erase the blight of evil, to heal a grievous social wound, and for that to happen the punishment must fit the crime.
At its most basic, punishment is hard to distinguish from revenge, and the impulse for retaliation is no doubt hard-wired. Studies have shown that card players will give up benefits to themselves, such as a winning hand, to expose and penalize cheaters: punishment, in the short run, trumps even self-interest. Psychologists who use game theory to study the evolution of co-operation have found that the threat of swift retaliation against those who engage in uncooperative behaviour is crucial to establishing stable, productive communities; we have a collective stake in the assurance that those who profit at our expense will pay a steep price. The idea of community, it seems—one of Homo sapiens’ chief advantages in the competition for scarce resources—emerged under the dark shadow of punishment.
Nonetheless, retaliation has no intrinsic moral legitimacy, and since it involves hurting another person, the victim might well perceive him- or herself as harmed and retaliate in kind, creating an open-ended cycle of tit-for-tat blood feuds, waged throughout history and still common in such places as rural Albania. For punishment to be something greater than mere retaliation, it must have a deeper grounding, and that is just what early Babylonian law and the Hebrew Bible endeavoured to teach.
A well-known passage in Leviticus reads, “And he that killeth any man shall surely be put to death. And he that killeth a beast shall make it good; beast for beast. And if a man cause a blemish in his neighbour; as he hath done, so shall it be done to him. Breach for breach, eye for eye, tooth for tooth.” It ends with the refrain “Ye shall have one manner of law, as well for the stranger, as for one of your own country; for I am the Lord your God.” This passage (and others like it) is remarkable in a number of ways. First, it implies the existence of a specific punishment that mirrors the crime; and, more important, it insists that everyone, everywhere, be subject to the same standard. The Hebrew Bible rejects personal or tribal justice, instead asserting retributive justice and the supremacy of the rule of law in its strictest form.
The trouble with retributive justice is that a literal reading of the “eye for an eye” passage leads to morbidly comical conclusions and boundless forms of cruelty. In many situations, it is not even clear what an appropriate equivalent means: one rabbi noted that if a blind man puts out someone’s eyes, it is impossible to blind him in return. In the case of extreme crimes, such as Bernardo’s or Breivik’s, or horrors as immense as the Holocaust, no punishment could compensate for the victims’ suffering. Jesus’ direction “Ye have heard that it hath been said, an eye for an eye, and a tooth for a tooth: But I say unto you, that ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also” is not so much a criticism of the rabbinical courts of the Second Temple period, which were notably humane (crucifixion was a Roman practice, and capital punishment was used sparingly under the Pharisees). Rather, it was a way of pointing out that retributive justice can devolve into vengefulness as destructive as the crime itself.
The story of punishment from the Middle Ages through the eighteenth century is one of shocking brutality and bewildering arbitrariness. Regicides, parricides, ordinary murderers, homosexuals, heretics, and witches were broken on the wheel, disembowelled, ripped open with red-hot pincers, burned, and drawn and quartered; even teenage pickpockets were put to death. By the late eighteenth century, however, what French historian and philosopher Michel Foucault describes in his seminal 1975 book, Discipline and Punish: The Birth of the Prison, as “the gloomy festival of punishment” was ceding to a model oriented toward determining the impact of crime on society and the need for deterrence. This shift was due in large measure to a little book by an otherwise obscure Italian jurist and philosopher named Cesare Beccaria.
“Observe that by justice I understand nothing more than that bond which is necessary to keep the interest of individuals united, without which men would return to their original state of barbarity,” Beccaria wrote in 1764, in On Crimes and Punishments. “All punishments which exceed the necessity of preserving this bond are in their nature unjust.” He shifts the question from the criminal act to its effect on the community where it was carried out. Therefore, the purpose and justification of punishment is not to satisfy the victim or eradicate evil, but to repair the damage caused to society and prevent future crimes—and to do so without causing further harm. “There should be a proportion of punishment to crimes based on the degree to which the crimes affect society,” he writes. “Crimes are only to be measured by the injury done to society.”
Alas, it is difficult to quantify this, and even if one could, the punishment might well fall shy of the weight assigned to the crime by the victim. Think of the virulent outcry that accompanies the release from prison of convicted rapists and pedophiles. Beccaria’s notion of punishment ends up facing the same conundrum that both Jesus and the rabbis of the Talmud identified: how does one assign a value to a crime? A rape, for instance, may well affect the victim for the rest of her life, and such traumas end up being transmitted across generations. Furthermore, it is near-impossible to assess the real deterrent value of a punishment; criminals are not in the habit of maximizing the marginal utility of their actions. In any case, the sources of crime are complicated and myriad: childhood trauma, chronic poverty, addiction, and psychiatric conditions among them. The two major theories of punishment—retributive, and the one proposed by Beccaria and refined over the past 250 years—suffer from similar faults: vagueness and arbitrariness. And that is before we attempt to translate a theory of punishment into a criminal justice system for a twenty-first-century Western democracy.
The concept of punishment that operates in the criminal justice systems in Canada and the US is a hodgepodge of the retributive and the deterrent. The death penalty and multiple life sentences without the possibility of parole are clearly retributive; custodial sentences for the possession of drugs are seemingly meant to be deterrent. This is why the punishments meted out can seem random: people who are no risk to anyone end up in prison, where the deterrent effect is negligible, and where the punishment appears out of proportion with the crime. Why should anyone do jail time for growing marijuana? Odder still, in Canada judges issue longer sentences to people who grow pot in rented apartments than to those who do so in their own homes—an apparent incentive for home ownership.
The mandatory sentences popular in the US and their increasing prevalence in Canada further widens the gulf between crime and punishment. Meanwhile, more families are broken up and more neighbourhoods ravaged, and more inmates are released after substantial sentences without the necessary skills or resources to reintegrate into society. This undermines whatever deterrent value the punishment was intended to have in the first place. The accepted wisdom is that criminals deserve punishment, but what does that mean, and does it solve anything? Indeed, at this point, it is not even obvious what punishment is supposed to be.
The annual Dismas Fellowship Christmas dinner, held in the basement of an old Baptist church on a quiet street in downtown Toronto, is always packed. An illuminated Christmas tree stands beside a battered upright piano, the low-ceilinged room is festooned with lights and streamers and cut-out paper ornaments, and everyone lines up to have their paper plates filled to overflowing with turkey, cranberry sauce, mashed sweet potatoes, corn, and salad. No alcohol is served, only fruit punch and bad coffee.
This is, to put it mildly, a ragtag gathering: mixed in with the ex-cops, social workers, and graduate students are angry-looking women in old warm-up suits; a wispy, toothless man; grey-bearded codgers jonesing for a cigarette and a drink; swaggering, muscle-bound guys covered with crude tattoos. Many have served time for such grave offences as child molestation. The master of ceremonies is a short firecracker of a man named Harry Nigh, a Mennonite minister and the Toronto community chaplain for the Correctional Service of Canada. He co-founded the Dismas Fellowship, a biweekly meeting that provides assistance and a community for people who have recently been released from prison. Dismas took its name from the legend of the thief whom Jesus forgave while on the Cross.
“We offer support and accountability,” Nigh told me. “We insist that people be accountable, but we also treat them as fellow human beings. Crime is a community problem, and we need to find new models for reintegrating them. We have to broaden the lens of how all of this affects the victim, the offender, and the community, and how we can create a sense of satisfaction and wholeness. Restorative justice proposes things like victim-offender reconciliation, mediated dialogue between victims and offenders, and getting offenders to acknowledge and take responsibility for what they have done—at least that’s a start to letting everyone heal and move on.”
Almost no one defends the confused vision of punishment that governs both policy and public opinion. Deterrence is only obtained when punishments are (as Beccaria noted) swift and certain, though not necessarily severe; but neither the US nor Canada can even afford to punish every lawbreaker. The systems are designed to be selective and sporadic, meaning the crimes that are cheapest and easiest to prosecute—petty drug offences, minor assaults—are the ones most often punished, weighting the brunt of the justice system against the poor, the underprivileged, and minorities.
Rehabilitation, the principal alternative to retributive justice and deterrence, has a dubious history that began in the early nineteenth century with practices such as isolating inmates with copies of the Bible; many of them ended up going insane. Prison is an improbable place for rehabilitation, in part because it focuses exclusively on the offender rather than the offender in relationship to a society of which he or she is a troubled part. Crime is, as Nigh insists, a community problem, and the community needs to participate in the solution.
Promoters of restorative justice may appear to be bleeding hearts, but there is much to recommend the rethinking of our ideas about punishment, with a greater focus on the conditions of communities and their future. Of course, inmates such as Paul Bernardo should be locked up in perpetuity, but that is more a matter of public safety than of justice. Researchers such as Cambridge University psychopathologist Simon Baron-Cohen, author of The Science of Evil: On Empathy and the Origins of Cruelty, have argued that psychopathic criminals have neurological disorders that cripple their capacity for empathy, leaving their ability to change largely contingent on developments in pharmacology; in any event, they constitute a tiny fraction of criminals. Most people, victim or offender, or both at once, are essentially the same: during the course of their lives, most have committed some crime or other, such as recreational drug use or even bar fights, and the fact that they have not been involved in more serious misdeeds is to some extent a matter of luck. Victims may long for retribution at first, but that is probably not what they need in the end. Most just want to know why what happened, happened—and that can only be found through dialogue.
Institutions like the Ontario Court of Justice are elaborate, expensive, and dehumanizing. Wandering around the building, one would be hard pressed to realize that what is at stake here are serious moral issues and the future of people’s lives. It is hard to imagine why anyone ever thought this would result in justice. Of course, courts are businesses, afflicted by budget constraints as all businesses are, and their product is prisoners, not justice. In the US, incarceration is big business indeed—consider private jails, the catering of prison food, surveillance systems, and so on—and some lobbyists in Washington, DC, have a vested interest in keeping prison populations high. In Canada, there are intimations that the Conservative government is exploring the possibility of partially privatizing our overburdened prison system.
If prison represents the blunt side of justice, then organizations such as the Dismas Fellowship shows its hopeful side. There, offenders acknowledge wrongs, attempt to make amends, and try to piece their lives back together. Punishment, viewed up close from the perspective of either the punished or the victim, almost never looks like justice, and perhaps the concept is so bound up with revenge that it should be given up altogether: as conceived, it constitutes a form of violence that sets in motion a cycle of harm, leaving everyone worse off. In that context, fully exploring the possibilities of restorative justice looks like a better option, and maybe the only option, even if it leaves many people frustrated and unsatisfied.
At the Christmas dinner, after everyone has eaten their fill, Harry Nigh, always upbeat despite a job that exposes him to so much failure and grief, leads the group in a rowdy rendition of “Jingle Bells,” which might well serve as a more effective response to the human tragedy of crime and punishment than brooding over passages in Leviticus.
This appeared in the January/February 2013 issue.
Daniel Baird is a regular contributor to The Walrus, Canadian Art, and Border-Crossings.
Niall McClelland has been published in Modern Painters and Canadian Art. The Museum of Contemporary Canadian Art in Toronto included him in a recent group exhibit, Trans/Form.