What constitutes criminal justice?

The recent controversial, high-profile judicial declaration of a mistrial in the case of Lindsay Clancy for killing her three young children while suffering postpartum psychosis ironically came days after an op-ed in a local newspaper entitled “Murderers should be locked up for life.”

As both the court case and the op-ed manifest, debates about what constitutes criminal justice persist.

A crime is a violation of law in which the offender must have acted voluntarily, with intent, and with no legally acceptable excuse or justification, such as being diagnosed as mentally “not criminally responsible.” The criminal justice system is an institutional response to violations of law by police, courts and prisons, employing four differing rationales for its response to crime.

Retribution is a punitive function, operating as moral vengeance by which society subjects an offender to suffering comparable to that caused by the offence — capital punishment being the ultimate. It may also, where possible, include restitution in which offenders compensate their victims. As the oldest justification for punishment, retribution is a form of public revenge and retaliation intended to restore “moral balance” to society.

Deterrence is a preventive function, attempting to discourage criminality by imposing severe consequences for committing crime. Specific deterrence causes the individual to think twice about whether it’s worth the risk, whereas general deterrence makes an example of offenders that coerces others to obey the law.

But deterrence assumes that criminal behaviour is always rational and calculated, which it clearly is not. And research suggests that deterrence is effective only when punishment is certain, severe and swift, which it clearly is not.

Rehabilitation is a corrections function, attempting to reform the offender into obeying the law, thereby precluding subsequent offences.

Unlike retribution, and assuming that crime is at least partially a product of social problems such as poverty, not just personal problems such as mental illness, rehabilitation focuses on the distinctive needs of the offender, including education, job training and therapy.

Unfortunately, the high rates of recidivism (repeated offences) suggest the exact opposite happens; incarceration socializes offenders into a criminal sub-culture.

Finally, incapacitation is a custodial function, protecting the public by rendering the offender incapable of further offence, temporarily through incarceration, or permanently through execution.

The current traditional Canadian criminal justice system is centred on the state and the various professionals maintaining it. By taking the perspective of the state, it simply asks what laws have been broken, who did it and how should they be punished?

Focused on offenders, it mostly ignores the needs of victims, and does nothing to address the wounds that crime inflicts on communities.

However, there is a deeper, growing, fifth form of criminal justice, that of restorative justice. Taking the perspectives of the victim, the offender and the community as a whole, not just the state, it asks which of the three parties has been hurt, what are their needs and whose obligations are they?

In sometimes face-to-face dialogue, offenders are encouraged to take responsibility for the harm they have caused, including apologies and reparations. Victims are encouraged to participate in decision-making about consequences for the offender, sometimes seeking to reconcile, repair and rebuild relationships. Local communities are encouraged to acknowledge and rectify earlier injustices done to the offender that may be root causes of the crime, and to rebuild trust and a sense of collective safety, all while seeking to maintain moral order.

While primarily victim-centred, a balance is nevertheless sought between the needs of victims and the rights of offenders, as well as the need to rehabilitate offenders and the duty to protect the public. Restorative justice is built on respect, accountability and empathy among all three parties, and pursues healing of the negative effects of crime on all three parties. As such, it refuses to reduce crime to only legal matters of “cops, courts and corrections.” Indeed, people and their relationships are more important than property or laws.

Therefore, to advocate for nothing but simplistic punitive retribution as in the editorial cited above, is nothing but advocating taking an eye for an eye, which, as Gandhi poignantly observed, would make the whole world blind.

Criminal justice is more complicated than that. And Christians, in particular, may want to ponder theologically the consequences, specifically to themselves, of exclusively retributive justice versus the restorative justice on which their redemption depends.

Dennis Hiebert teaches in the department of sociology and criminology at the University of Manitoba.