Thursday, February 22, 2018

Reflections on Harm and Transformative Justice

by Justin Piché (Associate Professor, Criminology, University of Ottawa)


We live in a violent society that reproduces and is reproduced by violent institutions that maintain inequality and injustice. Among the structures of violence that reproduce colonialist, classist, racist, misogynist, heterosexist, ableist, ageist, and other oppressive social relations is the ‘criminal justice’ system. 

The penal system, like other violent social structures, works – it works for those who wish to preserve power over those that they need to keep down to maintain relations of domination. It does this in a number of ways, including by advancing the notion that justice is done when an individual is charged and tried for a criminalized harm, found innocent or guilty, and punished if deemed culpable. In the process, power relations that give rise to conflicts are disappeared, ensuring that structures of domination remain largely unquestioned and unaltered, while also letting those who perpetrate normalized violence off the hook for the work we all need to do to move towards abolishing or unlearning violence in all our relations.

If harm is to be transformed into an opportunity to dismantle dominant structures as a means of reducing instances of violence, there’s a need to conceptualize justice as a collective endeavour, one whereby responsibility for violence is shared, although borne primarily by perpetrators and those who benefit from the existence of oppressive structures. But how can this be done? For some, the answer lies in the pursuit of transformative justice in which survivors of harm and persons who have caused harm engage in a process, whether apart or together, supported by their communities to identify the roots and impacts of violence, as well as develop strategies to meet the human needs that arise when conflicts occur and to work towards eradicating violent structures.     

To bring this vision to life requires the kind of capacity building that groups like Critical Resistance promote. Without such capacity building, survivors don’t have access to a healing justice process that doesn’t appropriate their conflicts as property and reduce their role to that of a state witness set on a collision course with defence attorneys who seek to dismantle and undermine their understanding of what’s happened to them.  Without such capacity building, perpetrators aren’t held accountable in a way that promotes self-transformation and non-violence. Without such capacity building, our communities miss an opportunity to problematize life-constraining social relations and transform them into life-affirming ones.

Having said this, transformative justice can only be strived for if survivors of harm want to go such a route, if the accused would agree to take part in a process where they accept they are responsible for causing harm to others, and if people are willing to form communities of accountability and support around the parties in conflict. This may seem like a risky endeavour that may fail to live up to its promise, especially in the wake of profound suffering and pain, but we cannot do worse than the 'justice' process we have at present.

Tuesday, January 16, 2018

8 Wishes for 2018: Reform Towards Abolition in Canada

Justin Piché, PhD (Associate Professor, Criminology, University of Ottawa)

Another day, another chance to get it right
Must I still be learning? Must I still be learning?
Baby crying kept us up all night
With her morning yearning, with her morning yearning

- From "Morning Yearning" by Ben Harper (2006)

Maeve Piché

When my partner Grace and I became parents to Elsa in 2014, Canadians had a federal government in place that, as criminologists Cheryl Webster and Tony Doob observe, sought to "reinforce conservative values related to individual responsibility in all aspects of life" (p. 317). What this meant in the realm of 'criminal justice' is that those who were criminalized were positioned as being bad, amoral people undeserving of rights as opposed to people who'd come into conflict with the law as a result of social conditions and inequality. With the criminalized seen in this light, little concern remained for their social inclusion as imprisonment wasn't to be seen as a damaging practice only to be used as a measure of last resort, but rather as a legitimate tool to denounce, deter, incapacitate, brutalize and exclude them. Webster and Doob remark that "[i]f those who 'fail' (educationally, economically, etc.) are seen as 'bad people', 'good' Canadian citizens need not be concerned with them precisely because those 'successful in life' are understood as having chosen their particular 'lifestyle'" (p. 317). Such a cultural shift in penality and beyond promotes state investment in exclusion and state divestment from inclusion, allowing for the further dismantling of, and the extension of coercion within, whatever remains of the social safety net.

Understanding recent shifts in Canadian penality as part of broader cultural and political agenda helps explain why when critics of the previous federal government's punishment measures frequently pointed to the futility of investing more capital - material and symbolic - in imprisonment, those in power dismissed their concerns. In the process, the previous regime put in place sentencing schemes with the goal of having more criminalized people held behind bars (e.g. further restricting access to conditional sentences / 'house arrest'), for more time (e.g. introduction of additional mandatory minimum penalties), and fewer chances of supervised release (e.g. eliminating accelerated parole review). They also intensified austere conditions of confinement (e.g. implementing additional room and board fees in federal penitentiaries) and put in place community (dis)integration policies that would frustrate attempts by criminalized people to move on with their lives (e.g. increasing pardon fees and further restricting application eligibility).

When Grace and I again became parents, this time to Maeve in 2016, Canadians had a new federal government who campaigned on delivering "real change" to make Canada a more inclusive society after a decade of spiteful and callous governing on Parliament Hill. A review of 'criminal justice' with an eye towards rolling back at least some of the previous Government of Canada's punishment agenda and putting in place more alternatives to incarceration, particularly for Indigenous peoples, held promise. However, after two years in power, the current administration can count only a few successes, with much needed consultation not often leading to meaningful action.

So at this point, you may be thinking, what does this have to do with my kids and why am I bringing them into this discussion. Well, many nights when my kids go to bed I ask myself what I, along with those I work with, have done and what more can we do to make their world a place that is life-affirming rather than life-denying, life-giving rather than life-taking. I wonder about the struggles they'll someday face and endure, the mistakes they will and have to make, and what opportunities they'll have to be able to be supported by others, seek out support where needed, to learn, to grow, to lead with their hearts, follow with their intellect, and to fight good fights - to be human. And when I look at my kids who sometimes don't want to sleep and who I expect will periodically express their desire to start another day at some point in the middle of the night, I start thinking about what the morning will bring - hope. Hope that all of us will remember in the face of struggles - whether our own or those of others - that we all retain the possibility and potential that we were born with, the possibility and promise that we see in the eyes of our children.

No one is disposable and this must be an essential pillar of how we do justice in the wake of social conflicts and harms. When we deny this tenant, we deny our own humanity. Below, are my eight wishes for 'criminal justice' reform in Canada in 2018 that are driven by this principle.

1) Commit to Working Towards a World Without Prisons and Punitive Justice

If we're to take the view that imprisonment is costly in both human and financial terms, reproduces inequality and injustice, and is the least effective means to achieve its own purported objectives, then we must work towards its abolition. If we understand that the 'criminal justice' system mets out punishment, which is a form of violence that falls short with respect to meeting the needs of those impacted by social conflicts and harms that are criminalized, then we must also work towards its elimination.

Prison and penal abolition are not goals that can be reached overnight. The carceral spaces and penal system we have took generations to build and they'll likely take generations to dismantle. Following the Prison Research Education Action Project, this work can be done through attrition, so that in the interim the penal system generally and imprisonment specifically are used where absolutely necessary until adequate community infrastructure is built to sustain a society that isn't reliant on criminalization and utilizes transformative justice where agreed upon by people directly impacted by social conflicts and harms.

2) Improve Conditions of Confinement in the Interim

Given that the march towards prison and penal abolition are long-term projects, there's a need to enhance the material conditions of people who are being held as prisoners in the interim. This work requires the leadership and involvement of current and former prisoners. To this end, last year the Journal of Prisoners on Prisons organized a "Dialogue on Canada's Federal Penitentiary System and the Need for Change" featuring 50 pieces written by people held in Correctional Service Canada (CSC) penitentiaries. The collection aimed to identify key issues facing federal prisoners as a result of reforms enacted under the previous regime in power from 2006 to 2015, along with changes they'd like the current Government of Canada to make to improve their conditions of confinement while improving community safety outcomes.

Through this exercise, a number of recommendations were tabled, notably replacing the 'cook chill' food regime with onsite kitchens, eliminating additional room and board fees, increasing prisoner pay, and ending the centralized purchasing catalogue that drives up the costs of goods. They also called for expanded access to community-provided mental health, health and dental care services, along with more meaningful educational, vocational, work, and gradual release opportunities. Training and accountability measures for CSC staff were also recommended as a means of improving the observance of prisoners' human rights and encouraging their timely completion of correctional plans. There were also recommendations that touched upon sentencing and parole with an eye towards reducing Canada's reliance on incarceration, including putting in place structures that ensure prisoners can more readily get assistance when in distress, instead of being sent back to the penitentiary for setbacks that take the form of breached conditions of release, which are more common than the commission of new offences.

It is important that these modest calls for change be enacted in 2018. This year should also see initiatives carried-out to facilitate prisoner-driven reforms at the provincial-territorial level where most behind bars are awaiting their trials, while others serve sentences of two-years-minus-a-day or are being held on immigration holds.

3) End Solitary Confinement - It's a Form of Torture

With the harms of sensory deprivation and the lack of human contact associated with solitary confinement becoming increasingly known as a result of tireless advocacy, investigations and research captured in sustained media coverage revealing the human consequences of isolation, the federal government along with several of its provincial and territorial counterparts are moving to reduce their reliance on administrative and disciplinary segregation.  In some cases, some modest gains have already been realized. For instance, the number of federal prisoners held in solitary confinement spaces has declined by more than half in recent years.

With this said, proponents of the status quo, including custodial staff, who seek to preserve their own powers, are getting organized and attempting to derail further progress. What's currently unfolding is akin to what feminist criminologist Pat Carlen calls the "carceral clawback", defined as "the power of the prison constantly to deconstruct and successfully reconstruct the ideological conditions for its own existence" (p. 116). In this instance, union representatives for custodial staff are attributing shifts in the violence inside carceral settings primarily to changes in segregation policies and practices restricting its use, which are portrayed as measures that threaten institutional order and safety.

If, as Carlen observes "prisons must claw back in this way - unless they are to cease being prisons and instead become all the things that the state's legitimating rhetoric would have us believe they really are" (p. 118), it's imperative that we not only place limits on the use of solitary confinement so long as the practice exists, but work to abolish it as well to limit the possibility of carceral clawbacks. After all, solitary confinement is - to use the words of Ashley Smith's mom Coralee - "torture" and it needs to end.

4) End the Mass Incarceration of Indigenous Peoples

While the Government of Canada officially pursues reconciliation with Indigenous peoples through actions such as apologizing to, and reaching settlements with, many of those who experienced the horrors of residential schools and the 60's scoop, colonial relations continue in many forms including through Indigenous mass incarceration.

In 2017 - the year of Canada 150, little was done to reverse this trend in imprisonment as the Government of Canada invested "$10 million over five years for the Indigenous Community Corrections Initiative" to "support approaches to community safety that are responsive to the concerns, priorities and unique circumstances of Indigenous communities" with its left hand, while doing things like contributing $56.6 million towards for a new $75.8 million, 112-bed Qikiqtani Correctional Healing Centre, which will replace the 68-bed Baffin Correctional Centre in Nunavut, with its right hand. This new facility is being built in a jurisdiction where Indigenous peoples comprised 100 percent of the territory's jail and prison admissions in 2015/2016.

How can the federal government reconcile with Indigenous peoples when it's taking action in the form of bricks and mortar that will cement Indigenous mass incarceration and pave the way for a new wave of settler apologies a generation or more from now? This practice too needs to end and Canadians can start by not just problematizing Indigenous 'over-representation' behind bars, but any Indigenous representation in Canada's colonial jails, prisons, penitentiaries. Anything short of this reproduces colonial violence that undermines Indigenous sovereignty, self-determination and the potential to re-establish community harmony.

5) End the Criminalization of Prohibited Drugs and People Who Use Them

As all levels of government in Canada prepare for the legalization of marijuana later this year, and several policing organizations arguably try to stoke one final Reefer Madness inspired moral panic to extract power and resources for themselves, the need to end the failed and deadly war on drugs only grows more urgent as thousands continue to die from opioid-related overdoses. Particularly alarming is the continued insistence by leaders, including Prime Minister Trudeau, that the war against illegal drug users (with the exception of pot smokers once weed is legalized and strictly regulated ) must continue even as many die from unregulated and prohibited substances tainted with fentanyl. Let 2018 be the year that Canadians demand more reasonable and compassionate drug policy and an end to state repression that harms people in the name of 'public safety'.

6) Stop Building Cages and 7) Invest More in People and Communities

According to a recent analysis by members of the Criminalization and Punishment Education Project's #NOPE / No On Prison Expansion initiative, the federal government, along with at least 6 provinces and 2 territories, are in the process of expanding their capacity to cage human beings (click here to view the infographic below).


These projects (e.g. the proposed new and bigger jail in Ottawa) that are often planned without public consultation and will cost hundreds of millions of dollars, as well as cause unnecessary hardship to so many impacted by incarceration, need to be stopped. Such resources ought to diverted towards building healthy and safe communities, which have the capacity to offer transformative justice processes and healing outcomes in the wake of social conflicts and harms.

8) Work Together 

In closing, all of us need to either commit or recommit to collaboration and mutual aid, to love one another especially in the face of social conflicts and harms, and abolish the punish-mentality at work in all our relations as we fight against dominant ways of relating to one another that divide us to the benefit the powerful few, and fight for equality as a means of uniting us. Let's continue to find the spaces where freedom resides, however small, and make them bigger until our 'impossible' and 'utopian' dreams become possible and real - if not for us than for the generations to follow.

Elsa and Maeve Piché