Canadian Justice System: to restore or to punish? Future directionsDaniel Henao

University

ABSTRACT

Contemporary debates on the existing justice systems often involves unresolved

rendering of a decision; which justice system is more effective, punitive or restorative?

Throughout the decades, numerous studies were conducted on the effectiveness of the

implementation of both approaches, however, to this day; the general conclusion on the

dominance of a single approach has not been reached. While some scholars argue that

‘get tough’ policies are contributing to the peace, incarceration or separation of ‘bad’

guys from the public and their consequent fear of the law, their opponents claim that the

only feasible, long-lasting solution to the crimes lies in the creation of collective policies

towards crimes, in which the community, the victim, and the offender are involved

together. This research paper will take a look in depth at the results, effectiveness and

downfalls of both, the punitive and restorative justice systems and will advice the future

direction for Canada.

INTRODUCTION

The main reason of the justice system is to inflict justice upon the offenders, as

well as the victim, and to try to restore the balance in the society. The main complication

arrives when one tries to determine what is ‘just’? What type of response is appropriate?

Gromet and Darley (2011) discuss different mindsets that affect the preferable type of

responses to victimization and crime. In a society with the liberal mindsets, the response

addresses the needs and concerns of victims. In a conservative society, the response

addresses victims through offender punishment. For Canada, this makes it a little more

difficult to decide on a single approach to justice system since the mindsets of Canadians

lie within both, the liberal and the conservative states. This creates a problem since in a

society with prevalent conservative mindsets; the use of restoration decreases the

satisfaction of victims, while in a society with prevalent liberal mindsets; the use of

punitive measures decreases the satisfaction of the general public (Gromet & Darley,

2011).

When trying to apply a certain type of response, the ideological preferences of the

society are critical. However, before deciding on which type of justice system is more

suitable for the society, it is important to understand what other reasons manifest different

types of desires and preferences for the justice systems. Over the last decades, in

countries such as the United States and England, the transition towards more punitive

penal measures was seen. Pickett and Chiricos (2012) conducted a study on the transition

from more lenient attitudes towards juvenile crimes into punitive and more aggressive

ones. They have concluded that Whites’ support for the increasing of the toughness of

responses to the juvenile crime stems from the racialized view of the youth criminals.

Pikett and Chiricos (2012) utilized the data from the national survey to tie the connection

between the racialized interpretation of delinquency and the supportive attitude towards

more aggressive punitive responses to youth crime. The results have indicated that there

is a connection between the two and that Whites’ who are more resentful towards

delinquency are more lenient towards, and supportive of punitive measures. A study

conducted by Gertz (2004) found similar results. The study concluded that there is a

strong correlation between racialized attitudes and punitive approach for the justice

system. The more prejudice and hatred there is in a society, the more likely the punitive

approach to the justice system is going to be taken.

Juvenile crimes and, more importantly, responses to the young offenders are

critical to analyze when discussing justice systems. The reason for that is because

juvenile justice systems are reflective of the overall approach that the society chooses

towards the crimes within its borders. The increasing punitive measures are reflective of

the general public’s attitude towards the justice system (Frost, 2010). The policies such as

three strikes, truth in sentencing, and others are being increasingly harsh as a result of the

change in the attitudes of the general public, which also became harsher (Frost, 2010).

Similarly to Frost (2010), Mears et al. (2007) claim that it is public’s influence that

affects the transition of juvenile justice system from a restorative approach into a more

punitive one. The study’s analysis points to a public increasing favouring of harsher

treatment as a source for a weakening support for the idea that youth criminals can be

“saved” and rehabilitated. Furthermore, Bishop (2006) claims that punitive approach is

related to the excessive media coverage and public perception of the inefficiency of the

rehabilitative approach. In the study, the author discusses the notion of media and

conservative political agendas that contribute to the harsher policies that are set out to

battle the juvenile offenders in mostly aggressive ways.

Overall, as Walgrave (1995) argues in his study, in a punitive juvenile system,

retribution is the primary means:” the wilful inflicting of harm on an offending individual

is an attempt to right the upset balance in juridico-moral order” (p.233) The problem with

that is when a democratic state adopts this model, it becomes at odds with itself: while

claiming that it exists to protect citizens’ rights and freedoms, if the penal law is

established as the primary means of reducing the crime, it often restricts those very

liberties. As a result, it reduces state/citizen relations and gives out roles in a power

structured society. The individual is not seen as a “social actor” and is often excluded

from the society by force. This system leaves almost no room for rehabilitation.

LITERATURE REVIEW

Sherman (2003) argues that criminology was born in the age of reason and

‘reason’ should be applied to justice. Modern age justice should be created around

emotions of victims, offenders, and the society. One of the ways to do so is through the

restorative justice. Bazemore (1998) also argues that the direction in which a juvenile

justice system should move is restorative. The main reason for that is because compared

to punitive approach; restorative reaction is more constructive and less excluding. The

state that adopts such system is willing to negotiate and the individual within it is a full

“social actor”. It is more advantageous than the punitive approach since it addresses the

‘losses’ that were resulted from the offence, rather than ‘needs’ that are hard to locate, let

alone address (Bazemore, 1998). However, not everyone agrees with this view and many

countries tend to do just the opposite.

As mentioned in the introduction, the desires towards the response to the crimes,

which the society deems appropriate, lies in the public’s overall perception of ‘justice’.

Okimoto and Feather (2012) examined the personalities of people and how they affect the

perception of ‘justice’. Their study suggests that punitive approach to rehabilitation lies

within the narcissistic and power-hungry individuals. These types of individuals are

seeking revenge and are interested mainly in punitive response to crimes. Restorative

approach to rehabilitation lies within more liberal individuals and those with community

values. These types of individuals believe in teaching offenders about their mistakes and

making them learn how to respect one another (Okimoto & Feather, 2012). Similarly to

Okimoto and Feather (2012), Zenon Szablowinski (2008) discusses the notion of what

constitutes ‘justice’. The difference between restorative and punitive systems, according

to the author, lies in the values that are shared by the victims and the society as a whole.

In a purely punitive approach, more injustices can be caused by punishing and oppressing

the offenders. In a purely restorative approach, some victims may not feel as if the justice

incurred if the offender shows no sign of remorse or repentance (Szablowinski, 2008).

Gromet and Darley (2009) provide a further analysis in the difference between the desire

for the punitive and restorative measures. The authors claim that the approach that is

desired by the public depends on the crime severity and shared identity. The seriousness

of the crime can play into a decision of the severity of the punishment that the offender

has to face. The shared identity is particularly important as it relates to the similarities in

the background and values that the offender and the victim share (Gromet & Darley,

2009). These differences in the personalities and attitudes of people are reflected in either

punitive or restorative justice systems.

The United States is the primary example of a country that utilizes the punitive

measures in its justice system. This is well reflected on the US’ juvenile imprisonment.

The number of youths held in detention in the US has increased by more than 70%

between 1994 and 2000 (McLeigh and Sianko, 2010). “It is estimated that the currently,

about 100,000 youth are in juvenile jails, prisons, boot camps, and other criminal justice

facilities. At the extreme, nearly 2,500 individuals are serving life-sentences in prison

without a possibility of parole for crimes committed while they were juveniles”

(McLeigh and Sianko, 2010, p. 334).

Similarly to the States, the Great Britain is another country in which the punitive

measures slowly replaced the rehabilitative approach that was dominant prior to 1993.

Before 1993 and the adaptation of the Criminal Justice Act – which was formulated with

an unusual speed within months of the implementation of the 1991 Criminal Justice Act –

England has experienced a great deal of success with its previous juvenile justice policies

and practice (Goldson, 1997). The numbers of prosecutions against children in court fell

dramatically, there was an 80 per cent decline in the use of custody between 1980 and

1990, and there was a corresponding decline in the number of known juvenile offenders

per 100,000 of the population, which dropped by 16 per cent (Goldson, 1997). The

demands for ‘justice’ were met by a policy and practice which avoided the unnecessary

use of penal custody for children without placing the public at risk. It changed with the

implementation of more aggressive and punitive measures that were introduced in the

1993 Criminal Justice Act. Arrests and harsher sentences for young offenders in the UK

have since been on the rise.

Other countries, however, explore different approaches to the justice systems and

see different results. Rossner (2008) writes in her study that although there are harsh

penal systems in place, there is a growing restorative justice movement as well. The

notion of face-to-face dialogue with the victim and the offender is getting more popular

and more evidence is seen that restorative approach may work to restore and heal the

victim, as well as the offender (Rossner, 2008). The Swedish youth justice system is

primarily based on a restorative principle and a fundamentally rehabilitative approach.

Although recent policies and practice have made a new lean towards more punitive

measures, Sweden’s social welfare agencies still have the primary responsibility for

young people involved in criminal activities. As a result, not as drastic as the United

States or the United Kingdom, Hau and Smedler (2009) report that around 10%

(compared to 18% in the US) of teenage boys (9th graders) and 5% (compared to 9% in

the US) of teenaged girls (9th graders) were convicted of some for some sort of offense

(minor assault or theft).

Similarly to the Swedish justice system, from the beginning of the 20th Century

and with introduction of the Children’s Act of 1912, the core foundation of the Belgian

juvenile justice system – as in most countries of the European Union – has been the

concept that children need to be protected and, in most cases, (re)educated rather than

simply punished (Dijk et al., 2005). This focus on the rehabilitative aspect of juvenile

youth was re-affirmed in the Youth Protection Act of 1965. What’s even more striking is

that unlike England and the United States, Belgium laws presume that until their 18th

anniversary, juveniles are presumed to lack penal responsibility and are dealt with

separately from adults, except in rare cases where teenagers over 16 could be referred to a

trial by a judge under special circumstances (Dijk et al., 2005).

However, there is no need to look to far out to compare the effectiveness of

punitive and restorative measures. When Canada adopted Young Offenders Act and

decided to mirror the punitive approach taken by the United States, the youth crimes were

at all-time high. Peak occurred in 1991 when 9,126 per 100,000 youth were offenders

(Statistics Canada, 2007). Since the introduction of the amendments to YOA and

eventually Youth Criminal Justice Act, the incarceration rate of youths has been reduced

significantly. The youth crime rate has steadily decreased throughout the late 1990s and

has fallen noticeably from 2003 to 2006. Regardless of the 3% rise in 2006, young

offenders’ rate was 6% below the one reported ten years earlier and 25% lower than the

1991 peak. In 2006, according to the statistics, 180,000 youth were reported to violate the

Criminal Code (not including any traffic violations), raising the youth crime rate to 6,885

per 100,000 youth (Statistics Canada, 2007). Transitioning from punitive approach to a

more rehabilitative one has certainly helped to improve the Canadian juvenile justice

system and avoid overwhelming the prisons with the young offenders. However, the

results are far from being plausible and there is still much more room for future

improvement.

RESULTS OF THE STUDY

Restorative or punitive?

When analyzing the studies that were conducted by numerous scholars in the field

of the justice systems, it can be seen how the punitive measures seem to add to the

problem, rather than resolve it. Barbara Hudson (1998) examined the assumption that the

punitive approach to the justice system is going to fix the problem of dangerous criminal

acts, such as violence against women, children and minority ethnic groups and address

the concerns of the victims back in the late 1990s. The findings of her study concluded

that this assumption is far from being accurate and that the retributive justice is actually

more likely to increase the rate of the dangerous acts rather than diminish them.

Furthermore, Gendreau et al. (1996) conducted a study on the factors that contribute to

the recidivism. The authors concluded that the strongest factors that contribute to the

repeated crimes and re-entry to the criminal world include criminal history of antisocial

behaviour, social achievement, race/age/gender and socioeconomic status. According to

the authors, the need to address these factors when trying to rehabilitate the offender is

critical. Punitive measures rarely address these issue and only attempt to punish the

offender for the wrongdoing that has already occurred, while restorative approach

constantly tries to reinvent itself to be able to address the reasons for the wrongdoings

and try to prevent any reoccurrence in the future (Gendreau et al., 1996).

Why punitive, not restorative?

Although many studies conclude the ineffectiveness of the punitive approach,

great countries such as the United States and Great Britain seem to continue to implement

‘tough on crime’ policies and incarcerate a large amount of people. Robinson and

Ugwudike (2012) discuss the rise of enforcement and tough probation policies in England

and Wales. The authors argue that the reasons behind the ‘toughness’ of these policies are

deeply problematic. In particular, the article concludes that the enforcement of tough

policies surrounding probation of offenders is lacking the desired results and that

alternatives to these tough measures may be necessary. The authors also conclude that the

punitive measures are often produce counter-productive results and are rarely effective in

battling or addressing the crime issues (Robinson & Ugwudike, 2012). As a result, there

seems to be a gap in the actual effectiveness of such policies and the perception of their

effectiveness. Similarly, although there have been numerous studies and examples of the

effectiveness of the restorative policies, their implementation seems to be very limited.

Phelps (2011) discusses the transition into a more punitive policies and a consensus that

the rehabilitative approach does not work in the U.S. in the 1970s. In the study, Phelps

(2011) argues that while there has been an overwhelming research on the rehabilitative

aspects of the restorative programs, their application, as opposed to the punitive

programs, has been very limited. As a result, while the studies were conducted, the

physical implementation of the studies as author argues were almost non-existent: “there

were no major changes in investments in specialized facilities, funding for inmate

services – related staff, or program participation rates throughout 1970s and 1980s” (p.

33). Thus, it can be seen how the application of rehabilitative approach has not been

utilized properly before deciding to switch to a much more punitive approach.

How is Canada doing?

Doob and Webster (2006) looked at the stability of the Canadian imprisonment

rate since 1960s. Although the most influential countries such as the United States and

England have seen the increase in the punitive approach and imprisonment of offenders,

Canada has been able to protect itself from some of the harsher policies that have been

implemented by its close countries. The reasons are found in the historical, cultural and

structural nature of the Canadian society. However, although Canada has been able to

protect it from overly aggressive policies that have been adopted by the US and England,

there may be some gaps in the endurance of this resistance. The reason for that, according

to the study by Ousey and Unnever (2012), lies in the presence of minority groups. The

study suggests, in their evaluation of 27 different countries, that the greater racial/ethnic

diversity in the countries reflects the attitudes towards the greater punitive measures for

criminals. As a result, the greater the diversity becomes, the more likely justice system is

to adapt the punitive measures in addressing the crimes.

Should Canada care?

As mentioned previously, Canada’s endurance and resistance of the harshness of

some of the penal policies of the United States and the Great Britain may be limited. The

United States is the principal influence on the criminal justice policy development in

Canada (Roberts, 1998). Great Britain is another important country of influence. As a

result, Canada is constantly meddling in between radical American policies (such as three

strikes policy) and moderate European reforms. This meddling results, on one hand,

Canadian government reducing the use of imprisonment, but on the other hand,

pressuring the policy makers to introduce harsher penal policies (including severe

minimum penalties and higher maximum sentences for the youth criminals) (Roberts,

1998).

John Muncie (2006) elaborates on the study by Roberts (1998) and states that in

addition to being influenced by the US and Britain’s policy, the presence of globalisation

makes the process of being influenced much faster and easier. Muncie (2006) argues that

with the globalisation, the transfer of policies happens extremely rapidly. One of the

example that is given in the study relates to the 9/11 attack and the harsh anti-terrorist

policies that were implemented unusually fast by many countries that followed the lead of

the United States. As a result, the risk of Canada following the example set by the United

States or Britain and implementing some of the harsh penal policies that those two

countries adapt, may happen faster than it can be anticipated.

Is it happening yet?

Although the justice system in Canada is not as punitive and harsh as the one

implemented in the United States or the Great Britain, there are still some gaps in the

Canadian system as well. One of the gaps exists in the appeals’ system of the Canadian

justice program. Rick Ruddell (2001), in his study, discusses how appeals are relatively

rare, but more importantly, inefficient in the Canadian justice system. Whenever appeals

are initiated, very few appellant are successful in defending their case and reducing the

severity of their sentencing. The study took a look at the appeals that occur in the

Canadian justice system and concluded that very few of them resulted in some sort of

reconsideration (Ruddell, 2001). As a result, it can be concluded that this reflects the

punitive attitude of many judges who refuse to soften the sentences or reconsider the

court’s decision, even if a strong case for reconsideration is presented before them.

Another gap between restorative and punitive approach in Canada can be seen in

the reflection of the punitive attitude that can be found in the Canadian police force.

Ezeonu Ifeanyi (2010), in his study, looks at the risk of increased penal policies through

the construction of violence by some police members. Ezeonu (2010) argues that the

overwhelming majority of police officers attribute the presence of violence to gangs,

illegal gun smuggling and illicit drug trafficking. Very few police officers seem to be

concerned about education and social programs that can also contribute to the presence of

crime in the area. Interestingly enough, the same majority that attribute violence to gangs

and other crimes, also consider and are in favour of increasing the punitive measures as a

possible solution that can address the problem (Ezeonu, 2010). This shows that although

statistics indicate that the amount of crimes has not been rising, the risk of increased

punitive measures has been.

DISCUSSION AND CONCLUSION

With the amount of studies that point to the downsides of the punitive justice

system, it is almost undeniable that its effectiveness is less than stellar. Numerous

examples of the countries such as the United States and the Great Britain that utilize the

harsh penal policies can be found. More often than not, the results that these countries

show are far from being impressive. The incarceration rates are usually higher, the

recidivism seems to be increasing, and finally, the ‘justice’ itself can be questioned as the

negative results and the inability for such justice system to combat the crimes indicate its

overall ineffectiveness.

One of the largest implications of the punitive approach is that it allows and

enables the shift towards more racialized attitudes towards young offenders. Studies that

were mentioned in this paper elaborated on the notion that harsh penal policies reflect the

prejudice of mostly dominant Whites’ towards other racial and ethnic groups. This

enabling is extremely dangerous and can continue to grow if it’s not properly contained

within the society.

Further implications of the punitive justice system can be found in its effect on

other parts of the society as well. Payne and Welch (2010) conducted a study in which

they examined the implications of the punitive justice system and punitive attitudes

towards schools’ discipline. Their study found that increasing presence of punitive

measures within the justice system enables teachers to ‘act’ towards school offenders in a

similar manner. The study found a correlation between the punitive justice system and

teachers’ preference of punitive disciplinary manner of teaching, which is especially

prevalent when it comes to the racial groups, such as Blacks and Hispanics (Payne &

Welch, 2010).

Canadian justice system has showed its endurance and resistance of overly

punitive measures despite being constantly influenced by the United States and the Great

Britain, both of which utilize much harsher policies. Moreover, Wilson et al. (2002)

outline some of the progress towards the restorative justice system that Canada was able

to achieve despite all of the pressure from its ‘neighbours’. The authors mention the use

of Sentencing Circles, which is sometimes utilized to help to assess the offender prior to

his/her getting entangled in the justice system. The implementation of the Restorative

Justice Options to Parole Suspension that shows how the community can get involved

with the restoration of the offenders and help them from falling into the same mistakes, as

well as prevent them from re-entering the system again. Finally, the Circles of Support

and Accountability has been utilized and acquired many supporters and volunteers to help

to reintegrate high risk sexual offenders back into the communities (Wilson et al. 2002).

However, the need to carry on with the implementation of the aspects of the

restorative approach in the Canadian justice system is essential. Globalization and outside

forces, such as the 9/11 has showed that the influence of the outside world is powerful

and rapid. Although some scholars believe that it is the other way around, and instead of

worrying about the Canadian penal system, it is the future of the American tough penal

policies that are at risk (Webster & Doob, 2008). There is a growing opinion that judging

by the stability of the Canadian imprisonment rate, the American justice system may start

mirroring the policies that are adopted in Canada to achieve the same results (Webster &

Doob, 2008).

Nonetheless, it is critical to continue to assess the effectiveness of the punitive

and restorative justice systems and to seek ways, which will help to create the most

effective response to the crimes. In addition, monitoring the influential forces outside of

the own society is essential in order to preserve the policies that seem to be working the

best and that allow Canada to be one of the leading examples of how a country should be

addressing the crimes and promoting safety.

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