Reprinted from The Common Good, no 4, Pentecost 1997
From Misery Justice to Transformative Justice
Ruth Morris
ÒSomeday theyÕre going to build a prison, and there wonÕt be anybody in it. There wonÕt be anybody because you and I will have opened our hearts, our homes, and our communities, and found ways to include all those we now find most difficult. That is all the dream of prison abolition is about.Ó
With those words I challenged Canadian Quakers in 1981 to adopt the first unanimous position in the world, by a religious group, for prison abolition. To my amazement they did, putting it in their own words:
ÒThe prison system is both a cause and a result of violence and social injustice. Throughout history, the majority of prisoners have been the powerless and the oppressed. We are increasingly clear that the imprisonment of human beings, like their enslavement, is inherently immoral, and is as destructive to the cagers as to the caged...Ó
For years I have compared myself to the child in the story of The EmperorÕs New Clothes. As I have seen increasingly the naked racism and classism of our whole retributive justice system, I have dared to suggest that this emperor, like the one in the fairy story, is naked. Throughout North America, differential rates of incarceration for minority groups are out of control, if there ever was control of the racist function of this system.
When the Ontario government created a Commission to investigate systemic racism in our justice system, I at first didnÕt want to testify to it. When I was persuaded to do so, my testimony was that their mandate was impossible. Trying to take the racism out of the misery justice system is like trying to take religion out of the church, or sex out of marriage. Racism is a basic function of misery justice, one of the main things it exists to perpetuate.
I began calling our retributive justice system misery justice, because in a flash of insight I saw that instead of creating justice by making everybody whole, it sought to create justice by making everyone miserable Ñ but equally miserable!
Native people in Canada are 5 to 15 times as likely to experience incarceration as their white brothers and sisters. A Baltimore, Maryland study showed young blacks at 18 times the risk of whites to be charged with drug offences, despite confidential user surveys showing equal use of illegal drugs by both races. Hispanic men in New York State suffer 108 times the incarceration rate of white men. We could go on and on, but year in and year out, the connection among racism, classism, and the retributive justice system is so stunning I call them Siamese triplets, you cannot change one of them without changing all of them.
I began asking Howard Zehr and other proponents of restorative justice how they integrated the reality of racism and classism in their restorative analysis. The answer I got was that that was a good question, and one they couldnÕt answer. It also troubled me that the American justice system, leading the world in its mad rush to mass incarceration, especially of minorities, was finding restorative justice language too easy to co-opt. This seemed a bad sign. I saw with increasing clarity that the problems exposed by crime need transformation, not restoration.
I began calling our retributive justice system misery justice, because in a flash of insight I saw that instead of creating justice by making everybody whole, it sought to create justice by making everyone miserable Ñ but equally miserable!
Historically, 19th century criminal justice practice was based on the assumption that criminals were BAD, so we had to PUNISH them to make them GOOD. Even so, the stigma appeared lifelong so it was unclear how they could ever be made good. As we rounded into the 20th century, social gospel values and the dawn of psychological theories led to a new idea. Criminals were SICK, or MAD, so we had to treat them to make them WELL. California went the limit on the treatment approach. The fact was treatment and prisons didnÕt mix, and although the approach was more benign, it bore comparatively little fruit.
Increasingly as people study the systemic biases of the justice system from beginning to end, and read books such as The Rich Get Richer and the Poor Get Prison, they conclude that not only the prisoners but all of us are neither bad, nor mad, but HAD. This gets into the larger area of corporate crime and harm, which I will address shortly. For if the problem is that we keep certain groups in society so powerless that they have little choice but to fall into the grip of an adversarial and punitive justice system, the problem is powerlessness. If that sounds like an exaggeration, try to imagine what it would be like to be a young person in one of the many community groups which have youth unemployment rates over 50%. Powerlessness and hopelessness seep into your very bones. Finding a group of similar peers who are prepared together to defy society and engage in what it calls ÔcrimeÕ is one of the few ways to gain some sense of self-worth and personal power. But we cannot punish or therapise a person into having power. All we can do is begin to share power with them.
This does not deny the seriousness of street crime as one part of the social wrongs, and one thing its perpetrators needs to take responsibility for. But transformative justice asks offenders to take responsibility for street crime, and the community to take responsibility for distributive injustice. Unless both kinds of victims are responded to, we cannot begin to create a healthier society out of the challenge of crime.
But transformative justice asks offenders to take responsibility for street crime, and the community to take responsibility for distributive injustice. Unless both kinds of victims are responded to, we cannot begin to create a healthier society out of the challenge of crime.
By a variety of estimates that exaggerated welfare fraud as much as possible, and undercounted corporate crime, the cost of corporate crime in Canada is at least 88 times that of welfare fraud! Yet our media would have it that welfare fraud is the big issue. Moreover, income tax fraud, the crime of the propertied classes, is found in about 50% of cases, while every effort to uncover welfare fraud shows a rate no higher than 1-3%. Yet we keep spending money trying to find more welfare fraud, and reducing our auditing of income tax returns, despite the fact that every dollar spent on welfare policing loses money because of the low frequency of fraud, and the tiny amounts involved; while every dollar spent on auditing income tax returns brings back 2-3 times the expenditure in uncovered frauds, larger and more frequent.
It is as if we want desperately to prove the poor are bad, and so we keep asking the question, and getting the wrong answer. Then when we get the wrong answer we crucify the few we get in our net. Because the studies also show that while only about 2% of income tax frauds go to prison, the rate of incarceration for welfare frauds is a staggering 80%, higher than for any but the most extremely violent crimes!
All this I expected to find. What I did not expect to find, reading books and papers on corporate crime, was a callousness toward human life that exceeded anything I had read about in our most celebrated serial killers. The Ford CompanyÕs decision to market the Pinto, after being told it would incinerate hundreds of consumers, chills my blood any time I think about it. Ford executives asked for a report on which would be cheaper: deaths, maimings and suits, or $11 a car to fix the inflammatory location of the gas tank. Killing people increased profits, so this serial killer gave the go-ahead to kill hundreds to maximise profits.
If Ford were isolated, it would still be a terrible story. But there is the Dalkon Shield story where a birth control device was known to be dangerous, and the warnings were repressed. When suits forced them to close down in the USA, they sold their remaining shields, known to cause death, sterility and permanent pain, to US AID to ship to Third World women! Hooker Chemical, Reed Paper, asbestos mining, most drug companies, the list of those whose profit maximising decisions have caused deliberate death, agony, and maimings goes on and on. As to financial crime, theyÕre again in a class by themselves. The General Electric price fixing scandal in the USA cost the American public more money than is reported stolen in a year. Canadian employers steal $7.9 million in unpaid payroll taxes per year from their employee wages. Most spectacular financially, the recent USA Savings and Loan scandals will cost American taxpayers $200 billion dollars over the next decade! On the three strikes and youÕre out principle, most American corporations would be out.
In fact, in Canada there are about 500 victims of homicide per year, but corporate profit maximising decisions directly kill at least 15,000 Canadians each year, 30 times the rate of all other homicidal killings. A conservative estimate by a number of scholars is that corporate criminals in the USA and Canada, even though they make rules which prevent counting many of their socially harmful acts, cost 10 times as much as all other property crime.
This information has not put me on a revenge trip toward the corporate world. But is has moved me beyond the child saying the emperor has no clothes. I know that the whole court is stark naked, and I feel the need to say so. Why on earth is a criminal justice system, geared as it is to sifting in the poor and minor offenders, pretending it is dealing with social harm when all the major harm is being done by the people who increasingly rule our world?
The true causes of crime are unemployment and poverty. Both are growing, everywhere in our world today. Incarceration increases despair, anger, alienation, and incapacity to assess jobs. It is not surprising that crime is rising, and incarceration is also rising, despite commendable efforts by many worthy officials to limit both in traditional ways. We use a justice system which is sometimes irrelevant and often destructive to solve root problems which the hidden rules of our world, the multinational corporations, donÕt want addressed.
Examples of Transformative Justice
Transformative justice practices are those which bring together the victim, the offender, their families and their communities, and empower them through a respectful process to hear one another and seek solutions that heal all. Such processes generally establish a safe setting, and then move through several stages:
1) Stories are told which provide answers and clarify facts.
2) Feelings are heard, recognised, respected and validated. This process will not make a Mother Theresa out of a brutalised young teenager, but it advances everyone from wherever they started, in learning to understand and care about the feelings of others.
3) Solutions are sought, solutions which utilise the resources of all present, including the wider community. These solutions recognise the wrong of the victim, and then go on to recognise any lacks in the offenderÕs world which contributed to their wrong actions, and work on remedying those as well.
The prophetic role is that of a tree leaning over the abyss. Unfortunately a lot of society is content to shut its eyes to the dangers of the abyss on one side and the crevice on the other, and pretend itÕs business as usual. We live in an era when the incentives to corporate irresponsibility have resulted in the kinds of growing inequalities I have quoted, and the kinds of criminal irresponsibility on a grand scale which I have alluded to all too briefly. We are the keepers of the gates of social accountability. Will we go on playing the game like those little trees till we all plunge over the abyss together, or will we have the courage of the tree that looks down and tells it like it is? It is for us to choose. For we can reinforce misery justice or we can be the pioneers of transformative justice.
Transformative justice must be applied both in our response to street crime, and in our tragic and growing distributive injustice in the world. We in Canada are beginning to feel the yoke of the multinational corporations on our backs. We are beginning to understand what the Third World has borne for a long time. The time for transformation is now. Tomorrow may be too late.
DrRuth Morris is a Quaker from Toronto, Canada, and founder of ICOPA, the International Commission on Penal Reform.