Notes on Transformative Justice and Related Theories

Chapter 7: Transformative Justice

Transformative justice provides a practical framework for responding to harm without depending on the criminal legal system. Its main objectives are to ensure the safety of survivors, foster accountability, and transform systemic conditions such as poverty, racism, and trauma.

Imagination Work

Imagination work involves rethinking safety as something maintained through community investment rather than through state punishment.

Penal Abolition vs Reform

  • Reformers aim to improve prisons using better policies and training.
  • Abolitionists believe that these systems are 'rotten to the core,' and that reform only legitimizes and expands them.
Long-term Goals

The long-term goal of abolitionists is to gradually replace prisons by building alternative systems of justice and addressing social causes such as poverty and racism.

Non-Reformist Reforms

These are strategic steps intended to shrink the reach of the current system, which include defunding, decarceration, and decriminalization.

Key Strategies/Concepts

  • De-funding: Involves reallocating police budgets to community resources that research has shown to be more effective in reducing social harm.
  • De-tasking: This strategy involves shifting responsibilities, such as responding to mental health crises, away from police and into specialized social institutions.
  • ANCHOR program: An example of de-tasking implemented in Ottawa, which showed that in one year, 90% of calls were handled effectively without police involvement.

Challenging "The Dangerous Few"

Abolitionists argue that the notion of a few dangerous individuals is often produced by systemic failures and emphasize that prisons act as schools for crime. They suggest that harm should be addressed through alternative modes of conflict resolution and universal care.

Alternatives for Incarceration

Justice architects propose replacing prisons with peacemaking spaces, community healing environments, and restorative justice centers. These alternatives focus on repairing relationships and addressing the lack of resources.

Who Polices the Police?

  • Special Investigations Unit (SIU): Created in 1990, this independent agency investigates incidents involving police that lead to injury, death, or allegations of misconduct. The goal is to provide a layer of accountability separate from police departments.
Critiques of Oversight

Critics argue that oversight organizations have limitations; they rarely lay charges and require a level of cooperation from police departments that is often not forthcoming.

Individual vs Structural Views

  1. Rotten Apple Hypothesis (E): Suggests misconduct is caused by a few isolated or deviant individuals rather than being a systemic issue.
  2. Structural View (S): Examines how institutions may encourage or allow deviant behavior.
Case Study: Nathan Parker
  • Nathan Parker faced four disciplinary hearings for misconduct/violence but remained on the force with only minor consequences. He was later shot during an altercation with another officer. Investigators subsequently charged Parker for his own aggressive actions in that incident.

    Transformative justice advocates argue that instead of merely improving police oversight, society should dismantle the assumption that police are the primary source of safety. They suggest focusing instead on investing in social foundations such as housing and healthcare that can prevent harm before it occurs.

Foundational/General Approaches

Theories
  1. Objectivist-Legalistic Theory: Defines crime strictly as any act that violates legal statutes, focusing on why people break laws.
  2. Societal-Reaction Theory: Posits that deviance is created by social groups that label certain behaviors as criminal based on social reactions.
  3. Moral Regulationist Theory: Examines how individuals self-regulate their behavior through internal morals and explores how the state shapes identities to maintain social order.
Biological/Psychological Theories
  1. Biological Positivism (Atavism): As proposed by Cesare Lombroso, it posits that criminals have distinct physical features that predispose them to crime and are considered biologically inferior.
  2. Somatotyping (Body Type Theory): Developed by William Sheldon, this categorizes humans into three body types, identifying the mesomorph (muscular/active) as prone to criminal behavior.
  3. Psychopathology: Suggested by Hervey Cleckley, this proposes that recurring offenders commit crimes due to a lack of guilt or shame.
  4. Sociobiology/Evolutionary Theory: Proposed by Edward Wilson, it argues that aggression is an innate drive crucial for genetic survival.
Classical/Neoclassical Theories
  1. Rational Choice Theory: Suggests that offenders are rational actors who conduct a cost-benefit analysis before committing a crime.
       - a) Deterrence Theory: Prevents crime through punishments that are "swift, certain, and severe"—to outweigh any perceived benefits of crime.
  2. Utilitarianism: Proposed by Jeremy Bentham, suggests that laws and punishments should be designed to achieve the greatest good for the greatest number.
Social Structural/Process Theories
  1. Social Disorganization Theory: Originating from the Chicago School, it links crime rates to the ecological characteristics of neighborhoods.
  2. Anomie/Strain Theory: Proposed by Robert K. Merton, it results from a gap between socially approved goals and the legal means to achieve them.
       - Mechanism for emotional responses to negative stimuli/loss of loved ones (Agnew).
  3. Differential Association Theory: Proposed by Edwin Sutherland, it states that criminal behavior is learned through social interaction and exposure where lawbreaking is favored.
  4. Social Bond Control Theory: Developed by Travis Hirschi, it suggests that strong social bonds (such as commitment) keep individuals from engaging in crime.
  5. Self-Control Theory: Proposed by Michael Gottfredson, it argues that low self-control often results from poor parenting and is a predictor of deviant behavior.
  6. Life-Course Perspective: Suggests that turning points in life can modify an individual's criminal trajectory, potentially leading to aging out of crime.
Critical/Conflict Theories
  1. Conflict Theory/Critical Criminology: Based on Marxist thought, this theory argues that laws are tools used by the powerful to protect their interests and control the working class.
  2. Labeling Theory: Suggests that criminality is a label applied by society, and once an individual is tagged as a criminal, they may internalize that identity, leading to more deviant behavior.
  3. Left Realism: Focuses on the reality of victimization among the poor and advocates for improving social conditions and policing practices.
  4. Feminist Criminology: Critiques male-centered perspectives and explores how gender oppression impacts female criminality and victimization.
  5. Green Criminology: Examines environmental harm caused by humans through a criminological lens, especially focusing on environmental racism.
Applied/Integrative Frameworks
  1. Routine Activities Theory: Crime occurs when three conditions are met: (1) a motivated offender, (2) a suitable target, and (3) a lack of guardianship.
  2. Broken Windows Theory: Proposed by James Wilson, it asserts that visible signs of disorder encourage more serious crime by signaling that a community has lost control.
  3. Restorative Justice: Shifts focus from punishment to repairing harm by involving all members in a healing process.

Foundations of Legal/Criminal Definitions

  • Mens Rea: Refers to a "guilty mind". Both mens rea and actus reus (the guilty act) must be proven for an individual to be found guilty.
  • Actus Reus: The physical act of committing a crime.
  • Plea Bargains: Involves offenders pleading guilty to receive a lighter sentence or have some charges dropped.
Types of Offenses
  1. Summary Offenses: Less serious crimes that are tried in a court solely in front of a provincial judge.
  2. Indictable Offenses: Serious crimes that are either heard in a superior court with a judge and jury or before a judge alone in a provincial court.
Types of Homicide
  1. First Degree: Involves premeditated murder or the death of a police/correctional officer.
  2. Second Degree: Encompasses all other murders, often characterized by a lower degree of intent.
  3. Manslaughter: Committed suddenly out of passion.
  4. Infanticide: Involves the killing of an infant (less than 12 months old) due to the effects of childbirth.

Measuring Crime

  • Uniform Crime Reporting (UCR): This system only counts crimes known to the police and uses the Most Serious Offense (MSO) principle, which can lead to undercounting of less serious crimes.
  • Self-Report Surveys: Anonymous surveys that reveal the dark figure of crime, which includes unreported acts.
  • Victimization Surveys: Indicate that less than 42% of criminal victimizations are reported to the police.
  • Accuracy of Homicide Statistics: Often regarded as the most accurately reported crime, as definitions are universal and a dead body is difficult to conceal.

Policing & Justice System Issues

  • Indigenous Over-Representation: Indigenous individuals make up approximately 5% of the population but represent over 30% of the prison population (50% for women).
  • Gladue Reports: Specialized pre-sentence reports for Indigenous offenders, requiring judges to consider the impact of colonialism on their cases.
  • Agency Investigating Police Involved Deaths: This agency is designed to investigate deaths or injuries involving police to avoid biases that may arise from police investigating themselves.

Corporate Crime

  • White-Collar/Corporate Crime: These crimes (such as fraud and safety violations) are often more costly and damaging to society than traditional street crime.
Carceral Institutions
  1. Federal Institutions: House individuals serving sentences of two years or more. These facilities offer better access to programs and treatment and operate at varying security levels (minimum, medium, maximum).
  2. Provincial/Territorial Institutions: House individuals serving sentences of less than two years (often remanded). These institutions, especially maximum security ones, can have very poor conditions, with 60% of inmates on remand.
  3. Intermittent Sentencing: This is a middle-ground approach for offenders sentenced to 90 days or less, allowing them to serve time on weekends to maintain jobs and care for family.
  4. Conditional Sentencing: An alternative form of incarceration that allows offenders to serve time in the community under strict conditions, including house arrest, electronic monitoring, and mandatory drug tests. Eligibility for such sentences depends on the judge's determination that the individual is not a threat to public safety, but they are used in less than 5% of cases and may bring harsher consequences if conditions are violated.