Lets Talk About Transformative Justice…..YAY!?

In order to talk about Transformative Justice we need to clear a few points first in order to provide some context.

Firstly, The system that we in North America (arguably every inch of planet earth) are engaged in is capitalism.  The “capital” in capitalism is the major leverage point for most interactions outside of personal relations and family contexts (also arguable as I cannot guarantee that you are not a professional son/daughter/mother/father). Distribution of resources in most instances is sealed by social contracts.  A valid contract cannot be entered by an agent under extreme duress but it is pretty obvious that most everyone enter into contracts that are to their disadvantage at some point or another.  For example, working for the crappy wages that most jobs pay, cell phone contracts written in blood, and surrendering first and last months rent for that ground floor apartment that smells like old soup and has the security doors don’t work but you really wish they did .  These elements fall into the realm of Distributive Justice which is backed up by a large body law that has been developed to support the rights of the money holders and to “protect” the rights of the masses.  Do you feel like you are protected?  I sure don’t.

What we can now observe is the evolution of a system that has seen the increasing dominance of the top 1% of earners  while the rest of us have been left out to dry.  We have been sold the individualist dream of rat race resource attainment.  The bar of illusory social mobility has been set high and regardless of statistics that say the bottom 10% of earners have a 0.25% chance of reaching upper middle class, most of us still jump just as high as we can.  People have been stripped of any kind of supportive solidarity and set adrift in a sea of resource scarcity where our successes and failures are ours and ours alone. Scarcity breeds desperation which in turn breeds “crime”.  Resources can include, money, food, health, the absence of fear, system security, and a million other things that fit your individual “needs”.

Image obtained from: http://blog.greens.org

So the stage has been set for the incarceration of the young, the poor, uneducated, racialized, mentally ill, abused and otherwise oppressed portions of our society to fill the majority of our prisons. It is not difficult or far fetched to envision full prisons which utilize our disproportionately taxed incomes for providing three meals a day plus supervision for that one time pot dealer who couldn’t find a job for any of the above mentioned reasons, or for the dad who cheats the welfare system because his part time job at Wal-Mart pays squat and the kids need to eat.  Unless you have killed someone, it is at this point that the system decides how to “fix” you.

Up until recently, alternative programs have pursued a path of “Restorative Justice” where offenders reconcile with victims and the community gets its piece of the action too through the involvement of church groups, and neighbourhood committees, etc.  The ideal end result is the restoration of a criminally deviant individual into a contributing member of society who is ready to go out and pay some taxes while not assaulting or stealing anything.  Sound awesome? Maybe until you consider that these programs are often offered to individuals who forgo due process in favor of reduced sentences and engage with mediators whose supposed neutrality is erased by the fact that the offenders participation has been coerced through system manipulation. The only way for the offender to successfully navigate the process is to engage in language that validates the oppressing system.  The biggest point of consideration here is that an offender is being “restored” through the justice system to a normalized status within a society that is  by its nature unjust.

Relatively recently, Transformative theory has acknowledged these flaws in restorative justice and seeks to remedy its shortcomings by introducing critical analysis of the system that creates the environment within which the crime occurred in the first place.  In this type of model, you can have the same victim/offender/community interaction with a mediator who has no pretense of neutrality but instead serves as a kind of guide where a more complex understanding of the offense and its relations to the victim can be contrasted against a historical and systematic backdrop.  If you consider the percentage of the Canadian inmate population who claim first nations status, an approach that incorporates cultural sensitivity and the acknowledgment (positive) of historical oppression and  different ways of knowing has great potential.  Despite a human factor that is desperately needed in current legal process there are some holes in the practical aspects of transformative theory which negate its potential as a dominant model for justice within the legal system.  Some of the blame for certain crimes should obviously be shifted onto a system that is so stifling to vulnerable populations but until the entirety of the global capitalist system is overhauled this approach to justice seems akin to throwing small stones at a large mountain.  You can make a lot of noise but you’re not going move much.  And worse yet, if you throw that stone just right you might just attract the baleful eye of whatever bureaucrat is in charge of stamping your grant application.  Such is the peril of fighting within the system.

Comments and sharing are always welcome,



9 Responses to “Lets Talk About Transformative Justice…..YAY!?”

  1. Great post, good thinking, and important too.
    I’d like to add one other thought… the prison system is (like many other systems) going through privatization – which is being driven by corporations and the profit moitve. They want to take control, be paid by the states & feds to house prisoners (with a guaranteed occupancy rate) thus making a procit – and then exploit those same prisoners as workers being paid less than minimum wage. This idea (amongst others – such as racial suppression), and its implementation is why we now have the world’s highest incarceration rate. IMO, justice is not possible with this scenario.
    …just a thought

    • Our democratic system (corporate personhood, political funding, privatization of social services, poverty incomes, etc.) assures only the lining of the pockets for the richest and continued injustice for the rest of our citizenry. The 1%’s most important investment is in making sure that we actually believe we are truly free. I suppose that may be a radical opinion, but I see evidence of it every day. I have no faith in our system.

      • Agreed… so the next step is?
        My answer: dismantle the system… I say dismantle instead of build a new one, because the current one will not allow the building…

      • IMO your insights are spot on. Freedom is an illusion. The leash is long but it is still there. And it is only radical in that so many people, for reasons that I cannot comprehend, can’t seem to wake up to see the reality of the situation. I am not implying a rich/poor visioning of reality either. You can take two people of equal social disadvantage and there is a decent chance that one of them will see opportunity while the other will see the barbed wire on the fences.

    • These are good points. The privatization of prisons in North America is an American thing at this point but the corporate wolves are at our gates. Lobbyists from US prison corps have been lobbying for entry into Canada and of course Stephen Harper being the finger puppet that he is, is entertaining the idea. What is funny is that Harpers plans for prison expansion and privatization have been ridiculed by TEXAS of all places. If one of the most discriminating criminal systems in country are shaking their heads, the flaws in the plan have to be obvious and grievous.

      Thanks for the comment!

      • Godo point, but I would ask why is Texas ridiculing? Is it because the plans are still ‘young’ and being fleshed out (to appear to match the people’s wishes)? Or is it because ‘Texas is doing nicely with the use of (exploiting the) resources available, thank you’? Or is it that the $$$ hasn’t crossed the right palms as yet?
        I don’t know, but do wonder… guess I’ll have to research as I get time.

      • I think Texas has been pushing a pro prison for long enough to have seen the down side of mandatory minimum sentences and the criminalization of behaviours and actions that seem frivolous as legal speculation. If you keep locking up all of the poor and marginalized parts of your community people will eventually get pissed. I think the article that I recently took in on this subject had these sentiments expressed by a judge. I had a better reply to this yesterday but my craptop decided to erase it.

      • “…people will eventually get pissed.” About frickin time! Judge too? Great! I am so glad to hear that… 🙂

  2. You’ve figured it out–you’re a smart one. Now, how do we create a thinking and questioning and reasoning, not to mention greed-free, world populace? It’ll be no small task. Thanks for the brain workout, and the conscience check.

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