Criminal Justice and the Principle of Dignity

I work in a government agency responsible for responding to prisoner complaints, and investigating human rights violations in Canada’s federal prisons. I was inspired to write this post after one of my recent visits to a correctional facility. There, I met with a young man who decided that he wanted to end his life. There seemed to be little that I could say or do to change his mind because we both knew that, so long as he remained imprisoned and carried the “offender” label, he would be treated with less regard than an animal. I was overwhelmed by the hopelessness of his situation, so I had to put my thoughts to paper to try and bring some order to my feelings on the subject of imprisonment. 

As is always the case with posts on this blog, I don’t have the benefit of peer review and I don’t really care. I’ve been a little more diligent with my research on this post than I usually am, but I’m certain that there are still many gaps.

“I don’t want to come out of my cell,” he said as tears pooled in his eyes, “I don’t want to look out at that concrete yard to be reminded of the freedom I don’t have.” 

To the world, this young man – this prisoner – is nothing more than a murderer. Yet, in my professional role, I’m required to look beyond all that and to see him as a person with inalienable rights. After all, our expanding knowledge of the universe strongly suggests that this specimen before me is a rare and precious being; a metaphysical wonder of the cosmos; whose very humanness warrants him worthy of reverence and esteem.

Still, the world has reduced him to an eight letter word: Murderer. This label lacks nuance. The story of his becoming is drowned in the brutality of this label. His childhood, his trauma, the antecedents, the event, the poor judgement and loss of control, the rage, regret, depression, self-hate, self-harm, the intolerable torture of an indeterminate sentence – all reduced to one word.

“I’ll never get out of here, I just want to die,” he said to me as he clenched his fists and looked down at his standard issue prison sneakers, “They don’t care about me! Look at me, I’m just a monster to them. I wish we had the death sentence in Canada. My freedom is gone, they won’t even let me choose to die.”

Why do we believe that imprisonment is an appropriate response to crime? What is the purpose of imprisonment?

When imposing a sentence, Canadian courts must consider the fundamental purpose of sentencing as per the Criminal Code: To protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society. The Judge is charged with “imposing just sanctions,” such as a term of imprisonment, to carry out one or more of the following objectives:

  1. to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
  2. to deter the offender and other persons from committing offences;
  3. to separate offenders from society, where necessary;
  4. to assist in rehabilitating offenders;
  5. to provide reparations for harm done to victims or to the community; and
  6. to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

As comprehensive and well-intentioned as these objectives are, some argue that they fail to consider the reality of incarceration. As Queen’s University Law Professor, Lisa Kerr, argues:

…sentencing courts across North America do not consider concerns about the administration or quality of the prison system at the time they impose custodial sanctions. Legal actors ground arguments and reasoning in the language furnished by these fields, but without asking what concepts like rehabilitation, denunciation, proportionality, or just deserts amount to in the institutional realm of sentence administration.

Kerr, L. (2019). How the prison is a black box in punishment theory.

In the same article, Kerr masterfully demonstrates how the punishment theories that underpin contemporary jurisprudence generally neglect, “the topic of prison conditions and administration, how imprisonment can affect individuals in vastly different ways, and the fact that prisons vary a great deal from one another.” In her conclusion, she argues that in order for punishment theory to be more useful to criminal justice reform, “it would have to consider topics like the impact of imprisonment on individuals and the variation across and within penal institutions.”

On the question of how imprisonment impacts the imprisoned, decades of evidence seems to support the “school of crime” theory: the idea that prison does little to reduce the risk of reoffending and might even result in entrenching a person’s criminality.

For Example

Bales, W. D., & Piquero, A. R. (2012). Assessing the impact of imprisonment on recidivism. Journal of Experimental Criminology, 8(1), 71-101; Blevins, K. R., Johnson Listwan, S., Cullen, F. T., & Lero Jonson, C. (2010). A general strain theory of prison violence and misconduct: An integrated model of inmate behavior. Journal of Contemporary Criminal Justice, 26(2), 148-166; Cid, J. (2009). Is imprisonment criminogenic? A comparative study of recidivism rates between prison and suspended prison sanctions. European Journal of Criminology, 6(6), 459-480; Cullen, F. T., Jonson, C. L., & Nagin, D. S. (2011). Prisons do not reduce recidivism: The high cost of ignoring science. The Prison Journal, 91, 48S-65S; Gaes, G. G., & Camp, S. D. (2009). Unintended consequences: Experimental evidence for the criminogenic effect of prison security level placement on post-release recidivism. Journal of Experimental Criminology, 5(2), 139-162; Gendreau, P., Cullen, F. T., & Goggin, C. (1999). The effects of prison sentences on recidivism (pp. 4-5). Ottawa, Ontario: Solicitor General Canada; Mears, D. P., Cochran, J. C., & Bales, W. D. (2012). Gender differences in the effects of prison on recidivism. Journal of Criminal Justice, 40(5), 370-378.

Those who have contributed to this literature include Dr. Francis Cullen, Distinguished Researcher from the School of Criminal Justice, University of Cincinnati, who describes the dynamics of prison life as follows:

…inmates will be exposed to a distinct environment to which they must adapt—either conventionally or deviantly. The conditions of the prison itself will likely remove positively valued stimuli, present negative stimuli, and make it impossible or unlikely to achieve positively valued goals.

 Cullen, F. T., Jonson, C. L., & Nagin, D. S. (2011).

In 1999, Cullen teamed up with esteemed Canadian scholar, Dr. Paul Gendreau to publish a document under the former Solicitor General of Canada titled, The Effects of Prison Sentences on Recidivism. The authors summarized the “essential conclusions” of their study in four unambiguous points:

  1. Prisons should not be used with the expectation of reducing criminal behaviour.
  1. On the basis of the present results, excessive use of incarceration has enormous cost implications.
  1. In order to determine who is being adversely affected by prison, it is incumbent upon prison officials to implement repeated, comprehensive assessments of offenders’ attitudes, values, and behaviours while incarcerated.
  1. The primary justification of prison should be to incapacitate offenders (particularly, those of a chronic, higher risk nature) for reasonable periods and to exact retribution.

In sum, prisons shouldn’t be expected to correct behaviours, they’re damn expensive, and are mostly justified by their ability to segregate truly dangerous people and to satisfy our thirst for blood.

He gestured towards his cold dank cell, “You wouldn’t even treat a dog in this way, look at my life! I’m 25 years old and I’m never getting out – my life is over.” I tried to console him by saying something about focusing on his correctional plan, participating in programs, maintaining good behaviour. Then I told him that it all counted towards his correctional resume. I told him that it would help his chances for parole – I shouldn’t have said that. 

“What the fuck are programs going to do for me? I’m not a criminal! I killed him [his father] because he was torturing me, I was scared! I’ve never done any other crimes before that. What are programs going to do? It’s not like I could kill my dad again! It’s done, Jesus I’m sorry.”

What else could I tell him? Should I have told him that incarceration was necessary, that he got what he deserved? Who determines who’s deserving of such things? Society? Society doesn’t know anything about this man, nor does it care. Society is irrational and self-absorbed, clamouring for blood behind the walls of its own ignorance. The courts? As already explained, the courts make their judgements within a vacuum that fails to recognize the criminogenic effects of prison life. Desert is manifested in terms of “sentence length” and, as Professor Kerr describes, “sentence lengths are influenced by the standard real-world factors: convention, politics and expediency.” Hardly reassuring.

Why do prisons fail to be corrective? Why are they incapable of fostering personal growth and thriving? To address these questions, it seems to me that we have to first think about the underlying principle of human dignity.

Let’s start with Madiba. 

The story of Nelson Mandela should be familiar to most of you. At the very least, we all know that he suffered through a long, unjustifiable, incarceration due to his involvement in South Africa’s anti-apartheid activities. Mandela often described his experience as a prisoner, recounting the “inhumanity of that system.” He said that there was no room in prison for human rights. It was a system “designed to rob each prisoner of his human dignity and which thereby in the end also took away the human dignity of the prison authorities and personnel themselves.” Mandela then goes on to prescribe “a climate that is conducive to prisoners becoming law-abiding citizens. We will not find lasting solutions” he explained, “if we continue to treat our prisoners in the old way, denying them their dignity and their rights as humans.”

Decades later, a body of international stakeholders including advocates, correctional administrators, and subject-matter experts were brought together by the United Nations Office on Drugs and Crime to produce the Standard Minimum Rules for the Treatment of Prisoners. More commonly known as the “Mandela Rules.” These standards set out “what is generally accepted as being good principles and practice in the treatment of prisoners and prison management.” 

The very first sentence of the first Mandela rule is the following principle, “All prisoners shall be treated with the respect due to their inherent dignity and value as human beings.” 

Years later, the Vera Institute published a report titled, Reimagining Prison (October 2018), where they drew extensively from Professor of Human Rights Law at Oxford University, Christopher McCrudden. They argued that the principle of human dignity:

….dictates that ‘[e]very human being possesses an intrinsic worth, merely by being human.’ It includes the recognition of a person’s capacity for self-respect, self-control, empowerment, autonomy, and rationality. It is inviolable—and remains intact even when one breaks rules or engages in criminal behavior while in prison.

McCrudden’s principle of dignity seems rather intuitive or maybe I’m just a fish unaware of the water. The humanistic philosophy that casts the moral net of benevolence to embrace all of humanity (and non-human animals) resonates with me; whether or not it can be posited a priori — a moral truth with an existence outside the mind of Man — is another question altogether. Despite this philosophical quandary, it appears practically useful to agree that human dignity is inviolable and remains intact even when one engages in offensive behaviour because every human:

  • Possesses an intrinsic worth; and
  • Has the capacity for self-respect, self-control, empowerment, autonomy, and rationality.

I sit here and wonder how this principle of human dignity applies to my current situation, outside the prison environment.

I’m currently parked (i.e., I’ve taken up table space with my computer and belongings) at an extremely comfortable cafe in downtown Ottawa. I’m wearing a charcoal woolen cardigan hand knitted in Prince Edward Island, Canada. I sport a beard, my head is shaved, and modest hoop earrings dangle from my lobes. I’m drinking Earl Grey tea, hot (TNG reference). I’m listening to my favourite cerebral music: Bach Concertos. I’m writing on a topic I am passionate about, and have endless access to tools and resources that support my yearning for growth. 

Though it might all seem trivial, these “aesthetics” are part of an ecology of liberty, if you will. This ecology is an open and unbridled space where a diversity of normative values are permitted to thrive, dance, and intermingle. I can then reach out and grab at the strands that suit me, decorate myself as I see fit, and continue my journey with a sense of intention – so long as my actions do not deprive others of their freedom.

In order for this ecology of liberty to function, a certain measure of security and well-being must be preserved. Currently, I feel safe. The people around me, though quirky, frail, and imperfect, are more-or-less prosocial and predictable. My health is relatively good and I’m not burdened by the ubiquitous struggle for survival. I enjoy a reasonable degree of financial security and am surrounded by the support and love of family.

All in all, I feel valued as a human being. I have a sense that my dignity is respected by society and, when it is not, I know that there are avenues out there whereby I can voice my concerns without any fear of reprisal. I hold an intuition that I’m an autonomous agent, responsible to some degree for my actions and the trajectory of my life.

It seems to me that the problem with “total institutions,” like prisons, is that they are incapable of facilitating the human yearning to thrive. Thriving seems to occur when individuals have unfettered access to the great tapestry of culture, knowledge, and beauty. This access allows individuals to determine how and at what pace they wish to strive towards their understanding of the “Good,” or the “Good Life” as it is also known.

Many don’t have access to such things due to circumstances beyond their control. I’ve seen enough of the world to appreciate that any advantage I enjoy is largely the result of luck. An arbitrary role of the dice. In Malcolm Gladwell’s best-selling 2008 novel, Outliers, he posits the following:

…success follows a predictable course. It is not the brightest who succeed […] Nor is success simply the sum of the decisions and efforts we make on our own behalf. It is, rather, a gift. The successful are those who have been given opportunities and who have had the strength and presence of mind to seize them. […] The myth of the best and brightest and the self-made man suggest that in order to bring out the best in human potential we need only identify those with promise, and our work is done. […] When we misunderstand or ignore the real lessons of success we squander talent. […] The world we could have is so much richer than the world we have settled for. […] To build a better world we need to replace the patchwork of lucky breaks and arbitrary advantages that today determine success. […] with a society that provides opportunities for all.

Total Institutions are inherently incapable of providing “opportunities for all.” They often perpetuate the systemic oppressions that work against the disadvantaged. Frankly, facilitating the infinite diversity of approaches to personal growth and betterment, i.e., towards the “Good,” is just damn expensive. Total Institutions target their taxed and limited resources to effect the maximum benefit for the lowest cost: the biggest bang for the buck. Aggregate data determines the bare minimum required to meet a bureaucratically derived standard of sufficiency. The technocratic version of the “Good Life,” perhaps.

In this model, what you need is based on what the average person, distantly similar to you, needs. You don’t need Pan Seared Salmon with a side of Smoked Beet Salad, and Bread Pudding with maple syrup for dessert. All you need is the daily nutritional requirement for the average adult male as per Canada’s food guide. We’ll cook that for you in a centralized factory; flash freeze it in a plastic envelope; ship it hundreds of miles away to the prison; thaw it out in a vat of boiling water; and then dump it onto your tray.

“They are prisoners after all – it’s what they deserve,” is how some would retort. 

Well, if you believe that then I don’t see any point in you reading further. That type of punitive ideology is entrenched and unlikely to be changed by my deficient ramblings. It’s the type of ideology that justifies the degradation of the individual, one enriching book, delicious meal, intimate lover, prosocial friend, beautified space, artistic implement, breath of fresh air…at a time. Over the course of a sentence, the spirit is stripped of self-respect and rationality, empowerment and autonomy, and what remains is a caged and beaten animal. And we all know what happens when you suddenly release a caged and beaten animal. 

To the person who believes “it’s what they deserve,” humans vary in their inherent value. Some are worth more than others. Tax payers have greater inherent value than those who don’t pay taxes, for example. Voters have more value than those who abstain. My grandmother, an honest and decent person, has greater inherent value than Frank, the guy who’s serving time for drug posession. The greater the perceived offence, the lower the value and this line of thinking seems to have no apparent end. Some humans can become so inherently worthless as to warrant starvation, humiliation, torture, and execution. 

How can we really determine what “offenders” deserve? This question is well beyond the scope of this piece, but it is currently the subject of legal scholarship and debate. Kerr quotes authors Antony Duff and Michael Tonry in order to demonstrate the critique that punishment might not be justifiable in the “face of systemic conditions of social inequality” for individuals who “have not received equal treatment in many other aspects of their lives.” She then goes on to discuss the concept of proportionality in sentencing, i.e., the idea that “a sanction must be tied to the severity of the offence…” Indeed, this idea fuels the ideology that criminals get what they deserve. However, according to Kerr:

…it is difficult to apply the concept of proportionality to the issue of sentence length. […] Even if we could agree on how to rank every crime in a scale from least to most serious, the principle of proportionality cannot by itself tell us where to start, or what punishment is deserved, for any single crime.

Ok. If modern prisons accomplish nothing more than the aggravation of criminality and the denigration of a person’s humanity, then what should we do instead?

I think the solution to this mess lies somewhere in the existing criminological discourse. Some propose minimizing the negative effects of incarceration through strategic reforms. For example, years ago the Norwegian Correctional Service adopted the “Normality Principle,” which is described as follows:

  • The punishment is the restriction of liberty; no other rights have been removed by the sentencing court. Therefore the sentenced offender has all the same rights as all other[s].
  • No-one shall serve their sentence under stricter circumstances than necessary for the security in the community. Therefore offenders shall be placed in the lowest possible security regime.
  • During the serving of a sentence, life inside will resemble life outside as much as possible.

This last point was also articulated by Professor Kerr: “To facilitate moral agency, prison life should closely resemble ordinary life in civil society.”

Others prefer an Abolitionist approach, i.e., dismantling the prison industrial complex, wholesale. Although this might seem unrealistic to some, others see it as an inevitable outcome. Nicolas Carrier and Justin Piché quote Herman Bianchi in describing abolitionism as a “symptom of the general human urge to do away with and to struggle against those phenomena or institutions of a social, political or religious nature that at a given time are considered to be unjust, wrong or unfair.” In this light, Prison Abolitionism is no different than doing away with slavery, or the movement towards women’s sufferage, or the elimination of mental asylums. Unjust institutions are arbitrary social constructions that society condones within a particular zeitgeist: We can abolish them as easily as we created them.

Still, others like Norway’s renown criminologist, Nils Christie, fall somewhere in between. Christie made some room for prisons in his worldview to incapacitate those who he saw as “truly dangerous criminals,” though he was wary of our ability to accurately predict “dangerousness”. However, his writings were primarily focused on the nature of human relationships in industrial societies. According to Christie, industry and professionalization have gradually depersonalized areas of human life, which should never have been depersonalized. 

In the criminological context, the offender is severed from society and subjected to the impersonal machine of criminal justice. The gap between society and the sentenced, victim and perpetrator, keeper and kept, have all widened. This “segmentation” has created a situation where the offender becomes dehumanized, and the victims’ yearning for justice is never truly satisfied. According to Christie: “The various forms of segmentation mean that human beings are inter-related in ways where they simply mean less to each other.

To illustrate this last point, Christie proposed the following in response to the question, “Why is our culture fascinated with crime?”

This is so natural. As human beings we are interested in conflicts, it’s the theme for great authors and for ordinary people. But people no longer participate in such conflicts. If we become victims we leave it all up to professionals who are basically fed up. Conflict ought to be participated in by ordinary people, but we are just spectators of crime who now and again cry out for more severe punishment.

But if we come close to the people in prison for punishment we become more doubtful. We become more open to new ways of integrating that person into everyday life. It is very easy to create a monster of a stranger, seen only through the media.

From an interview with Nils Christie dated August 12, 1996.
Published by the Irish Penal Reform Trust.

In my work, I often find myself confronting the very same doubt that Christie described above. Every encounter I have with an incarcerated individual, whether in person or through the review of case files, deepens my belief that these are just humans, not monsters; that crime is an unfortunate and, sometimes, tragic blip on a person’s life-course, and not the expression of a fixed identity. Most importantly, just as this individual’s “criminality” was shaped by social, structural, biological, and psychological forces, it can be reshaped. However, I do not believe that this sort of rehabilitation will occur through the present day model of Canadian criminal justice. 

I’m also starting to side with the Abolitionists on the question of prisons – I feel like it’s time to dismantle them.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s