Youth Justice

Youth Justice and the Upcoming BC Election

By Alana M. Abramson
May 2009

Title: A Race to the Punitive Finish Line? BC Politics and the Call to Punish in the Name of Community Safety

Background
In the days leading up to BC’s provincial election, many citizens watch political party leaders make their case to voters through radio, television, public appearances, and other forms of electronic media. As citizens watch and listen, there is much left unsaid about the ideology behind election promises. By examining electoral platforms, it seems clear that there are assumptions made about “what works” in dealing with crime. Although not based in sound research or ethics, the call for harsher punishment for offenders is heard far and wide with much support from the voting public. But when is enough punishment, enough? How do we measure the impact of these “get tough” policies for reducing crime? These and other questions must be considered as we go to the polls in this election, and in subsequent elections, or else we all join a mindless race to the punitive finish line.

What is the connection between this issue and the law and social justice? 
In writing about Punishment and the Spirit of Democracy, George Kateb (2007) notes that “the core of punishment is the deliberate infliction of pain on a human being” (269). While many Canadians will deny this simple definition in favour of words like “consequences,” when an act is responded to by another act that intends to cause discomfort, we are punishing an individual for their actions usually with the goal of deterring future similar behaviour or “sending a message” to others. Although Canadian society has moved away from most physical forms of punishment, the idea that offending behaviour must be met with a punitive consequence is alive and well in our courts, our homes, and our schools. In fact, even if we punish and it does not change behaviour, we apply more of the same in the belief that added pain will deter through making the consequence of breaking rules too painful to bear. Embedded in this thinking is the idea of rational choice and hedonism – that we all have an equal opportunity to calculate the costs and benefits before acting. From a social justice perspective, we are anything but equal in having this freedom to choose.

For example, despite their physical and emotional vulnerabilities, children are one of the last groups that lack legal protection against punishment which involves physical assault. In 2004, the Supreme Court of Canada ruled that physical force can be used to “correct” a child “where the use of force is part of a genuine effort to educate the child, poses no reasonable risk of harm that is more than transitory and trifling, and is reasonable under the circumstances.” The belief that physical punishment will change behaviour is so strong that the Courts have allowed it to continue, although there is no empirical research to support this notion.

As children get older, though, they get larger in size and more difficult to control through “reasonable physical force” and, therefore, other responses are needed. Families and governments alike have found other ways to punish such forms of social exclusion (time-outs, suspensions, youth prison) and responses that produce shame like garbage duty. This reliance on punitive approaches have meant that children learn that “good” behaviour produces rewards and “bad” behaviour, when detected, is responded to with punishment. This system of rewards and punishment has been found ineffective in changing behaviour in the long-term and results in young people and, later, adults who act or fail to act out of fear of a punitive consequence rather than because they have tapped into their own moral compass. As children age, we expect “better” behaviour as we assume that they should “know better” and indiscretions committed after 12 years old are punishable not only by parents but now by law.

Although there is no evidence to suggest that a 12 year old is more developmentally or morally responsible than a younger child, the Canadian Criminal Code is not used as a form of behavioural control. The penalties for certain acts can now be carried out by the government and the impact on their future is long-lasting in terms of many aspects of life from job prospects to self-esteem. This is a clear example of how pervasive the idea of punishment by government is. The idea that children as young as 12 can have their behaviour monitored through the use of law and sanctions is one not critically analyzed or even questioned in most political circles. In fact, some parties believe the Criminal Code should be applied to even younger children and the penalties for youth who cause harm should be equal to adults who commit the same crimes.

The call in this election and so many in the past has been, by almost all parties, is for “crackdowns” and tougher laws and enforcement policies for children and adults. The near universal buy-in to punishment as a just, effective, and morally appropriate response to harm-doing in our communities should be a source for grave concern amongst social justice advocates. Not only is punishment used without question, it is used without consideration on how it affects those in society more disadvantaged. The overrepresentation of Aboriginal people in our justice system is a devastating example of this. As institutions rely on a rewards and punishment based model for affecting behaviour, Aboriginal people are being punished in prison and by other systems as a result of victimization they suffered through colonization. Rather than exploring the underlying needs of our citizens, we rush to punish in pursuit of conformity to rules.

If justice is only measured by how many police we have on the road and how many years someone is sentenced to in prison, the pursuit of finding meaningful justice is severely constrained. A glance to the United States and its overreliance on prison as a form of social control is the best example of how punishment has failed to keep society safe. However, the main two political parties in BC race each other to see who can be more punitive in terms of locking people up. In fact, one party promises, if elected, to build a new maximum security prison in the name of ensuring “safe communities.” William Godwin, an 18th century political philosopher, said that rather than relying on punishment for moral education, “individuals and communities should strive to overcome the need for punishment, not to institutionalize it” (Smith, 1998, 99). By giving up power to external forces to issue punishment, we have lost our ability to deal with conflict and harm creatively. Nils Christie (1977) would suggest that our conflicts have been “stolen” by professionals and this has diminished our desire and capacity to be able to looks for other ways to do justice beyond the status quo of punishment.

Reliance on punishment teaches us that the person who holds power gets to punish and those that have less power are subject to this fate. Rather than exercising restraint in meting out punishment, the main political parties in this province are urging an even greater use of punitive sanctions in the effort to deal with complex social problems like gangs and guns. As we consider what platform to support in this and future elections, we must critically examine this unquestioned call to punish. In failing to do so, we will continue down the path of the use of more severe forms of punishment that will perpetuate harm and inequality in society. The cost of punishment is high so we must ensure that we understand the individual and societal impacts of these actions and ask ourselves if we are willing to pay the price. Perhaps there are alternative responses that can create the long-term change and address the underlying and overarching reasons people harm one another.

Questions to consider: 
Is punishment an effective and moral response to harm-doing in our society?
Does punishment have the intended effects on behavioural change that we are looking for? What kind of learning does it contribute to?
How comfortable are we in allowing government to have a monopoly over issues of meting out justice when its main tool is retributive justice?
Who in society is affected most negatively by our systems of rewards and punishment?
How are the root causes and structural reasons for harm-doing accounted for in a retributive justice model?
What are some alternative philosophies to punishment? In what ways do they show promise over relying on retribution?

Resources for further exploration

http://www.bcliberals.com/media/FULLPLATFORM.pdf

http://www.bcndp.ca/why-ndp/BCNDP-platform-2009

http://www.greenparty.bc.ca/greenbook

http://www.canadiancrc.com/Child_Abuse/Supreme_Court_Case_Spanking.aspx

Christie, Nils. (2000) Crime Control as Industry (3rd Edition). New York: Routledge.

Christie, Nils. (1977) “Conflicts as Property,” British Journal of Criminology, Vol. 17, No. 1, pp. 1-11.

Gilligan, James. (2000) “Punishment and Violence: Is the Criminal Law Based on One Huge Mistake?,” Social Research, Volume 67, Number 3, Fall. Pp. 745-772.

Kateb, George. (2007) “Punishment and the Spirit of Democracy,” Social Research,
Vol. 74, No. 2, pp. 269-306.

Smith, Polly Ashton. (1998) “William Godwin’s Moral Education Theory of Punishment: Is it a Restorative Approach to Justice?” Contemporary Justice Review, Volume 1, Issue 1, pp. 87-101.