How a society responds to and deals with its members who break or fail to follow its most basic rules is often rooted in its history and cultural values.
Canada’s background is intimately tied to British traditions and practices in light of our history as a colony from the 1760’s up to the 20th century. In English history, crimes were thought of as serious acts committed against the King (or, on the rare occasion of having a female monarch, the Queen) and his efforts to keep peace among his peoples. As a result, criminals were punished severely in order to spread the word that such misconduct would not be tolerated. For centuries, minor crimes such as theft, poaching, and counterfeiting and forgery were punishable by death. (In 1805, a man was hanged for using a forged ace of spades in a card game). Other crimes brought gruesome public punishments such as drawing and quartering. Even when officials began restricting death and torture to the most serious offences, those punishments were often replaced by “transportation” – forcibly removing the convicted person to Australia or other British colonies. All of this was in the hope of ensuring that anyone tempted to engage in criminal behaviour would be persuaded not to do so.
While some of the more extreme punishments had been abolished by the time the British were colonizing North America, the theme of harsh responses to any form of criminal misconduct continued (and, I suggest, even now continues). This provides the foundation for our response to criminal misconduct. To this day, “deterrence” remains a recognized goal of the sentencing process in Canada. Deterrence is the idea that by making punishments sufficiently harsh, persons tempted to engage in criminal behaviour will resist that urge, knowing they will suffer otherwise.
The United States and Europe
As is often the case, Canada now finds itself situated on a spectrum somewhere between the United States and Europe in the area of criminal sanctions and punishment.
The United States is infamous for prioritizing punishment of criminals. In many states the death penalty is still permitted and accepted. Imprisonment is often imposed on the basis that the convicted person will never be allowed out of a jail again while they are alive. This could be a sentence of “life without parole” or “consecutive life sentences”. Or it could be a parole date set so far into the future (sometimes over 100 years) that the prisoner will be dead long before that date arrives.
On the other hand, in much of Europe the priority is on the rehabilitation and reformation of prisoners. A 2014 article compared the prison situations in the United States with those of the Netherlands and Germany. The article showed that conditions in those European countries were far more humane, and facilities were modern, properly heated and ventilated, and open. In the United States, prisons are often antiquated, run down and crowded.
Dutch and German prisoners were allowed to enjoy many of their every-day rights. They:
- wore their own clothing,
- made their own meals,
- worked or attended classes in the correctional facility, and
- often were allowed to be away from the institution to be with their families or seek employment.
In American jails and institutions, life is highly regulated and restricted. Prisoners:
- are issued jailhouse clothing,
- eat the meals prepared by kitchen staff (usually fellow prisoners) at the times directed by the authorities, and
- have limited opportunities for schooling or training which will be useful at the end of their sentences.
In the United States, even non-violent prisoners are often sentenced to very long terms of imprisonment. The use of mandatory minimum sentences is frequent.
The Situation in Canada
In many ways, the Canadian situation tends to follow that of our American neighbors, especially where the need for security is considered high. In high- and medium-security institutions, prisoners wear prison-issued clothing and all activities are closely regulated and supervised by prison staff. Security conditions are usually very restrictive. Some of our penitentiaries still use fairly old buildings. (Part of Stony Mountain Institution outside of Winnipeg was built in the 1870’s, and Dorchester Penitentiary opened its doors in 1880. Both are medium-security institutions with minimum-security facilities attached.)
However, as the need for security decreases, the opportunities for both formal and informal efforts at rehabilitation increase. Over the years, some of Canada’s minimum-security institutions have attracted attention (and sometimes political criticism) for the relative lack of supervision and amount of freedom granted to inmates. The descriptions of the Dutch and German prisons mentioned in the 2014 article could well match Canadian minimum-security facilities.
Aboriginal Concepts of Justice
Perhaps one of the starkest examples of a difference in how societies respond to wrongdoing and misconduct by their members can be found within Canada itself. We can compare our approach to punishment over the last 200 years with how Indigenous cultures and groups dealt with and addressed similar problems before the imposition of English-based laws and punishments.
As was common in other tribal settings around the world, the focus among Aboriginal communities in Canada was healing and reconciliation between the persons in the community most directly affected by the misconduct of an offender. This is referred to as “Aboriginal concepts of justice”. (I caution the reader that in such a brief article as this, I can only offer generalized descriptions. We must remember that among the many Indigenous groups across Canada there existed differences – sometimes fairly significant – in how misconduct was dealt with and addressed.)
Aboriginal societies usually placed less emphasis on concepts of punishment and instead attempted to ensure reconciliation between the offender and persons harmed by the misconduct. Such an approach was often necessary to preserve peace and unity within the community, whose long-term survival depended on harmony and cooperation among its members.
In at least some situations, the group’s response to bad conduct was made by consensus among all members of the community. Sanctions could range from ridiculing the person and subjecting them to public shaming for their bad behaviour, through to requiring the offender provide restitution of some sort to victims. In some groups, theft was sometimes punished by allowing the victim and their family to take as much as they could carry away from the home of the thief.
In some situations, the sanctions were born by the entire family of the offender. And depending on the wrong done, sometimes the entire family of the victim was entitled to compensation of some sort. For example, sometimes when a murder had been committed, emphasis was placed on atonement and reparations on a family-wide basis. This was done to hopefully avoid a long-term blood feud between the families which would have had more devastating results for the survival of the entire community.
If a murderer (or their family) refused to abide by the group’s decision as to how to make amends, more extreme measures, including violence and banishment, might be used to protect the overall well-being of the society. If the offending behaviour was serious enough and the survival of the group placed at risk, the community might have decided banishment and even death was appropriate. These steps were not taken as a form of punishment or retribution for the wrong-doing. They were more often considered necessary if the tribal group was to survive together over the longer term.
Time for Change
While the Canadian-English belief in deterrence to prevent crime has many supporters – and while it likely does work to reduce at least some misconduct – one has to wonder whether a healing-focussed approach would be better in the longer term. In many cases, imprisoning offenders – and especially Aboriginal offenders – in harsh conditions in a facility hundreds or thousands of kilometers away from their homes and community support leads to more harm than good. Family relationships are disrupted, children grow up not knowing their parents, and offenders often return home angrier and more hurt than before. Without effective support and help to avoid further criminal behaviours, the offenders often relapse into their old habits and sooner or later return to prison to serve another sentence.
In recent years, Canada has started to examine whether there might be more appropriate and effective responses to criminal conduct. We have begun to look to our Aboriginal communities and traditions for ideas of more meaningful solutions to reduce re-offending rates, not only among Indigenous offenders but across all sectors of society. It is clear that harsh punishments have not worked particularly well. It is time to examine more of a healing-based approach to repair the harm done to our communities by on-going criminal misconduct.
AUTHOR’S NOTE | A true comparison of correctional systems around the world would take many more words than available for this short article. The above are simply generalized comments and observations about corrections in Canada, Europe, the United States and Aboriginal societies. Sources consulted in preparing this article include:
- “6 Reasons Why Prison Is Better In Europe Than America” by Erin Fuchs, published May 31, 2014 in Business Insider Australia
- Report of the Aboriginal Justice Inquiry of Manitoba by the Aboriginal Justice Implementation Commission, November 1999
- The World Until Yesterday: What Can We Learn from Traditional Societies? by Jared Diamond
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The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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