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Spring 1986    Vol. 15 No. 1    pp. 32–39 

Justice and the Modern Penal System

John Konrad

It is common to hear criticisms concerning the manner in which the criminal justice system functions in our present society. Our permissive and hedonistic society, it is said, has led us to become “soft” on crime. We are told that the police are often powerless to act and that the courts are little more than a charade of actors playing out their legal games. Civil and human rights abound to provide excessive protections to the guilty and blatant disregard for the victims of crime. We mollycoddle prisoners who enjoy the comforts of graduate schools of crime. These and other indictments are common-place and, indeed, often popular. At the same time, we are told that our system of justice excels any other developed in modern history. We are governed by law, which is enforced with equity regardless of race, color or creed. Law enforcement and the judiciary are free of corruption or favoritism and the correctional system is more enlightened and humane than any preceding it.

. . . the community cries out for a helping hand; the offender and victim cry out for a friend . . .

Cynic or believer? Or do we find ourselves supporting either view, depending on the most recent media headline or perhaps {33} our own experience? Justice is ultimately a very personal matter. When a wrongdoer is severely punished, we say justice has been done; when a police officer uses his discretion and I receive a warning rather than a citation, I also say justice has been done, perhaps even in greater measure.

It has been said that the penal system acts as a bellwether in terms of the quality of justice in society. Our prisons act as a focal point of all that justice symbolizes. They have been called the “butt end” of our criminal justice system and as such provide a measure of how we ultimately deal with those who offend us.

In approaching the subject of “Justice and the Modern Penal System,” I will attempt to provide some general historical antecedents in order to place the major issues facing us today in a context that makes some sense. I will take the liberty of a few special comments on parole, an area of penology I am currently involved in, and conclude with some challenges that have particular relevance to the community of faith in our day.

MAJOR MODELS OF CORRECTIONS

In order to examine intelligently the major philosophical orientations that have guided the modern penal system, it is important to acknowledge that the use of prisons as a place of confinement, as the penalty for wrongdoing, is of relatively recent origin. Historically, the two major purposes served by prisons were, firstly, to hold the accused person until the trial proceedings were completed (the function we today call “remand custody”), and secondly, to hold the convicted person until the punishments were meted out. In the latter case, the punishments were swift and often final. They included execution, dismemberment, public floggings, branding, the stocks and the pillory and other similar sanctions that today we would generally classify as “cruel and unusual punishment.”

It was primarily in the late 18th and early 19th century that confinement in prisons came to be used as the punishment. Ironically, the use of confinement or incarceration in its modern evolution was viewed essentially as a progressive reform based on a desire to enhance and promote humanitarian ideals in contrast to the use of more barbaric forms of punishment of earlier times. Today, the use of long term confinement in prison has itself become known as one of the most severe and debilitating forms of punishment used by society.

In any discussion of modern penology the focus is almost {34} exclusively on the use and effectiveness of prisons. The word “penal” is defined in the Oxford Dictionary as an adjective, and is essentially “of punishment . . . hence penalty.” And while we think firstly of prisons when we talk of punishment, we need to be reminded that modern penology includes a wide range of sanctions, penalties and consequences in addition to incarceration that the court can invoke or impose in response to illegal behavior. The full range of sanctions available to the court is embodied in our present day in a number of programs which have come to be known as “corrections.” While the term corrections emerged as a specific philosophical approach to dealing with offenders, it has now come to be used to describe the programs through which the sanctions of the court are carried out. While varying over time, many of the programs are community based and seen as a preferred alternative to incarceration.

Although very general and certainly simplified, I will describe the evolution of modern correctional thought and practice by the use of four concepts that represent the major philosophical orientations of the past two centuries.

Penitence

The origin of modern day penitentiaries was one of those progressive reforms which, in its day, was essentially humanitarian in nature and intended to replace the excessive forms of punishments already referred to. Penitentiaries were first established in the United States in the late 1700’s when reform-minded Quakers introduced the notion of penitence as a means by which offenders could be reformed. The ideas of solitude, of contemplating the evils perpetrated and of making confession were prevalent. This activity was accompanied by isolation and by hard labor, which similarly was thought to have redeeming qualities. During this period, much of the hard labor was performed in public view (as in chain gangs), which was intended to act as a deterrent to the offender and others by instilling humility, a quality appropriate to penitence. Though one might be pleased that the believing church was very much in the forefront of this development, we have to recognize that the place of penitence in our prisons today is minor indeed, though not absent altogether. The essential elements of this philosophy guided penal thought, however, for a good many years.

Punishment

With the modernization of the penitentiary system, the religious {35} influences diminished. We could describe this process as the secularization of prisons much as we talk of the secularization of society generally. At the same time the activities of hard labor were moved from public view to the confines of the prison buildings or grounds. Partly, this was due to objections from the community claiming that prisoner labor was unfair competition in the market place. Prison labor then became a way to try to make prisons economically self-sufficient. It is during this period (late 18th to early 19th century) that the prison system became increasingly closed to public view. In some respects (although no doubt an overstatement), this period can be described as the “dark ages” of the modern penal system. Out of public view and with a diminished religious influence, excesses grew in the arbitrary and raw exercise of power and authority by prison administrators. This development resulted in a counter-development known as the “prison sub-culture” developed by the prisoners themselves. While the sub-culture was similarly characterized by excesses, it was essentially motivated as a survival strategy. This dichotomy of interests between the keeper and the kept has plagued modern corrections for decades and to this day is a predominantly destructive force in our institutions. To use a turn of phrase, it was during this period that we refer to the use of imprisonment not “as punishment” but rather “for punishment.”

Rehabilitation

The post war era brought new hope in many areas of life, including the penal system. Economic growth was accompanied by an optimistic view of life and, at the same time, major advances were made by the social sciences in understanding human behavior and social interaction. These influences reached into the closed prison system described earlier but were also the predominant force behind the development of alternative methods of dealing with offenders. It was in this context that the use of probation and parole came into their own as viable alternatives to incarceration. As mentioned, however, the major change that occurred was again in the prison setting where the social science influence resulted in the development of treatment programs in support of “rehabilitative ideals.” These efforts were extensive and buoyed up by the optimism that human behavior and attitudes could be changed, if only enough of the right treatment was provided.

Two major problems plagued these efforts. One was that the {36} prison setting itself was so overwhelmingly negative that it was hardly the environment in which rehabilitation could effectively occur. Secondly, the treatment modalities were essentially paternalistic, making the offender the object, rather than the subject, of treatment.

While such treatment activities continue to some degree at present and are useful in many respects, they can no longer be held up as the means by which offenders will be rehabilitated and returned “whole” to society upon release from custody. The rehabilitative notion as the major focus of prison programs has therefore been largely abandoned and in an age of fiscal restraint is unlikely to be resurrected. In any case, practitioners agree that the best prospects for rehabilitation will occur in the context of community based programs.

Reintegration

If there is a coherent concept that can describe the present day philosophy of corrections, it is the reintegration of the offender into society. While this often refers to the process of the offender’s return to the community from incarceration, it can also include any attempt to facilitate the resolution of conflict, provide opportunity for reparation or amends to the victim, instill a sense of responsibility through community service or, indeed, provide treatment aimed at removing or alleviating the causes of crime.

The mandate of correctional administrators, then, focuses more specifically on the provision of opportunities in which reintegrative efforts can be carried out and on motivating offenders to utilize those opportunities. Admittedly, the most effective use of such opportunities are limited in prison, though temporary absences are often used with good effect for motivated inmates to take advantage of such programs in the community. Involvement in such activities are intended to instill and enhance a sense of responsibility on the part of the offender both toward himself and others. The penalty of the court is represented essentially in the loss of freedom implicit in the prison term or the obligations or conditions placed on the offender. The objective is to provide opportunities in which the offender can exercise a reasonable degree of decision making, thereby enhancing personal responsibility and accountability. “Responsibility cannot be acquired intellectually, but only through experience.” 1 {37}

Parole

The major focus of the public debate on corrections at present is centered on parole. While this debate is raging in Canada, it seems now to be almost spent in the United States, where parole is experiencing a comeback in substance and function, if not also in name.

Parole, as a concept of early release from prison, commenced during the “punishment” era identified earlier. In that context, it was seen essentially as humanitarian in nature and was used predominantly as an exercise of executive clemency. It was intended to ameliorate the excessive hardships of imprisonment, especially to deserving inmates who would be unreasonably debilitated by prolonged incarceration.

During the “rehabilitative” period, parole came to be viewed more as a reward for good and industrious behavior and as a normal sequel to the treatment objectives having been accomplished in prison. Unfortunately, the rehabilitative approach was characterized by a strongly paternalistic attitude to treatment and release plans were often marked more by manipulation than commitment.

In the context of the “re-integration” model, parole attempts to reinforce the concept of personal responsibility and initiative. While the elements of clemency and reward are still present to a degree, the major focus is on the desire and commitment of the offender to become reintegrated into the community. By definition, parole is a mechanism whereby a portion of the sentence of imprisonment is served in the community under specified terms and conditions, including supervision. Supervision includes control and surveillance, but also advice, counsel and assistance. The assistance available to the inmate is heavily reliant on services, resources and programs in the community. Often these are specifically developed to meet the needs of offenders.

PRESENT DAY CHALLENGES

Notwithstanding some of the changes of the past, few deny that our justice system and our penal system are in need of further reform. In Canada, this is symbolized most strongly at present by the federal government’s commitment to a comprehensive review of criminal law, major projects of which are the Correctional Law Review and the Sentencing Commission. The potential tragedy is that we might make only minor refinements to the present system or that we simply re-invent policies or {38} programs of an earlier era under the guise of new names. We need to be more courageous in our approach to change.

I would like to identify two areas in which change is critical. The first one is essentially philosophical in nature and is based on the biblical concept of reconciliation. Our justice system has been permeated throughout by the adversarial model that characterizes our judicial process. The objectives for which this model were introduced were no doubt laudable and in all likelihood eliminated other and greater evils such as arbitrariness, excesses and even vengeance. The prevalence of the adversarial mentality, however, has pitted police against citizen, counsel against witness, guard against inmate and society against the offender. We must re-affirm the values of reconciliation as the only ones through which conflicts in the community can be resolved. 2

Reconciliation is first and foremost an action, and one that requires effort and commitment on the part of all parties to the conflict. It is less a question of what will be done to someone, and more a question of what people will do together. This is not a softening of consequence. Indeed, it is placing responsibility where it belongs and holding people accountable. Any offender, or inmate for that matter, can tell you that making amends, offering an apology or paying restitution is generally more difficult than “doing time” where all of the basic needs of survival are provided by the efforts of others.

The concept of reconciliation has direct application and impact on each and every step in the law enforcement, judicial and correctional process. But it requires a very radical re-thinking of the basic values that we hold, especially among those of the household of faith. These include affirmation of the value of each human life as made in the image of God and the full restoration of all the parties in conflict, including offender, victim and the community. 3 The challenge in this regard seems focused specifically to those of us working in the system to initiate the process by which such re-thinking can occur.

The second area in which change is critical is perhaps more practical. It has to do with the involvement of those of us who are essentially third parties to the conflict, the so-called disinterested bystanders. We must not allow justice to remain the sole purview of the professionals. How can our involvement have meaning?

While upholding justice, the Scriptures are consistent in {39} proclaiming that justice must be tempered with mercy. And herein lies our salvation. If we relied only on justice, all of us would be found wanting. It was for the purpose of demonstrating mercy that Jesus gave his life, and he asks no less of us. The officials in the criminal justice system all have their mandated responsibilities, which in essence is “doing justice.” This includes, among other things, meting out punishments, some of which of necessity are severe. But where justice is done, mercy must follow and where justice is severe, mercy must abound. Otherwise reconciliation and restoration will seldom if ever occur. 4 God has given to us the ministry of reconciliation (1 Corinthians 5:11-21).

CONCLUSION

What does all of this add up to? What really can change in a system that is characterized by all the intransigent elements of any bureaucracy with its vested interests and longstanding traditions?

Essentially, we, and our attitudes must change. Until this happens, little else will. For those of us working in the system, the challenges are particularly great. We must re-examine both the way we think as well as the way we do things. For the community itself, and particularly the community of faith, the challenge is to become involved. The needs in the community cry out for a helping hand, and the offender and victim cry out for a friend. Each of us can help to temper justice with mercy “. . . and so (also) fulfill the law of Christ.”

NOTES

  1. Paulo Freire, Education: The Practice of Freedom (London: Writers and Readers Cooperative, 1976), p. 16.
  2. Kathleen E. Madigan and William J. Sullivan, Crime and Community in Biblical Perspective (Valley Forge: Judson Press, 1980), pp. 71-77.
  3. The Church Council on Justice and Corrections, Submission to the Canadian Sentencing Commission (Ottawa, 1985), p. 2.
  4. John W. Ekstedt, “Justice and Mercy: The Interaction of the State and Its Citizens,” keynote address at “Impact 84” Conference (York University, Toronto, June 1984), p. 12.
John Konrad is chairman of the Board of Parole of the province of British Columbia.

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