Legal scholar Herbert L. Packer described two models of the criminal justice system: the crime-control model and the due-process model. The crime-control model focuses on harsh policies, laws and regulations. Its goal is to create swift and severe punishments for offenders. The due-process model, on the other hand, aims to promote policies that focus on individual rights. It tends to focus on fairness, justice and rehabilitation.

The dynamics of the crime-control model continue to reinforce prison as the default response to crime – an approach which is inadequate and deficient. A more restorative-justice/healing process for offenders would help foster human dignity, respect and well-being. That’s why Canada should move away from the crime-control model in favour of a restorative-justice model.

It is important to understand how the concept of punishment is linked to broader social theories and phenomena. Émile Durkheim, a well-known French sociologist, emphasizes how punishment is functional for society as it reaffirms the collective conscience and social solidarity. His theory provides an explanation for how moral panics and the public’s mass consumption of prison images in the media justify prisons and make people believe that they are the only way to deter crime and rehabilitate offenders.

Moving restorative justice into the mainstream

Marxist theory offers a holistic approach to the explanation of social life. It argues that society has a definite structure, as well as a central dynamic, which patterns social practices in specific and describable ways that connect various areas of social life. Marxist theory argues that the way economic and political activity is organized and controlled tend to shape the rest of society. These ideals are different from the legal and technical aspects of punishment, which tend to focus solely on deterring future criminal activity through laws that are retributive.

Retributive laws and policies focus on deterrence, denunciation and incapacitation. The truth is that crime-control, zero-tolerance and harsh policies do not work. The dominant retributive model of justice does not allow for healing the offenders because the purpose of incarceration is solely to punish them. Crime-control policies and harsh punishments lead to the increased racialization of prison populations, as well as the high levels of the marginalized and mentally ill in prisons. Crime-control policies and the punitive model of crime fail to look at how social and economic factors can make a person more prone to offend and ultimately get funneled into the criminal-justice system.

On the other hand, restorative-justice objectives look at how institutional and interpersonal relationships can address the issues of social domination that permeate through class, race, gender, culture, physical and mental ability, and sexual orientation. Restorative justice is a healing process, which focuses on social arrangements that foster human dignity, respect and well-being. The purpose of restorative justice is to address underlying systemic issues, provide victim-offender reintegration, restore harmony and address harm through various legal orders. This system further tries to help those marginalized individuals who are most vulnerable to experiencing discrimination and human rights violations to reintegrate back into society in a positive way.

Although restorative justice tries to move away from the punitive model of justice, there are some criticisms associated with restorative-justice policies as well. Many argue that the ideals associated with restorative justice can be implemented in society only once we start to question norms and alter existing social structures that make crime-control policies and the prison-punishment system necessary in the first place. There is a need for a new system of restorative justice that is based on social and economic justice, respect for all and restoration. Such a system is hard to implement in a social society where power and equality are not equally structured or equally distributed among members of the community. These inequalities and power differences legitimize the use of crime-control policies and the prison-punishment system, and pull the marginalized into the criminal justice system with the use of harsh laws and policies.

Given the failures of crime-control objectives and its exploitation of the most vulnerable populations in our society, Canada should move away from such harsh crime-control policies. We need restorative justice and a radical transformation in the way that we conceive justice and punishment. This is important because inmates need sustainable justice and rehabilitation. Alternative methods are needed to help the marginalized, those suffering from violence, mental health issues and drug addiction.

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Navjot Kaur
Navjot Kaur completed her juris doctorate degree at the University of Ottawa. Before law school, she completed an honours bachelor of arts degree in criminology and human rights and equity studies.
Bavneet Chauhan
Bavneet Chauhan completed his juris doctorate degree at the University of Ottawa. Before law school, he completed an honours bachelor of arts degree in law and society, and a master’s degree in criminology and social justice.

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