THE JUSTICE SYSTEM? LESSON & BIG IDEA

“In most parts of the world,” Angela Davis writes in the introduction to her book Are Prisons Obsolete?, “it is taken for granted that whoever is convicted of a serious crime will be sent to prison”.  But why? Do prisons make anyone safer? Do prisons bring about justice? This is a particularly important question for those of us interested in social justice, defined by Janine Brodie as a project centred on the always-shifting values of equity, fairness, and inclusion. In this lesson we will consider three arguments for prison abolition.

1. Prisons do not make anyone safer

First, we will consider whether prisons make people safer.  Canada has a large population of prison inmates: per 100,000 people, 107 people are incarcerated in Canada as of 2017.  While Canada’s incarceration rate is lower than the United States, Britain, and Australia, it is much higher than countries in western Europe.  Between the 1980s and 2015, the proportion of Canadians in prison grew dramatically. In the past five years, the population of federal prisoners in Canada has dropped by about 8%. Yet, as the John Howard Society reports, the number of people in provincial remand centres is increasing, rates of incarceration in women’s prisons are on the rise, and federal and provincial government spending on prisons continues to increase.  For example, in 2018, the Government of Canada spent $2.4 billion on prisons, an increase of 20% since 2004, whereas provincial spending increased 50% to $2.45 billion in the same time period.  Between 1998 and 2017, crime rates dropped by 36%. Why is it that rates of incarceration are not dropping at a similar rate? 

In fact, as Robert Nichols explains, “there is little connection between crime and punishment in North America”. Of the rapid expansion of prisons in the 1980s in the United States, Angela Davis (2003) writes: “larger prison populations led not to safer communities, but, rather, to even larger prison populations” (12). Changing patterns in incarceration do not mirror changing patterns in crime rates.  In the Canadian context, former Conservative Prime Minister Stephen Harper embarked on “tough on crime” measures even though Canadian crime rates had not been lower since 1973. In the midst of falling crime rates, Harper’s government passed Bill C-10, introducing mandatory minimum prison sentences for drug offences, and harsher penalties for violent crimes. Legal experts warned that Bill C-10 prioritized the goal of putting more people in prison over measures to reduce crime, such as mental health care and poverty reduction strategies.

2. Populations marginalized by racism are overrepresented in prisons

A common argument for abolishing prisons is that Black and Indigenous people are overrepresented in prisons.  In the American context, Black people make up 12 percent of the population, but 33% of the prison population.  Black feminist scholars in the U.S., notably Ruth Wilson Gilmore and Angela Davis, describe the prison system as a continuation of slavery. Ava DuVernay’s 13th explains this argument.  In Canada, Indigenous people are over-represented in prisons, comprising around five per cent of the Canadian population, but representing over 30 per cent of the total population of federal prison inmates.  When it comes to federal women’s prisons, Indigenous women make up 42 percent of those incarcerated.  This means that the overrepresentation of Indigenous women is even higher than Indigenous people in general.  In a January 2020 statement, Ivan Zinger, the Correctional Investigator of Canada, said: “The Indigenization of Canada’s prison population is nothing short of a national travesty”. Black people are also overrepresented in Canadian prisons. At 9.3 per cent of the total federal prison population, the Office of the Correctional Investigator (OCI) reported in 2012 that Black people were the fastest growing population in Canadian federal prisons.  

Such critiques of the overrepresentation of particular populations are important, but political theorist Robert Nichols challenges scholars invested in social justice, anti-racism, and decolonization to think beyond arguments for prison abolition that focus on the overrepresentation of particular populations. Critiques of the overrepresentation of Black and Indigenous peoples in prisons, Nichols explains, imply that prisons could potentially be fairer or more just if they resembled the population at large more proportionately. That is, arguments about overrepresentation imply that prisons themselves are not the problem, but structures of racism, colonialism, and marginalization that lead more people of particular groups towards criminality are the problem.  Instead, Nichols asks us to consider the ways the justice system itself perpetuates racism, colonialism, and marginalization. 

Prison abolition is possible 

Finally, the third argument for prison abolition is that prison abolition is possible. It is difficult to imagine a world without prisons, but just because prisons are the primary form of punishment does not mean that it is normal to imprison people.  Prisons are not inevitable — not all societies view imprisonment as the best form of justice.  For example, the Canadian prison system is fundamentally incompatible with Indigenous legal and justice systems.  “Why do we take prison for granted?,” Angela Davis asks. 

In this video from Democracy Now!, Professor Ruth Wilson Gilmore explains the case for prison abolition. Wilson Gilmore defines abolition as a process that requires changing dominant ways of thinking about “prison and punishment as solutions for all kinds of social, economic, behavioural, and interpersonal problems”. Prison abolition, she argues, involves a fundamental reorganization of how we relate to one another, requiring a prioritization of approaches to community and social justice that value all forms of human life. Finally, Wilson Gilmore points towards transformative justice as a different way of thinking about justice that focuses on reducing harm. 


BIG IDEA: Restorative and Transformative Justice

There are alternatives to retributive justice, which focus on identifying the appropriate form of punishment when someone commits a crime.  Retributive justice is intuitive to many: if someone does something bad, they should be punished.  We tend to think that it is important to punish someone who does something wrong, even if we know that punishing someone does not make them less likely to commit an offence in the future.  Alternative approaches to justice recognize that prison often cements a person’s identity as a ‘criminal’ instead of providing a path forward.  This lesson considers two alternative models: restorative justice and transformative justice. 

In a report prepared for the Department of Justice, Larry Chartrand and Kanatase Horn define restorative justice as an “approach to crime and conflict that brings the victim, the offender, members of the larger community, and oftentimes professional service providers together in a non-hierarchical setting in order to collectively address a harm that was committed and to set a path towards reconciliation between all relevant parties” (3-4).  Restorative justice emphasizes healing and repairing relationships and accountability.  Many Indigenous communities prefer restorative justice processes like healing circles or sentencing circles to the retributive Canadian criminal justice system. Indigenous legal traditions cannot be reduced to restorative justice — they are much more complex and diverse —  however, Indigenous legal traditions are compatible with restorative justice approaches focused on healing from conflict, reconciliation, and preventing further conflict. 


Like restorative justice, transformative justice offers an approach to justice that goes beyond retributive approaches that segregate people in prisons. Transformative justice empowers community members and individuals instead of state institutions such as the police, the legal system, or governments. Toward Transformative Justice, a handbook created by generationFIVE, describes transformative justice as an approach that:

  • focuses on preventing harm
  • prioritizes healing when harm has occurred
  • and seeks to transform the social conditions that have given rise to conditions that enable violence and harm in the first place

This requires an analysis of forms of social and economic marginalization that cause people to turn to violence. Transformative justice challenges power relations that give rise to violence, educates communities on ways to prevent violence and harm, focuses on ways to avoid re-traumatizing survivors, and prioritizes community organizing for social change.  A transformative justice approach wants everyone to be free from racism, poverty, gender discrimination, homophobia, transphobia, and other forms of marginalization.  Thus, transformative justice requires thinking beyond and outside of dominant approaches to justice that focus on retribution and punishment.  From this perspective, social justice is an alternative to retributive justice. As you watch this video on transformative justice by the Barnard Centre for Research on Women, think about how transformative justice is related to social justice.

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