What is the role of criminal law in society, and do we need it? How did English criminal law develop? The traditional justifications for criminalisation are retribution, deterrence, containment and control: do they stand up to scrutiny? What are the alternatives to criminalisation, such as restorative and transformative justice? Should we abolish or reform criminal law? How should a just legal system respond to harm and conflict?
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A lecture by Leslie Thomas KC recorded on 20 April 2023 at Barnard's Inn Hall, London.
The transcript and downloadable versions of the lecture are available from the Gresham College website: https://www.gresham.ac.uk/watch-now/criminal-law
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Speaker 1 (00:00:06):
Welcome to the fifth in this series, reimagining the Law. Do we need criminal law? Prisons do not disappear. Social problems, they disappear. Human beings, Angela Davis contrast that with as long as the world shall ha shall last, there will be wrongs. And if no man objected and no man rebelled, those wrongs would last forever. Clarence Darrow, it's an honor to be with you tonight to discuss the future of the law. As we know, criminal law has been a cornerstone of legal systems around the world for centuries. Its purpose is to provide a framework for de defining and punishing behavior that is harmful to society. But criminal law has never been uncontroversial. It's often been criticized for serving the interests of the ruling classes, repressing the poor, meeting out brutality, and disproportionately harming people of color and disabled people. In this lecture, we take a critical look at criminal law and examine alternative models of justice that prioritize repairing harm, addressing the root causes of criminal behavior, and promoting community healing. We explore restorative justice, community based justice and transformative justice models, and consider their or their potential as alternatives to criminal law. We will look at critiques of the criminal justice system, both from an abolitionist and from a reformist perspective.
Far. Finally, we will choose between abolitionism and reformism an attempt to answer the central question, do we need criminal law? Sorry, what is criminal law for
You? See, criminal law differs from civil in that it is punitive rather than compensatory. In a civil case, the primary goal is to compensate a person usually financially for the wrong done to them. By contrast. In a criminal case, the goal is to punish a person to inflict suffering on them by way of retribution. For wrong, they have committed. The deliberate infliction of suffering has always been politically, morally, and philosophically controversial. That gives rise to the basic question, why do we have criminal law at all? Now, <laugh> in 50 minutes, we don't have time for more than a broad, very broad overview of the philosophy of punishment, but broadly speaking, there are two main justifications for criminal punishment. One is retribution based on an idea that the person should be punished for their wrongdoing simply because they deserve to be. The other is consequentialist based on the idea that punishment serves certain social ends. For example, punishment may deter the offender from re-offending. It may deter others from offending. It may incapacitate the offender so as to prevent them from offending again, and it may rehabilitate the offender, encouraging them to change their behavior in the future.
When our judges sentence, they're usually take into account all of these objectives to some degree. In England and Wales, section 57 of the Sentencing Act 2020 tells judges that in adult criminal cases, they must have regard to the following, for the purposes of sentencing, the punishment of offenders, the reduction of crime, including its reduction by way of deterrence, the reform and rehabilitation of the offender, the protection of the public, and the making of reparations by offenders to persons affected by their offenses. Let's now look at some of the criticisms of criminal punishment as administered in contemporary societies.
So critiques of the criminal law, critiques of the criminal justice system can be broadly divided into reformist and abolitionists critiques. Broadly speaking, reformist critiques accept that criminal justice system should continue to exist. In some form, they argue for reforms within the system, such as sending fewer people to prison, greater use of alternatives such as non-custodial sentences and restorative justice, better prison conditions, better funded legal aid, abolitionists by contrast, call for the abolition of the criminal ju punishment. Altogether famous abolitionists include Angela Davis, who wrote the landmark book On the subject are prisons obsolete and Maryam Kaba. In this lecture, we're going to be engaging with both reformists and abolitionist critiques. So without further ado, let's turn to some of the core criticisms of criminal law.
The first is that the criminal justice system overwhelmingly criminalizes the poor, not the rich. It prioritizes the property of the rich at the expense of the lives of the poor. Now, note this, this is no new critique. As Anat France famously said, the law in its majestic equality forbids rich and the poor alike to sleep from under bridges to begging the streets and to still loaves of bread. Hmm. The law itself overwhelmingly penalizes actions that are more likely to be committed by the poor while not penalizing the far more harmful actions of the rich. As criminologists Alex Vitali says in his work, the end of policing the criminal justice system excuses and ignores crimes of the rich that produce profound social harms while intensely criminalizing the behaviors of the poor and non-white, including behaviors that produce few social harms. To take a few examples, a homeless person begging in the street is committing a crime, but the landlord who made them homeless is not stealing a sandwich to feed oneself is a crime, but owning a payday loan company that plunges many families into poverty and hunger is not fly. Tipping is a crime, but owning an oil company that contributes disproportionately to climate change is not.
The second critique, which is closely related to the first, is that poor communities are the most heavily policed and that the state uses policing and incarceration instead of putting in the necessary resources into these communities to solve social problems. Instead of responding to homelessness by providing housing or responding to mental illness and drug addiction by providing adequate healthcare, we respond to both by locking people. Up in his book, Vitali refers to three homeless men who were killed by the police in the United States. Now, he acknowledges that these three men posed regular threats to public order and in some cases public safety. However, he argues that the use of the police to manage those threats was largely ineffective and and ultimately deadly. These individuals were immune to threats of arrest and incarceration, which they had all experienced in the past. You see, the criminal justice system with its emphasis on punishment could not address the underlying and intertwine problems of homelessness, mental illness, and substance abuse that drove to their problematic behaviors. He goes on to point out that it would be cheaper to provide permanent housing and support services to homeless people than to keep on arresting them and jailing them.
Drug abuse is too often linked with poverty. As Vitali highlights, many people involved in the drug industry don't really have a drug problem. They have a job problem. Many others have drug problems that directly stem from the economic conditions they struggle with. There is no way to reduce the widespread use of drugs without dealing with profound economic inequality and a growing sense of hopelessness. A third critique of the criminal law is its dispr disproportionate impact on marginalized communities, most obviously communities of color. Now, I've touched upon this in several of my previous lectures, but let's look at it from a slightly different angle. In the United States Co, it's often pointed out that the history of the criminal law is deeply rooted in the country's long history of exploiting and and criminalizing. Black people, for instance, in her book, are prisons obsolete. Angela Davis talks about how the abolition of slavery in the American South, the convict lease system was instituted in which black people were criminalized and then subjected to force labor in even worse conditions than they had suffered under slavery. Similarly, in his influential book, the New Jim Crow by, uh, sorry, her book Michelle Alexander, she examines how modern day US penal system replicates much of the racism in the former
System of racial segregation. Alexander argues that the US imprisons a larger percentage of its black population than South Africa did in the worst years of apartheid, and that ex-offenders are discriminated against legally for the rest of their lives, including through the denial of the right to vote. She describes the mass incarceration as a racial caste system. The high point of this racial respiratory can be seen on the war on drugs despite similar rates of drug use amongst different racial groups, individuals from minority communities are more likely to be arrested, more likely to be charged, more likely to be sentenced to longer prison terms for drug offenses. Much has been written about the racial dispatches in drug policing in the us. Vitali states that in an American context, drug policing is almost exclusively undertaken in poor, mostly non-white communities across the country. The vast majority of people imprison for drug offenses are black or brown. President Nixon's chief of domestic policy advisor, John um, uh, Nick Mann reportedly told a journalist quote the Nixon campaign in 1968, and the Nixon White House after that had two enemies, the anti-war left and black people, you understand what I'm saying? We knew we couldn't make it illegal to be either against the war on black the war, but by getting the public to associate
Hippies with marijuana and blacks with heroin and then criminalizing both heavily, we could disrupt those communities, could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did. End of quote, but you see, this issue is not a uniquely American problem. By analysis of the liberal Democrats on the Ministry of Justice Statistics in 2021 in this country, this showed that black people were 12 times more likely to be prosecuted for cannabis possession than white people, yet black people, certainly not 12 times more likely than white people to be users of cannabis. The adult psychiatric morbidity survey showed that 11.7% of black adults, nearly 9% of white British adults, and 3.4% of Asian adults used illicit drugs in the past year. There are also disparities in the sentencing stage. Sentencing counts research covering a period from April 20, 20, 20 12 to March, 2015 showed that black and Asian drug offenders were more likely to be sentenced to immediate imprisonment than white offenders. Even after controlling for aggravating and mitigating factors, Asian offenders also received statistically significantly longer sentences than white offenders, although black offenders did not,
And you see race isn't the only vector of oppression in the criminal justice system. Disability is another huge factor. As I, as I've said in my previous lectures in my career, I've encountered numerous cases in which people in mental health crises, particularly black men, have been killed by the police. People with mental health problems and learning disabilities are also overrepresented in the prison population. Thirdly, third critique is that even taking its intended purpose at face value, the increased harshness of sentencing in recent decades does not achieve those purposes. Earlier we looked at the core consequences, consequential rationale for punishment, deterrence, incapacitation, rehabilitation. This is in a context where sentencing has become substantially harsher. Over the past 50 years, the rate of imprisonment in the US skyrocketed between the 1970s and the two thousands increasing by over 500%, although it has since declined somewhat. The rate of imprisonment in England and wells per capita is significantly lower, but has also increased over time. The prison population in England and wells quadrupled in size between 19 hundreds and uh, 2018 with around half of this increase. <laugh>, let me repeat around half of this increase taking place since 1990,
Speaker 2 (00:21:36):
Speaker 1 (00:21:38):
Does this mean harsher sentencing actually achieves a go goal of deterrence, incapacitation, or rehabilitation? Recently, Jay Gomley, Melissa Hamilton, and in Belton, carried out review of effective sentencing for the Sentencing Council of England and Wells as regards general deterrence that is the ability to sentence to deter others from committing offenses in the future. They highlighted that quote, A range of evidence on human behaviors and decision making lends credence to the idea that certainty of punishment is a likely a much stronger driver of deterrence than severity. As regards to the effect of sentencing on the individual offender, Gormley and co and and colleagues found that using more severe deterrent sentences in particular custody rather than non-custodial disposals does not reduce reoffending. On the contrary, researchers have found evidence for the criminal effects of incarceration. Prison is a social environment where prisoners are exposed to pro criminal attitudes, learn from other prisoners' behaviors, and are incentivized to adjust to prison life and criminality in general.
Speaker 2 (00:23:32):
Speaker 1 (00:23:34):
The challenging events inmates experience such as loss of autonomy and privacy and victimization may trigger psychological strain and provoke criminal coping strategies. Ex prisoners also suffer from the negative social and economic effects of being labeled as such, they find in particular that short sentence and short sentences of imprisonment may hinder positive outcomes making re-offending more likely. Now, of course, this is an area where an abolitionist and a reformist response might be different. A reformist might respond to this research by advocating less use of imprisonment, more use of non-custodial sentences, and more diversion such as restorative justice. They might point out that the research I've just referred to doesn't say that punishment is useless. Rather, it merely challenges the assumption that greater harshness of punishment as opposed to greater certainty of punishment increases its effectiveness in reducing crime. However, the abolitionists by contrast would say that this is simply putting a sticking plaster on the brutality, an injustice of policing and prisons, and that the end goal should be to abolish criminalization entirely.
Angela Davis said, she argues that frameworks that rely exclusively on reforms help to produce the sting idea that nothing lies beyond the prison. At the same time, it would be wrong to caricature abolitionists as blue sky thinkers as the abolitionists. Uh, Maryanne Kaba argues abolitionists are also involved in campaigns that win politically achievable reforms. She argues that the abolitionist groups have often led fights for better conditions, connecting them to more transformative political possibilities, and that abolitionists have been at the forefront of campaigns such as decriminalization of drug use, sentencing reductions, and better prison conditions. So what are the alternatives to criminal law are the abolitionists or the reformists? Right. In the next section of this lecture, we will explore some alternatives, some alternative models of justice that have been proposed to address the critiques of criminal law and create a more just an equitable society. Restorative justice,
This is an approach to justice that aims to repair the harm caused by criminal behavior rather than punishing, merely punishing the offender. Unlike criminal law, which tends to be adversarial and punitive, restorative justice is collaborative and focuses on the needs of the victim, the offender, and the community at large. At its core, restorative justice seeks to heal the harm that has been done rather than merely punishing the offender. It recognizes that crime is not a viola, not just a violation of the law, but is also a violation of the relationships between individuals and the wider community. By bringing together the parties involved in a crime, including the victim, the offender, and the community, restorative justice seeks to repair the damage caused by the crime and to restore those relationships. It's based on a number of principles that differentiate it from criminal law. Firstly, it recognizes that crime is a violation of people and relationships and not just the law. This means that the focus is on repairing harm and restoring relationships rather than merely punishing the offender. Secondly, it's collaborative with all the parties involved in the process. This means that victims, offenders, and the wider community are all involved in the process, repairing harm and restoring relationships.
Thirdly, it is a process that is driven by the needs of those involved. This means that the process is flexible and can be adapted to meet the needs of the people involved in each case.
Now, restorative justice can take many forms, but generally inform involves bringing together parties involved in the crime to discuss the harm that has been caused and to find ways to repair that harm. This may include face-to-face meetings between victim and the offender, facilitated by train mediator or facilitator. It could also include community meetings where the wider communi is invited to participate in the process of repairing harm and restoring relationships. One of the key benefits of restorative justice is that it can help to address the root causes of criminal behavior rather than just simply punishing the offender for their actions. Restorative justice seeks to understand the reasons behind the behavior and to address those underlying issues. For example, if an offender has committed a crime due to an addiction or mental health issues, restorative justice may involve connecting that person with the support and resources they need to overcome those issues. Restorative justice also has the potential to reduce reoffending by addressing the root causes of criminal behavior and providing support for offenders. It can help to prevent them from committing further crimes.
There is evidence for this according to a 2008 evaluation by academics at the University of Sheffield commissioned by the Ministry of Justice. Those offenders who participated in restorative justice committed statistically significantly fewer offenses in terms of recon convicts than those who did not. In addition, restorative justice can help to build stronger, more resilient communities by fostering a greater sense of connection and understanding between individuals. Ideas akin to restorative justice have been practicing many cultures and are often deeply rooted in non-western traditions of justice. For instance, as I mentioned in the last lecture, the Navajo tradition of peacemaking has a lot in common with restorative justice. The peacemaker program in the Navajo nation coexist with formal tribal court systems and its purpose is to bring parties together to talk out disputes, to reach agreement with the peacemaker acting as a facilitator despite its potential benefits. Restorative justice is not without its challenges.
First is that restorative justice is not designed to settle factual disputes. It isn't an adjudicative process and there is no fact finding mechanism. So if the accused denies they behaved wrongly, restorative justice may not be appropriate. The second is restorative justice process may not account for the power imbalances in the relationship between victim and offender. For example, in the context of sexual and gender-based violence, Sarah Dare and Abigail Barefoot, right? The lack of a formalized structure may actually allow the offender to re-victimize and re-traumatize a survivor through threats, direct or implied and intimidation, and even where direct safety and wellbeing are well protected. Restorative justice can still marginalize the psychological needs of victims and survivors. This of course, can be mitigated through the use of skilled facilitators who are able to keep victims safe, but there will be many times when restorative justice is just not an appropriate or safe option.
The third significant critique is that restorative justice is not always enough. There are times when a person genuinely poses a danger to public safety and when some kind of measures need to be taken to protect others from them, which a purely consensual process cannot necessarily achieve. For example, Sarah dare criticizes an anecdotal account of a case by a Navajo peacemaker in which it was known that a child was being sexually abused by one or two possible known suspects, neither of whom admitted it. The peacemakers solution was to isolate the child from both people and to make sure the child was never alone with either dare was highly critical of this response stating quote, there is no evidence that the peacemaker system acknowledged the psychological harm suffered by the child and simply isolating suspects. Suspected sex offenders from a child does not address the underlying criminal behavior. There is no enforcement mechanism in place to prevent future harm. Furthermore, because the offender not held criminally accountable by the system, they are apparently free to commit offenses on other children. Some of the problems with applying the peacemaking model of justice to rape include safety, coercion, the excusing of criminal behavior and recidivism.
A fourth and closely related limitation of restorative justice is that although it has been widely adopted worldwide, it has usually been adopted as an adjunct to traditional punitive criminal justice systems
Rather than a complete replacement for it. And restorative justice is often used as a diversionary alternative to prosecution or as part of the sentencing process. But in both cases, if the parties do not agree to restorative justice or the process breaks down, the specter of criminal punishment continues to hang over the offender's head. And finally, a fifth limitation is that restorative justice does not address all the harms done to the victims or meet all the victim's needs. As Susan, uh, Herman of the National Center Victims of Crime said in 2000, repair in the harm is often far more complicated than apologies and restitution and relationship building. It can require long-term sophisticated counseling, assistance with safety planning, relocation, and a number of services required to rebuild a life. Many victims needs cannot be met by individual offenders or small communities because there is only so much they can do despite these challenges. Restorative justice has the potential to more compassionate, collaborative, and effective approach to justice than traditional criminal law by focusing on repairing harm and restoring relationships. Restorative justice has the potential to address root causes of criminal behavior and to build stronger, more resilient communities.
Let's look at the second model, community-based justice. Now, what is it? Well, community-based justice is an alternative approach to criminal law that emphasizes community involvement in the justice process. This approach seeks to address the underlying causes of crime by addressing social issues that contribute to criminal behavior. In this section will explore the principles of community-based justice and its potential as an alternative to the criminal law. Highlighting examples in both the United Kingdom and in the Commonwealth. Now, community-based justice aims to shift the focus from punitive me measures to preventative measures by engaging communities in addressing the root causes of crime.
It's a balancing. This approach recognizes that crime is often the symptom of broader social issues, such as poverty, lack of education, social exclusion, and community-based justice is based on the principle that communities are best placed to identify and address these underlying social issues. One example of community-based justice in action is the Qury Court in Victoria, new South Wells Australia in Victoria. The Qury Court is a specialist court that operates within the Victorian court system and is designed to address the overrepresentation of Aboriginal and Torres Straight Islander peoples in the criminal justice system. The court is based on principles of restorative justice and community involvement, and is is and is staffed by combination of legal professionals and elders from the local aboriginal community. A similar youth Qury court has been implemented in New South Wales for eligible young people. There is evidence that the Victorian Qury court improves experiences within the, within the justice system for the accused, through the provision of culturally appropriate court setting and process, the involvement of elders and community members in the court, and the adoption of an inclusive approach by judges and legal representatives. There's also evidence that it may reduce
Repeat offender rates. An empirical study of the New South Wales youth Qury Court showed that indigenous young people refer to the court were less likely to be sentenced to detention. They were also less likely to be re convicted and less likely to be sentenced to detention at Reconviction, although the difference in the reconviction rates was not statistically significant. Now, community-based justice has the potential to be more effective and inclusive than the traditional criminal law by involving communities in the justice process. Community-based justice can address the root causes of crime by those who have been affected by it. It can also help to build trust between communities and the justice system, which can lead to better outcomes for everyone involved. However, there's also, however, like restorative justice, community-based justice mechanisms such as the Curry courts operate as an adjunct to mainstream criminal justice systems rather than as a standalone replacement to it. Indeed, the Cori Court is an integral part of a state run criminal justice system, and although community owners are involved in the sentencing decisions, it is a judicial officer who makes the final decision. So this is unequivocally a reformist rather than an abolitionist approach to criminal justice. But the state and its courts still have the final say,
Transformative justice. Let's look at that. This is a relatively new concept which seeks to address the root causes of harm, violence, and crime through a transformative process that empowers individuals and communities to build relationships and address systemic inequalities. Unlike criminal law,
Which focuses on punishment and maintaining the status quo, transformative justice seeks to create a new system of justice that prioritizes healing, accountability, and community building. It's based on principles of accountability and empowerment and transformation. It recognizes that harm is caused not only by individual actions, but also by systemic inequalities and power imbalances. It seeks to address these underlying issues by creating space for open dialogue, community engagement, and personal growth. And important facet of transformative justice is that in general, it is explicitly anti punishment, an abolitionist, unlike restorative justice, which often functions as an adjunct, the mainstream criminal justice system, transformative justice advocates reject the mainstream criminal justice system and explicitly wants to create an alternative to it, which doesn't rely on the use of coercive state power. Anthony Nella explains differences between restorative and transformative justice as follows, restorative justice stresses that the system is flawed, overworked, and retributive, but does not address why it exists, how it is racist, sexist, ableist, and class, whom it benefits and how it was developed. Transformative justice, on the other hand, is explicitly opposed to helping someone get arrested, imprisoned, fired from their job, repressed or oppressed. It is about looking for the good within others, while also being aware of complex systems of domination. If the world is to transform, we need everyone to be transformed and everyone to be voluntarily involved in critical dialogue together.
One example of transformative justice in action is the Creative Intervention toolkit, a practical guide to stop interpersonal violence developed by creative interventions. This toolkit provides a community-based transformative justice approach to dealing with situations of interpersonal violence such as domestic violence, sexual harassment, sexual and assault, child abuse and elder abuse. Transformative justice has the potential to create a more just and equitable society by addressing root causes of harm and violence. It challenges us to rethink and our understanding of justice and move beyond the limitations of the criminal justice system. It is absolutely something we should welcome, however, it is not without its challenges or its criticisms. As we've already heard, not everyone is satisfied with restorative justice approaches when it comes to serious violence or sexual harms. The same criticism arguably applies to transformative justice. Many victims of serious violence or sexual harm, and many members of the wider public expect to see the perpetrator punished and are simply not going to be satisfied with a process that doesn't involve the infliction of some form of harm. This is the just desserts model of, uh, punishment. Scott Bekkit of the rape, abuse and incest national network articulated the view of many people when he told Buzzfeed News in 2013 that given the seriousness of rape, quote, a long jail sentence is always appropriate and that victims are looking for justice for a crime. This serious justice includes punishment.
This isn't a view that we can simply write off as a knee jerk reaction. It can be argued that in any process in which coercive state power is completely absent and there is no prospect of the perpetrator being incarcerated, this runs the risk of a violent abuser being free to offend again. Of course, abolitionists are not without answers to the point. Kaba said in an interview in with the next system project, shortly after the election of Donald Trump in 2017 has the current approach ended rape and murder. The vast majority of rapists never see the insides of a courtroom, let alone get convicted and end up in a prison. In fact, they end up becoming president. End quote. The current criminal justice system was created by and for those with power, it isn't particularly apt for addressing sexual and violent harm, especially when it's perpetrated by the powerful against the powerless. Nonetheless, in discussing this issue, we clearly can't simply ignore the public sentiment, not least because if the state simply abandoned the business of punishing people and left communities to solve their own problems, some people would take justice into their own hands and meet up violence to rapists and abusers. In fact, there are some abolitionists who openly acknowledge this
In the anarchist zine. What about the rapists? An anonymous author described how they, they and their friends assaulted a rapist with a baseball bat in order to punish him. The author writes, quote, we are tired of accountability processes that force a survivor to relive over and over the trauma of assault that forces the survivor to put their reputation on the line as proof of their credibility that end up being an effect ineffective recreation of the judicial process that leaves the perpetrator Scott free. While the survivor has to live through this for the rest of their life, we are not sorry and we will not stop. And from now on, we will respond to sexual violence with violence and quote, pause in there. I imagine most of us would be uncomfortable living in a world with no judicial process, no trials, no appeals, where justice was delivered by vigilantes with baseball bats. I certainly would. Despite these valid criticisms, transformative justice provides a valuable alternative to criminal law, focusing on healing, accountability, and community building. It challenges us to think,
Speaker 2 (00:52:19):
Speaker 1 (00:52:20):
Creatively about how we would address harm and violence and create a more just and equitable society.
Speaker 2 (00:52:30):
Speaker 1 (00:52:31):
That's a vigilante
Speaker 2 (00:52:33):
Speaker 1 (00:52:35):
Let's conclude. We now need to confront squarely the question posed by this lecture. Do we need criminal law? This requires us to choose between abolitionism and reformism. We've seen that there are major problems with every aspect of criminal justice system as it currently exists. It's classist, it's ableist, it's racist,
But that doesn't address the question, can it be reformed or should it be re abolished in itself? It's not controversial to say that restorative justice is a good thing or that it should be more widely used. Restorative is used in many countries around the world, including the United Kingdom. It's produced good results and received wi widespread approval from academics, judges, and, uh, policy makers. But it generally functions as an adjunct to the criminal justice system, not as a replacement to it. And as we've heard, restorative justice has limitations. It doesn't have the kind of fact finding process, and so it is unsuitable for adjudicating guilt and innocent. Not all victims want to engage in it or feel safe. In doing so, it doesn't necessarily tackle the structural causes of the criminal justice. Rather than being a mere replacement for it, offenders still have to live with the spec of conviction and PA punishment hanging over their heads.
Similarly, community-based, uh, approaches to justice normally function as add-ons to the formal court, not as a replacement for it. Transformative justice, on the other hand, is more ambitious. In general, it's an explicitly anti prisons and abolitionist alternative to the formal justice system. It rejects integration into the formal justice system. It's also a much more radical form of justice that's rooted in anti-racism and anti-capitalism PO politics. It seeks to address the root causes of criminal behavior and to transform the conditions that lead to crime. This approach recognizes that crime is often the result of structural inequalities, oppression, and violence, and seeks to address those underlying causes and issues through social and political change. Transformative justice emphasizes the importance of community-based solutions and has a focus on healing and transformation, and it is ambitious. As we've heard. There are schemes like the creative alternative, um, toolkits, which are squarely designed to tackle the very types of harm that restorative justice is often viewed as ill suited such as domestic and sexual violence.
However, we, we just have to engage with the criticisms of the abolitionist approach to justice. It has to be acknowledged that in the real world, many victims and many members of the public demand to see perpetrators of serious violence punished. And that isn't necessarily an intractable desire, but it is also one, also one that we can ignore when making decisions about policy and p and public policy. As we've seen in a world with no criminal justice system, we could expect to see vigilante justice. To that end, I'm not convinced that the immediate abolition of crim the criminal courts, police or prisons is a feasible or desirable goal. However, the exploration of these alternatives does offer a valuable perspective insight on the limitations of our current system and the possibilities for change. We should acknowledge that the criminal punishment cannot solve the underlying problems, social problems that cause harm and conflict in our society, and often make them worse. We should challenge the gross inequality and injustice that are capitalist economy and the structural racism that often accompanies it. And we should push for all communities to have high quality education, housing, jobs, and healthcare accessible to all. We need to expand the space for restorative, transformative, and community-based approaches to conflict resolution. If we take these steps, the role of criminal justice in our society may well diminish.
Speaker 3 (00:58:08):
Now we have time for a couple of quick questions, and if you've joined us before, you will know that we generally give the floor to our online audience. First of all, who've been waiting very patiently at home. Um, we have a question about rehabilitation. So whilst we see a disproportionate amount of sentencing and imprisonment for the black community when we talk of rehabilitation, do we see a higher success in rehabilitation in any particular community?
Speaker 1 (00:58:40):
I'm not sure of what the actual statistics are. I do know that, um, often, um, it's been argued that, uh, rehabilitation, unless you're, unless you tackle the root causes of the problem, rehabilitation is a waste of time. That's often been said. Um, but in terms of, um, you know, whether rehabilitation in itself within a criminal justice system works, I'm, I'm a skeptic and I'm a skeptic because I don't think you can rehabilitate unless you look at the root causes that led to the offending in the first.
Speaker 3 (00:59:22):
So taking us back to the transformative, precise approach, precisely
Speaker 1 (00:59:25):
Speaker 4 (00:59:26):
I had a question in particular. I mean, you've, even on that slide, you referenced the injustice of a capitalist economy at times, whether you fought any of the alternative justice systems, uh, fair, better or worse in a case where the crime is committed by bi, a business, political, political institution or government against a person rather than a person against a person.
Speaker 1 (00:59:47):
<laugh>, <laugh>, great <laugh>, um, those, those of you who, um, might hazard a guess at my politics. I I I, I would argue that perhaps in in that situation, a a, a strong robust, just desserts deterrent approach might be a, it might be appropriate. And I, and I say that and I say a little bit tongue in cheek, but I do say that because we have seen, you just need to look at the statistics that when, when the roles are reversed, when in, in white collar crimes, in business crimes, in company, corporate manslaughter companies oftentimes get off and don't face their just desserts. So perhaps I'm trying to have my cake and eat it too. Um, but I think you'll forgive me for that. Given the, given the, um, the conviction rates for white collar crimes,
Speaker 3 (01:00:53):
We also have a, a question online about, um, gender imbalance. Um, so a comment pointing out that the Lord doesn't just have a ball, a bias between rich and poor, but has historically been written by men. Totally. What are your thoughts about that gender
Speaker 1 (01:01:09):
Imbalance? Ab a absolutely agree. I think, I think that's, um, spot on. Uh, one area of my practice where I've seen that is the disproportionate imprisonment of women, um, for crimes that relate to, um, you know, poverty, whereas a a and having so many women in women's prisons being kept away from their children. Um, there, there has been an approach which is very much within a criminal mo model, where some of the alternative models would've been much more appropriate if, if the underlying causes of those women's crimes were addressed. Um, it, you know, tends to be, um, shoplifting, drug offense, fences, things like that. But generally because people are trying to feed their kids as opposed, you know, these are, these are offenses committed because of poverty or social conditioning as opposed to people being bad, whatever bad means.
Speaker 3 (01:02:20):
Um, and I was particularly struck by, um, when you mentioned about the fact that the cost benefit analysis for incarceration, even that proves that it's not cost effective to lock people up. So if that's the case, why do you think we haven't seen more traction for alternative approaches? Because I was struck by the fact that this is public money. This is public spending, isn't it?
Speaker 1 (01:02:44):
Because the, uh, the, the answer is, I, the answer is straightforward and simple. It's not politically expedient to argue for some of these alternative models. Uh, the argument you will be met with, oh, you are just being woke. Oh, you are just being soft on crime. Oh, you are just being soft on criminal. Some of these alternative models, which take real deep thinking and understanding, um, in terms of the root causes are not politically expedient. They don't win votes. It's as simple as that.
Speaker 3 (01:03:25):
So at the risk of dragging you into a political debate, <laugh>, um, I'm mindful of some of the attack ads that have appeared in the last few days and weeks. What do you make of those?
Speaker 1 (01:03:37):
Well, they, they prove my point, don't they? They, they, they precisely prove my point that you, you, you, you have both the government and the main opposition running the same arguments, trying to attract a section of the population, a populist section of the population, uh, uh, with, with the idea that we need to be tough on crime. We need to very much embrace a criminal justice model without addressing the root causes of crime. So, but, but I'm not meant to be political,
Speaker 3 (01:04:15):
So we're going to have to wrap up. If there are no more questions from the hall, we do have a snap question from the online audience, which is probably quite unfair to ask you, but I'm gonna do it anyway, <laugh>. Um, and it is, if you had the choice, if you had to make a snap decision, which would you like to see reformist or abolitionist <laugh>?
Speaker 1 (01:04:37):
Oh, I think I would be, I think I would be a reformer. I, um, I, I, and I, I think I would for, for the simple reason, I would be very uncomfortable about people walking around with baseball bats, <laugh>.
Speaker 3 (01:04:55):
Yes. I think that's a very good note to end on <laugh>. So it only remains for me to, um, thank Professor Leslie Thomas Casey very much for an incredible lecture and to thank you all and those of you at home for joining us. Thank you very much.