950 words; 4 minutes to read

Paula Mallea has had a long and distinguished career as a criminal defense lawyer and public policy advocate.  Having worked extensively with prisoners, and with Indigenous people in the justice system, she became a strong advocate for a better criminal justice system in Canada.  Her experience and research have been turned into a couple of books, the most recent of which is “Beyond Incarceration: Safety and True Criminal Justice”, the subject of this post.

Ms. Mallea will be speaking (a free, public talk) on these issues in Toronto on Sunday, Nov 17 as part of the Compassionate Justice series at Eglinton St.George’s United Church in Toronto.    A recording of the talk will be available shortly afterwards, along with talks by many previous speakers in this series.

Fewer prisoners, shorter time, alternative approaches

Mallea summarizes her approach as: I am recommending that we begin an overhaul of the system by improving conditions, incarcerating far fewer indi­viduals, and providing alternative ways of dealing with offend­ers, especially where offences are non-violent and victimless. These are first steps and should be implemented without delay.

 She outlines in clear prose and with many examples the reasons for these beliefs. While prisons were first developed as an alternative to “earlier, even harsher punishments”, they “developed into an inhumane and counterproductive system…[with] many contradictory purposes.”

The book describes the many reports in Canada over the years on improving prisons and the very limited effect these had on harsh and inhumane conditions.  It provides a short and accessible history of prison policy – and the very different reality as the system fails or refuses to make the changes regularly recommended.  Because there is little public oversight or knowledge of what happens in them, prisons are places where abuses of various kinds can flourish.   Prisoners are disproportionately poor, under-educated, visible minorities or Indigenous.  And even the relatively small efforts in prisons to promote rehabilitation would be better if done in the community.  That is why Mallea discusses the abolitionist approach that would, rather than reforming prisons, largely eliminate them.

Problems with criminal justice

Although the justice system claims to rest on a set of standards and principles, Mallea, like many other lawyers, sees another side, especially when it comes to sentencing. “The arbitrariness, inconsistency, and inflexibility of sentencing give the lie to any claim that the system in place is fair and just to everyone in conflict with the law.” As has been documented, and as every defense lawyer knows, judges vary considerably in what they regard as fair and reasonable.

But even who gets charged with a crime is subject to discretion, with white collar crimes charged less.  Large variations in sentencing imply injustice.  People can end up in jail just because they lack the means to pay a fine.  And people are regularly jailed for violating parole or probation conditions even when their original crime did not merit a jail sentence.  Mallea illustrates these situations with real stories from her own experience.

Beyond that, prison does not deter crime in the long term and may even make it worse.  The large cuts to prison services that happened in the last decade or so have made this situation worse.  Rates of suicide, sexual assault, excessive drug use and violence are much higher in prison than in the world outside.  There is overuse of solitary confinement, overcrowding, lack of useful activity and unmerited punishment of prisoners who object to their conditions.  How can such an environment help anyone create a better life?  No wonder that those recently released from prison have extra high rates of death from drug overdoses.  Even prison guards are subject to high levels of post-traumatic stress and have high suicide rates. And all of this comes at a cost of several billion dollars per year for Canadian taxpayers.

Possibilities for reform

Movements to reform prisons both in Canada and in other countries are described and analyzed. These show that it is quite possible to jail far fewer people without any harm to public safety.

Mallea also takes on the myth that victims of crime want harsh sentences.  Instead, she tells us “what victims actual­ly want: that wrongdoers take responsibility, realize the harm done, realize that it was wrong, try to do something to repair it, show remorse, and try to compensate in some way”.  For that reason, Mallea supports much more use of restorative justice, something promised by the Liberals in 2015 but not delivered. She gives examples of where this practice has been used effectively. She also discusses options such as drug courts.

Reforming the current system, Mallea says, will not be enough.  “In working to change the system, we cannot afford to sacrifice the good for the sake of the perfect. And we have to act now rather than wait for conditions to be perfect…  any reforms must neither convey approval of the system nor broaden its reach by net-widening…We will need to be clear-eyed in identify­ing those people who pose a real risk to the public and confine them in a way that is secure enough to guarantee public safety and humane enough to guarantee a measure of dignity.” Then the huge amounts being spent on keeping people locked up could be spent on helping people change their lives for the better.

In summary

In order for average citizens to promote this cause, they will have to first understand that prisons are unnecessary, counterproductive, expensive, and in­humane. Then they have to be shown alternatives that work and encouraged to envision a whole new system. Finally, they have to see that the way we deal with wrongdoing is a measure of our humanity.”

Beyond Incarceration was published by Dundurn Press in 2017 and is available here.