Justice
in Care. Henk
Smidstra, Dec. 2012
The Incarnation, for me, is the pivotal
event in redemption history for peace on earth, no less than for eternal peace. In God becoming fleshing and dwelling among
us full of truth and grace, the “social distance” between heaven and earth is
breached and reconciled, making universal social peace possible, as well as
demonstrating the way of shalom in the embrace of justice and love. The birth
of Christ is a cosmic and yet intensely intimate and relational event sharing in
our humanity and social personhood. The
divine-human intercourse of life and relationship is done with intention and
passion; this was not a mere abstract contractual or legal transaction, but God
in Christ put His very life into it and got personally and intimately involved
and attached to the human race, connecting to the historical events in this world, social and material. Taking
the form of a servant as saviour and Lord, in life and on the cross Christ
rendered pretentious the audacious ways and claims of the devil, made a public
spectacle of his defeat, and definitively broke down the [social] dividing
walls of hostility, implicating any prejudice or bias that pretends to parade
as the truth about human nature and its relationships. Shalom rules in heaven, metaphysical peace has
been achieved; now it is up to us, Christ’s Spirit helping us, to continue to
guard and nurture the model for human relations that has been achieved and
demonstrated for us, and in us, in Christ. The incarnation means that the
eternal Logos humbly assumed our humanity, all humanity irrespective of status,
and Christ’s spirit of truth and grace empowers us as followers daily in every
circumstance of personal life as well as in political and social affairs, to live
out of an ethic of care, to follow in his footsteps in the way of servant hood,
humility, love and justice. In faith
hope and love, in the reality of the Incarnation, as hopeful stewards of the
message of peace and good will we address the realities of our 21st
century society even amidst such tragic events as have occurred this past month
in Connecticut, in Syria, and elsewhere, amidst celebrations of Christmas.
There is also a real tragedy playing out on Canadian soil. It too calls for the
good message of eirene (shalom) to
all be applied to it lest it gets lost amidst the cares and business of the
2012 Christmas season.
Former British Columbia attorney general
and BC Appeal Court justice, Commissioner Wally Oppal, just released a report
on Dec 17, 2012 that needs our attention. The report of the Missing Women
Commission of Inquiry, known also as the Pickton Inquiry report, is a massive
report of nearly 1500 pages of a review, the result of a two-year process, costing
approximately 8 million dollars. The
inquiry investigated the failures of police in the missing and murdered women
of downtown Vancouver. Specifically, why did the action police take so long to
apprehend Robert Pickton, choosing to ignore clues received from women on the street
and pressure from the community? The
report focussed on the missing and murdered women, roughly 72 women; 33% were
of aboriginal origin (while in BC as a whole, only 3% are of Aboriginal
ancestry). In his report, Commissioner
Oppal concludes that there had been a systematic bias in the police
investigations; these women were poor, addicted, were abandoned, and did not
receive equal treatment from the police. The report suggests 65 recommendations. “Oppal
might as well have thrown Jell-O at the wall and told the government to adopt whatever
sticks,” criticised journalist Ian Mulgrew in the Dec. 18 Vancouver Sun (pp., A. 1, A. 4). There was nothing new in the
report really, he suggests, and the main focus seems to be on creating better
police coordination by creating a regional police force. The report will not
bring closure for the Aboriginal community, especially for the families of
Pickton’s victims Grand Chief Stewart Philip, President of the Union of B.C.
Indian Chiefs is reported as saying by Kelly Sinoski, because they had been
shut out of the process (Vancouver Sun
Dec.18. p. A., 4). Opal does voice
regret and sadness over the turn of events and also touches on the
overrepresentation of Aboriginal women and of the poverty stricken communities
where they were raised as children. However, Mulgrew wonders why Opal does not give reasons for the
systemic failures and bias since he should have many insights into this having
himself been Attorney General from 2005-2009, as well as being from a visible
minority group himself (p. A.4). Incongruously, there had been little
formal consultation with Aboriginal community agencies and leaders; the Commission
had been unwilling to pay the legal bills for them. Is this an admission of evidence of Canadian
public servants still harbouring a colonial mindset unawares? The question is, will this report be another
magisterial top down attempt by the political-justice establishment to placate
the community, without consulting those most directly impacted, into thinking
something has really changed and been done? How will we as members of this
society deal with the implication that we are not a just society? What needs to
be addressed immediately to make it so consistently?
It is painful to realize that in a
democratic civil society in our 21st century Canadian society,
sexist, racist and moralistic biases still exist in a public service
institution that is specifically mandated to uphold the law. One way for us to
deal with the resulting cognitive dissonance is to ignore the report and the
issues it raises as not having anything to do with us, minimize; or to
exceptionalize and rationalize the injustice according to pre-existing beliefs
with forgone conclusions about issues of poverty, morality, and criminal
justice. Will there be there be more
than just talk and token gestures? The
injustice experienced by secondary victims and their communities has been
invalidated. Will the official response really enter into the reality of the
roots of bias, prejudice, and poverty-inducing legislation? To me the situation also underscores that for
all the wonderful theoretical tools of political, social administration under a
social contract, the Charter of Rights and Freedoms, the essential rule of law
is just not sufficient. Justice
also requires the heart of wisdom and compassion expressed in human solidarity
with, and agency for, those most vulnerable and unpopular in our society. We
are all human beings, co- image bearers of the Creator, and how we treat our
poorest and most vulnerable is a reflection of our own integrity as human
beings and society. The words of Jesus remind us that how and what we do, or don’t
do, to the marginalized, we do it to him. Oppal’s report suggests that the women were
not treated with equity, in other words unjustly, and implicates not just the
policing agency, but implies that the women were abandoned by society in
general; we are all implicated indirectly. Mulgrew would like to see some
specific blame assigned. I agree that generalities will make a problem even
more unsolvable: if nothing changes, nothing changes. What would really need to
change to address systemic bias in the delivery of justice; what has to change
in society to make a corresponding change?
Failing to address holistically the roots
of the systemic bias is complicated by two issues which I think are important
aspects to consider: one is the absence of an ethic of care; and the other
individualism. Love and justice are inseparable reciprocals, though there those
who suggest that justice is inherently antithetical to love. Referring to mythical
apothegms, I will admit that tough love is not always just, and sometime we can
kill people with kindness. That said, I suggest that love needs the attendant
guidance of a sound moral philosophy of justice (Frankena, 1963). It is urgent that we as human being- in-community
are aware of the implicit and explicit mental constructs we personally hold of
justice. I will suggest, also, that justice is not punishment as traditionally
and popularly believed. A great many myths abound about social deviance and
criminal justice. One is the myth of the reformative prison, and the other of
the efficacy of punishment as justice. As a proponent of Restorative Justice, I look
at justice through a predominantly relational lens with its focus on a holistic
ethic of care, but care as justice (Wolterstorff, 2011, pp., 102-109). Restorative justice moves the lens from a
narrow legal focus on crime, to focus
holistically on the harm done in a
crime and grounded in the inherent worth of every human being.
I
wish to point out that our social and legal institutions are hampered in their
delivery of care and compassion because as institutions, as impersonal
rationalized structures, they can’t care; care depends on the essential human agency
and capacity to love and care for others as human beings. Abstract laws of justice are cold and distant
and need the warmth and life giving essence of love. However, I will insist, as
Nicholas Wolterstorff insists, both must act reciprocally; one must attend the
other. An institution, as such, is
merely a lifeless structure of walls, mandates, rules and policies, and as such
do not have the necessity to provide life affirming human needs, especially to
human beings whose worth has been un-affirmed most of their lives by
abandonment , neglect, and abuse. Institutions also come to serve their own
needs; service agencies can easily become routinized and institutionalized.
Passionless, cold, Institutional structures can, with deliberate intention,
come alive with life affirming nurture through the caring and compassionate
attitude and action of the staff and administrators of an institution or
agency. The current tendency following a less than caring social attitude to
criminals, a no hugs for thugs culture, has implications on the level of care
by staff, unit officers, and even chaplains and volunteers are able to provide.
With an emphasis on functional separation of status and duties, confidentiality,
risk management, and professionalism, care and affection for prisoners is
distant and elusive; so much for the Rogerian dictum for counsellors to not
treat ones’ clients as they were treated in the toxic manner of their families
of origin.
Having worked in an institution which of
origin can be called a pain inflicting institution, I must say that I was
blessed to be able to work, for a time, in an institution that had a strong
ethic of care, a therapeutic environment (of sorts, though we were still a prison),
where love was not lost for the prisoners .I did hear the critique too often
though, that we were not a real jail. I will let you guess why that was raised
as a criticism. I was often referred to as a token male in a female
institution, role modeling a non-chauvinistic attitude towards the female
prisoners. In Wolterstorff’s sense (Justice exemplified in love), I was
modeling equal regard for the prisoner and showing genuine affection for their
co-humanity with me. Many prisoners told me over the years that
certain police officers, judges, unit officers, and time in prison, had saved
their lives from spiraling out of control with drugs and violence on the
street. There is a place for legal intervention and structure, even sometimes
imposed actions; sometimes. However, serving
years on end in cold, regimented, prison environments, just to serve time,
merely objectifies and dehumanizes by institutionalizing human beings. (This is
not to deny that there are a number that probably need to be humanely
institutionalized for safety reasons). Structure
and control without love is of spurious value. Infants who are deprived of human love do not
thrive; prisoners, many of them abused and abandoned as children, do not thrive
in an institution without love. What was most difficult for me was to watch a
prisoner being released from the “safety” of the prison to the dangerous, life-
threatening, loveless forces of the street. There was just no safe place or
caring community for so many of them to go.
I suggest
that without love, justice is dispensed as a mere commodity by impersonal
institutional agents and is insufficient, especially in extending human
services to marginalized human beings. In an institution such as the prison and
I assume it is much the same in the police force, we are mandated to be professional,
which easily results in professional social distance and lack of permission to
form human therapeutic alliances. The result can just multiply the toxic
erosion of regard for human dignity and worth of the clients in want of
affirmation of human dignity, equity, and worth. In our current society with ever
more calls for getting tough and current systems of crime control and
incarceration, social distance is a reality. Wally Oppal’s report may imply
this in that that there was systemic bias and that the system failed and
abandoned the marginalized women. It is obvious that institutions as abstract
structures loving and compassionate individuals with good boundaries and a
well-developed emotional intelligence in the service of an affective ethic of
care. However, human affect can also be
vulnerable to bias, to human limitation and subjectivity. Habituated thoughts
and perceptions can filter, distort and dull our awareness of personal bias and
prejudice, blind to acts of negligence and institutional cruelty. All of us, including police and all public
servants, need to be educated and trained encouraged and mandated, to serve
justice in love. This is strategic in
that police, prison personnel, as well as social workers and public health
officials, all have unique opportunities to serve as front-line agents of care
to our societies’ most wounded and hurting members.
Two local police
forces, the report suggests, lack love for certain sectors of our society. I
would add as well, that our post-colonial society still harbours myths about
Aboriginal people and poverty. Myths do not explain, but act in heuristic
fashion to shape certain contradictory knowledge in a way to make it more
socially acceptable. Criminal justice related myths usually are formed in
non-evidence based sensationalized public stories about certain people and
events. They assist, as a collective belief system, as a heuristic, to
reconcile or hide contradictions, and to help people make sense unpleasant
realities (Kappeler and Potter, 2005, pp., 2-5). As human beings we want to be seen as good
people not wishing evil on others; cognitive dissonance leads us to resolve
such conflicts, and myths are formed and become fixed in the collective
conscience of the nation. I do not think
we can pin the lack of concern for kindness and loving justice only on public
systems that administer law and order; I think all of us are called to
attention, to love and do justice seeking the welfare of the very least of our
society. Justice also means problem solving and getting to the bottom of
things, calling our social agencies and government to do so. Benevolent action rooted essential love, in
and of itself, is not sufficient in itself, for it needs specific rules and
moral principles for guidance in particular situations. It would be simplistic to say that love is
its own guide in many situations, especially complex ones; love too needs the
administrative guidance and application of specific moral norms of benevolence
and distributive justice (Frankena, 1963, pp., 34-35).
Institutional reports, such as the Pickton
Report, are generally narrow and abstract in focus, not holistic, since
functionally, that would be intruding on other jurisdictions’ responsibility. Oppal
looking through a functionally separated lens of legal, forensic, observation
is looking at legal institutional issues and would by necessity sees primarily police
issues, the courts, and the individual offender once arrested and charged, in
this case Robert Pickton. The victims and community conditions are not of
central focus. In this regard, one criminal justice myth is particularly relevant
in my opinion as outlined by Robert M. Bohm (2005): the myth of the concept of
individualism. This myth, Bohm suggests, has its roots in Enlightenment thought,
at the genesis of our modern rationalized form of the criminal justice system,
becoming, “….a part of popular consciousness and identity through
existentialism and the human potential and other movements of the 1960’s”(Bohm,
2005, p.312). According to this concept
of individualism, the individual is seen as an entirely separate being, “a
fictitious atom,” of society, rather than as a socially and contextually
attached and connected human being in community. This notion of the free-willed rational
individual and of absolute individual responsibility is current in conservative
interpretations of criminal behaviour, as well as operative in political,
economic, religious, and familistic settings (Bohm, p, .313). As a consequence of holding the individual
alone responsible for their choices and conduct, a sense of shared, corporate
responsibility is absent; Bohm
concludes, this mind-set, “….diverts attention away from the structural
elements in society that inevitably contribute to criminal behaviour” (p.,
313). Such thinking also leads to social distance by social categorizing and
labelling our social world into a simplistic dichotomy of them, and us, of bad
guys and good guys, of moral and immoral, of believers and unbelievers, of the
saved and the reprobate. Dichotomies, suggests Bohm (1991) can be useful
heuristic devices, but they inherently abstract and distort reality (p.313).
The Pickton report mentions poverty and
street violence, its focus is on police inaction, on miscommunication and bias.
A unified regional police force, not a new idea, seems to be a recommendation of
primary focus. It has been talked about for years and will likely be continue
to be debated. The report also should
not be seen as a panacea, in attempting to address disparate issues of need
indicted in the report, write Kelly Sinoski and Jonathan Fowlie (Vancouver Sun, Dec 18, p. A.4). Perhaps
a regional police force is in itself a good idea, but just one aspect, better
policing….improve the institution of policing, avoids a holistic perspective
avoiding the true nature and polysemic nature of the issues at the heart and social
roots of the problem. Not having consulted with grass roots Aboriginal leaders and
advocacy agencies (Kelly Sinoski, Vancouver
Sun, Dec. 18, P.,A, 4), will also
contribute to a myopic mono-explanatory result as well as continuing to foster
mistrust and signify the continuity of a colonial attitude. It was not part of
Oppal’s mandate, of course, to look at the issue of Aboriginal social justice issues,
anyway, so his very focus was myopically legal and institutional, implies
Christine Blatchford (Vancouver Sun, Dec 19, p., B,1). Blatchford suggests,
there is little “appetite” anyway by political leaders and society in general, to
have in-depth discussions on the “real tragedy,” that of the crisis “that is
the broken state of Aboriginal culture” (Vancouver
Sun, Dec. 19, p. B., 1). Blatchford continues to say that by focussing on
narrow systems failures of various sorts, society will avoid looking at the
“…awful big picture” (p. B. 1). Solutions will be of a token patchwork nature. Perhaps with the momentum of the Idle No More
movement, genuine consultation and dialogue can bring some closure to the pain
and address unfinished issues of the colonial and post-colonial drama of sweeping
injustice under the carpet, and lead to reflexive thought, demystification, and
an ethic of justice in care. This last
phrase for me is a conceptual confluence of Liz Elliott`s book, security with Care, and, Nicholas Wolterstorff`s book, Justice in
love).
Culturally institutionalized myths are
subtle, serving the human need to simplify complex issues and to help resolve
conflicts of thought and conscience when reality confronts dearly held beliefs.
One belief is that justice is blind. Another myth is one that most Canadians
would share, is that we live in civil just society honouring the rule of law,
that Canadian society is a just and equitable society where due process and
justice prevail for all its citizens regardless of race, gender, religion, age
and ability. The Missing Women Commission Inquiry Report, released on Dec. 18,
2012 exposed that as a myth; how will we as a society respond to its unmasking?
Works Cited
Blatchford, C. (2012,
December Wednesday, 19). Report highlights sad state of affairs. The
Vancouver Sun, p. B.1.
Bohm, R. M. (2005). Crime,
Criminals, and Crime Control Policy Myths. In M. C. Braswell, Justice Crime
And Ethics (pp. 305-325). LexisNexis Group: Anderson Publishing.
Elliott, E. M. (2011). Security
With Care. Halifax and Winnipeg: Fleetwood Publishing.
Frankena, W. K. (1963). Ethics.
Englewood Cliffs, N.J. : Prentice-Hall, Inc.
Kappeller, Victor E. and Gary
W. Potter. (2005). The Mythology of Crime and Criminal Justice. Long
Grove Illinois: Waveland Press, Inc.
Kelly Sinoski and Jonathan
Fowlie. (2012, December 18 Tuesday). Oppalpushes for regional force. The
Vancouver Sun, p. A.4.
Mulgrew, I. (2012, December
18 Tuesday). Report shines no new light on tragedy. The Vancouver Sun,
pp. A, 1, A.4.
Sinoski, C. (2012, December,
18 Tuesday). ommunity groups say they`re still shut out and ignored. The
Vancouver Sun, p. A.4.
Wolterstorff, N. (2011). Justice
in Love. Grand Rapids Michigan: William B.Eerdmans Publishing Company.