On some level, you must know how wrong this is

Written by  //  November 5, 2011  //  Canada, Justice & Law  //  No comments

Sent through www.leadnow.ca/keep-canada-safe

The Honourable Rob Nicholson, P.C., Q.C.,
Minister of Justice and Attorney General of Canada

Dear Mr. Nicholson,

Ten days ago, the world lost a great advocate for justice, peace and opportunity;  I lost the person who contributed more to what is good about myself than any other person likely ever will. Her name was Alexandra Dodger, and she was not only a courageous advocate for the voiceless, a tireless public servant, and a brilliant legal mind, but also a point of brightness to her friends – a poet and a wonder. She was 27.

It seems clear that her life was lost because someone broke the law. Nothing has been proven in court, but the evidence suggests that the person driving the car that struck and killed her was not only driving the wrong way down a one-way street, but had also been drinking heavily before he got into his car. The laws we put in place to curb drunk drivers were designed specifically to prevent a tragedy like this from happening. I am glad that they are in place. But I am writing you with regards to new laws that will come into place in the next few months unless your conscience can somehow be turned.

I imagine that you are motivated in your work on criminal justice exactly by tragedies such as these. The stark unfairness of her innocence and righteousness being cut short by carelessness and irresponsibility seems, when I think of it too closely, to bear the mark of a universe without sense or sentience and to push against belief so hard as to clothe individual tragedy in dark hues of grand, universal farce.

Know that you, and the supporters of your party who believe in the justice of the policies your government is pursuing, lie in the company of a long line of philosophers who want to believe that, by some magic, the absolute, unfathomable negativity of having Alex stolen from my life – the horror of one misplaced half-second which will for those of us remaining last an eternity – can somehow be set aright by visiting some suffering upon the person responsible. You may not know it, but in a call for appropriate punishment, your party speaks in the voice of generations stretching back beyond biblical times.

At its core, the tradition from which your government seems to borrow aims at restoration. Where the crime in question has torn open the world’s sense of order and meaning, punishment – the suffering of those responsible – is meant to assure those that remain that our lives together are not made up of pure senselessness; that cause and effect, the noticeable dint of our will upon the world, the connection between intention and reality – that all these things somehow extend beyond the boundaries of the property we hold to ourselves. Indeed, such ritual hopes to serve us with the understanding that such connections can extend even beyond death.

How can one stand against the demand, in the face of the life of a loved one being snuffed out, that account must be made? That those responsible should be named? I can’t. I think that few can. Alex herself (and I can hardly speak for her here) was working even in the last days of her life to ensure that the most powerful would be held to account for the suffering and wrongs they had caused in the world.

Yet at the core of the idea of punishment is not only this holding to account, but also suffering – specifically, the extension and the revisiting of suffering. This core revolves around the wild and mad idea that ultimately, the cost of our restoration, the price to be paid  for an an end to the madness of our own loss, our own suffering, is more suffering. It is the principle, stripped bare, that two wrongs make a right.

The criminal justice culture which Bill C-10 clearly hopes to create is one in which Alex’s killer would be subjected to greater suffering. The specifics of how his punishment might be transformed under this legislation are neither known to me, nor particularly relevant to my point. What is important is how the bill imagines we might restore sense to the world, honour the living, and do justice. It is clear that, at the heart of its logic is the faith that, in all cases, justice is better served by longer prison terms specifically, more of them generally, and less leniency overall – in other words, by more punishment; by more suffering.

I wonder if our system is capable of applying to the man whose carelessness caused Alex’s death any greater punishment than what that which he can never hope to evade: the knowledge of what he has done and the task of living with this knowledge for the rest of his life. Indeed, there are those who believe that punishment, a suffering fairly allotted, would provide not only justice for her, but also for him; it might allow him to atone, to feel that he had paid some debt that her death compelled him to take on. Perhaps, in the world idealized by Bill C-10, his personal suffering might be alleviated by the appropriate application of a public suffering – by his giving penitence, the principle which provides the root word of our penitentiaries. Thus too would we,  in our knowledge of his material suffering, feel amends made and the rupture of our spiritual suffering relieved.

If only it were so simple. What my grief, and the sadness and loss of all of Alex’s loved ones shows, is that suffering is never so private; never so personal. To have a person torn out of your life, to see someone important to you suffer – these are harms not borne alone by the victim, but shared by their community. When the accused appeared in court last week for the first time, there were over a dozen people present in his support. Why? Because his suffering is also theirs, already; because his fear of further loss must be borne too by them; because he is, for all that he has done wrong, still close to their hearts and his fortune is therefore mixed up in theirs.

Here is what we know. The bill that you have put forward will put more people in prison and it will keep them there longer.  Not just “criminals,” mind you, but people; sons and daughters, fathers and mothers, and brothers and sisters all torn out of their communities, their families and their lives and made to suffer. We know, from all the evidence, that their time in prison will be much more likely to harm them than to restore them. It will doom many of them to a life of social exclusion and criminality. It will cut many of them off permanently from their networks, families and communities. It will hurt their chances of re-employment, slow their education, increase the burden they place both on those close to them, and on all of society. It will orient them toward a life of criminality and cut them off from many other opportunities.

In other words, against the balanced ideal of penitence and retribution which I assume motivates the bill you have crafted, the weight of the suffering your legislation will impose far outweighs the suffering it is meant to relieve. It promises a breadth and depth of suffering borne not only during the time which the guilty spend in prison, but also by their families, their communities and, in the greater criminality and poverty that these policies promise to promote, by all of us. All the evidence shows that, if it is safer societies we want, a policy of imprisonment – a policy which aims to increase suffering – is the worst of our options. I need not bore you with the details of this evidence. You must be aware of it. The clamour of the truth is almost deafening; American conservatives are pleading with you not to repeat their error!

We might stare at each other across a partisan divide, but I know that you do not take these decisions lightly, that you cannot act out of hubris and ignorance. You made an oath to serve this country, and I am sure that you do not bear it lightly. Many Canadians, and certainly many of those who stand with me on the political left, likely do not understand just how hard a job yours is. You are tasked with managing a framework by which we attempt as a society not only to keep our communities safe but often, too often, to restore that which cannot be restored: our sense of privacy, our security, our dignity, and most importantly, the strength which comes from the continued living of our loved ones.

Unless you have so shockingly lost someone as close to you as Alex was to me, I am not sure that you can appreciate how important it is that there be an accounting for her death; that responsibility be taken, that the truth of that night be made concrete, that the lessons of those moments not go unlearned. Paradoxically, it is clear that the legislation your government proposes will bury a large part of such responsibility under a deluge of plea bargains, drawn-out trials and partial amnesty. Yet even if the truth could be protected from the excesses of the bill, it would still be wrong. There are many who would cleave to the calculus of two wrongs make a right, or say much more strongly that the suffering of the wicked is not wrong when it is proportional to the wrongs they have done. But the math does not work, because such suffering only ramifies and expands until it touches all of us. It does not make us whole, but rather distends our selves, and those near us, both.

This is not the only faulty arithmetic involved. There are those who are asking you this week to consider the amount of money that will be spent in pursuing the policy which Bill C-10 imagines. For me, such a perspective is heartless economism. There is no amount of money I would not make to be paid to have Alex back in the world, to have prevented her death, or to see account made. It is not the amount of money we would spend to confront the insecurity and senselessness of crime which boggles the mind, but how it is to be spent: in a way which will only add to the weight of suffering in our society, rather than help us carry it. It is not in the addition and substraction in which we falter, but in our units of account.

There are many who would likely be appeased by the image of the man who killed Alex tormented, his head resting forever against the bars of a jail cell. In the world of your government’s crime bill, however, the torment of his family, too, the risk that he might leave jail with illness or addiction, the victims of a potential turn to criminality which enjoins all prison time – all these must be added to the register. What succor lies in that from our own suffering? What respite? What consolation?

No, in a Canada which makes sense to me, account is made in large part by his being doomed to carry the weight of his crime forever, and his transformation under that weight. I see him, if I were allowed to wish such things, as a voice against such irresponsibility, his broken whispering at crowded youngsters who doubt their capacity to commit such drastic horrors with such unconsidered choices. I see him seeking the forgiveness of his family, his friends, his coworkers.

There is bitter irony in the choice of your party and your government – who seem so often motivated by the knowledge of how little can be done by the institutions of the state to bring us together, keep us true, or make us whole – proposing a policy to address the wrongs we commit against one another which is so founded in strict rules, hard lines, centralized authority and public violence. But it is, in this case, not only irony but folly; and not only folly, but injustice. Do not misunderstand. I am not so foolish as to doubt the necessity in most circumstances of placing public institutions at the top of our criminal justice systems. You and I share a commitment to the idea that account must be made – in the most basic phrasing, that justice must not only be done, but must be seen to be done. The value of public institutions in the processing of our grief and sorrow prevents the cold fingers of raw vengeance from overtaking us. It places truth rather than rumour at the foundation of our grievances with one another. It connects us with those who have wronged us without forcing us into intimacy with them.

But ultimately, the public institutions at which you are at the head can be neither the font nor the head of our restoration, neither as victims nor as perpetrators. Ultimately, with a death like the one I have had to come to terms with this week, there is no resolution. There is certainly no restoration for Alex. Not in this life. No, the best that we can muster in the shadow of the dead – all that we can ever do – is live, and try to live better than we might have by their example. We can try to learn again to live with ourselves, and not only as we were,  but also changed in light of what we have lost, and of the ones we have lost.

Indeed, in a Canada which is more in line with the demands of justice, it is this which Alex’s killer would have to do: he would learn to live again, and live better than he would have before this happened. Not better off, but better; more good. It is this idea – that those who have wronged us, individually and as a society, would become better in the aftermath, so that they might give back more to all of us – which should be at the centre of our thinking about criminal justice. And it is this ideal, too, which should inspire our criminal justice systems: that would be made more complete, more healthy, by its operations, even if we can never be made whole. The approach that your government proposes to take, simply, moves away from this ideal of justice. It embraces a society more divided, less healthy, less compassionate, less forgiving: less whole. It holds up, in deed if not in testament, the idol of suffering for its own sake.

On some level, you must know how wrong this is. I urge you to reverse course. Seek your conscience in this matter and take whatever action is needed to try to prevent this grave edifice of injustice from being erected in our country. If you cannot reverse course in your position as Minister of Justice, I implore upon you to resign. But even more vehemently, I ask you to speak to those who you share power with, many of whom I know are motivated by Christian charity. In the power you have been granted to make this egregious policy a reality or to prevent it from coming to fruition, you have been given a precious gift. Please use it wisely.

I don’t know what Alex thought about the criminal justice system. Not exactly. But I know that she worked hard her entire life energized by the idea that everyone deserves a life of dignity. That each of us should have not only bread on the table, but a chance at happiness. I think this bill will steal this opportunity from many more people than it saves. What I do know is that Alex urged me whenever I had the inspiration and the opportunity to speak out against injustice, to communicate my thoughts on issues of conscience as widely and as passionately as possible. It is in that spirit that I write to you, because I have not yet found any other way to live in the shadow of her passing (and the still-bright light she shone on my life).

Liam McHugh-Russell

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