Chapter 3

Control Philosophy
and Criminal Justice
Policy
Prepared by
David Mikelberg
University of Guelph-
Humber

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 • Justice Model
• Deterrence
Crime • Selective Incapacitation
Control • Rehabilitation Approach
Philosophies • Indigenous Justice
• Restorative Justice

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 The Justice Model
Focus is on the criminal act.
Punishment should fit the seriousness
of the offence.

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 Justice Model: History
• Two influential publications:
• Struggle for Justice (1971); Doing Justice (1975)
• Argued that punishment should fit the offence,
not the offender
• Proposed sentencing guidelines and limiting
discretion
• Emerged in US in 1970s and 1980s
• Included ending early-release programs and
limited treatment for offenders

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 Justice Model: Criminal Sanction
• The punishment must be proportionate to the
crime
• Seriousness of offence directly related to severity
of punishment
• Personal circumstances of offender ignored
• Only relevant information is prior criminal record
• Supports alternative sanctions to incarceration
• Especially for minor offences

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 Justice Model:
Criminal Justice Operations
• Elimination or control of discretion
• Determinate sentencing
• Strict control of plea bargaining
• Eliminate parole board (or parole)
• Protection of legal rights for the accused
• Legal guilt must be established in court
• Direction of police response to crimes
• Diversion for minor crimes
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 Deterrence
Focus is to prevent offenders from reoffending
and to discourage others from engaging in crime.
Assumes that people are rational and calculate
the risks and rewards of their action.

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 Deterrence: History
Cesare Beccaria
• Punishment should be swift, severe, certain
• Punishment must be proportional to the crime
and amount of harm done
Jeremy Bentham
• Calculate amount of punishment required to
punish and deter
• Argued for carceral punishment

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 Deterrence: Criminal Sanction
• Deterrence is the threat of punishment or
material deprivation
• Objective and perceptual phenomenon
• Direct relationship between severity, certainty,
and swiftness of punishment
• Instrumental acts more easily deterred than
expressive acts

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 Deterrence:
Criminal Justice Operations
• Increased resources to fight “war on crime”
• Proactive policing activities
• Focus on factual guilt over legal guilt
• Elimination of judicial discretion and plea
bargains
• Imposition of mandatory determinate sentences
• Abolition of parole

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 Selective Incapacitation
Focus is on chronic or repeat offenders based on
assumption that they are responsible for the
majority of crime.

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 Selective Incapacitation: History
• Wilson (1975) and Greenwood (1982)
• Argued that keeping “high-risk” or repeat
offenders incarcerated longer would control and
reduce crime
• Small number of offenders responsible for
majority of crime
• Law and order ideology

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 Selective Incapacitation:
Criminal Sanction
• Focus on career or chronic offenders
• Harsh and long punishments
• Mandatory minimum sentences
• Extended or indefinite prison sentences
• Only for those deemed “high-risk” to reoffend
• Danger to society based on “future crimes”
• Punished for crimes not yet committed

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 Selective Incapacitation:
Criminal Justice Operations
• Special resources would be allocated to handling
high-risk offenders
• Repeat offenders held in custody
• Elimination of plea bargaining and judicial
discretion
• Abolition of parole
• Harsh criminal justice legislation
• “Three strikes” laws; indeterminate sentences

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The Rehabilitation Approach
Focus is on the offender.
Assumes that crime is a result of forces
outside the control of the offender, and
treatment will “fix” the offender.

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 Rehabilitation Approach: History
• Doctrine of determinism
• Offenders do not have free choice and are not
responsible for their actions
• Individualized treatment necessary to address
factors causing the criminal behaviour
• Treatment successful if no recidivism
• Historical “treatment” included work, moral
instruction, and discipline

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 Rehabilitation Approach:
Criminal Sanction
• Flexible treatment based on needs of offender
• Discretion of criminal justice actors to determine
what is most appropriate for offender
• Offender’s “best interests”
• Indeterminate sentences
• In prison for as long as it takes to be “cured”

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 Rehabilitation Approach:
Criminal Justice Operations
• Increased discretion of criminal justice system
• Judicial discretion, plea bargains
• Intervention in offender’s life to facilitate positive
change
• Increased importance of treatment personnel
• Expansion of correctional services and parole
• More treatment and supervision

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 Indigenous Justice
Crime is a social harm.
Focus is on restoring collective identity
and healing the community through
informal sanctions.

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 Indigenous Justice: History
• Conflict based on differing world views
• Secular-based versus spiritual-based justice
• Discrimination against Indigenous Canadians
• Federal and provincial inquiries
• Many recommendations for improvement
• Indigenization Programs
• Incorporation of Indigenous justice principles into
criminal justice systems

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 Indigenous Cultural Imperatives
Four rules of Indigenous community life:
1. Ethic of non-interference
2. Rule of non-competitiveness
3. Emotional restraint
4. Sharing

The focus is on community harmony.

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 Indigenous Justice Systems
Key elements:
• Focus on reparation and healing
• Avoid blame and repair harm to community
• Communication over coercion
• Restore social harmony and peace
• Reconcile harmed parties (victim and offender)
• Restore offender’s connection to community
• Active participation of community and harmed
parties
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 Indigenous Justice: Essential Features
• Dispersal of decision making
• Elders may facilitate justice circle
• Community involved in decisions
• Consensus of decision making
• Agreement on outcome of justice circle
• Inclusion of all participants
• Everyone is connected in web of relationships
• Reduction of isolation means ability to help and
restore harm done
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 Indigenous Justice:
Criminal Justice Operations
• Sentencing circles can hear variety of offences
• Indigenous justice can be incorporated at time of
sentencing
• Recommend sentence to judge
• Offenders “banished” to incarceration if obligation
not met
• Peacemaker Court
• First Indigenous Court in Canada

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 Restorative Justice
Focus is the restoration of the relationships
between victim, offender, and community.

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 Restorative Justice: History
John Braithwaite (1989)
• Disintegrative shaming
• Stigmatizing and exclusionary
• Reintegrative shaming
• Acknowledgment of harm and forgiveness
• Bad act, not a bad person
• More successful where there is a high degree of
interdependence

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 Restorative Justice: Criminal Sanction
Two objectives of sanctions:
• Reparation
• Compensation to victim
• Community service
• Reintegrative shaming
• Public exposure sanctions
• Debasement penalties
• Apology penalties

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 Restorative Justice:
Criminal Justice Operations
• Diversion of appropriate cases can happen at
multiple points
• Restorative Justice Conference
• Voluntary involvement of victim and offender
• Includes other stakeholders
• No agreement reached, sent back to formal
system
• Offender must accept responsibility for actions

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 Goals of
Restorative Justice Conferences

Prevention

Accountability Healing

RJ
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 Summary
• The justice model focuses on the criminal act and
advocates for proportional punishments with
attention to due process rights of the accused
• The deterrence model focuses on severe, certain,
and swift punishments to deter offenders
• Selective incapacitation focuses on repeat
offenders, arguing for long sentences to reduce
crime

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 Summary
• The rehabilitation approach looks at the
offender, with a focus on individualized treatment
to reduce reoffending
• Indigenous justice focuses on healing and holistic
community-based responses to crime
• Restorative justice focuses on repairing harm and
restoring relationships without negative stigma
on the offender

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