For those following criminal justice reform efforts across the world, Chapter 17 in the Research Handbook on Law and Emotion provides an interesting recommendation from Australian researchers wishing to push against what they deem a punitive approach adopted by their country. "Engaging head and heart: An Australian story on the role of compassion in criminal justice reform" explores the application of a more humanistic "response to offenders" wherein compassion guides decision-making. Here, we summarize the chapter and highlight key takeaways that may be of use to practitioners in the field.
The authors begin by identifying the current process of criminal justice law reform as "increasingly punitive" with an "irrational trajectory." Fear has become a key driver of criminal justice policy decision-making in Australia, which has led to laws that "turn away" from offenders through "othering."
However, "rational criminal justice law reform" lies in turning toward the offender so that we see them as a human being and make decisions with regard to the consequences of their actions with the following in mind:
- Individual and systemic factors that led to criminality;
- Actions that are known to deter criminality and decrease recidivism; and
- When and how "desistance is possible."
Their goal is to "link head and heart" in examining criminal justice reform by using compassion to engage a more empathetic and humanistic approach to rational decision-making.
The Punitive Approach
"Irrational law reforms" in Australia, the authors believe, are evidenced in the punitive approach used to guide law reform in three key areas:
- Bail: "Legislatures have directed the judiciary and police to be more risk-averse when it comes to bail decision-making." This has led to bail being based not on a "presumption of innocence," but instead "proxy for guilt and punishment."
- Sentencing: "Tough on crime policies" have increased the use of mandatory sentencing and penalties that can be applied in certain crimes. Meanwhile, community-based sentencing has been eliminated for some offenses.
- Parole: Since 2012, Australia has shifted the focus of parole from "a prisoner-centered and reintegrative process" to using it to enforce forfeiture of rights based on an offender's actions. The prioritization of community safety over the rehabilitation of the offender has also led to increased use of "non-parole periods" and lack of cooperation with parole boards.
The Result: Hyperincarceration
There is, the authors argue, a "human and financial cost" associated with using a punitive approach to criminal justice law-making. Australia has become "addicted to the use of prison," with imprisonment rates higher than both Canada and Western Europe.
The impact of hyperincarceration is vital to acknowledge and address because "rather than preventing crime, prison instead causes crime." In addition, it carries a moral and financial cost to communities. Confinement has been shown to lead to "violence, bullying, intimidation" and it costs "nine times as much as community corrections."
To successfully reduce punativity in criminal justice reform, advocates must encourage reflection and help increase the public's knowledge because "the more people know about the criminal justice system…the less punitive they become."
The authors assert "facts and figures" are not always effective in undoing the punitive mindset and rhetoric often used by politicians and the media. Fear can be "an effective driver of punitive law reform" because it causes the public to "turn away" from the individuals being imprisoned. By making the offender into a "monster," we no longer have to try and understand their actions, challenges, or systemic realities.
It's essential to remember, however, that "the public favours increasing the use of alternatives to imprisonment." This is especially true in cases where someone is a first-time offender or is an individual with mental health or substance use issues.
While emotion (i.e., fear) can drive a punitive response in criminal justice law-making, so too it may prove effective to "acknowledge the role of the heart—and emotions more generally—in criminal justice" reform. Examples of heart-led efforts can be found in restorative justice practices and "the victims' movement."
Using Compassion to Guide Reform
Compassion can drive a more human-centered response that leads people to "turn towards" the offender and develop a deeper understanding. With the use of compassion, the authors suggest that understanding an individual's actions will also help to increase understanding on a societal level, wherein we can begin to understand why people commit crimes, what "might enable them to desist," and how to effectively divert others from following the same path. This broader, more compassion-based framework can "foster a more measured…evidence-based approach to criminal justice policy."
In a criminal justice reform context, the authors define compassion as "an enduring mental disposition that can be cultivated, with universal application; it is a disposition that motivates and enables action to promote the wellbeing of others and may work to reduce unconscious bias." Compassion inspires forgiveness and removes the "false dichotomy between 'offenders' and 'victims'" - recognizing that many who end up in the criminal justice system have, at some time, occupied both roles.
Examples of compassion in action can be found in several instances:
- Farid Ahmed spoke of forgiveness and love for the gunman involved in the 2019 attacks on 2 mosques in Christchurch, New Zealand, which killed 50 people, including his wife.
- Ross Dunn and wife Francis Rose, from Canberra, Australia, forgave the "teenager who drove the stolen car that killed their 21-year-old daughter." They helped the driver learn to read and write, complete high school, and access an apprenticeship because they believed "the antidote to rage is compassion."
- Rosie Batty lost her 11-year-old son in 2014 when he was "killed by his father in front of her on a sporting field in Melbourne," Australia. In response to the event, she advocated for "action on family violence," while still showing compassion for her former partner.
"For too long, we have pretended that emotions are irrelevant to criminal justice policy, when of course they are not." Not only should we ensure our narratives are humanizing of all those involved in any crime, we must also "channel public emotions and develop criminal justice policy that is not only evidence-based, but also 'emotion aware.'"
This may represent a "paradigm shift" of sorts, wherein compassion becomes an "ally" or "complement" to head-based (i.e., "rational") arguments for reducing incarceration. Using compassion in this way not only humanizes those involved in the criminal justice system, but also provides for potential long-term ethical and financial benefits by reducing punitivity and decreasing imprisonment.
* References available upon request.