They're talking about penal abolition: The urgency of re-imagining different paths as alternatives to the criminal justice system/Eles estao falando sobre abolicionismo penal: a urgencia de re-imaginar caminhos alternativos ao sistema de justica criminal.
| Autor | Hulsman, Jehanne |
"Don't you Know? They're talking about a revolution".
Tracy Chapman
Introduction (1)
Last year an unpublished letter from Primo Levi went public. It had been written in 1945 and sent to his family in Brazil. Its content is impressive today: "fascism has shown to have deep roots, changes its name, style and methods, but it is not dead, and the material and moral ruin to which the people have led remains acute. (...) The war is over, but there is still no peace" (2). Levi thought about how the seeds of fascism were germinating even in the countries to which the world owes the defeat of Nazifascism (like Brazil and the USA) - each era has its fascism - says Levi when he recalls the Soviet labor camps, Vietnam War, dictatorships and tortures in Latin America.
The concentration camp survivor pointed out to the world the existence of prisons, juvenile institutions, psychiatric hospitals where, as in Auschwitz, the human being loses his name and face, dignity and hope - "Above all, fascism did not die: consolidated in some countries, cautiously awaiting retribution in others, has not stopped promising the world a New Order" (3). If Primo Levi is right, and we believe he is, then the foundations that constitute today's neo-fascisms have always been present in our societies, creating situations of violence, racism, xenophobia and various forms of discrimination. It would be a case of unraveling these phenomena, which in the paper presented here, are shown in the new and old speeches for public security and incarceration of vulnerable sectors.
In recent times, we have seen the rise of authoritarian and neo-fascist ideas and practices around the world. They are movements that are globally articulated and affect each society differently, causing a series of tensions, debates and possibilities of ruptures. Analyzing this moment is not an easy task, although it is essential. There are many ways to look at each case, but demands for order, punishment, increased penalties, security, personal weaponry and repression seem to underlie the rise of the extreme right in the world - it is possible to perceive these speeches and practices of penal populism (4) from Brazil to the Philippines, passing through the US, Europe and many other places where the Extreme-Right gains strength.
However, two premises must be stated: First, penal populist discourses are not recent. Understanding the rise of authoritarianism means, first of all, understanding the presence of authoritarianism in our societies for a long time. Second, if, on the one hand, there is an increase in violent and anti-democratic discourses and practices in the criminal justice system, on the other hand, it is also evident the rise of protest movements, which are also not new, but which have publicly affirmed - with even greater strength - the possibilities of alternatives to a justice system that historically showed an extraordinary capacity to reproduce injustice, racism, xenophobia, sexism and other forms of violence, without offering positive results with regard to its declared functions.
These two premises guided the present work so that, from them, it is possible to offer some paths in the complex political moment in which we live.
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Consciousness of the use of systemical language
In the relative framework of this paper, it is not possible to go into all the reasons, all the underlying work done by countless professionals in various interdisciplinary scientific areas, as to why the legitimacy of the criminal justice system as a concept should be questioned in all its functions and in its very existence.
History repeats itself is a well-known phrase. The significance of this phrase seems to elude, time and again. There appears to be a form of collective oblivion, about prior loss of humanity, known suffering and all the consequences thereof. South America has an ancient and recent history of abuse of power by governments, so has Europe, in countries like Romania, Spain, Portugal and there is of course the lingering knowledge of the period of occupation by the Nazi regime to all those living under occupation, this not being a restricted summary. Even in periods of relative peace, there will be an unequal balance of power, regarding vulnerabilities with people being less recognized or less represented within a state or a society. The basic principle of democracy, that it would protect the rights of minorities, has yet to be embodied and fulfilled.
Donald Black made it abundantly clear that the basic system of law making and the enforcement of law are direct consequence of the power balance of that particular time and state:
The seriousness of an offence by a lower against a higher rank thus increases with the difference of wealth between the parties, whereas the seriousness of an offence by a higher rank against a lower rank decreases as this difference increases. The wealthier thief is, for instance, the less serious in his theft. Thus in modern America, department stores are less likely to prosecute shoplifters who are middle class and white than those who are lower class and black, and, in court, the same applies to the likelihood of conviction, a jail sentence, and a sentence 30 days or more (5). Politicians want tangible, direct results, when they are faced with a social problem and the easy way to show their commitment is to give the solution in the form of a criminal law, to be enforced by the criminal justice system. The intent, any idealism that forms the basis for the desire to change the problematic situation perceived by them, may even stem from integrity and a genuine wish to improve the situation addressed. However, no evaluations of those criminal laws take place in regard to the problematic situations addressed. Enforcement can pose a serious problem and experience teaches that more often laws are used for another purpose, than the ones they were supposedly designed for. The process compares to making a baby and leaving it into the care of someone else without looking back. The other problem is, that in the law making process, there appears to be only focus on the intended result. There is during that process as far as known, no attention for any side effects of the law. In trying to influence the behavior of people, unintended effects occur that are not registered, because they were not intended. Thus laws often appear to have the effect of a canon shot, to kill a fly: the fly might well die, but all around the fly everything is also dead or affected. Therefore, to rely on criminal laws and the criminal justice system, to 'improve' problematic situations in society, appears unrealistic and very idealistic.
The systemical language used (6) legitimizes the institution by which it is used. Viktor Klemperer has painfully described how the language of the Third Reich (Nazi regime) could change the legitimacy of dehumanizing certain groups and people to the point where they could be treated as objects and in great numbers could be killed. (7) Louk Hulsman objects to the use of systemical language stating that you cannot escape from the logic of the criminal justice system, if you do not also discard the use of wording underlying this logic. Thus, Words as 'crime', 'criminal' and 'criminal policy', etcetera, belong to the criminal dialect and they reflect the 'a priori' of the criminal justice system.
An occurrence labeled as 'crime' will instantly be taken out of its context, removed from the ligament of individual and collective interactions and presupposes a guilty perpetrator. No longer has to be proven how important the use of words is: everybody knows to which extend someone's inner status can change if not any longer called 'maid', but 'housekeeper', or if someone is no longer 'an unmarried mother' but becomes 'a single parent'. It also goes without saying that also in a scientific indicated context, terminology like, criminology, sociology of criminal behavior, crime sciences, etcetera, are in a negative way connected to the discriminating notions of the criminal justice system, that will be unconsciously adopted. (8) To call an event a "crime" means to limit extraordinarily the possibilities of understanding what happened and providing answers. Each event has a value and an explanation. If the events are completely different, the answers should also be. We will have to teach ourselves a new use of language, fit to express a non-stigmatizing outlook on people and the situations experienced by them. Thus, you could enter into a new mentality, using expressions like 'unwanted behavior', 'involved persons' and 'problematic situations'.
In that respect and as a legacy to independent thinkers, as an avenue towards inclusion instead of labeling, dehumanizing and exclusion, it would be very appreciated if the reader would try to 'translate' any systemic language used in this article, to imaginable actual problematic situations, and its actors, the involved persons, in the hope of awareness of all who are part of those problematic situations, be it institutional, be it representatives of minorities or vulnerable groups, or individuals.
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Former and current developments, inequality and the use of the criminal justice system
In the 60s, when the Black Panthers published their Ten-Point Program, there were already several demands related to the justice system. Understanding that a racist society would create a racist criminal justice system which, on its turn, would reflect racist discrimination in its sentences, the movement asked, among other things: an immediate end of police brutality and the killing of black people; liberty to all incarcerated black people, because they never got a fair, impartial trial; that all black people presented to trials should be judged in a jury formed by their peers or people from their black communities. Meanwhile, in others parts of the world, a range of social actors, activists, movements and academics set in...
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