location: publications / books / Justice Behind the Walls / Sector 1 / Chapter 1 Change and Continuity in the Canadian Prison: Lessons from Scholarship

One of my students, Ori Kowarsky, in reviewing how Canadian prisons in every generation have generated a crisis, raised the question of whether "this habitual gearing down is analogous to a stock market 'correction,' a facile surface crisis which allows each generation the privilege of breathing new life into the institution and its unremoveable flaw by making its outward accoutrements according to the fashion of the times" (Ori Kowarsky, "Penitent and Penitentiary: The Problem of Situating Zones of Outlawry and Punishment" [University of British Columbia, Faculty of Law, 1998] [unpublished] at 8). The Canadian Sentencing Commission, in its 1987 summary of the succession of official inquiries, concluded that these inquiries were "more of a tribute to the resiliency of the criminal justice system than a chronicle of change" ( Sentencing Reform at 40). At the end of his year-long study in my Penal Policy seminar, Ori Kowarsky concluded that "the story of the penitentiary in the 20th century may be the story of a system straining against the law in order to remain true to its nature . . . [T]he ideology of the penitentiary is like DNA, it is encoded in every brick, in every bar and every report" (Kowarsky at 58).

The remarkable resiliency the system of imprisonment has demonstrated despite a continuous stream of criticism runs alongside the equally remarkable ability of the system to absorb a succession of theories about the causes of criminality and the purposes of criminal law. When Kingston Penitentiary opened, the prevailing theory, as described by J. M. Beattie, was that crime was a social disease characteristic of the poor, the origins of which lay in indolence and a lack of moral sense.

Since crime was thought to be the product of a criminal class that lived in destitution and ignorance, that lived without the restraints of morality and religion, . . . crime could only be prevented and society protected if the habits and behaviour of the lower orders of the population were changed . . . Internal discipline and good work habits would succeed in protecting property from the envy of the low orders where the horrors of the gallows had failed. (J. M. Beattie, Attitudes towards Crime and Punishment in Upper Canada, 1830-1850: A Documentary Study [Toronto: University of Toronto Centre of Criminology, 1977], at 12-13)

The expectation of those who designed the regime at Kingston Penitentiary was that with a basic diet of hard work and religious instruction, outlaws would become law-abiding. As the penitentiary's official historians have noted, "At least this was the hope at a time when criminal behaviour was equated with sinfulness. It later would be called a sickness, and still later a disorder of the social environment, but the penitentiary would prove equal to all the theories" (Dennis Curtis et al., Kingston Penitentiary: The First 150 Years, 1835-1985 [Ottawa: Correctional Services of Canada, 1985] at 4).

The penitentiary has been equally accommodating to shifting emphasis on the purpose of criminal sanctions, be that retribution, deterrence, reformation, or incapacitation. This facility of correctional regimes to accommodate themselves to shifts in basic assumptions about crime and criminals may be, as Ori Kowarsky suggests, be caused by a deep-seated imprint that transcends theories. There is, however, another explanation, offered by criminologist Peter MacNaughton-Smith: that the assumptions underlying the theories not only change with the times but are inherently contradictory, although they share the common feature of justifying the practice of imprisonment and of dividing society into those who are criminals (and therefore deserving of imprisonment) and those who are not. In this parody of the assumptions that have driven penal policy, MacNaughton-Smith writes:

Criminals are wicked (and we are rather good) but they are not really wicked, they're sick (so I suppose that we are not really good, we're just healthy) and in any case it doesn't matter which they are because the things they do are dangerous and inconvenient (and what everyone else does is always safer and more convenient) and we have to teach them a lesson, which they won't learn because they're incorrigible, and we have to integrate them back into the community, and also symbolize society's rejection of them. The young ones are the worst and we must spare them the shame of being treated like real criminals. Now some of these clichés may well be true, or may well not be, but they cannot all be true at once; we shall not believe anyone who asserts too many of them together. They are rather like proverbs: you can find whatever you want. Which ones the powerful members of the society believe are true will surely make a difference to what that society does; yet human society as a whole, over nearly all of its geography and history, has done very similar things in the name of the law and has offered whichever reasons happen to be in fashion at the time. When the reasons change and the activity remains, the reasons begin to look like excuses . . . In our own age (perhaps it is the age of mystification) the reasons are advanced almost proudly in self-contradictory pairs such as justice and rehabilitation. But as George Bernard Shaw says,

now if you are to punish a man retributively you must injure him. If you are to reform him you must improve him. And men are not improved by injuries. To propose to punish and reform by the same operation is exactly as if you were to take a man suffering from pneumonia and attempt to combine punitive and curative treatments. Arguing that a man with pneumonia is a danger to community, and that he need not catch it if he takes proper care of his health, you resolve that he shall have a severe lesson, both to punish him for his negligence and pulmonary weakness and to deter others from following his example. You therefore strip him naked, and in that condition stand him all night in the snow. But as you admit the duty of restoring him to health if possible, and discharging him with sound lungs, you engage a doctor to superintend the punishment and administer cough lozenges made as unpleasant to the taste as possible so as not to pamper the culprit. A board of commissioners ordering such treatment would prove thereby that either they were imbeciles or else that they were hotly in earnest about punishing the patient and not in the least in earnest about curing him. (P. MacNaughton-Smith, Permission to be Slightly Free [Ottawa: Minister of Supply and Services Canada, 1976] at 30-32)

With so many contradictory assumptions supporting penal policy, is it so strange that the institution of imprisonment has, chameleon-like, developed the ability to present itself in many different colours over time, from Revenge to Restraint, from Restraint to Reformation, and from Reformation to Reintegration?

Page 4 of 9

On Guard at Kingston Penitentiary, circa 1930s