Beware of Power

Nils Christie

Flower power

Nothing succeeds like success. Here they come, these soft people with ideas of bringing parties to see each other, talk to each other, understand more of what happened and why it happened, often with ideas of making peace rather than pain, and sometimes even breaking down clear divisions between right and wrong and saints and sinners. Flower power, rather than penal power.

And it seems to work. Increasingly alternative ways of coping with conflicts gain more respect. But then it happens what so often happens: What a waste not to use these successful newcomers in the service of the old system of law and order!

In my view, this endangers the basic ideas in the alternative ways of handling conflicts. It is therefore I want to create a maximum of barriers between civil ways of coping with conflicts and those applied within the framework of penal law. Let me attempt to crystallize some essential differences between the two. I think they are both needed, but for different purposes.

The core of penal courts

Penal courts are there to decide on the use of punishment. Punishment is an evil intended as an evil. Penal courts have delivery of pain as their central task. These are serious matters, demanding the utmost of care to handle. The old saying; “…better that ten guilty escape punishment, than one non guilty is punished” is still adhered to. A monument of Lady justice stands outside many a court house with sword in one hand, a scale-weight in the other, – and blindfolded. The right and the duty to deliver pain, as the sword tells about, set the scene. An endless amount of rules and practices are developed to protect against injustices.

Delivering of pain should be just in the sense that equal pain is delivered to equal acts. But in real life cases are never equal, a rich picture of the total person might complicate this task. The cases have to be made so by narrowing the story, deleting a great amount of information, all which is defined as judicially irrelevant, but often most relevant to the parts and people around. In contrast to boards to handle conflicts, penal courts are not arenas for openness and totally free speech. The accused one might want to hide information and will also often have a legal right to do so. And the judge might also be in trouble by a great amount of knowledge about the accused person, – the one to receive pain decided by that judge. Distance to the accused is built into the court proceedings by custom, language and structure of the courtroom. The decision is made impersonal.

The core of boards for handling conflicts

Boards for civil handling of conflicts, activities this journal calls restorative justice, are based on opposite principles when it comes to information. These boards are not created for delivery of pain, but for creating understanding, may be even reconciliation.

Proceedings in these boards do not usually start with clear positions defining who is the offender and who is the victim. The start is, or at least ought to be; what happened? Explain, in minute detail, the occurrences. Slowly, in the good cases, a picture emerges. Parallels to similar occurrences do not come from penal courts, but from ancient history, stateless communities, or from the great literature. Small novels might grow out of such meetings, not police reports or formal decisions. The purpose is not to decide on guilt or on the delivery of pain, but to help parties to see their situation, eventually improve on it. It is a place of freedom, a possibility to see the other as a whole person, may be also to see oneself.

If I have learned anything, after a long life in criminology, it is about the importance of social settings that allow people to see each other as whole persons. Penal courts exemplify the negation of this. To handle their cases, delivering of pain in a just way, the penal courts need restrictions on information admitted to their arena. Just decisions can’t be found if all becomes known through an endless regress, delivery of pain is more painful the closer one comes to the person to receive the pain.

In a way, the civil boards for handling conflicts represent a reconstruction of elements of a life lost in modernity; neighbours knowing each other through daily interaction, from Gemeinschaft to Gesellschaft in the words of Tönnies (1887).

But these are tender constructions. A particular danger occurs if these boards to handle conflicts are given power over other people.

When institutions merge

Penal courts gain trust and respect through their organizational devices to hinder injustices. But of course, these protective arrangements are often under severe pressure as in totalitarian societies or they are seen as inconvenient barriers against keeping unwanted social categories under control. Characteristic ways of circumventing some of the protective devices in the penal courts have been to define some of the measures used as non-punitive. Enforced hospitalizations in institutions for heavy drug users or alcoholics are examples. These measures are seen as so good for the addicted one, close to a gift for survival, that the usual concerns regulating delivery of pain can be removed. As a professor of penal law stated it in my country back in the year 1900: “These are measures that could not be accepted if they were seen as punishment. But when seen as measures to treat a skid-row alcoholic, no objections can be raised” (Hertzberg in Christie 1960). Further objections were not raised, and one of the most severe prisons in the country was built, and kept parts of our most deprived population out of visibility for the next 70 years.

Far back in time, I interviewed prisoners waiting for trial. I asked them what sort of punishment they thought they would get. Most were, it turned out later, rather precise in their predictions. I asked them also what sort of punishment they would have given in a similar case if they had been the judge. To my surprise, they came out with a sentence rather similar to what they actually received some weeks later. There was only one exception. Those who, also precisely, expected the supposedly helpful sentence of being sent away for the supposed “treatment” were furiously angry and embittered (Christie 1960).

There are many similar examples, particularly in the borderland between what is seen as insanity and what is seen as crime. Some institutions called “asylums” were in practice severe prisons, containing supposedly insane offenders for much longer time than if they had been imprisoned for specific types of offences, and also under material conditions of miserable quality. In Norway we had also, for years, institutions we called “work-schools for young offenders”. Here youngsters might be kept for years for offences that would have given them a few months in prison if they had not been sentenced to the supposed blessing of this type of education. It was a parallel arrangement to the English system of Borstals, – so efficiently unmasked already back in 1955 by Mannheim and Wilkins.

It sounds so kind to exchange punishment with treatment and education. But penal history tells us another story, one of alternatives to punishment that actually are more severe, more painful, than ordinary punishment. Attempts to combine elements from two institutions might bring up the worst features from both of them.

Keeping young people out of prisons

We dislike intensely having young people in prison in my country, and have very few there below 18 years of age. But confronted with continued misbehaviour from some of them, a demand for some sort of alternative control is raised. Not penal control. But something. A committee established by our ministry of justice came up with a proposal of “circle building” as an alternative to imprisonment. Family, friends, teachers, neighbours in a circle around the youngsters. Rules on future behaviour have to be established and agreed on, school has to be regularly attended, rules for how to spend afternoons and evenings are drawn up, no alcohol, no drugs, and then regular tests to control that the person is clean.

And who are to care for all this?

The probation service, a branch of the penal system, was suggested, but lost in the competition. Nothing could be better than leaving such an exceptional task to our established boards for handling conflict, highly regarded as they are!

But of course, what here was proposed, and just this summer is to be established, is on central points a deviance from normal procedure in these boards for handling conflicts.

First of all, the misbehaving youngster is compelled to attend. It is a conditional sentence, ordered by a judge in court. If the youngster does not attend, or later breaks with the regulations decided in the circle, he or she will have to serve a prison sentence. Those in the circle have thereby extraordinary powers! They function as legislators in creating rules for behaviour. They function as police in controlling that the rules are not broken. And if the rules are broken, they function as judges and can decide that the youngster now is to be sent to prison. Seen from the youngster’s position, this is not a situation that encourages free communication. Better to remain silent, or tell an untrue story. The trust and confidence, decisive for the boards to function, is threatened.

These are realistically seen as difficult cases, probably too difficult for lay-people to cope with without some sort of professional assistance. Supposed experts on other people’s behaviour are therefore called in. We have 22 boards for conflict counselling spread out in the country. To strengthen them for these new demanding tasks, they have now all been provided with personnel with a professional certificate, – it might be in psychology, pedagogy, sociology or criminology or other educations supposed to be relevant.

It is already a strong pressure to “professionalize” these boards. The labour marked for lawyers is saturated; why keep the jobs in the boards to amateurs? Also educational institutions are more than willing to take on new tasks. Education for mediators is an expanding area. This seems self-evident in societies celebrating education. Conflicts are for experts, not for ordinary people. Once again, content for social life is grabbed by someone claiming to have particular qualifications. It is a development so well described by Richard Sennet (2008/2009). The craftsman, with knowledge gained through his work and stored in his body, loses out to the certified ones.

To sum up: Based on kind humanitarian ideas, the boards for handling conflicts are given a kind of power and authority that might damage their core and the trust they receive from the population in general. To protect youngsters, the boards are brought closer to the penal system and probably more distant from ordinary people with their ordinary conflicts.

On the reduction of pain

My preference in attempts to reduce the use of punishment in society is to preserve the penal courts, but reduce their possibilities for delivery of pain. To abolish penal courts would inevitably lead to a development where other institutions were forced or tempted, to take over parts of the penal tasks. I would go the other way; keep the penal courts, but attempt to reduce their delivery of pain.

The question of what is the “right punishment” is a cultural question. How much pain, intended as pain, do we accept being used in our societies. On these matters it is important for criminologists to leave their chairs in the ivory towers and enter the public debate with their knowledge and views of the costs in punishment.

Another avenue for reducing the use of punishment in society is by encouraging police to send cases of conflicts to the boards for handling conflicts, instead of sending them to the prosecutors. It is important to attempt to make police and prosecution aware of the potentialities and possibilities in reformulating conflicts from crimes to conflicts.

An important part in this endeavour is to refuse being captured in the penal-law terminology or in the terminology from any of the professions that now invade our civil boards. We must instead use words that allow us to come so close to the participants in a conflict that we see them as full human beings, something more than mere “cases”. This is a particular problem by being close to the penal apparatus. Those in the civil boards might adapt to the manners of the big brother in language and in what that language demands. It is therefore I think John Braithwaite, with whom I usually agree, might be on wrong track when he in his comments to my article on “Words on Words” wants to preserve the concept of crime. I am a sworn enemy of big, fat words of this type. “Crime” is a core example. It has different meanings in different times and places, but it is usually something bad, often something terrible. Instead of crime, we ought to use time for detailed description of the occurrences, the deplorable acts, and the planned reactions to the acts. Fat general words are contra-productive. We need ordinary words in boards for handling of conflicts, words that help us to see human beings behind the usually too large concepts in use.

My negative view concerning the poverty in the concept of “crime” has a parallel to the core categories so often used in courts by psychiatrists and psychologists. These professionals might use diagnostic categories as “insanity”, “bi-polar personality” or “severely mentally retarded”, and with such concepts breed the ground for people being sent to various types of hospitals, not prisons. Often a comfortable situation for the judge, rescued from the task of meting out a suitable amount of pain, but less comfortable for the many persons where the hospitals turn out to be prisons in disguise.

And who is this person behind the diagnosis? Many might want to know. We are not helped with diagnostic categories, – we need the full stories. And this is exactly what can be given in ordinary meetings in boards for working with conflicts. These are meetings to gain knowledge, eventually recognition that bad acts had occurred. The process itself is a central element in the meeting, particularly if the process leads to increased shared knowledge concerning what had happened, and why. Again and again I have been struck by the urge among suffering people to find an answer to “why”. Why did it occur, why did you do it, why, and how did my husband die? To survive, I need to know.

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My critique of the dominant terminology – “Restorative” and “Justice” was, and is, in defence of the civility in the civil ways of handling conflicts. I want to create a maximum of barriers between civil ways of coping with conflicts and those applied in the general system for upholding law and order as police, courts and punishment. It is in attempts to preserve the spirit of the civil way of coping with conflicts that I want a terminology with the utmost of distance to the usual system for law and order. The terms “restorative justice” blur these distinctions, – therefore my objections.

* * *

Probably my attempts to rescue the civil core in the boards coping with conflicts are doomed to failure. Our civil boards will probably, obediently, adapt to the tradition of the big brother in law and order, – in terminology as in action. But may be, in a distant future, some archaeologists will pass by, dig out some ideas on how to create peace among people, and re-create some arenas for conversations on conflicts. May be they then – in that distant future – even had other big brothers to learn from, to adapt to. Maybe that might be some brothers from art and literature, maybe some poets, or some authors of novels, – some good in revealing the complexities in human beings, and eventually also both finding and presenting human elements in those persons that might have committed inhuman acts.

Maybe.