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Abstract

Despite gaining significant cultural and academic currency, penal abolitionism remains unable to radically problematize the punishment of individuals found responsible of exceptionally disturbing acts of criminalized violence. Through an empirical examination of a recent Canadian controversy over penal governance articulated to the transfer of a “monster” to a correctional healing lodge, the article makes legible our difficulties in communicating about appropriate responses to exceptional criminalized incidents which would forgo the use of afflictive sanctions as retaliatory harms. Engaging penal abolitionism empirically, theoretically and normatively, the article notably suggests that the limits of penal abolitionism can be explicated by the fact that its critique is premised on an instrumentalist conception of penalty which neglects the communicational function of punishment.

Keywords

Correctional healing lodges dangerousness desert moralization modern penal rationality penal abolitionism retribution

Many analysts of penality have, since the 2010s, diagnosed a resurgence of abolitionist praxes and scholarship (e.g. Brown and Schept, 2017; Coyle and Schept, 2018; Ruggiero, 2010; Saleh-Hanna, 2015). The mass mediatization of recent American protests and critiques of repressive state apparatuses—fueled by the killing of George Floyd and typically positioned within a broad grammar of radical Black liberation—has contributed to the contemporary normalization of abolitionist discourses in North America. Brown (2020: 76) thus suggests that abolitionism has now “entered the mainstream in the US.” In Canada, it is also no longer an anomaly to see abolitionist discourses and organizing being attributed newsworthiness and informational value by mainstream newsmedia (e.g. CBC, 2020; Lopez, 2020). Unsurprisingly, the presence of individuals constructed as “monsters” (Foucault, 1999 [1974]) forces abolitionists to provide a satisfactory answer to the following question: What is to be done with individuals responsible of exceptionally disturbing acts of violence if we are to abandon resorting to either the deprivation of liberty (prison abolitionism), or to any institutionalized disposition meant to punish (penal abolitionism)? In the abolitionist literature, this question is frequently referred to as the problem of “the dangerous few” (Carrier and Piché, 2015b).

The empirical material examined in this article reveals our attachment to penalty and, as such, the limits of penal abolitionism. It is about a recent Canadian controversy over penal governance, which erupted when Facebook revealed that Terri-Lynne McClintic, a prisoner doing time for raping and killing Victoria (Tori) Stafford, 8, had been transferred to a “correctional healing lodge.” The controversy follows an arc familiar to critical criminologists: a “monster” is granted access to a penal practice coded as a benevolent enterprise, this is massively problematized, mediatized, and politicized, and, relatively quickly, the “child killer” is put back where she belongs (in a space incontrovertibly oriented toward suffering and incapacitation), and new rules to prevent this from ever happening again are announced.

Carceral spaces, it has been pointed out, “almost only come to public notice under condition of scandal” (Sparks, 2000: 133). The usual critical and normative edges of analyses of penal controversies are exemplified in Annison (2020: 157): they are about “the potential for better penal culture, penal policy, and penal outcomes.” Similarly, calls for a greater involvement of “public criminologists” in penal controversies are justified by desires for “better politics of crime and its regulation” (Loader and Sparks, 2011: 736; see also Steckle et al., 2020). This article departs from such an instrumentalist conceptualization of penality which, as Brown (2009:35) showed, is quite “self-limiting.”

Empirically, the paper provides three main contributions: (1) it describes (some of) the ways in which society communicates about punishment and the proper penal administration of “the dangerous few”; (2) it shows the existence of penal standard according to which access to a carceral space self-described as a practice of care is socially problematized when not preceded by “unproductive expenditures” (Hallsworth, 2002), that is by a purely retributive, harmful, and useless form of detention; and (3) it demonstrates that, despite gaining significant cultural and academic currency, abolitionism qua abolitionism has, currently, no meaningful political existence in social communications about criminalized individuals constructed as “monsters.”

Informed by contemporary systems theory, the analysis proposed below approaches punishment, first and foremost, as a communicational achievement. The sociology of law that has emerged from contemporary systems theory (e.g. Luhmann, 2001a, 2001b, 2004) proposes that the function of penality is not to regulate crime, nor to control, harm, or “de-habilitate” (Mathiesen, 2006: 53) criminalized individuals.¹ Rather, punishment is theorized as society’s modality of counter-factually maintaining normative expectations. The article proposes that the limits of penal abolitionism can be explicated by its neglect of the non-instrumental, communicational function of punishment. The article engages penal abolitionism empirically, theoretically, and normatively, notably arguing that it (still) fails to radically problematize the punishment of “the dangerous few” because its critique is premised on a “self-limiting,” instrumentalist, conception of penality. Positing the normative superiority of productive social responses to criminalized incidents over retribution, penal abolitionism neglects how our “modern penal rationality” (Dubé, 2013; Machado, 2013; Pires, 1998a, 1998b) expresses itself not only as means to an end, but also through communications about non-instrumental forms of violence; in the absence of such communications, law, politics, and the media observe an absence of justice.

The rest of the article is structured as follows. The first section discusses contemporary abolitionism, the problem of “the dangerous few” and the concept of modern penal rationality. The article then presents and contextualizes Canadian correctional healing lodges (CHLs). After a short note on the methodology used to gather the empirical material supporting the analysis, the controversy surrounding the transfer of a “monster” to a CHL is narrated. This opens the door to a discussion about public and political penological communications and about the ways in which politics, the mass media, and various personalized actors of digital worlds observe—that is make sense of—the administration of penality. In Canada, incarceration remains the most extreme form of “legitimate” violence; this paper outlines some of the sociological and political corollaries of the lack of an overt commitment to produce suffering in penal projects oriented toward healing.

Abolitionism(s) and “the dangerous few”

In the penal field, abolitionism pursues different ends (Piché and Larsen, 2010). Prison abolitionism, the most common abolitionist posture, works toward a world in which criminalized individuals can no longer be put in cages as means to (criminal) justice. Penal abolitionism aims to avoid the use of any afflictive sanctions as retaliatory harms, and as such works toward the annihilation of entire criminal legal systems. There is also a third, far less developed, form of abolitionism in the penal field. Carceral abolitionism moves beyond both “methodological nationalism” (Beck, 2002) and penality proper, inviting penal abolitionists to also consider forms of surveillance, repression, and detention which do not find their condition of possibility in national criminal laws (such as mass surveillance, pre-emptive forms of incapacitation, and the aberrantly massive confinement of immigrants and refugees). This article limits itself to penal abolitionism.

Penal abolitionists cognizant of the European tradition will normally avoid mobilizing the notion of crime altogether, preferring the notions of problematic or problematized situations (Carrier et al., 2019; Hulsman, 1995). Such a perspective puts forward an ethics of “knowledge, proximity and dialogue” (Ruggiero, 2010: 183), seeking to understand the situation from the experience of involved and concerned parties without resorting to the logics and categories of criminal legal systems. These systems are posited as heteronomous to problematized situations, forcing an alienating “frame of reference” (Hulsman, 1981; Hulsman and Bernat de Celis, 1984). Whether they ontologize crime or not, penal abolitionists will most typically problematize criminal legal systems by showing how these systems are not only neglecting the needs and interests of victims and communities, but dispossessing, dominating, and harming them while radically failing to generate safety (e.g. Law, 2011; McDowell, 2019; Meiners, 2011).

Abolitionists typically present their telos as a “horizon” (e.g. Asare, 2019; Dilts, 2017a; Kaba and Duda, 2017). Or, following Mathiesen (1974), they describe abolition as an “unfinished” project. This strategy notably aims to prevent radical critiques from being neutralized or absorbed through reformist endeavors by national penal systems (Carrier and Piché, 2015a). Still, this strategy does not shield abolitionism from the problem that the so-called “dangerous few” presents for its transformative projects. A rigorous penal abolitionist posture opposes dangerousness as a mean to justify the infliction of pain; the task is not to “legislate” about who should be constructed as part of “the dangerous few,” but to avoid “implicitly conceding that there is a durable core of punishable subjects” (Parkes, 2022: 151).

Monstrosity² is a typical form through which the social construction of “the dangerous few” has been operating for centuries. Analysts of mediatization and penality have documented multiple manifestations of the stereotypical portrayals of (some) criminalized individuals as “monsters,” notably “sex offenders” (e.g. Kohm, 2020; Powell et al., 2018). The social construction of a “monster” is usually approached as a process of de-humanization (Hudson, 2006) nurturing penal intensification. A “monster” is not redeemable (Dichter, 2017), and the fascination and terrorization “it” exerts would authorize the most sadistic forms of destruction (Linnemann et al., 2014; Spencer, 2009). As Dilts (2022: 197) recently argued, abolitionists need to confront the enjoyment that “putatively “innocent” members of society” derive from the carceral annihilation of criminalized individuals.

In the 1980s, the “unfinished” was still seen as an acceptable temporary answer: interpreted as a “sensitizing theory” allowing the formulation of “new kinds of questions,” abolitionism could still, Scheerer (1986: 10) argued, postpone confronting the problem of “the dangerous few.” In the 1990s and 2000s, abolitionists intimated more strongly that the movement would lack traction so long as it has difficulty radically problematizing penal responses to exceptional violence (Bianchi, 2007; de Haan, 1992; Scheerer, 2007). Although the problem of “the dangerous few” is still oftentimes bypassed in the abolitionist literature (Carrier and Piché, 2015b; Parkes, 2022), penal abolitionists do confront it by a dual rhetorical strategy: criminalization and penalization are constructed as failing instruments to produce safety, and as destructive responses expanding and compounding violence (e.g. Brown, 2020; Dilts, 2017b; Kaba and Duda, 2017; Levine and Meiners, 2020; McDowell, 2019; Saleh-Hanna, 2000). The projects championed by abolitionists notably aim to shift “from justice as retribution to justice as healing” (Levine and Meiners, 2020: 181), where healing is part of a set of transformative strategies oriented toward the manufacture of a safer society.

The analysis of the penal controversy proposed below exposes the difficulties we have to think about just responses to criminalized events which would forgo the use of afflictive sanctions as retaliatory harms. Indeed, the controversy shows how “correctional healing” in a carceral space is seen as a violation of our³ modern penal rationality, that is as an absence of justice. The modern penal rationality, a concept formalized by Pires (Pires, 1998a, 2001, 2013) following a more impressionistic treatment in Foucault’s (1974) lectures on truth and juridical forms, is a system of thought which “naturalizes the normative structure of penal laws and its institutional practices” (Pires, 2001: 181, my translation). The problematic coupling of crime and punishment ontologized by this system of thought produces a categorical imperative to deliberately inflict harm as a response to criminalized incidents. It makes criminal victimization a generative force, creating a sort of “right” to the anti-welfare of non-generalized others (Pires, 2001: 202). The modern penal rationality has naturalized social responses to criminalized incidents as being necessarily hostile (criminalized individuals are “enemies”), abstract (punishment shall produce an “immaterial good,” such as “doing justice” or supporting the morality of citizens), negative (the norm cannot be re-affirmed without concretely harming the criminalized individual), and atomist (punishment “has not to preoccupy itself with concrete social bonds between persons, except in a way remaining totally secondary and accessory” (Pires et al., 2001: 198—my translation)).

All these characteristics of the modern penal rationality directly conflicts with the worlds toward which abolitionist struggles are oriented. In Canada and other white settlers political enclaves, it is not infrequent to see abolitionist struggles aligned with broader Indigenous contestation and denial of the claims to the land—and its law—by the state (Piché et al., 2019). In Canada, the activism of the anarchist collective End the Prison Industrial Complex (see https://epic.noblogs.org/) illustrates this potential alignment of abolitionist struggles with broader Indigenous resistance to the state (see Carrier and Piché, 2018). Anarchist postures are envisioning post-sovereigntist horizons in which institutionalized penalty has no place (Walby, 2011), whereas Indigenous resistance has a different relationship with sovereignty. As Simpson (2020: 689) has argued, in the context of Indigenous resistance, sovereignty is repositioned “as a form of relationality rather than a violent claim of property, exclusion, and a right to kill.” Anarchism and Indigenous resistance coincide in their negation of the legitimacy of the state. As such, they instantiate much broader forms of abolitionism than penal abolitionism (to which this article limits itself).

Still, one can argue that the problem posed by “the dangerous few” remains in the context of legal orders autonomous of any state formation. The absence of a claim of monopoly over violence cannot be equated with the absence of severe penalties for very serious normative transgressions (Amborn, 2019: 149). Clearly, Indigenous peoples “have always practised, and continue to practise, systems of justice that centre accountability through care and relationality” (Free Lands Free Peoples, 2022: 74). Yet, one cannot equate Indigenous legal orders with an absence of retributive—nor even pre-emptive—lethal violence (see Friedland, 2018; Harring, 1998). Penal abolitionism is informed by a transformative telos which, like Indigenous healing lodges, rests on the credo that acts of wrongdoing do not necessarily call for destructive retribution and signal an imperative of care.

The Aboriginalization of Canadian corrections in an age of reconciliation

In principle, Indigenous healing lodges (pavillons de ressourcement in French) are totally uncontaminated by the modern penal rationality. They are trauma oriented therapeutic resources devoted to healing persons suffering from a wide range of experiences and symptoms, including sexual violence, problematic psychoactive substances use, and compulsive overeating. But correctional healing lodges are explicit penal apparatuses. They are carceral spaces with a legal requirement to conform to norms of securitization characterizing either minimum or medium security penitentiary settings. If the persons placed in correctional healing lodges (CHLs) are called residents rather than inmates, the condition of possibility of CHLs remains the practice of incarceration.

CHLs are part of broader organizational and political strategies to Aboriginalize Canadian corrections, conceived as “a governmental response to the effects of colonisation and cultural genocide on Aboriginal peoples” (Turnbull, 2014: 386). Particularly since the 1990s, the political and legal systems have been repeatedly irritated by the public reports of task forces, commissions, committees, and provincial and national inquiries indicting the Canadian colonial present and delineating massive sets of urgent actions needed to move toward reconciliation (see National Inquiry into Missing and Murdered Indigenous Women and Girls, 2019; Truth and Reconciliation Commission of Canada [TRC], 2015b). The overrepresentation of Aboriginal peoples in carceral spaces is typically interpreted as an incontrovertible proof that the criminal justice system has “failed” them (Martel et al., 2011: 236). The calls to action of the Truth and Reconciliation Commission of Canada included having “federal, provincial and territorial governments to commit to eliminating the overrepresentation of Aboriginal people [adults, youth and children] in custody over the next decade” (TRC, 2015a: 3). The most recent data still show a clear increase in their carceralization (Malakieh, 2018). It should be underlined that this is taking place in a legal context where the formal sentencing principles of the Criminal Code of Canada explicitly command judges to consider all “reasonable” non-carceral sanctions “for all offenders, with particular attention to the circumstances of Aboriginal offenders” (CCC, s.718.2).

From an orthodox correctionalist standpoint, it might seem reasonable to argue that although correctional institutions have technically no control over the influx of criminalized persons, they have a responsibility to administer sanctions so as to reduce the likelihood of re-offending. This, at least, has been CSC’s line of reasoning: its contribution toward reconciliation is about implementing evidence-based programs that “work” for “Aboriginal offenders,” with their overrepresentation taken as sign of the lack of effectiveness of “mainstream prison programs” (Correctional Service Canada [CSC], 2019a). Incarcerated individuals desiring to follow a traditional healing path may have access to Aboriginal corrections programming and carceral contexts. Since 2003, CSC has developed an Aboriginal Corrections Continuum of Care model to innovate in “addressing Aboriginal offender needs” (CSC, 2019a). The latest innovation—Aboriginal Intervention Centres—is still presented as a strategy to address the problem of overrepresentation through improving “reintegration results” (CSC, 2019b). From such a perspective, overrepresentation is constructed as a product of over-offending—not as a testimony to the colonial nature of penal apparatuses and to systemic discrimination in the social uses of penality. It is within this politicized correctionalist logic that CHLs have been implemented in Canada since 1995.

Part of the official narrative about CHLs includes tropes of collaboration between CSC and Indigenous communities. On the one hand, collaboration is presented in terms of learning different ways to make corrections “work.” That is, correctional effectiveness is coupled to a putative displacement of epistemic authority outwards CSC and toward communities, with CSC claiming to harness its practices to “Aboriginal community research” (CSC, 2013). This results in CHLs being officially presented in sharp contrast to traditional carceral spaces, with healing/correctional practices including “holistic and traditional Aboriginal teachings” and ceremonies (CSC, 2019a). On the other hand, collaboration also supposes the participation of Indigenous peoples and communities in the delivery and administration of afflictive sanctions in CHLs. This is juridically enabled by the 1992 Corrections and Correctional Release Act. Section 81 of the Act allows the transfer of prisoners “to the care and custody of an aboriginal community, with the consent of the offender and of the aboriginal community” (CCRA, s.81.3). Five of the nine Canadian CHLs are currently “operated by the community.” Compared to those run by CSC, Section 81 CHLs remain dramatically underfunded (Standing Committee on Public Safety and National Security, 2017).⁴

As noted above, CHLs are carceral spaces that may be available to prisoners desiring to follow what CSC constructs as a traditional healing path. There is no organizational requirement that such prisoners be Indigenous. Bureaucratically, Aboriginality is the outcome of a declaration of self-identification, which may be made at any carceral time. Access to CHLs notably requires appropriate security classification. The seven CHLs servicing incarcerated men restrict access to minimum security prisoners, while the two CHLs for women also incarcerate medium security prisoners.

In the Fall of 2018, a Facebook post revealed that Terri-Lynne McClintic had been transferred to the Okimaw Ohci correctional healing lodge. This post by the father of her victim generated a massive explosion of communications showing how, at least in the case of individuals incarcerated for particularly violent criminalized events, a penal practice explicitly oriented toward healing can hardly be defended in intensely moralized public and political debates about penology and correctionalism. In a context of intensely politicized penality, exceptional cases of violence make particularly legible the sociological weight of the modern penal rationality and our resulting difficulties in communicating about appropriate responses to criminalized incidents which do not involve retaliatory harms. The Okimah Ohci controversy reveals that, for non-generalized others, healing cannot be deserved without prior intense suffering. Furthermore, in such cases, healing is seen as appropriate only if it is coded as a technology of social defense when decarceration cannot be avoided. Any form of abolitionist praxis that does not directly confront this state of affairs shall remain a classic liberal minimalist posture in disguise.

The Okimah Ohci controversy

In 2009, Terri-Lynne McClintic lured the little Tori, who was walking home from school, into her boyfriend’s car. The event, captured on a surveillance camera, would be featured on America’s Most Wanted some weeks later. The disappearance of Tori resulted in what has been described as the largest police investigation in the history of the province of Ontario, and her death led police organizations to revise the rules governing amber alerts, since Tori’s disappearance did not qualify for one at the time (Armstrong, 2012). One hundered three days after her disappearance, Tori’s destroyed body was found, abandoned in garbage bags on a farm field. The accused eventually admitted killing the little girl, who she had offered to her boyfriend who confided having fantasies with kids. When a publication ban was lifted, the mass media informed the world about how the woman recounted interacting with a little Tori begging not to be raped a second time, serving as a lookout while this happened, and using a claw hammer to break her ribs and crush her skull.

As noted earlier, the controversy surrounding the transfer to Okimah Ohci, a multi-level security correctional healing lodge for women operated by Correctional Service Canada, erupted after Tori’s father social media posts started being relayed by the mass media. It had been 7 years since the prisoner started serving her life sentence when Rodney Stafford learned that his daughter’s killer had been moved to a CHL in the Canadian prairies. He had not been previously notified about this transfer by CSC, and this was a key element in the communications of grassroots victims’ rights activists during the controversy.

The media and the political system were the sites of an intense moralization of the Canadian penal system and its bureaucrats for a period of just over 2 months. Liberals and conservatives violently clashed in the House of Commons, with governing crime through expert systems versus governing crime through expressive penality being a key communicational node. #Justice4Tori and #ToriStafford, along with many polysemic hashtags like #ThisIsNotJustice, #SoftOnCrime, and #babykillers, served as forms of “mass personal connection” (Boccia Artieri and Gemini, 2019) in organizing protests against the transfer, supporting the fight of Mr. Stafford. Portrayed as “the little guy” uttering the “voice of regular people” (Richmond, 2018), Mr. Stafford has been very active in social media and present in traditional newsmedia during the controversy. Self-describing his battle as explicitly apolitical, he embodied the kind of social actor in moral communications with whom publicly disagreeing likely means discrediting oneself (Ibarra and Kitsuse, 1993). Mr. Stafford’s project was not limited to reversing the prisoner’s transfer and encompassed a proposal, dubbed “Tori’s law,” that would force individuals incarcerated for killing a vulnerable person to spend all their carceral time in a maximum-security environment. The key rationale was the observation of a new social ecology characterized by new breeds of predators: the rules governing the Canadian penal system would be antiquated and in need of some major updating. In the public sphere, Mr. Stafford was also regularly joined by social actors engaged in a struggle to reanimate a defunct “Life Means Life” bill, which would have effectively removed any possibility of parole for individuals serving a life sentence.

The controversy receded after it was announced that Terri-Lynne McClintic was back in a conventional carceral setting and that new rules governing the transfer of prisoners to CHLs were being implemented. This short window of frenzied communicational events and protests delimits the spatial and temporal borders of the empirical material supporting my analysis. Using conventional qualitative methods, grounded epistemologically in the operational constructivism of contemporary social systems theory (Luhmann, 2000, 2002), I have studied how a variety of observers select and give meaning to a plurality of elements attached to the controversy—which also includes examining elements that are not communicationally thematized, as my concluding dialog with abolitionism will make clear. Concretely, using the Factiva database, I retrieved all newsmedia communicational events that occurred between the initial social media post of Mr. Stafford and the political declarations about new rules regulating transfers to CHLs. I read countless social media posts on Facebook and Twitter, all the debates that took place in the House of Commons, as well as all the published documents of various standing governmental committees in which CHLs had been recently discussed and scrutinized, such as standing committees on justice and human rights, on public accounts, and on public safety and national security. In this article, my discussion centers mostly on media and political communications related to penology and the administration of penality, leaving aside many other key elements structuring social communications during the controversy, including those articulated to contemporary Canadian victims’ rights. The ways in which society communicates about punishment in relation to the exceptional case examined in this paper reveals a penal standard according to which individuals incarcerated for serious criminalized events may deserve healing only after having suffered the pains of a “real” carceral environment, and only insofar as they risk being decarcerated. As such, otherwise redundant communications about an imperative to change penal responses to criminalized events as a means toward reconciliation are interrupted and negated in cases of exceptional violent criminalized events. For the present analysis, three major themes which have shaped the controversy are discussed: (1) children in carceral settings; (2) the governance of penal apparatuses; and (3) desert and eligibility.

Children in carceral settings

In the case of exceptional violent criminalized events, penological considerations seldomly touch upon questions of general deterrence. The transfer to a CHL examined here is controversial at least in part because it is interpreted as rehabilitation trumping the penological principles of retribution and incapacitation, the latter being associated with (criminal) justice and the former to the problematic disappearance of punishment. The controversy detached itself a bit from this particular prisoner and articulated itself more broadly to CHLs and CSC bureaucrats when it came to light that the transfer of a “child killer” to a CHL was not, in fact, an atypical occurrence. And when the mass media informed everyone that there were children at Okimah Ohci. Offenses to a notion of just desert and the institutional production of risk were two core elements of moralization: not only did bureaucrats allowed “child killers” to avoid being properly punished, but even the worst of this kind of “monsters” had been placed at arms’ reach of vulnerable children. In a widely disseminated interview first given on CKOM News talk radio, a band member of the Nekaneet First nation, on which land the Okimah Ohci lodge sits, said that the transfer was a “a safety concern for everybody because we have children in our community and I know that there are some mothers out there in our community that are absolutely concerned for their children” (Hunter, 2018). Alvin Francis, chief of the Nekaneet, then pointed out that they were not consulted about a transfer that shocked his band.

The transfer of Terri-Lynne McClintic to a CHL where children are present strongly disturbs both the will to incapacitate which at least partly supports life sentences and the idea of the prison animating contemporary penal spectatorship (Brown, 2009). The victimization of prisoners in carceral settings is constructed as part of the retributive strength of prison sentences and acceptable because of a generalized (but, as we know, false) a priori that they are incarcerated because they have violently desecrated the values we place on life, liberty and security.⁵ The potential victimization of innocence embodied in children present at Okimah Ohci simply cannot be justified in public discourses, and a bureaucracy allowing “child killers” to serve their time among children is constructed as necessarily incompetent. The offense to “established penal tastes” (Happer et al., 2019) that such transfers produce, recoded publicly as an insult to common sense, can dispense moral communications of any argumentative moment; one can simply state the “idiocy” of the bureaucratic decision (Toronto Star, 2018).

Governing penal apparatuses

Whereas Conservatives (official opposition) first constructed the transfer as yet another example of the (governing) Liberals’ soft on crime stance, this discourse changed radically when it was revealed that 10 “child killers” had been transferred to CHLs during the last 4 years of Harper’s Conservative government (heralded as the Canadian tough on crime reference in politics). The problem was now about trust in public servants running CSC, the big bureaucracy making these dubious decisions—especially trust about their ability not to be manipulated by criminalized individuals depicted as particularly cunning, psychopathic creatures able to “game the system” (Bimman, 2018). Tori’s law illustrates a much broader will to tame discretion in penal institutions as a political instrument to generate trust. In the last few decades, this has been most manifest at the level of sentencing, notably through the adoption of sentencing guidelines and the explosion of mandatory sentences. This will to tame discretion has been critically interpreted as a manifestation of penal populism (Pratt, 2007). But it should be noted that it also manifests itself in the context of struggles to limit the violently debilitating effects of incarceration and to bring penal apparatuses more in line with “civilized” standards—by limiting the discretionary use of solitary confinement, for instance.

The proper governance of penal apparatuses has been a key point of contention in particularly nasty debates in the House of Commons surrounding the controversy. The value and dangers of the politicization of (criminal) justice were politically debated in many sessions, with the most spectacularly acrimonious session resulting in over 3 hours of parliamentary “discussion” (Hansard, 2018a). What was said outside the House and relayed by the mass media fed back into it, and vice versa, illustrating how the autopoiesis of social systems is stimulated by environmental irritations (Luhmann, 2012, 2013). Two communicational events were particularly illustrative of this dynamic. The first one occurred during CTV’s Power Play on September 25, 2018. Defending CSC’s decision, the minister of public safety described the acts for which the prisoner is incarcerated in terms that have been massively moralized, notably in the Twitterverse: “the prison management officials have determined this is the best way to both rectify her bad practices in the past and also to keep the public safe.” The second event took place in the House of Commons on October 3, 2018, during debates about a Conservative motion which requested the government to condemn and reverse the transfer. The prime minister described the opposition in terms that have also been massively moralized:

This is about the contrast between a party and a government that respects the rules and respects the independence of our judicial system, that appreciates the professionalism of our correctional services, and a party of ambulance-chasing politicians who are quite frankly demonstrating a contempt for the principles of law and debate in the House. (Hansard, 2018b: 22186).

The controversy offered yet another, albeit particularly salient, opportunity for politicians to openly compete in their performance of authentic expression of sympathy for victims of crime. The (initial) governmental defense of CSC’s decision to transfer the prisoner was observed as an incontrovertible demonstration of a lack of sympathy for these victims. Unsurprisingly, my empirical material is saturated by variations on the theme that Liberals care more about criminalized individuals than about victims (see also King and Maruna, 2009; Unnever et al., 2007). Communications in politics and in the newsmedia and social media supporting the Conservative motion and Mr. Stafford’s activism self-described themselves as apolitical, eminently common sensical, and articulated to a conception of justice based on “higher order laws” (Hansard, 2018a). Many communications suggested that the government’s trust in CSC demonstrated its disrespect for justice, and this was articulated to two dire specters. The first one is the production of a generalized lack of trust in the penal system:

even if McClintic has technically met the requirements of getting a bed at the facility, the decision undermines a pillar of the justice system – that justice not only be done but be seen to be done, especially in cases that resonate so widely and profoundly (Urback, 2018).

The second specter conjured up by the observation of an absence of justice, itself produced through a correctional practice explicitly aimed at healing and constructed as lacking in penal intensity, is that of vigilantism: “when justice is not done, when people see the system is not serving the victims and their families, people get very upset and that’s not good for our society (. . .) it actually promotes vigilantism in our society” (Clement, as cited in Connolly, 2018). Conversely, vigilantism was observed as a threat residing in attempts to politicize the administration of the infliction of afflictive sanctions: “We do not have a vigilante system in Canada. We do not allow public opinion or political rhetoric to determine the penalties dealt to individual offenders” (Hansard, 2018a: 22128). The arguments advanced by politicians to oppose the risky temptation of governing penal apparatuses by answering “emotional calls” put forward the need for a “a thoughtful, evidence-based approach to the exercise of power” (Hansard, 2018a, 22135). They praised CSC as an international leader in making correctional decisions based on “a thorough risk assessment with institutional and public safety always top of mind” (Hansard, 2018a: 2219). The “micromanagement” of penal apparatuses is observed as a potential violation of the law, not as a recipe for justice.

Desert and eligibility

One key element in the moralizing communications fueling the controversy is the absence of an appropriate and commensurate amount of pain inflicted on the prisoner: “You deserve bread and water and to suffer. To suffer like Tori’s parents have suffered. Like her family has suffered. Like Tori has suffered” (Bimman, 2018). Her removal from a conventional carceral setting produced a flurry of infuriated comments about the need to have her rot in prison, an institution fantasized as “hell,” uninterruptedly violating the physio-sexual integrity of “criminals.” Tweets from handles like dolcedoll_69 and OVRTXD thematizing rot, hell and prisons could fill pages, while others are more idiosyncratic, such as MissOphania expressing a desire to see the prisoner released in “genpop . . . with a supply of hammers and garbage bags on hand.”⁶ If, in the House of Commons, the governing Liberals tried to discredit the opposition by accusing it to have the unacceptable hidden agenda to reinstate the death penalty, social media communications and the commentary sections of digital newsmedia were replete with calls to do just that. We know that it is possible, in Canada, to construct public opinion in a way that demonstrates that a majority of citizens favor a return of capital punishment (e.g. Paling, 2016; Therien, 2018).

Contemporary penal spectators see the evidence of an intolerable injustice when a “monster” is given access to correctional practices couched in a language of healing without first having been submitted to an intense regime of purely retributive detention. Since healing (and coerced rehabilitation) is observed as an absence of punishment, a transfer in a CHL can easily be constructed as a form of impunity—the supreme form of injustice within our modern penal rationality (Machado, 2013). The prisoner has been sentenced for life in 2010, and the controversy erupted in the Fall of 2018, partly because, having served 7 years of a life sentence, she appeared as having gamed the penal institution and dodged desert. This illustrates Hulsman’s (1995) argument that penal justice is “fundamentally the system of the purgatory” (p. 156, my translation). From the observers’ perspectives, Terri-Lynne McClintic was not deserving healing because she had not suffered enough. She was also observed as undeserving of healing on the grounds that the practice was too temporally removed from the point in time where it would be needed: she is not eligible for parole before May 2031. Moralization here proceeds through a mix of considerations for social defense and less eligibility. CHLs in particular and rehabilitation more generally should be for those guilty of non-threatening criminalized events. It is impossible for moralizing agents to imagine CSC bureaucrats being unable to find anyone else than this prisoner to take this particular bed at the Okimah Ohci lodge. The amenities in the lodge are decried as luxurious, an insult to the law-abiding, hard-working poor—a form of penal privilege that should be earned through suffering when decarceration is imminent.

There is both an internal and external standard of less eligibility at play here: the softer correctional practices should be restricted to individuals incarcerated for less serious crimes, and they should take place in material settings through which punishment makes “crime less attractive than welfare” (Bonnet, 2019: 6). Yet, discussions on less eligibility necessarily posit a form of economic or rational decisionism with which the rape and murder of a little girl can hardly be aligned. Communications about eligibility and desert during this controversy are not about instrumentalizing penality in order to inform individuals of the potential costs of wrongdoing. Desert and eligibility are rather thematized expressively or symbolically, as a communicational strategy to affirm norms through the overt display of a disposition to intentionally inflict pain. Following Luhmann, we can see that the fundamental function of punishment is about the counterfactual maintenance of normative expectations as communicational expectations: making the prisoner suffer, perhaps allowing her healing afterwards and only as means of societal self-defense, has nothing to do with punishment as a communication targeting audience behaviors on the grounds of utility. Punishment is a communication about communication: it has everything to do with protecting future moral claims about the need to affirm our attachment to certain values through afflictive sanctions as retaliatory harms. In other words, one cannot expect the law to prevent “the dangerous few” from harming others, but one can expect to be supported by law when the normative expectation of non-violence is violated. Communicating moral censure through penal violence is a foundational movement of criminal legal autopoiesis.

The concept of autopoiesis posits that the environment of a social system shall only have informational value according to its own normativity. It suggests that the cognitive openness of the legal system depends on its normative closure, which means that legal validity of communicational operations cannot be given externally. In a recent empirical study on the sentencing of Indigenous women in Canada, Kaiser-Derrick (2019) shows how the criminal legal system observes in its environment claims that criminalization is a key instrument of ongoing settler colonialism, and how this has little impact in its autopoietic reproduction. Rather, the criminal legal system self-describes itself as ill-suited to address systemic oppression; it limits itself to decide self-referentially what constitutes “appropriate” and “proportional” penal dispositions, based on its normative interpretation of legal structures and parliamentary priorities.

The empirical material analyzed above documents some of the ways in which the proper penal responses to an exceptional criminalized incident are constructed and debated. I have focused on communications in politics, newsmedia and social media, which are all available in the environment of law as potentially relevant elements for its own autopoiesis. The controversy and the penal standard of desert to heal it reveals show how, even in a context where alternatives to our modern penal rationality are cognitively available, we cannot express our attachment to some values otherwise than through overtly afflictive sanctions. Penal abolitionism posits the inadmissibility of such retributivism yet remains sociologically unobservable in controversies over “monsters.”

Conclusion

Social actors embracing penal reformism and defending “culturally-sensitive” and “evidence-based” correctional practices might, confronted with the sociological weight of deontological postures, conclude that it is crucial to emphasize that CHLs are actually prisons. This was indeed the government’s first line of defense when the controversy erupted: the prisoner is being properly punished, and her transfer to a CHL has not affected the security level of her carceral environment. There is clearly some value in reminding ourselves that the healing taking place in a CHL is correctional in nature and occurs in a context where one is deprived of what we cherish most: liberty. CHLs are perhaps alternative carceral spaces, but they are alternatives to neither carcerality nor penality. Sharon McIvor, a noted Indigenous activist who contributed to the agenda setting report Creating Choices in 1990, recently described CHLs as being so contaminated by regular prison culture and its management that they no longer differ from other penitentiaries (Global News, 2019).

Contemporary abolitionist struggles are premised on a series of logics and findings interpreted as revealing that Modernity’s experiment with penality was never morally justifiable and that continuing to invest in it is irrational and destructive. Abolitionism promotes productive (e.g. “transformative,” “restorative”) responses to problematized situations and loathe retributivism. It foregrounds the selectivity of practices of criminalization and the destructive aspects of penality. Criminal justice is seen as a simplistic, ineffective, costly, harmful, and dehumanizing response to social problems. Looking at the mass incarceration of Indigenous peoples in white settlers political enclaves in an age of reconciliation, one can easily observe penality as a social problem beyond reform. Yet, like less radical normative discourses on penality, abolitionism fails to acknowledge the forms of solidarity built through collective desire for the suffering of non-generalized others.

Contemporary penal abolitionism affirms a norm of non-violence, which I take to be proximate to Butler’s (2015: 119) outline of a “struggle for a conception of ethical obligation that is grounded in precarity.” But neither contemporary abolitionists nor Butler address the solidarizing force of vulnerability and helplessness produced by the violent wrongdoing of “the dangerous few,” nor the possibility of a non-violent enforcement of a norm of non-violence. The attempt to heal a “monster” is hardly constructed as a functional equivalent to the infliction pain for the counterfactual maintenance of normative expectations. The idea of the prison as a technology for the production of bare, ungrievable life, performs this much more effectively. Exceptional cases seen by sober observers as legislative opportunities to avoid should not be dodged, but rather the standard against which to measure discourses about the possibility of a future still replete with antagonisms, yet devoid of retaliatory harms. In other words: penal abolitionism needs to be judged for its (in)ability to effectively oppose the categorical imperative to punish “monsters.” Without being able to openly confront the problem of “the dangerous few,” penal abolitionism can be derided for its “naïve idealism” (Bagaric et al., 2021). As one reviewer noted, this is particularly important considering that exceptional violent criminalized incidents are social objects that are easily mobilized to delegitimize abolitionist praxes oriented toward abolishing or defunding law enforcement apparatuses.

Given that, in Canada, abolitionist praxes are flourishing and supported by some criminological units in academia, one could perhaps have expected to see such stance thematized in the communications that fueled the controversy. My empirical material reveals no abolitionist coming forward explaining that Terri-Lynne McClintic ought not to be punished, or that retribution in tragic cases like that of Tori should be seen as a formula for injustice rather than as a categorical imperative. Is it because abolitionism cannot, ultimately, properly deal with the problem of “the dangerous few” in a highly differentiated society? In such an environment, calls for autonomous organizing at the local scale are subjugated and marginalized by the sociological weight of sovereignty. A sovereignty which affirms its core values by communicating a readiness to harm those seen as violating them. Reframed in critical terms, the movement of criminal legal autopoiesis thus corresponds to a gigantic juricide (Santos, 2002:16), negating the legal validity of local and alternative legal orders. The abolitionist struggles aiming to “bring into being an insurgent mode of community that counters the logics of carceral safety” (McDowell, 2019:53) are premised upon a radical critique of criminalization and penalization as instruments for the manufacture of safety. The empirical material discussed above testify to the vitality of the idea that safety is dependent upon the existence of carceral environments where “the dangerous few” can be incapacitated. But the Okimah Ohci controversy is irreducible to concerns about safety. It demonstrates how exceptional forms of criminalized violence are coupled to an obligation of penal violence which shall remain indifferent to instrumentalist critiques.

Saleh-Hanna (2015) has proposed that using the idea of “the dangerous few” results in a bad framing the problem: individuals and institutions massively and non-randomly harming humans are not few and can be identified. The key would be to displace the historically constant focus on domestic public enemies onto the dangerousness “endemic to White supremacy” (Saleh-Hanna, 2015: 61). Saleh-Hanna suggests that the obsession with the violence of the “dangerous few” serves to obscure the systematic violations upon which White supremacy rests. In a more recent contribution, she reformulated her thesis and declared that the condition of possibility of the concept of crime is White supremacy: “to make sense of what crime is,” one would first have to accept that “there are groups of people who are identifiably inferior” (Saleh-Hanna, 2017: 420). The empirical material examined in this article shows the limitations of Saleh-Hanna’s reductive pronouncements: the social construction of a “monster” and the triggering of the modern penal rationality following the dissemination of information about egregious forms of violence do not implicate any form of supremacism. The lethal violation of an innocent victim is understood as a crime without any of the conceptual requirements proclaimed by Saleh-Hanna. The modern penal rationality is not a racialized rationality.

If the normative structure of the modern penal rationality is, in principle, indifferent to racialized or other markers of identity, we know that criminalization and penalization are used to control racialized communities en masse. One can certainly interpret Canadian penality as a core instrument of White supremacy requiring abolition. But abolitionism is not articulated to an utopian disappearance of harm; it does not clarify how we should act when confronted with a tragedy like that of Tori Stafford if our attachment to the values of life and liberty can no longer be affirmed through penal violence. My empirical material clearly shows that, as a response to exceptional violence, healing—even when coded as punishment—violates our modern penal rationality. It is massively observed as a gross injustice since it fails to “enact a revenge” (Zizek, 2008: 190). Both reconciliation and penal abolitionism are antithetical to retributivism. Their influence on concrete practices of “legitimate” state violence is minimal precisely because their instrumentalist approach is unable to effectively devalue (publicly and politically) the questions of individualized desert that our modern penal rationality inevitably raises when exceptional violent events are socially constructed as crimes.

Footnotes

Funding

The author received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Nicolas Carrier

Notes

Author biography

Nicolas Carrier is Associate Professor of Criminology and Criminal Justice at Carleton University. His research interests include social control, moralization, sociologies of law and punishment, and theoretical criminology.

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Monstrosity,correctional healing,and the limits of penal abolitionism

Abstract

Keywords

Abolitionism(s) and “the dangerous few”

The Aboriginalization of Canadian corrections in an age of reconciliation

The Okimah Ohci controversy

Children in carceral settings

Governing penal apparatuses

Desert and eligibility

Conclusion

Footnotes

Funding

ORCID iD

Notes

Author biography

References