With men making up the majority of law-makers and judges in both Canada and the US (some stats here, here and here), the criminal justice system is a structure that is ripe for a feminist revisioning. Mairi Springate is a feminist and a defence attorney, practicing in Montréal. She generously answered a few questions for our revisioning series.
What would a feminist revision of the criminal justice system look like/should consider?
I think it’s important to accept that the criminal justice system has specific objectives, and that there are limits to what can be done within its traditional structures. Once someone is charged with a crime they are facing the weight of a state with vastly superior resources that seeks to attach criminal liability and stigma to their person, as well as possibly deprive them of their freedom. In this context certain fundamental principles that underlie the criminal justice system are non-negotiable, namely the presumption of innocence and the burden on the state to prove the charge beyond a reasonable doubt.
However, much work has been done in the past 30 years to remove structural challenges that women face both when lodging a complaint with the police and, once charges are laid, in navigating the justice system. This is particularly so in the context of what we could fairly call gendered-crimes of sexual and domestic assault. At the same time, society’s interest in guarding against unsafe convictions means that a balance is necessary between those goals and an individual accused’s substantive and procedural rights. In my opinion, however unpopular it may be, the balance that exists right now is essentially a fair one.
Given the limits of the traditional structures of the criminal justice system, a feminist revision that interests me would be a move towards restorative justice for certain crimes. A focus on restorative goals where the objective of the process is not, necessarily, to see a person convicted and imprisoned, would permit more flexibility in the system and remove some of the procedural and access to justice issues that keep women from trusting the system and reporting crimes. There has actually been a move towards restorative justice already in the system, the creation of mental-health and drug addiction courts for instance, and I believe these initiatives should become more widespread and should be considered for gender-based crimes.
Also, another issue that should be addressed in a feminist revision of the system is access to justice problems more generally. We know that for all sorts of reasons of structural inequality, women are more likely than men to be struggling financially. The financial barriers to accessing and navigating the justice system could be reduced. A good start, for instance, would be to raise the threshold income for accessing legal aid, and for the government to provide more incentive for lawyers in private practice to take on legal-aid mandates.
Are there power structures implicit in the way the criminal justice system is constructed? If so, what are they?
The answer is yes. The criminal justice system is run for and by humans, and as such it has the same biases and power imbalances that we see in everyday society. The reality is that, until we have more legal professionals (lawyers, judges etc) from different backgrounds we will continue to see structures that replicate inherent prejudices.
The main power structure in criminal justice is the power imbalance between the state and the accused person. This particular power structure is acknowledged and visible.
There are also less visible power structures. The one I am most aware of are power structures around class and race. People with higher financial means not only have a better ability to access justice and be accompanied through the justice system, but they also have better outcomes when they’re charged with a crime. The system is set up to reward people from privileged backgrounds. There are also power structures around race. Non-caucasians, particularly indigenous and black people, have a much higher incidence of being arrested, being charged, and ultimately going to prison.
What other structures need revisioning?
In terms of legal structures, it would be a good start to have a more diverse Supreme Court. There are fewer women than men on the Court and pretty much no minorities.
In terms of other societal structures, where would you like me to start? I would like society to put more emphasis on encouraging men to take parental leave, which would help rectify the impact on one’s career of having children, which disproportionately affects women rather than men. (This topic is a bit of a pet peeve of mine and I could probably ramble on about it for days).