A talk with Ezzat Fattah

Albert Dzur

Albert Dzur is Distinguished Research Professor, Departments of Political Science and Philosophy, Bowling Green State University, USA.

Contact author: awdzur@bgsu.edu.

Ezzat A. Fattah obtained his Ph.D. in Criminology, the first in Canada, in 1968 from the University of Montreal and taught there for the next six years. In 1974, he was invited by Simon Fraser University in Vancouver to found and chair the first Department (later School) of Criminology in Western Canada where he currently is professor emeritus. Fattah is one of the early pioneers in victimology having published on this young discipline as early as 1966. He is the author, co-author, editor and co-editor of over a dozen books and has published over a hundred scholarly papers and book chapters. Notable among his numerous awards is an honorary doctorate from the University of Liège, Belgium (1995). Other prestigious awards include the Konrad Adenauer Research Prize awarded by the German Government (1993), the Hermann Mannheim Award by the International Society of Criminology (2007), and the Hans von Hentig Award by the International Society of Victimology (2009). Fattah is an elected fellow of the Royal Society of Canada in which he was inducted in 1990. In 1999, he was awarded the Nora and Ted Sterling prize for controversy. Fattah is a staunch defender of human rights and civil liberties, a harsh critic of punishment and retribution and a strong advocate of restorative justice.

1. Early professional experiences with the limits of punishment

Dzur: What drew you to restorative justice? Can you remember when it occurred to you that there were people calling themselves advocates for restorative justice and it sounded simpatico with your own thinking?

Fattah: I’m glad you ask this question because it allows me to tell my professional life story and give the readers of the journal an idea about my background and what made me convert to the goals of restorative justice.
I graduated from the law school at the University of Cairo in 1948. And the following year I was appointed an assistant prosecutor in Alexandria. I worked in the criminal justice system in my home country, Egypt, for twelve years in different towns and cities, and it didn’t take me long to realise that law, particularly in a non-democratic society can be an instrument of injustice rather than a tool of justice. It became clear to me that criminal law can be and is often used by the powerful to oppress the powerless and enforce and strengthen the privileges and advantages of the ruling classes. As a prosecutor, I witnessed firsthand how the law, instead of being used as an instrument for reform, was used as a weapon for domination, oppression, and suppressing dissent.
While a prosecutor in small Egyptian towns, I was tormented by the fact that peasants and labourers, who could neither read nor write, were dragged before the courts and were being punished for violations of rules that they did not understand and, even if they understood, did not agree with. Even when the sentence was a monetary fine, they were unable to pay and were thrown in jail. The administration of justice was just a sham.
The disillusionment with the law, the vagaries of an ill-equipped, understaffed justice system were really disheartening. And with them came the realisation that crime is a social and cultural problem that cannot be solved by passing a law or by dispensing punishment – even the most severe punishment.
Just as an example, vendetta was a widespread custom in Egypt as it was in parts of Southern Europe. I soon realised that no criminal law and no punishment – be it the death penalty or life imprisonment – was going to solve the problem or change the custom. Only a major cultural, attitudinal, and evolutionary change could lead to gradually abandon such an entrenched and barbaric tradition.
Then there was an experience that shattered whatever faith I might have had left in the deterrent effect of punishment, particularly harsh punishment. The military government of Colonel Nasser in the early 1950s decided to deal with the endemic drug problem in Egypt. The approach, typical of the mentality of army and police officers, was to get tough, in fact extremely tough. The maximum penalty for drug trafficking at the time was three years imprisonment and there was no minimum. The law was changed, and overnight a minimum mandatory sentence of life imprisonment with hard labour and no possibility of extenuating circumstances (the new law took away any discretion the judges had) replaced the old penalty. As the prosecutor dealing with drug cases in Alexandria I was able to observe first-hand the consequences of the new draconian law and they were exactly the opposite of what the makers of the law thought they would be.
This was a very important experience in my life and I decided then that punishment is really no solution to deep-rooted social or political problems, be it crime, drugs, violence (and nowadays we can add terrorism). Those experiences from my twelve years of practice as a prosecutor in my home country, Egypt, help explain how I became a critic of punitive retributive justice and how easily I became a fervent proponent of restorative justice.
Another very important experience in my life came when I was a visiting professor at the University of Abidjan in the Ivory Coast in the early 70s. I thought that I would do a comparative study of homicide rates in the Ivory Coast in order to see how they compare with Canada. And I got from the police the homicide statistics over a ten-year period. As soon as I started analysing them it was very strange because I found that there were very few homicides recorded in the rural areas of the Ivory Coast. ‘Could it be,’ I said to myself, ‘that the rural people there are really peaceful people and they don’t kill each other?’ Well no, that was not at all the case. In fact, there were two, almost parallel, systems of justice going on in the Ivory Coast. One was the retributive punitive system – inspired by the expiatory and retaliatory teachings of the Old and New Testaments – imposed on the Ivorian population by the colonial power, France. That system used mainly a two-pronged weapon in its response to crime: death and imprisonment. The second was the indigenous, tribal system which used customary rules and traditions to solve conflicts and to settle disputes of all kinds between the members of the community.
People did not report the cases of homicide to the courts and the police because they didn’t get any kind of satisfaction from having the culprit executed or put in prison. Unable to comprehend why the State should steal the conflicts from their rightful owners (to use Nils Christie’s idea) while doing nothing to compensate the victim’s family or to achieve reconciliation between the feuding clans, those victimised simply did not report the homicides to the police, preferring instead to have the matter dealt with according to their norms and their customs. The two elements of this indigenous justice were compensation (for the death, injury or harm done) and reconciliation aimed at restoring the peace disrupted by the offence and at ensuring a future of harmonious co-existence.
This was an eye-opener. When I came back to Canada, I then started looking at indigenous customs. I came across a truly remarkable case when studying the history of capital punishment in Canada. This happened in a British settlement in the Canadian North during the early days of the British Colonial Rule. The son of an Indian Chief of one of Canada’s First Nations tribes was killed by the son of the British Garrison Commander. Intent on showing the fairness and equality of British justice, the officer insisted that his son be executed in conformity with British law. The pleas of the victim’s father fell on deaf ears. He offered to adopt the killer so that he may replace his slain son. He could not, despite his personal grief, understand the rationale for the death penalty, the wisdom of doubling the loss instead of trying to minimise it. He asked himself and the commander: ‘What purpose would be achieved by taking the life of the culprit?’ But to no avail. The Talion Law: a life for a life, an eye for an eye, and a tooth for a tooth, had to be applied. And the so-called civilised Western justice had to prevail and did! The evident futility and destructiveness of such punishment was not enough to persuade a dedicated military officer to bend the rules or to listen to the wisdom of the Indian Chief, even if it meant sparing his own son.
All these revelations convinced me that punishment is not and can never be the answer. It convinced me that there must be a better solution, a better response to harmful, injurious acts. I was fascinated by the tales of cultural anthropologists who studied what Western scholars denigratively called ‘primitive societies’. Those were societies that have escaped the influence of Judaism, Christianity and Islam and thus were not inspired or affected by the religious notions of expiation and penitence. What I found remarkable was the quasi-universality of the historical evolution of social reaction to harmful and injurious acts. The reports of social and cultural anthropologists show that in every society studied, there was an evolution from private vengeance to group vengeance to a system of compensation which is the earliest form of restorative justice. Moving from vengeance to compensation was a normal progression because retaliation proved detrimental to the group.

2. The development of restorative justice in Canada

Dzur: You’ve had a good vantage point being based in Canada, which has supported restorative justice initiatives over many years. You just mentioned indigenous practices. And there has been growing respect for circle sentencing and other procedures as well as for restorative justice ideas in jurisprudence. Looking out over the general terrain, how would you characterise support for restorative justice in the Canadian criminal justice system today?

Fattah: It is true that Canada has been in the forefront of pioneer initiatives in restorative justice and we certainly have to thank indigenous nations for this positive development. As early as 1974, almost half a century ago, the first mediation programme was started in Kitchener, Ontario. It is also true that in the following couple of decades things were slow to develop and innovative practices were modest and far in between. But close to the end of the century the pace picked up considerably.
In 1995, the Canadian Criminal Code was amended to reflect the importance of restorative justice practices and alternative sanctions, adding section 742.1 which allowed judges to impose a conditional sentence that can be served in the community. Two years later the code was amended again, altering section 718.2 which required judges to consider restorative justice options during the sentencing process. The modified section reads ‘all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders’ (Criminal Code, RSC 1985, c C-46, s. 781.2(e).
In 1999, the federal Throne speech contained an explicit acknowledgement of the importance of restorative justice in Canadian society. In the same year, the Supreme Court of Canada, in R. v Gladue, endorsed the notion of restorative justice and a sentencing regime that pays fidelity to healing as a normative value. Responding to the widely held, yet erroneous belief, that restorative justice is lenient and much too soft on offenders, the Court also made it clear in the same decision that sentences involving restorative justice were not more lenient than incarceration. In fact, the court argued that, when combined with appropriate probationary conditions, restorative justice may ‘impose a greater burden on the offender than a custodial sentence’ (R. v Gladue 1999 1 SCR 688 at para 72).
Another important development worth mentioning is the establishment of First Nations Courts or Indigenous Courts. The first was in Toronto in 2001 and here in British Columbia the one in New Westminster has been operating since November 2006.
But I would be lying if I claimed that spectacular developments have taken place since the Gladue decision. This is not to deny that things are progressing, but they are too little and too slow and surely decades away from my dream of having a fully institutionalised restorative justice system in place of the punitive and retributive system that we have right now.
Last year there was a Senate open caucus forum on restorative justice, but to my knowledge it has not led to concrete results in practice. Be this as it may, according to a recent Canadian Broadcasting Corporation survey, there are currently 500 different restorative justice programmes running in communities across the country, primarily for youth offenders. And in June 2018, Nova Scotia became the first Canadian province to open a superior court on a reserve, a court that will incorporate indigenous restorative justice traditions and customs.
Another recent initiative worth mentioning is the Federal-Provincial-Territorial Meeting of Ministers Responsible for Justice and Public Safety held in St. John’s, Newfoundland last November. The Ministers discussed restorative justice and issued a statement enumerating what they saw as key elements of success and followed that by four concrete recommendations, the first of which is to recognise restorative justice as an investment in an effective and efficient criminal justice system.

Dzur: Where do you see the support coming from in the political arena? And where is the opposition coming from? You mentioned that the pace of change has been slower than you had hoped. Why do you think that’s so?

Fattah: As everyone will admit there is universal dissatisfaction with the antiquated criminal justice system that we have now. Punishment, and the arbitrary way it is being dispensed, has become totally anachronistic and incompatible with the values and the realities of the highly technological society of the 21st century, not to mention the huge scientific findings of social science and behavioural research done in the past century. And yet the system continues to exist and expand because people’s mistaken belief that there is no viable, feasible alternative model of justice. I had hoped that once restorative justice practices were taken up, then people will see the superiority of these – actually not ‘new’, but quite traditional – means of dispute settlement and conflict resolution and would be easily converted to these practices and that would mean there would be overwhelming support.
But this has not happened because there is a very entrenched belief that the punishment has to fit the crime. Which, of course, is based on religion. And that is why we always find that religiosity is behind this kind of punitive conviction.

Dzur: You’ve written that restorative justice has no chance of succeeding, or replacing the existing punitive system, unless it’s fully endorsed by the community and unless members of that community are actively involved. And I’m wondering if that’s part of what you’re seeing here, when it comes to the slow development.

Fattah: There is no doubt in my mind about that! You cannot get rid of a system of justice that has been operating for centuries without end, unless the model of justice you are proposing, as a replacement, has the blessing and the support of the society it is meant to serve. To gain support for a restorative justice model as an alternative or a substitute to the failing system we now have, we have to do everything possible to overcome two major obstacles.
The first obstacle is ignorance! Sad to say that in countries like Canada – even with its well-educated, deeply sophisticated public – ignorance of the restorative justice model, its benefits, its potential, its enormous savings in comparison to the prison industry, is widespread! A recent national survey released by Canada’s Department of Justice in 2018 revealed that more than half the Canadian population (52 per cent) know little about and have little familiarity with restorative justice. This means that we, who support this non-punitive model of justice, have miserably failed in informing and educating the public about its advantages, its benefits, its superiority to existing justice, and its compatibility with the beliefs and values of a secular society like the one we live in right now in the Western Hemisphere. Major information and education campaigns are thus badly and urgently needed.
The second obstacle stems from those deeply entrenched religious beliefs that can be traced to the religious doctrine of the three major religions in the world, namely Judaism, Christianity and Islam. Empirical research shows that there is a close link between religiosity and punitiveness. That the more religious a person is, the more likely that they believe in punishment as a proper response to criminal behaviour. This goes back to the time when it was commonly believed that crime is a sin, hence the proper response to it is penitence. This is why prisons were called ‘penitentiaries’.
Let me hasten to say that this is not meant in any way to blame religious beliefs for the current mess we are in with regard to society’s response to crime, but they are surely extremely relevant to the topic we are discussing.
I think one needs to look at those rare places on earth where overzealous missionaries did not venture, as well as to the very few communities and cultures that somehow escaped or were shielded from the teachings of the old and new Testaments as well as the Quran. In those communities, like the Canadian North, prior to European settlements, one will discover different practices, different modes of dispute settlement and conflict resolution, peaceful and more harmonious methods of doing ‘justice’. One will find the true origins of the restorative justice paradigm.

3. No panacea: on the necessity and limits of institutionalising restorative justice

Dzur: You’ve said that restorative justice is not a panacea. Even if it were to grow and become more fully institutionalised in the Canadian criminal justice system, there would still be dangers and some necessary limitations to the model. Can you say more about these?

Fattah: The dangers facing the institutionalisation of restorative justice include: the danger of hasty and faulty implementation; the danger of failing to gain and secure the support, the involvement and the active participation of the community; the danger of widening the net of social control; the danger of restorative justice being co-opted by the existing agencies of the criminal justice system it replaces; the danger that restorative justice may develop into an offender or victim-centred justice alternative rather than having both victim and offender as its central focus; and the danger that restorative justice will become a victim of its own success.
Restorative justice is not a panacea and like every other system of justice it has its own limitations. Some of those limitations may be due to lack of mental competency of one of the parties, lack of consent or unwillingness to participate for one reason or another. There are also cases where there are multiple victims or several injured parties (and cases where there are multiple offenders) some of whom are willing to participate while others are not. Those few limitations are such that they do not affect restorative justice’s viability as a general model of justice.
I see five main limitations. First, restorative justice is not to be recommended in the cases of severely deranged offenders. Their serious mental handicap will be a major hindrance when it comes to giving free informed consent to the practice, to participating meaningfully in mediation sessions, agreeing to the terms and complying with the conditions of the restorative agreement. The same problem arises in the case of child victims who are much too young to understand the practices, the objectives or to participate in the sessions. Like in other legal situations, child victims may be represented by their parents or guardians. However, the ideal of having the harm-doer confronted by the primary victim and sensitising him to their suffering may not be easy to achieve in such a scenario. On the side of the child victim, the major objectives of coping, healing, forgiving, moving forward may not be easy or possible to achieve when a meaningful interaction is not possible due to the age, the mental state, or the limited understanding of the person who suffered.
Second, while restorative justice is possible and feasible in the case of violent, dangerous offenders, it needs to be combined with certain treatment or containment measures that would ensure that the dangerousness of the offender is neutralised. The practical problem in some of those cases is how to secure the free, willing participation of the person who has been seriously victimised. In the current climate where revenge and retaliation are promoted as justice and where harsh sanctions are erroneously portrayed as doing justice to the victim, it is not surprising that some of the victims of serious offences may show a stubborn unwillingness to meet face to face with their victimisers.
Third, one of the basic features of restorative justice is that it is a peaceful, voluntary and non-coercive mode of resolving conflicts and settling disputes. This volitional aspect raises certain issues and imposes certain limitations on the generalisability of restorative justice as the sole available mode of intervention. A question we hear from supporters of restorative justice is: if there is no qualitative difference between crimes and civil torts, why is it that mandatory mediation and arbitration are allowed in civil and labour disputes but are shunned when it comes to violations of this or that criminal code disposition?
Fourth, in some cases, the same act may claim several victims, may injure or harm more than one person. How to proceed when some accept and are willing to participate while others refuse? In other cases, there may be two or more harm-doers. What to do when some are willing and others are unwilling to participate in the restorative justice process?
Fifth, and finally, there is of course the issue of victimless crimes or crimes without victims. As I repeatedly argued in the past, such actions that are simply deemed to be immoral, deviant, objectionable or not acceptable by some group or another have no place in the criminal code and should not be criminal offences in the first place. Aside from those behaviours, there are others that cause harm in a general, diffuse, non-specific way. They are not directed at a concrete person or body; for example, bribery, corruption or tax evasion, to name but a few. Although those harmful actions may not lend themselves to common restorative practices such as mediation or arbitration, they still can be dealt with effectively by restorative remedies and in current practice they are dealt with by fines, restitution, community service, and so forth.

Dzur: Do you see restorative justice practices in any other countries as providing good examples for the rest of the world? Do some countries’ experience with institutionalised restorative justice stand out to you as being instructive?

Fattah: More than half a century ago, in 1954, a new criminal code was drafted by Professor Verner Goldschmidt for the former Danish colony, the large Arctic island of Greenland, and promulgated. Inspired by the old traditions of the people of Greenland the code is different from Western criminal codes, including that of Denmark itself.
The uniqueness of Greenland’s code lies in its non-punitive philosophy and orientation, its remarkable departure from the classical/traditional notion that punishment has to follow wrong doing, be it a sin or a crime, and above all its affirmation, more than six decades ago, that there are alternative less destructive and less disruptive societal responses to crime. What stands out about the code is its attempt to incorporate indigenous practices of social control rather than the usual colonial practice of imposing a western justice model on an indigenous culture.
Here is how this unique code has been described by one commentator:

The unique Greenland criminal code attempts to graft traditional Inuit concepts of rehabilitation onto a Western, and specifically Danish System of laws and procedures. The philosophy behind even the enlightened Danish penal system is punishment; a repressive means of social control whose object is forcing conformity with society’s norms. In contrast to this conformity model, the object of Inuit customary law is neither punishment nor justice, but the elimination of conflict and the restoration of harmony.

So, I have to ask, why is it that the example of the Greenland criminal code was not followed by others? Why is it that the philosophy that inspired it did not tempt other reformers over the past sixty-plus years who were revising the criminal codes of their countries? Why is it that the restorative treatment practices incorporated in the Greenland criminal code were never adopted by other countries around the world? Is it the traditional obsession with punishment?

4. Victim’s rights and restorative justice

Dzur: I’d like to shift topics and talk about victims, as you’ve worked in victimology. The victim’s rights movement has obviously been important to the restorative justice movement, but the relationship is not always positive. I wonder if you could reflect on the connection between victim’s rights and restorative justice.

Fattah: I really believe that the victim’s movement and restorative justice movement have antagonistic views. The goals for harsher punishment and more severe sanctions have been the hallmark of the victim’s movement since its inception during the conservative era of Reagan, Thatcher, and Mulroney. This does not mean that victimology and the victim’s movement do not share some common ground. For example, both do agree that victims have been neglected for centuries and that their rights were usurped by the state. They also agree on the necessity of restitution and compensation to the victims. Some victimologists joined the chorus. Others firmly believed that recognition of the plight of victims and harsher penalties do not go hand in hand. It became obvious early on that there was a great need for some to stop the tide and resist the threatening wave. Sad to say we were in the minority.
When advocacy for victims of crime reached new heights, and was being exploited by conservative politicians to move the criminal justice system to a new level of harshness, I was one of the few victimologists not swept by the tide, and was highly critical of right-wing attempts to politically exploit the goals and plight of crime victims to bring about more harsh sanctions, mandatory minimum sentences, restrictions on early release and on the rights of the accused. In my edited book, Towards a critical victimology (1992), I tried to show that the victim advocates’ demands do not serve the interests of crime victims, when they are properly understood.
I warned victim advocates and my fellow victimologists that good intentions can backfire, that well-meaning actions can have unintended consequences. For example, magnifying the impact of victimisation, its consequence, and its traumatic effect, can unintentionally harm the victim by delaying the natural healing process, by interfering with the normal process of recovery, and can become a self-fulfilling prophecy.
To counter the stereotypes and atypical profiles propagated by the victim movement in its attempt to gain public acceptance of a vindictive, retributive justice, I drew attention in my writings to the striking homogeneity of the victim and offender populations, to the flagrant biases in the selection of which victims are to be helped. I outlined how those biases lead to the inequalities and injustices prevalent in victim services, victim support and victim assistance. I explained how selective and how stingy victim compensation is. I pointed to society’s victimisation of those considered socially expendable due to their age, poverty, marginality or non-productivity or for being a burden on financial resources and social services.
And that is why I was asking for this critical victimology: anyone who tried to empirically evaluate the programmes that were instituted as a result of the demands of the victim’s movement said that they were Band-Aid solutions and political palliatives that don’t serve the real interest of victims.

Dzur: From the perspective of a critical victimology, are there common-sense views of victims that strike you as on the wrong track? Are victims seen in a light that you find counterproductive?

Fattah: I was upset that some of the leaders of the victim’s movement would focus on homicides and rapes as if they were trying to inflame the emotions of people, thinking that this would convert them to what they were asking for, which was always harsher punishments and more severe sanctions.
These exceptional cases ignore the empirical reality of the interchangeable and revolving roles of victims and victimisers. Popular stereotypes of victims and offenders portray them as two distinct and mutually exclusive populations who are as different as black and white, night and day, the good Abels and the bad Cains. Yet there is a vital link between victimisation and offending. The majority of offenders, for whom victim’s rights advocates want the harshest of punishment, were victims themselves. The vast majority of acts of violence are retaliatory in nature, acts by victimised individuals or groups trying to do themselves justice. Victimisation is quite often an antecedent to violent behaviour: abused children grow up to become abusive parents, sexually victimised children turning into sexual offenders and sexual predators once they grow up. Today’s offenders are yesterday’s or last year’s victims. To respond to their offending by more or further victimisation is not only unjust but definitely counter-productive.

5. The future of restorative justice: incremental or radical change?

Dzur: I want to talk generally about restorative justice and punishment. I know that in your work, you see restorative justice as an evolution away from punishment. Yet some people have argued that restorative justice is another kind of punishment. Why do you disagree and think it is significantly different?

Fattah: My personal definition of punishment is rather simple. It is the ‘deliberate infliction of pain on another human being’. What we urgently need is a clear and precise definition of what justice is, a non-abstract definition that is in tune with the norms, the values, the views, the mentalities and the sensibilities of the time. This may help us understand how it is that punishment has become synonymous with justice and that justice has become a euphemism for punishment. How is it that justice and punishment have become almost interchangeable terms? How is it that slogans such as ‘justice for victims’ are invariably interpreted as demands for more and harsher punishments?
I truly believe that restorative justice, when correctly implemented, is very different from punishment in aims and modalities. My long experience as a criminologist and victimologist has taught me that so many of the innovative ideas and new concepts and new programmes that were introduced in order to reduce the dependency on punishment as a means of controlling and preventing crime were not at all successful. We have had diversion, community service, probation. With all of these things, like community service, for example, we found that it was being used not as an alternative to incarceration, but as an add-on. And the same with probation.
So, that is why if we want restorative justice to be really different, we have to be sure that it replaces, rather than adds on to, existing sanctions.

Dzur: I think that’s the concern among scholars who see restorative justice as another dimension of traditional punishment. Namely, if restorative justice programmes are being run by police departments or criminal justice administrative offices, then they’re captured by a system that has its own non-restorative way of thinking. So even if there is a sentencing circle or a family group dialogue, it’s still captured by the norms of the larger and more powerful institutions.

Fattah: Yes, that’s why one of the dangers I have drawn attention to is the danger that restorative justice will be co-opted by the existing justice system, as happened with other suggested alternatives to incarceration. And also, I don’t see at all restorative justice as being a system parallel to the existing punitive system that we have now. It has to replace it.

Dzur: That raises another kind of difficulty, which has to do with how such a restorative system could be sustained. Over time, where does it get its resources? How does it fund its personnel? And so on.

Fattah: One of the reasons why even conservative politicians agree with restorative justice is because they believe that it is so much less costly than prison systems, and will save the government money. They even think it will mean that the compensation to the victims would be paid by the offenders rather than by the government. So, in terms of resources and in terms of expenditures, I think that restorative justice is a way of saving money.

Dzur: Well this takes us back full circle to when you were reflecting that the state of restorative justice in Canada was on the right track, but moving very slowly. I wonder if one of the reasons why the development has been slow is precisely that it is piecemeal, incremental change from within a system still operating along the principles that restorative justice is meant to replace. That raises the question then, of how you might see a transition to a restorative system? If it can’t be incremental and it’s got to be a big shift, then how does that big shift happen?

Fattah: Well, I fully agree that it is a piecemeal thing and it is not developing as fast or as wide as I believe it should, but this comes back to my firm belief that there has to be some kind of dramatic change. It is not going to happen, probably, in my lifetime. But I am 100 per cent convinced that this will happen. What makes me say that is that I have spent years studying the history of social reaction to crime, and I found that there is absolutely no system that is permanent, immutable, or transcendental. Prisons, for example, they will disappear.
Yes, they will. It baffles me that they have not yet disappeared – though it is clear it is because of the strong political and economic interests behind the notion of incarceration. But, when you think about medieval punishments and punishments in less-developed societies, all of this is now considered barbaric, archaic and anachronistic and we don’t have them anymore. We go to museums in order to see the way people were tortured and the way people were punished. So, there is absolutely no reason to believe that the future of prisons and the future of this method of punishment that now prevails will be different than all of these other punishments. Look at the death penalty. With the exception of the United States, for example, it has been abolished in every corner of the Western world.

Dzur: There’s a nice Aristotelian expression: ‘In the fullness of time’. Meaning, ‘My argument may not look accurate at the moment, but in the fullness of time, it will reveal itself to be true’.

Fattah: I wish I could live a couple of hundred years to say, ‘See, I told you so!’ People do not realise that there are now some electronic means of controlling people – their whereabouts, what they do, and even what they say without the need to put them behind bars.
And people don’t realise, who haven’t experienced imprisonment, what it is like. You look at all the justice reformers and prison reformers. They are people who have really experienced first-hand being in prison.

Dzur: You’ve mentioned religiosity and a rigid sense of victimhood as barriers or hindrances to this optimistic future. Do you see any other barriers?

Fattah: There are, of course, as I said before, political and economic interests. Corporations and organisations that benefit from private prisons, for example, have been powerfully opposed to any kind of alternative sanctions or even something like decriminalisation of drugs, which would take away a good number of people who are being imprisoned for drug offenses.
There are these kinds of barriers in the way of institutionalising restorative justice, and we have to fight hard against these kinds of interests that are hindering and slowing the replacement of the existing prison system.
If you look at the number of people in prison or under some other form of control in the United States, it is really horrendous.

Dzur: I have one final question, having to do with what you have just said about ‘fighting hard’. What do you have to say to reform-minded criminologists just beginning their careers now? What would you advise them to focus their energies on?

Fattah: My advice to criminology students is not to be manipulated by politicians. I see my own field of criminology almost being taken over by so-called security studies following the events of 9/11. People’s interests go where research funds and jobs are available. The traditional mission of criminology was to try to find ways of preventing crime, but now it is about the security of the state and the prevention of terrorism.
When I started the school of criminology at Simon Fraser University, I didn’t want it to be like a police college or something that trains police officers. But things have changed now, with growing attention and funds being focused on forensic science and related fields. So, my advice is, do not be manipulated by politicians, and try to stick to the original and humanitarian mission of criminology as a social science.

Dzur: You brought into your own scholarship a moral compass that was developed during your prosecutorial years. Is that something else you might recommend? That people get their hands a bit dirty to actually see how the system works before they write about the system?

Fattah: Yes, absolutely. There is nothing really that equals first-hand experience and practice. Not long ago I gave a lecture in downtown Vancouver about a society without prisons and one of the main criticisms was from a judge who didn’t even come to the lecture. He said, ‘Look, he’s an academic who has no knowledge of how the system of justice operates’. He was totally unaware that I had worked for years as a prosecutor in Egypt.
But, of course, I didn’t expect people in the audience to accept this prophecy or prediction that prisons have no future. Like any other punishment, once attitudes change, once values change all of these punitive practices become, as I say, anachronistic and unacceptable to the majority of the people, and then they are forced to find alternatives or replacements. And I cannot for the life of me believe that prisons or imprisonment will be any different from the other punishments that have disappeared from the arsenal of sanctions.

Dzur: I hope you’re right.

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Tijdschrift voor Klachtrecht (TvK)

Nederlands-Vlaams tijdschrift voor Mediation en conflictmanagement (TMD)

Uitgelicht

Altijd in beweging, altijd met passie!

Studiedag Vereniging voor Klachtrecht 2024

De reflexieve klachtbehandelaar

Klachtbehandeling ter versterking van de rechtsstaat