The Role of Compassion in Reforming Crime Policy

1. Open-Hearted Justice: The Role of Compassion in Reforming Crime PolicyProfessor Lorana Bartelslorana.bartels@anu.edu.auDr Anthony Hopkinsanthony.hopkins@anu.edu.au International Academy of Law and Mental Health Rome, July 2019

2. many criminal justice systems dealing with effects of punitive policies • Australian imprisonment rate currently 222 per 100,000 (vs 70 in the 1980s) – 11th out of 36 OECD countries • little correlation between crime and prison rates • Indigenous Australians are the most imprisoned peoples in the world, at 2481 per 100,000

3. Punitive policy is irrational and unsustainable • in Boulton, Victorian Court of Appeal held prison often detrimental to prisoners and community [prison] induces habits of dependency, which lead over time to institutionalisation and to behaviours which render the prisoner unfit for life in the outside world. Worse still, the forced cohabitation of convicted criminals operates as a catalyst for renewed criminal activity upon release. Self-evidently, such consequences are greatly to the community’s disadvantage’ ([2014] VSCA 342: [108]) • prison in Australia costs 9x as much as community corrections

4. Failure of facts to shift policy • efforts to engage with policymakers about the impact of prison yield little support • rational arguments pushed aside • when announcing USD2.7B for new prisons, NSW Corrections Minister stated: ‘This is, it must be said, not money the state government is happy to spend…. My personal preference would always be that this money, this NSW taxpayers’ money, is spent on schools and hospitals’ • demonstrates a failure to engage with evidence base, eg limitations of prison for crime prevention • but facts and figures can’t change hearts

5. Emotions are the missing piece • traditional reluctance by researchers and policy-makers to acknowledge role of the heart and emotions in criminal justice policy • but ‘[j]ustice is, at its heart, an emotional, symbolic process, not simply a matter of effectiveness and efficiency’ (Maruna & King 2008: 347) • ‘re-emotionalisation of law’ (Karstedt, 2011: 3), eg restorative justice and victims’ movement

6. Fear drives punitivity • narratives of fear primary drivers of punitive law reform, operating as lever for people to turn away from those we imprison • fear has visceral power, creating an aversive limbic response • this seeks to be soothed and is fertile ground fertile for law and order politics and turning offenders into the monstrous ‘other’ • the simple solution is to lock the ‘other’ away, more often and for longer

7. Compassion provides another way • there is another way, which involves turning toward offenders and understanding, both of the individual and society • depends on willingness to turn towardsthose subject to punishment and keep their humanity in view • this involves engagement with the heart, through ‘narratives of compassion’ • eg Dunn and Rose, who forgave their daughter’s killer and noted: ‘the antidote to rage is compassion’

8. Compassion provides another way • compassion is the ‘sensitivity to suffering in ourselves and others with a deep motivation and commitment to alleviate and prevent it’ (Dalai Lama 1995) • compassion must be understood as universal, requiring us to engage with the suffering of the offender as well as their victim(s) • essential commitment to the principle of equality; does not conflict with the rule of law

9. Therapeutic jurisprudence and compassion • TJ replete with narratives of compassion • deep commitment to equality and dignity of the person evident in TJ • judges ‘should always treat the individual with dignity and respect’ (Winick 2003: 1068) • dignity is ‘the core of the entire therapeutic jurisprudence enterprise’ (Perlin 2017: 7) • call for dignity founded on the inherent equality of human beings (Yamada 2008) • lawyers who adopt a therapeutic approach ‘will emphasise the value of compassion’ (Evans & King 2012: 731)

10. Therapeutic jurisprudence and compassion • just as equality is foundational to a TJ approach, so is compassion • this can be understood as both a complement to and foundation underpinning dignity and other TJ-friendly concepts and practices • call to arms to the TJ community to commit to presenting narratives of compassion to the community • egsharing stories of redemption, supporting people with lived experience to tell their story, academics engaging with the media

11. Conclusion • emotions central to how societies control crime and punish offenders • not only negative emotions (eg, fear, anger and resentment) ‘but also shame, remorse, pity, and compassion’ (Loader 2011: 356) • engaging policy-makers, the media and the public with the role of compassion may present emotive and essential ally to complement ‘rational’ arguments for reducing incarceration • TJ community has critical role to play in fostering understanding of the importance of compassion

12. Bartels L and Hopkins A, ‘Engaging head and heart: An Australian story on the role of compassion in criminal justice reform’, in J Madeira et al (eds), Research Handbook on law and emotion. Edward Elgar. Forthcoming. • Hopkins A and Bartels L (2019), ‘Paying attention to the person: Compassion, equality and therapeutic jurisprudence’ in N Stobbs, L Bartels and M Vols (eds), The methodology and practice of therapeutic jurisprudence, Carolina Academic Press, 107-127.