The “dark matter” of justice: penal abolition practices in everyday life

Michael J. Coyle and Justin Piche

Introduction

Long-standing struggles for liberation and self-determination have implicitly or explicitly sought to end the criminalization of various social conflicts and harms. Yet, it is only recently in the shadow ot the racist killing ot George Floyd — an unarmed Black man — by a white Minneapolis police officer that this idea has galvanized significant support in the mainstream through the popularization of the call to “defund police” by Black and other racial justice organizers (e.g., Kaba, 2020). The push to defund policing in order to provide more resources to meet the needs of people and communities, including in the context of social conflicts and harms, has also been vigorously critiqued by defenders of the status quo who argue that police forces will always be needed to address a whole raft of situations (e.g., Johnson and Gagliano, 2020). The necessity and inevitability of police intervention, however, has long been problematized. For instance, almost 35 years ago Louk Hulsman made the following observation (1986, p. 66):

a considerable proportion of the events which would be defined as serious crime within the context of the criminal justice system remain completely outside that system. They are settled within the social context in which they take place (the family, the trade union, the professional association, the circle of friends, the workplace, the neighborhood) in a similar way as other non-criminal trouble.

This has been evident for decades in annual Public Safety' Canada (2019, p. 13) reports that show how “Relatively few crimes result in sentences to federal penitentiaries” in a country that has less than 40 million people. Readers are confronted with the image of a funnel, where it is stated that while over 2 million incidents were reported to police in 2017, fewer than 230,000 of them resulted in a finding of guilt, with roughly 89,000 convictions resulting in a term of imprisonment (ibid). A similar situation exists in the USA where approximately 330 million people currently reside. Using data from the FBI Uniform Crime Reports and the Bureau of Justice Statistics, Marc Mauer (2006, p. 119) draws another funnel to show how in the space of one year, of the 1.4 million violent victimizations that were reported to police, only 625,000 resulted in an arrest, and ot these only 135,000 gave rise to a felony conviction, and finally, of these convictions only 107,000 resulted in prison and jail sentences. In Canada over 2 million incidents — both those deemed to be violent and those that were nonviolent — resulted in fewer than 100,000 acts of imprisonment, and in the USA 1.4 million acts labelled as violent victimizations resulted in just over 100,000 acts of imprisonment.

The images of these funnels clearly capture how within the Canadian and USA criminalization systems, most cases that enter through police intervention are dealt with in other ways than punitive court proceedings and formal punishment. What these images do not capture is that much ot the social harm experienced by millions in Canada and the USA every year is never reported to the police (Perreault, 2014). In criminological literature, the phenomenon of most social harm that is criminalizable under the law not being funneled into the criminalization system has been referred to as a “dark figure” (Hulsman and Bernat de Celis, 1982, pp. 68—71).1

The main idea that we wish to put forward in this chapter is in line with the earlier observations: while penal abolition is something that has not been realized at the scale ot the state in contemporary times — indeed, law, police, courts and prisons are currently used, albeit unevenly, across the world — in many ways and in numerous circumstances, a penal abolitionist logic is actually at work: (1) more frequently than not, the state does not engage criminalizable acts through the institutions and practices of the criminalizing system, and (2) actors impacted by social harm frequently do not resort to the punitive means and ends ot the criminalization system to hold transgressors accountable for their actions and meet their needs. Put simply, in the words of Louk Hulsman (in Piche and Hulsman, forthcoming), “many situations that meet the definitions of the penal law don’t enter the machine.” Seen in this light, the normally hidden or unseen practices of penal abolition is why we choose the metaphor of “dark matter” — a term astrophysicists use to refer to the normally hidden or unseen plurality ot matter that makes up the universe.

To illustrate how responses to social harm often follow a penal abolitionist logic, we begin the chapter with a discussion on the ubiquity ot transgression (Coyle, 2018a). We then highlight the possibilities for the further entrenchment of penal abolition and eventual eradication of the criminalizing system comprising criminal-making law, cops, courts and cages, rather than penal intensification. To this end, we identify examples of the “dark matter” of justice, which reveal how the majority of transgressions and the responses to them — including the choice to not respond at all — are hidden and unseen when we look only through the lens ot the “criminal justice”2 system. In so doing, we also consider the fact that a plurality of transgressions — some of which involve state (Cohen, 2001) and corporate actors (Bittle, 2013) that cause great harm to people on a far larger scale than acts that are criminalized (Bittle et ah, 2018) — continue to occur with impunity. In the case of acts perpetrated by those benefitting from class, white, male, heteronormative privilege (Saleh-Hanna, 2015), we argue that leaving such transgressions in an ignored status is untenable, necessitating accountability and structural change through the wider adoption of transformative justice (Morris, 2000). We conclude that we must first recognize their existence as transgressions and then respond to them in the face of human suffering.

 
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