Some Unanswered Question for People Who Criticize Alternatives

The bent of one of our readings reminded me of a paper I wrote last year on alternative medicine and its treatment within the legislative and judicial systems. Two things that reminded me of that research was 1) how we fail to enquire about the dominant system in our criticisms of the "alternative" and (relatedly) 2) how a double standard exists for the dominant system and the alternative system.

Here is a quote from my paper:

Sceptics frequently use this argument to discredit alternative therapies, and suggest that there are no such things as "alternative" treatments--there is only medicine that is supported by solid reserach and medicine that is not.

I think if you replaced "alternative treatments" with "circle sentencing" and the notion of Western medicine with the traditional justice system, you could see some parallels in the thinking that underlies the reading I just mentioned, "Sentencing Circles: Some Unanswered Questions."*

There is a focus throughout the article on the lack of empirical study surrounding circle sentencing--"It is curious, in light of all these claims of circle sentencing's benefits, that no scientific evaluation has been conducted." This starts from a fundamentally flawed position: that empirical study is the appropriate means of measuring "success" in this context. This attachement to empiricism is a significant feature of critiques of alternative health therapies as well. It assumes that some kind of "truth" exists and that it can be measured exclusively by empirical study, and fails to acknowledge that science and empiricism are, in fact, themselves social constructions. To paraphrase one writer, advocates of these therapies are not anti-science or against empirical study; the schoice is not between science or no science, but about which science. It is wrong, in my view, to assume that we can accurately or adequately measure the outcomes of any alternative process using tools designed to legitimize and recognize the outcomes of the dominant process. It's simply unfair, and destines the alternative to poor performance in many cases.

The other thing that really bothered me was the double standard issue. This kind of relates to the impiricism issue, in that frequently the alternative will be measured in some way and then will be criticized for its poor success. The thing that is too often not disclosed is that the mainstrain/dominant options also have low "success" rates, even though they are being measured by a tool that is designed within the same cultural/scientific context. The authors do cite a number of statistics, which I found somewhat suspect, but I don't feel fully qualified to evaluate them (because I have an entirely weak grasp of statistical analysis). But, for example, in talking about custody rates in provinces where circle sentencing is used, they cite that in Saskatchewan the number of aboriginal offenders had actually gone up in the period they studied and note that "it can hardly be argued that circle sentencing has had a positvie impact on the incarceration of native offenders." This may be entirely misleading because there is no information to suggest that a correlation exists between the incidence of aboriginals in custody in Saskatchewan and the use of circle sentencing. The authors draw a link where one does not necessarily exist and do it to cast doubt on the efficacity of the alternative sentencing process.

Also related to the double standard problem is the fact that the authors impose higher standards or expectations on the alternative process without demanding the same of the traditional process. This was typical of what I found in relation to alternative medicine as well. For example, the authors write that "clearly some national standards need to be developed if there is to be consistency of application across the country" (in relation to criteria for inclusion). The problem with that is that the typical sentencing process doesn't have any national standards, to my knowledge, to ensure consistency across the country beyond what exists in the Criminal Code and precedent decisions. The creation of some kind of national standards in addition to what is already imposed by statute and by precedent creates a higher burden on sentencing circles.

Overall, it kind of seems these critics are expecting some level of perfection from circle sentencing that they clearly do not expect from the usual process ("this article should not be taken as an apologia for the status quo"). This was also typical of what I found in relation to alternative health therapies. In spite of the fact that we can show clear failures in the current systems, there seems to be an unusually high degree of hesitation (to put it mildly) in examining alternatives. In spite of their complaint that no empirical evidence exists to support the claims of sentencing circle supporters, the authors feel confident in proclaiming in the conclusion of their article "their ability to effect refor has been exaggerated, to say the least." I would ask them to consider why they can make this claim confidently without empirical evidence but deny supporters the same right to make positive claims?

I think it's an area ripe for reflection--comparative studies on how we deal with "alternatives" to the mainstream in our justice system. These two examples--medicine and circle sentencing--tell me there's a pattern here that we should investigate.

*Julian V. Roberts and carol LaPrairie (1996) 39 Criminal Law Quarterly.