The McClintic case: What’s the place for public fury in our justice system?

The heartbreak lives in the details.

Eight-year-old Tori Stafford was lured on her walk home from school with the promise of seeing a puppy. She begged for protection from a young woman who would readily admit later that she refused to provide it or even witness the suffering to which she had delivered the little girl. The callous savagery of Tori’s murder and the concealment of her body left her family and the entire country suspended in unresolved terror for most of the spring and summer of 2009.

And then there are the new details, the ones that infuriate.

Terri-Lynne McClintic, Tori’s killer, has been moved to a medium-security facility that has no fences. Inmates live in units containing a bedroom, bathroom, kitchenette and living room. They can have their families with them. As Rodney Stafford, Tori’s father, put it, “She’s living it up better than a third of Canadians right now.” And, whether or not it’s an accurate representation of the place, the very name “healing lodge” suggests clemency and comfort, not punishment.

That a family mourning a little girl and the unimaginable suffering of her last hours would be outraged by this is only too obvious. But people across the country with no personal connection to the crime or its small victim are also profoundly incensed in a way that seems genuine and meaningful.

In some respects, the criminal justice system exists to grapple with exactly that: the primal desire to see someone punished for doing something horrible. The justice system gives shape to the collective emotional response to a crime, channelling it into some defined and comprehensible end, and also applying the brakes so it doesn’t combust entirely.

But what exactly is the place of public rage and pain within criminal justice? Does it count for anything? Should it, or is it a baser urge to be guarded against because it muddies principles like fairness and equality?

Put another way: do we put people who commit crimes in prison because their actions mean they deserve to be deprived of their freedom, or do we lock them up because the rest of us need to see them behind bars? Do we punish for their sake, or our own?

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“The way to think about community input is that’s, in some ways, why we have the criminal justice system,” says Vincent Chiao, a philosopher and associate professor in the faculty of law at the University of Toronto. “If you didn’t have it, then people would just be so outraged, they would take the law into their own hands and that would really be chaos.”

Why we punish offenders and what we’re trying to accomplish in doing so is a sprawling question that is in some ways easily answered, in that there is no single reason, Chiao says. Section 718 of the Criminal Code offers six different purposes for sentencing, including denouncing illegal acts and “the harm done to victims or to the community” by them, deterring the offender and others from committing offences, or rehabilitation.

“What section 718 represents is a failure, essentially, of lawmakers to agree on a single purpose of punishment,” Chiao says, noting that several of these approaches point in opposite directions. “So they just essentially threw everything in there and said, ‘Any of these will be fine, you sort it out on a case-by-case level.'” Canada is not unique in this, he says; criminal law is notoriously controversial and this sort of grab-bag approach is common.

Chiao believes the urge for retribution in general is helpful because it boosts cohesion in society. Researchers in fields like economics or psychology sometimes study behaviour through cooperation games, in which people must work together to reap rewards by investing money, for instance. They find that if there is a mechanism by which one player can punish another for behaving selfishly, it leads to more stable cooperation overall. After all, why should you pay your taxes or play by the rules if you know your neighbour is just going to cheat and get away with it? “The retributive instinct is very valuable, not necessarily in its own right, but because it helps people cooperate,” says Chiao.

Rodney Stafford seemed to nod at this idea in a heart-wrenching public letter he wrote to Prime Minister Justin Trudeau, pleading with him to intervene and reverse the transfer of his daughter’s killer. “Now I see so many hearts breaking because people are no longer feeling safety & reassurance within our laws,” he wrote. “Can you sleep soundly knowing there is more injustice unfolding before you?”

Trudeau’s main argument, as debate raged over McClintic on the floor of the House of Commons for two weeks, is that it would be wildly inappropriate for the government to intervene in a specific case because of public uproar, instead of allowing Correctional Service Canada (CSC) to follow proper protocols. On Oct. 3, the Conservatives tabled a motion calling on the government to “exercise its moral, legal and political authority” to reverse the transfer, but the motion was defeated. In bristling at ongoing Tory criticism of his government’s handling of this case, Trudeau branded them “a party of ambulance-chasing politicians.”

The opposition was, no doubt, at least partly making political hay out of the issue. But they also claim to speak on behalf of the constituents who have bombarded their offices with messages expressing outrage that McClintic was moved to what looks like a much more congenial facility six years into her 25-year sentence. Many more citizens have chimed in via radio call-in shows, letters to the editor and social media posts.

The public outcry should be treated empathetically and “not just be dismissed as a cry for blood,” says Richard Weisman, who studies the intersection of law and morality as a professor emeritus in the law and society program at York University. In other cases, the public has been incensed about an overly punitive justice system, he points out, as with Robert Latimer, who was convicted of second-degree murder for the 1993 mercy killing of his 12-year-old daughter, Tracy, who lived in severe pain due to cerebral palsy.

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But there is an underlying aspect to the present case that troubles Weisman, and that is “the continuing disparagement” of Indigenous-based approaches to crime. “McClintic’s transfer is viewed as a lightweight and insufficient response to the gravity of her crime, which I take as an implicit dismissal of [healing] lodges in general,” he wrote in an email.

According to CSC, programming at the Okimaw Ohci Healing Lodge where McClintic is now housed in Saskatchewan involves developing “a personal life plan” outlining what each offender needs for rehabilitation. “Programs help offenders build the strength they need to make essential changes in their lives,” the federal correctional system notes.

There is one important aspect to punishment in the criminal justice system that is perhaps so obvious as to be invisible: it is public—or, as Susan Bandes, a law professor at DePaul University in Chicago, puts it, “expressive.” Sentences are not handed down privately, with a judge in a room simply passing an offender a slip of paper. “It’s a public announcement, and it’s meant to express the judgment of the community and enter into a road toward healing the community for this rupture that the crime has caused,” she says. “The classic view is that the punishment isn’t meted out on behalf of the victim. The punishment is being meted out on behalf of the state. The injury is to the community.”

Bandes specializes in studying the role of emotion in criminal law. There is a long history in Anglo-American common law systems of treating the law as a self-contained, rational system in which all questions can be answered within the law itself, she says. “Law feels uncomfortable with the notion of emotion,” she says. “Basically, it looks at emotion as an interference with rationality.”

Much of her work has been about arguing against that too-narrow view. And in the last few decades, there’s been a dawning realization that fields such as psychology and sociology have many useful things to say about how we make legal decisions and the types of decisions we want to make. “Yes, we do need to be able to articulate our reasons and try to persuade other people,” Bandes says. “But that doesn’t mean that our reasons will be completely devoid of emotion. If that were the case, we could just have computers deciding all these issues, rather than people.”

You don’t have to look hard for examples of the way emotion intersects with criminal law. For many years in the U.S.—where 30 states still have the death penalty, after Washington abolished it this week—people believed capital punishment was an effective crime deterrent. There is now plenty of evidence that is not true, but even as people came to understand that, Bandes points out, it didn’t alter their support for the death penalty; they simply shifted their reasons for being in favour of it. In Canada, the death penalty was abolished in 1976 and no one had been put to death for 14 years before that. And yet, a 2016 Abacus Data poll still found that 58 per cent of Canadians thought capital punishment was “morally right,” nearly identical to the 59 per cent of Americans who felt the same.

Such discussions rest on big philosophical concepts and deeply held personal beliefs about whether people are redeemable and whether they are more than the worst thing they ever did, Bandes says, or whether a person can do something so terrible that they forfeit the right to their life. “Certain crimes evoke great moral outrage, and great grief,” she says. “And the justice system has the really hard job of trying to sort out which parts of that grief it should respond to.”

There’s an obvious way to illustrate the type of human outrage we would not want the justice system to respond to, she offers: there is plenty of evidence that the community response is much greater to crimes involving affluent white victims than black victims. On the other hand, real and necessary legal reform can be forced by sustained community outrage, as with the recent second-degree murder conviction of Chicago police officer Jason Van Dyke, for shooting black teenager Laquan McDonald 16 times in the back. “There isn’t any easy metric for saying very simply, ‘This outrage should be responded to and that shouldn’t,’” Bandes says. “It has to be part of a broader conversation about what justice looks like.”

Bandes’s image of the role of the justice system in responding to public fury over a crime is a sort of braking system or frame-by-frame replay that allows for a careful sifting of facts and principles, rather than simply reacting. “There are a lot of arguments for saying, ‘Yes, let’s hope that a wise legal system steps in here and slows things down a little and takes a step back,’” she says.

Chiao, on the other hand, envisions Canada’s criminal justice system as deliberately constructed layers of insulation between the people and bodies who make decisions, and the raw public emotion toward those decisions and the offenders at the centre of them. “We want to deflect that as much as possible because we don’t trust it—because it’s excessive, it’s motivated by these emotions of revenge that make us uncomfortable,” he says. “And so we basically distance it by layers and layers of non-elected career bureaucrats or officials—frontline police officers, Crown attorneys, judges who claim a level of expertise and impartiality so they can essentially insulate the system from those emotions.”

Crime devastates a victim and the people who know and love them, first and most of all. But there are those rare and terrible cases that scar an entire population that must then find a place to put searing emotions about distant events burned into the collective memory.

And there is probably no amount of carefully constructed buffer in any justice system that could tamp down the horrified fury over the suffering and death of a little girl most only knew from a photograph after it was too late.

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