Criminal Justice Reform: A Transformative Agenda

Abstract

Few of the criminal justice system’s problems are new. Indigenous and racialized persons continue to be over-represented in the criminal justice system. Pretrial detention rates have increased significantly during the past 30 years. The criminal law is still used to regulate social problems — poverty, homelessness, and substance use — that it cannot fix. Although law reform happens with some frequency, these underlying problems persist.

This article advances a transformative agenda for criminal justice reform. It argues that law reform fails to address three mutually reinforcing features of the criminal justice system that exacerbate its persisting problems. First, reform efforts accord insufficient importance to rehabilitation and reintegration. Second, reform initiatives do not address the growth of police powers that lack adequate transparency and oversight. Third, existing reforms ignore how the justice system increasingly allocates power towards prosecutors and the police, while removing that power from judges.

This article’s core argument is that the criminal justice system must be completely transformed in order to address its underlying issues. It contends that meaningful criminal justice reform must take place across four dimensions: (1) substantive criminal law reform; (2) sentencing reform; (3) criminal procedure reform; and (4) institutional reform. It concludes by providing an agenda for criminal justice reform, which includes a set of concrete proposals in each of these four dimensions. Ultimately, this article shows why transformative law reform is necessary to treat individuals with greater dignity, foster rehabilitation and reintegration, and combat the criminal justice system’s worst tendencies.