Last week I wrote about the failings of our current justice system as I see them. Today I’d like to offer an alternative for the phase of criminal justice that deals with how consequences are decided and implemented and then take a brief look at deterrence (or crime prevention).
Our current system is typically referred to as a “retributive justice” system. As such, crime is defined as a breaking of the rules/law. The state (or government) steps in and, through an adversarial process, determines guilt and establishes punishment.
It might surprise you to know that most all Native and even some Western European cultures (prior to about 1,000 AD) practiced what we now refer to as “restorative justice.” In restorative systems, the crime is primarily seen as something that harms people and disrupts the fabric of relationships and community. A cooperative process is used to bring the offender face-to-face with those they have harmed (victim and/or community) to determine how best the harm can be repaired (which might or might not include our current forms of punishment – like jail).
Wikipedia quotes Eric Greif in defining what resotrative justice is all about.
a way of looking at restorative justice is to think of it as a balance between a number of different tensions:
– a balance between the therapeutic and the retributive models of justice
– a balance between the rights of offenders and the needs of victims
– a balance between the need to rehabilitate offenders and the duty to protect the public.
Those balances are usually portrayed visually by something like this:
Methods for accomplishing these balances vary widely and are being practiced effectively around the world more than in the United States. They include victim/offender mediation, community conferencing, sentencing circles, and yes, truth and reconciliation commissions. But no matter the method, the focus is on bringing the offender and the victim/community together to repair the harm, which is another method of accountability.
I know that in this country, we believe that the only way to stop crime is to put the offenders in jail. This is demonstrated by the fact that we now have the highest incarceration rates in the world (750 inmates per 100,000 persons, the world average rate is 166 per 100,000 persons) and spend over $200 billion annually on enforcement and corrections. But if we look at recidivism rates, its pretty clear that our current system focused on punishment alone is not working for either rehabilitation or public safety.
Those statistics show that our current system doesn’t work too well in preventing criminals from re-offending. But you might say that the threat of punishment does deter people from committing crimes in the first place. As NCrissieB pointed out in a great diary at dkos last week, that only holds true if you believe in the “myth of the rational criminal actor.” The reality is that most crimes are either committed in a fit of passion or are supported by a criminal culture that outweighs the risks of punishment.
If we want to prevent people from committing crimes in the first place, we need to provide the kinds of supports that mitigate outbursts of passion and work to dismantle the reality of criminal cultures. That’s much harder and messier work than waiting until someone is hurt and simply throwing the offender in jail.
In terms of recidivism, the practice of restorative justice is not yet widespread enough to draw too many conclusions, but the current data is promising (pdf). And for those who might think that restorative practices fall in the category of being “soft on crime,” the reality is that “the more serious the offense, the better the results.”
My conclusions are that if we want to better approach a system of justice in this country and impact the levels of crime – be it on our streets, in our homes, in the dark corners of the MIC, or in the financial markets – a combination of preventative measures and restorative practices are where I see the signs of hope.
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of restorative practices, I’d invite you to visit a web-site called The Forgiveness Project and read some of the stories – bring a kleenex, this is powerful stuff.
One of the stories you’ll find there is of Christo Brand & Vusumzi Mcongo.
And the folks who promulgate it (who I tend to refer to as Old Testies)Yahweh has pretty much evolved and given up smiting, and so should we.
As the political power of the Conservative movement slides into the past, we will need to reform a lot of the results of their philosophy and the institutions that express them.
“Soft on Crime” penetrated deeply, trading on the human impulse of revenge over true justice, thank god (heh) we have this new model of addressing it. The ramifications of this could go a long way towards healing societies and humanities old wounds.
…one of the purposes of GOS for me, when I go there, is as a little dipstick in the engine of liberal thought. The last few times I’ve explored this subject on there, it has come back low and grimy. My sense — right or wrong — is that a great number of our allies and fellow lefties are deeply OK with, supportive of, and generally on board for retributive justice, and that it is one of those things which has gone deep. You can’t hate on black folks, but you can hate on prisoners (convenient they’re mostly black and brown). You have to do awful things in an inhuman society just to survive, but you’re doing those things to not be one of…them. The ones authority picks to go away. It is just layered and very, very strong, this idea of vengance.
My mom was on an alternative sentencing board — one of the precursors of this movement — and I got to see and hear a bit. I think it’s great. I don’t think it is as great, pound for pound, as simply opposing mandatory minimums, advocating for well funded public defenders, and making a range of educational and health resources available to prisoners (not necessarily in that order — I’d but the education and health at the very, very top). I think the change in the social model is likely to be generational, very slow, and tied — good and bad — into all the other ways our system monetizes the least of us via the prison system. But educating prisoners is something we can advocate for with the most right wing, the left wing, everyone. You don’t have to change someone’s model, you just have to get them to be a little less of an asshole, in a fight where they know they are being unfair and mean.
always seemed to me to contain some of this. A way to allow the culture warriors to come to grips with the damage done. One of the reasons our incarceration levels are so high is that we have criminalized behavior that is not criminal. Drugs, political conspiracy, contempt, prostitution, loitering, so called looting, crossing boarders for work, the list is endless, even poverty is a crime. Public order, drugs, and probably a huge segment of property should not even be on a list of crimes. They are symptoms of a society that is inself criminal. The criminal culture is systemic.
What can be done when the entities who dispense justice are criminal? When things are this out of whack, when survival level crime lands you in jail and the criminals who run the system use the law to proclaim that their crimes are to big to fail, national security or politics. Law and order often means creating an illusion of protection that serves to misdirect fear of the real criminals to fearing those that have no hope no place in our society. The crimes violent and economic perpetrated globally to keep the order of the real criminals.
They debate it’s necessity and continuance, refusing to even allow access to the sad justice system we have by calling it state secrets or free market. On a community level the system is just a trickle down from the Feds. A system where real social justice is called ‘entitlements’ or welfare, and the sin of being an outsider is punished. The individuals justice, is meted out not for protection but fear and vengeance. While at the top it’s called business or geopolitics.
In South Africa the Truth and Reconciliation came after the negotiated transition from apartheid. We have no one who will even say that crimes were committed. We have no justice to apply. We may be in transition but it will be impossible to even be allowed the truth when those who created the reality, refuse to own it.
“Gone is the dearly bought language. Over months we’ve realised what an immense price of pain each person must pay just to stammer out their own story at the Truth Commission. Each word is exhaled from the heart, each syllable vibrates with a lifetime of sorrow. This is gone. Now it’s the hour of those who scrum down in Parliament. The display of tongues freed into rhetoric – the signature of power. The old and new masters of foam in the ears.”
Andjie Krog, Country of my Skull – re: The arrival of representatives from the various political parties to the Truth and Reconciliation Commission
…but I feel you’ve gotten a bit ahead of yourself. Most, if not all, of the basic questions regarding law, justice, and crime need to be revisited and given answers. What is the basic purpose of law? What is the difference, philosophically speaking, between crimes against persons and crimes against property? What is the interest that we are trying to serve through either punishment or rehabilitation?
One of the biggest problems with our “justice” system is that we lack any clear understanding of what these first principles are. Is the priority to defend individuals against the caprices of the state, or is the priority about protecting the public from dangerous or possibly dangerous individuals? This is the principle behind the current debate over the future of the exclusionary rule, but the legal debate currently manages to avoid answering the most basic question because we refuse to revisit the question of what are our first principles.