My practice necessitates spending a considerable amount of time thinking about incarceration. I think about what it accomplishes and what it does not. I've interviewed well over 800 prisoners convicted of one or more felonies. Sometimes, the sentences are short, a few years or so. Other times, the sentences are 20, 30, 40, or more years. Most of the time, I am left feeling that incarceration, particularly after the first couple of years, accomplishes almost nothing, and at enormous taxpayer expense. I have been studying a movement called "Restorative Justice". In my opinion, it represents one of the most powerful and logical methods of promoting healing for the wrongdoer and the victim, and it has tremendous potential to enhance the important goals of rehabilitation and decreased recidivism.
Restorative Justice is almost a completely foreign concept to most prosecutors, police, judges, and prison officials. Outside of academia, practically nobody in the United States knows or cares what restorative justice is. And that is a shame. Perhaps the most important group of people who need to understand and entertain the possibilities contained in this social movement are the politicians. After all, they make the laws, and therefore, they are the ones who could most easily bring the benefits of restorative justice into the ineffective and over-priced justice system we currently have here in Texas and in the U.S.
Ok, so what am I talking about anyway? What is "restorative justice"?
Restorative Justice is an effort to transform the way we think of punishment for wrongful acts. This can apply to all wrongful acts, not just criminal acts.
When a crime or other bad act occurs, it effects victims, offenders, and interested bystanders, such as family members, employers, employees, friends, etc. It also has an effect on the community at large, and tends to have a de-stabilizing effect. These bad acts can be seen as cracks in the foundation of our community, and they create needs and responsibilities for the direct participants of the act, as well as for the larger society in which the act occurred.
Restorative justice is the name given to a variety of different practices, including apologies, restitution, acknowledgement of harm, as well as other efforts to promote and provide healing for all, and reintegration of offenders into their communities, with or without additional punishment.
Although restorative justice usually involves a trained facilitator who oversees direct communication between victims and offenders, there is also usually partial or full representation of the community interest at large. It is a formal setting in which informal, but critically important, communication is fostered. The basic goal is the complete and sincere acknowledgement of fault by the offender, and restitution of some sort to the victim. The broader goal is the approval of the community that the resolution is also in the best interest of society as a whole. The restitution to the victim usually includes the expression of genuine remorse and sincere apologies, which can be written, oral, or both. There is often a new understanding gained by both victims and offenders during this process, and there are often agreements made about future behaviors, including financial restitution, where ever possible and appropriate.
The ideal of restorative justice involves achievement of the four "R's"
Repair Restore Reconcile Reintegrate
Although we can trace the roots of restorative justice at least as far back as classic Greek, Arab, and Roman society, modern restorative justice came about as a response to failed criminal law models of retribution and rehabilitation. In other words, a strictly punishment-based model for dealing with crime had proven completely ineffective at deterring future crime, and rehabilitation programs were only successful at times, but were wholly unsuccessful in all cases where the offender did not undergo the inner transformation needed to prevent future criminal behavior.
Any system we choose to employ must have, as its foundation, the goal of reducing or eliminating future criminal behavior, from the least serious to the most serious offenses. Such a goal, if realized, creates a safer, more peaceful, less violent, and more harmonious society.
The history of criminal justice and punishment is one where the state has continuously gained more and more control over its citizens in the name of "safety". The costs to taxpayers have become so extreme that people are finally starting to ask the important questions about whether the money is really being spent the right way.
Restorative justice could even be effective as a hybrid to incarceration. For example, if a crime is a 1st degree felony under Texas law, it calls for a punishment range of 5 to 99 years. After the prosecution and defense attorney have their opportunity to consider the facts and legal issues, it might be very wise to place the offender in prison for 2 to 5 years, depending on the crime, and then ask that the restorative justice process be given the opportunity to take place. After 2 to 5 years, a lot can happen. People can grow up, wise up, admit to substance abuse issues, acknowledge right from wrong, humble themselves, and in many cases, they may have deep empathy and compassion for those that they have wronged. Meanwhile, the victim may have finally developed the courage to forgive, acknowledge their own wrongful role, if any, in a given scenario, develop the will to heal and let go of past pain, and finally, move forward and live the best life possible.
One way to look at restorative justice is the visual below...
Justice, in its noblest form, must promote healing and reduce human suffering. Thus, the question above is not just appropriate, but it is also essential. The interests of the victim and the offender are placed on the right and left, and the interest of the community is placed on the top. Yet, it is only where those interests can, through reason and informed discussion, overlap that we will ever find justice. Failing to find that overlap and work within it almost invariably creates an adversarial perspective, leaving at least some, or possibly all of the interested parties permanently feeling marginalized or ignored, and feeling as if the badly needed healing will never come.
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