To see the origin of this post, go here. Today, I continue to lay out a positive vision for what I would like my community and nation to become.
I envision a nation that no longer uses a punitive criminal legal system but instead employs a system of restorative justice.
Our current legal system establishes laws, and those who transgress them are accused, tried, and, if convicted, punished by the state—by fines or incarceration.
The state is disembodied. It is represented in the process described above by law enforcement and prosecutors, supplying judges to determine whether the law is applied correctly and fairly.
There may be victims who passively (for the most part) participate in the proceedings; they are primarily used as props by the prosecution to convince a judge or jury about the heinousness of the act.
Arguably, their needs are not the focus of the proceedings because the focus is on the transgression against the state. We even talk about those who are punished—especially via imprisonment—as having “paid their debt to society.” The society, like the state, is an ambiguous mass.
Restorative justice, in contrast, focuses on harms caused by acts. It defines specifically who has been harmed. It asks the perpetrator of the act to face the harms their act has caused. It provides, when possible, for victims to express the impact of the harms on themselves and others. And, it seeks ways, with victims and perpetrators, to make the harms right—as right as possible. It becomes the responsibility of the person who committed the acts to take actions, agreed upon with victims or their representatives, to make the harms right.
In this way, restorative justice focuses on correcting real wrongs committed against real people (and defined communities) in ways that will restore community—as much as possible. Ideally, both the victim and the one who caused them harm find a way to live again in the community and find a way forward in life.
There is good evidence that restorative justice has evolved in Indigenous communities worldwide. I think I know why. To be punished by banishment—which is essentially what prison is—is a death sentence in subsistence communities. It also leads to cycles of revenge that will eventually destroy the entire community.
A restorative alternative, then, is a crucial way to reestablish balance, ensure that healing can begin to occur, and break a potential cycle of violence.
This vision is not “pie in the sky.”
It is already used in various forms in our society, but it sits awkwardly alongside the punitive criminal legal system—employed chiefly for property crimes or low-level interpersonal ones. However, it has been used successfully in even capital crimes. It seems especially effective for young perpetrators for whom the default in our punitive society still seems to be “give them a second chance.”
In my experience, some of the most vocal proponents of restorative justice are retired district attorneys—people who have lived within the punitive system their entire careers and dutifully represented the state in its proceedings against “bad people.”
They have seen its deficits. They have observed its impacts on victims. They have watched it destroy the lives of those convicted and punished.
The desire for an eye for an eye—for punishment to fit the crime—seems to lie deep within us. We want perpetrators to pay because someone has to pay.
And yet, if you have been the victim of a crime, you know punishing the convicted perpetrator does not alleviate your suffering. You likely have questions:
- Why me?
- Did I do something to cause this?
- What were you thinking?
- Do you know what this has done to me? To us?
- Will you do it again?
- Am I safe now?
In many cases, only the person who committed the act can answer these questions. Only by hearing them from a victim and responding can they fathom the depth of impact they have had on that person’s life. Only then can they take steps to begin to make things right.
We can begin to insert a more aggressively restorative processes into our current punitive system at many stages. We can do it before formal charges are made. We can do it after charges, but before adjudication. We can do it after conviction. We can even do it during incarceration.
At each step, we have the option to ask the victims what their needs are. After all, it is they, not the state, who is actually harmed by the acts. We can place them in a position of (safely) confronting the perpetrator with the impacts of their acts.
This is not being soft on crime. Rather it is redefining what crime is and what it means. It is recognizing that punishment does not solve problems, but actually exacerbates them. It views harms as happening to real people. And it seeks the restoration of relationships and community as the ultimate goal of naming and addressing the harms.
I believe that the vast majority of people who harm others or the community in which they live want a “second chance.” That is our way of saying, I made a mistake, and I want to make it right. I want to move on. I don’t want this act to define me. I believe this is in our hearts.
By extending this desire to those who harm us, we provide a remedy that we all deeply need.
Traveling at the Speed of Bike 