You’ve probably seen the headlines that have laid out a few of the failures of our current justice system and they can be absolutely blood boiling.
“School bus driver who raped 14-year-old will not go to prison.”
“Man Gets No Prison Time For Torturing Teenage Girl, Holding Her In a Dog Cage”
“Innocent man released after 30 years in prison”
It’s not a new issue, and it’s one we have all contributed to. Wait, hold on, how have we contributed to this?
The confused justice system is partially an act of slow changes that have conflicting goals. We have millions of opposing forces working against each other in a nation of individuals who can’t agree on what justice really looks like. Retributive justice, restorative justice, and individual ideals of justice are fighting against each other in a system filled with adversaries that have created conflicting principles of justice.
There is the ever popular, retributive, harsh on crime, camp that calls for longer prison stays and mandatory sentences. The comments section of crime articles are filled with the beliefs of retribution. Punishment is their mantra and they come to inflict pain. “Hang ‘em high”, “Rot in hell”, and “throw away the key” are phrases thrown around in desires rooted in natural selection. We are selecting who can continue to live in our society. And who can’t. By removing people from society, we are, in ways, cutting off their ability to repair the harm that has been caused.
The natural consequences of natural selection is destruction.
The moral and actual harm that is caused by acts of destruction, are often responded to by creating more destruction. We destroy our way of life and freedom, by creating fear and anxiety. It is the proverbial equivalent to bombing our way to safety. The more bombs that drop, the less safe anyone actually feels.
Even with the brokenness of the justice system, we are slowly creating a slightly safer society. Some of this safety can be attributed to the incarceration of people who commit violence and harm, but not as much as we would like to think.
Incarceration has about a 20-30% success rate in creating a future where a person commits no future harm. Incarceration only produces a satisfactory outcome for victims 50% or less of the time. Incarceration also has the side effect of creating a breakdown in the family and moral structure. This creates further harm in the community as children of incarcerated men and women are sometimes 7 times more likely to themselves become involved in creating their own harm and ending up in prison. Violence, addiction, and other “punishable offenses” are not repaired best by punishment.
Punishment creates a negative feedback loop that perpetuates further harm. Punishment creates fear, and fear is a horrible motivator. Fear breaks down the community and creates an us vs. them mentality, one of the most basic elements of the psychology of natural selection.
Human beings love having an enemy. Nothing creates enemies better than punishing each other.
Tim Kreider, in his book “We Learn Nothing” states, “The truth is, there are not two kinds of people. There’s only one: the kind that loves to divide up into gangs who hate each other’s guts. Both conservatives and liberals agree among themselves, on their respective message boards, in uncannily identical language, that their opponents lack any self-awareness or empathy, the ability to see the other side of an argument or to laugh at themselves. Which would seem to suggest that they’re both correct...
Let me propose that if your beliefs or convictions matter more to you than people—if they require you to act as though you were a worse person than you are—you may have lost perspective.”
A soon as we create an enemy, that enemy enters a fight of life and death. They fight for survival. Their life becomes an existence of fight or flight. It is often the same for the victims of crimes. Many people walk away from traumatic events with the wounds of PTSD. Trauma can create a pattern of trauma. As the old adage goes, ‘hurting people; hurt people’. The more we hurt people who have hurt other people, the more we prevent real healing from occurring.
Responsible justice looks to hold people responsible for their actions in a way that looks to restore the harm that they caused. This requires the involvement of the community. It requires the participation of the people who created the harm, the people who were affected by that harm, and others who are willing to hold space for healing and justice to occur. Justice is a participatory activity. It requires that the community show up to look to create restoration instead of just punishment.
The courts deal in lines of law and sentencing guidelines that take many factors into consideration for sentencing. These algorithms determine if someone should serve 1 or 10 years. What these policies and procedures fail to create is a pathway for restoring the harm caused to the community. Only the community can communicate and create the type of justice that looks at ways to repair harm that only those involved can know and understand.
We first have to confront our natural desire to hurt the offender. It is, after all, natural.
It is a part of the process of healing trauma. Anger is a part of the process. The process towards justice is messy and vulnerable. When I conduct restorative circles with Northern Arizona Restorative Justice, I sit down with families and community members who have hurt each other. There is always a history of pain and anger. We explore how to use the conflict as an opportunity. We look at how to heal the harm collectively. What if that anger could be directed towards a purpose of creating real safety and peace?
Bringing the community to connect together to settle and resolve disputes requires agreed upon rules. Right now the rules themselves are at conflict. Most communities have begun to create some form of community justice or restorative justice. People in these communities are often seeking treatment options and restorative measures for people who suffer from addiction, broken moral structure, and are prone to commit crimes. Many are non profit organizations which seek to practice and implement the principles of restorative justice in a manner outside the courts. Restorative principles have taken root in schools, corporate negotiations, and criminal justice. Some local and state courts have adopted and begun to practice restorative justice.
The success rate in some places that have implemented these practices has been 85%!
Some of the reasons we live in a safer society is that we are moving toward a level of transparency and surveillance. We have created increased security in all fashions of our life. We have increased police force, access to support networks, healthcare, mental health treatment, as well as volunteer organizations that often do untold amounts of good in creating safety in our communities. We as a society, have become great at creating safety. But we are often stuck in two opposing paradigms, where we are expected to heal and hurt at the same time.
The retributive camp has created a prison system filled with 3 million men and women who are often serving extraordinarily long sentences for drug related crimes. Many prison sentences make no sense through a view of true justice.
We can all agree that there is a need for prisons. But even these places should be humane. And the application of prison sentences should be taken into consideration with studies that demonstrate that prison is not effective at healing people. It is effective at harming people. After 3 years in prison, irreparable harm begins to take place for those in incarceration. Administrative segregation and solitary confinement create devastating effects on the people who undergo these forms of torture. There is no healing that comes with days alone in a dirty cell, chained and shackled for showers, and able only to walk in a slightly larger cage for a few short minutes every 2 days. There is no healing and correction that takes place in removing the humanity from even the halls of reformation.
We knew all of this back in the time period where reformation and punishment were a huge fad. We created reformatories where people were sent for healing and instead were abused and tortured. Yet we have now created more efficient machinery of punishment, and we expect that the problems with this model have changed.
The hard on crime camp has created an efficient legal slave trade (the words of Harvard professor, William J. Stuntz) where people’s lives are traded and negotiated on by lawyers in backroom deals. 97% of all criminal case filings will never see the open courtroom where men and women from the community can help create justice. To be clear, that means, 97 out of every 100, people charged with a crime will have the fate of their future determined by lawyers who make a career from criminalization. People's lives are determined daily in numbers and figures, stats, and promotions. Again, we all contribute to the creation of this type of justice.
Our desire to punish offenders, give victims retribution, rehabilitate and create safety for the public, all great intentions, have led to the creation of a justice system that is confused and struggling to find an identity.
What kind of justice do we, as a people, really want to see in America?
What does real justice, for everyone, really look like to you?
That is the question that restorative justice looks to answer, and the question I will leave you to ponder. What does justice really look like in your community? I hope you will connect with your community to work to create justice in the world around you as best as you can.
The justice may not be perfect, but when we work together to create justice, we work towards creating a more perfect union.