The U.S. (In)Justice System Doesn’t Work. The Alternative Just Might

I’VE BEEN THINKING A LOT ABOUT justice lately, pondering the
injustice of the way that justice is administered in this
country. For years I’ve pointed out and lamented the racial
bias evident in both law enforcement and the criminal
courts. For years, I’ve wished to live in a world in which
the determination of guilt and the administration of punishment
were both completely uncorrelated to race or any
other demographic characteristic.
Today, I’m no longer satisfied with just that.
For those of us living in the United States, “doing justice”
is mostly synonymous with administering punishment.
We may not literally follow the Biblical edict of “an
eye for an eye,” but most of us still believe that “the punishment
must fit the crime.” More than that, many of us
are not only willing but insistent that the punishment be
cruel—decades of incarceration, sometimes in solitary
confinement. Punishment, after all, is supposed to be
unpleasant. Besides, even the Talmud tells us that
“If we are kind to those to whom we should be cruel,
we will ultimately be cruel to those to whom we should
be kind.”
Given these options, the choice is easy. But why do we
have to choose one over the other? More to the point,
why must we limit ourselves to just these two choices? I
don’t want to choose between being cruel to someone
who deserves it and being cruel to someone who doesn’t.
Sure, that’s an easy choice, but it’s set up to be an easy
choice in order to justify being cruel to someone. I reject
the dichotomous options. I refuse to be intentionally
cruel to anyone.
I also refuse to be indiscriminately kind, which is also a
false choice. Alternatives to systems that administer retributive
justice do not advocate kindness. They advocate
compassion — the not-so-radical idea that this person
who may have done some terrible things (let’s assume that
his innocence is not in dispute) is still a person with the
same basic needs as any other person.
Compassion is not kindness. It is not forgiveness. And
it certainly is not a lack of accountability. It just means that
I believe that no one is born wanting to rape and kill (psychopathy
may be a special case) and the fact that some
person has done so — perhaps multiple times — means
that his/her life has been filled with so much pain that
rape/murder was preferable to just carrying on. I don’t
condone his/her choices and I don’t want to do anything
to compromise the safety of others, but I feel compassion
for the person who experienced such pain.
To be compassionate is to recognize everyone’s humanity
and to value everyone’s needs. This works because
compassion is not a zero sum gain. My feelings of compassion
for one person do not lessen my compassion for
another. To the contrary, when I am in a more compassionate
and loving space, I have more to give to everyone
around me.
Though I talk about giving, compassion is not charity
either. To be sure, it can be a tremendous gift to another,
but it is a gift to ourselves as well. Just as torture and other
acts of cruelty dehumanize not only the person tortured
but the torturer as well, so do compassion and empathy
reconnect us to our own humanity.
I recognize that there are people who lack the capacity
to feel empathy for others, people who enjoy inflicting
pain. I recognize that our need for safety may require
some people to be incarcerated. But I recognize as well
that involuntary confinement sometimes results in more
violence, not less, that incarceration frequently makes
people more angry, more resentful, and more violent –
especially in a society in which ex-convicts are legally
second-class citizens with no voting rights and few
employment opportunities.
If there were no better options, we could justify continuing
with business as usual. But there is, in fact, an alternative:
Restorative Justice.
There are many restorative justice systems. The one I’ve
been studying is Restorative Circles (RC), a system developed
by Dominic Barter in urban Brazil and now spreading
across the world as a means of promoting and facilitating
social justice, group cohesion, resilient relationships
and personal healing. RC provides a way for individuals
and communities to handle conflicts, including racial conflicts,
compassionately rather than punitively, as well as to
heal and learn from these conflicts.
To the uninitiated, restorative processes may appear
idealistic and naive. After all, they reject the two core
aspects of the traditional justice system: the assignment of
blame and the administration of punishment. Instead, the
goal of the Circle is for the parties involved in the conflict
to first gain mutual understanding of the others’ experiences
and needs and then to restore or build a mutually
satisfying relationship.
Talking is involved, so is listening. Lots of listening. But
it’s a decidedly different type of talk than people usually
engage in, and it’s not just talk.
Restorative processes can be used for any conflict, large
or small, criminal or interpersonal. They are designed to
lead to voluntary (and they really are voluntary!) acts
offered to repair or restore the relationship. The two words
are not synonymous. Reparative acts have to do with compensation—
paying for a broken window is a reparative act —while restorative acts are those whose
value is largely symbolic, a heart-felt apology
may qualify, or a basket of vegetables
from one’s garden, or an invitation to dinner.
It’s certainly not surprising that people
prefer to have both, but it turns out,
Barter explains, that if they can only have
one, there is a strong preference for acts
that are restorative.
And yet, restorative processes aren’t, at
the heart of it, about apologies or even
about restorative acts more generally.
Unlike retributive justice systems, restorative
systems work because the people
involved want to be there and are invested
in the process, which allows the participants
to not just understand each other but
experience each other’s humanity. That’s
why restorative acts are offered. That’s why
they’re experienced as restorative.
Skeptical? I certainly was, and I wanted
hard data, not personal testimonials. What
I found was one empirical study after
another that demonstrated the effectiveness
of restorative systems. Indeed, a recent
review by Lawrence Sherman and Heather
Strag of the research on restorative justice
across multiple continents showed that
restorative systems reduce recidivism in
both violent and property crime in comparison
to traditional justice systems and provide
a variety of benefits to the “victims,”
including improved mental health and
greater satisfaction with the justice process.
Such a profound process should be difficult
to facilitate. It isn’t. The power of RC
rests in the process, and it is the structure of
the process that creates change, not the
facilitator, whose job is merely to create and
hold the space for the process to unfold.
Barter says the facilitators he enjoys
observing most are those under the age of
ten. Why not? In Dominic Barter’s world,
schoolchildren spontaneously break out
into a restorative circle during recess. It
seems downright inconceivable at first, but
after a few days with Barter, the message
sinks in: Facilitating a circle is child’s play.
Anyone can do it.
Isn’t it time we start?