Now Is the Perfect Time for the U.S. to Talk About Restorative Justice

It requires breaking free of the retributive model and the notion that "justice" is only done when someone is punished.
Publish date:
June 23, 2016
social justice, the justice system

The outrage in the Brock Turner case, in which a rapist got just six months jail time (three with good behavior) for assaulting an unconscious woman, is rooted in very real pain and frustration. And it's not going away. We've gone from fury at the judge in the case to very real efforts to remove him from the bench to, now, a proposed California law that would make rapists like Turner ineligible for probation.

I have to confess that all the calls for more jail time in this case make me uneasy, though, and it's not because I'm soft on rapists.

It's because I believe in restorative justice, a practice already in use in Norway and some other nations as well as in some parts of the U.S., most commonly in the context of school discipline. It's also been used in activities like South Africa's Truth and Reconciliation Commission. Restorative justice is especially popular among communities of color, which see it as a way of ameliorating our painful criminal justice system while still ensuring that there are consequences for committing crimes.

However, not a lot of Americans know about restorative justice, or they have very vague ideas about what it is and how it works. The Brock Turner case could be providing a really ideal opportunity for discussing it, and it's unfortunate that people aren't seeing this as an opportunity to call for criminal justice reform that would fundamentally reshape the way we think about justice on every level

The United States has what's known as a retributive justice model: Do the crime, pay the time. The goal of interactions with the justice system is to convict people of crimes and then punish them, while also creating a disincentive for other would-be criminals. Our justice system includes things like jail and prison time, the death penalty in extreme cases, community service, and, sometimes, restitution — break a window, pay for replacement.

That's a far cry from restorative justice, which looks at crime from a completely different perspective. In settings where this approach is used, the conversation isn't about punishing the criminal, but identifying the harm done and grappling with a way to make good for the victims, the people who were truly damaged by the crime. It consults with victims to help decide the outcome. It also positions criminals themselves as people who need to undergo some healing as they confront the things that led them to commit crimes in the first place.

Maybe that's an apology and an agreement to pay for a broken window, or a brokered conversation between a school bully and her victim. Maybe it's something more serious, including jail time, but still with a focus on attempting to remedy, or mitigate, the harm done to victims. And it's something that, when well applied, results in the most victim satisfaction.

Brock Turner, for example, cannot go back in time and change what he did to Jane Doe. But he could issue a genuine, heartfelt apology to her, centering the harm he did — rather than the bizarre fauxpologies he keeps coming out with, in which he says he wants to use this as an opportunity to lecture college students about the perils of binge drinking. A proper apology isn't going to erase what he did, but it could be the start on a restorative path. Working with a judge and representatives, he could determine what else he could do to mitigate his crime: Community service that might benefit rape victims, for example, and counseling while he spends time in jail.

There are a lot of things about restorative justice that are alienating to Americans, even as the method is being used with great success here. Some school districts utilize restorative justice for discipline, many in response to concerns about the school-to-prison pipeline and the way ordinary school-age behavior has become pathologized. Some municipalities, counties, and parishes have special diversion courts for particular kinds of crime that focus on restorative, rather than punitive, resolutions.

These resolutions cut down on expenses pretty radically while also benefiting communities and helping victims. They also play a vitally important role in addressing judicial inequalities — using drug courts, for example, can help to balance out the inescapable fact that people of color are profiled for drug violations, and often end up serving lengthy prison terms (sometimes because of mandatory minimums) that take them away from their families and communities. Mental health courts help people get treatment and support, rather than sticking them in prison, where they will typically deteriorate.

Using restorative justice does require more work. There's no easy plug and play formula. The court has to hear each case individually, adding on victim statements (already used in some courts), including advocacy on the part of deceased victims. The concerns of the victims themselves are considered when developing a sentence for the offender, making them really active participants in the case.

Many crimes in the U.S. are regarded as crimes against the state, not the victim, which really disempowers victims as they try to recover from their experiences. Restorative justice turns the lens onto the harm, and who was harmed, rather than onto punishing the offender.

One of the most striking examples of restorative justice in Norway comes in the case of Anders Breivik, the man who went on a bombing and shooting spree that killed 77 people. It was a horrific incident, and the type of crime that would likely warrant the death penalty in the U.S., but he got 21 years in jail (likely to be extended due to the nature of his crimes). Americans were horrified, but the actual survivors and victims' families weren't: They expressed gratitude for what they saw as a fair resolution.

This is astounding for a lot of Americans — even those who are opposed to the death penalty are still fans of life imprisonment without parole for certain crimes. But it shouldn't be. Killing someone, or jailing that person for life, isn't going to turn back the clock on a crime. It will just create another broken, damaged, wounded person.

Restorative justice, and an honest conversation about what that person can do for his victims, if anything, creates the foundation for people to really seriously confront their crimes. Nations that use restorative justice have relatively low crime rates, including recidivism rates, illustrating that there's nothing "soft" about the practice — it's just a different way of doing things, and one that might be better for society.

When I see people, especially liberals, calling for locking people up and throwing away the key, it makes me worry. It's well-established at this point that the U.S. criminal justice system is seriously unbalanced, unfair, and highly racialized, whether we're talking about profiling, mandatory minimums, the inability to afford a good defense, or any number of other factors. The Brock Turner case itself highlights the profound injustices in the system: A man of color seen raping an unconscious woman, especially a white woman, wouldn't be getting three months in jail. But protesting Turner's short sentence is something that comes at a very steep cost, on a very slippery slope.

The United States already hosts over 20 percent of the world's prisoners, and according to the NAACP, one in three Black men can expect to spend time in prison during his lifetime. That is a really boggling statistic, yes?

And it's fed by people who demand longer sentences, who demand mandatory minimums, who scream with outrage when people get short prison or jail sentences.

The United States should be creating a space to hear from victims about what they want, and a space to make that happen. Maybe Jane Doe really does just want Brock Turner to go to prison for a very long time. But from her victim statement, maybe she also wanted an apology, and for Turner to admit what he did, and that could have been the starting point for a conversation about what else he could do to make good on the harm he caused, and what else could be done to make sure he never does it again.

Adopting restorative justice would be a huge step for the United States. It requires breaking free of the retributive model and the notion that "justice" is only done when someone is punished — right now we lash out at criminals, and restorative justice asks us to sit at a table with them instead. The scorched earth approach can feel very satisfying and cathartic for some victims, especially those of violent crime, but does it really do any good?

In a way, restorative justice actually forces criminals to have a much more uncomfortable experience, because instead of being abstracted from their victims and their crimes, they're forced to actually address them. Many victims are represented in these situations by attorneys or third parties, but their wishes are still clearly expressed, and criminals still have to face what they did.

What would our criminal justice system look like with restorative justice? How would Brock Turner have been punished in a justice system that sat down and listened to his victim when developing an appropriate response to his conviction? What kind of country do we want to be, at the end of the day?

Photo: Beth Cortez-Neavel/Creative Commons