Restorative Justice

Last week I wrote about the failings of our current justice system as I see them. Today I'd like to offer an alternative for the phase of criminal justice that deals with how consequences are decided and implemented and then take a brief look at deterrence (or crime prevention).

Our current system is typically referred to as a "retributive justice" system. As such, crime is defined as a breaking of the rules/law. The state (or government) steps in and, through an adversarial relationship, determines guilt and establishes punishment.

It might surprise you to know that most all Native and even some Western European cultures (prior to about 1,000 AD) practiced what we now refer to as "restorative justice." In restorative systems, the crime is primarily seen as something that harms people and disrupts the fabric of relationships and community. A cooperative process is used to bring the offender face-to-face with those they have harmed (victim and/or community) to determine how best the harm can be repaired (which might or might not include our current forms of punishment - like jail).

Wikipedia quotes Eric Greif in defining what resotrative justice is all about.

a way of looking at restorative justice is to think of it as a balance between a number of different tensions:

- a balance between the therapeutic and the retributive models of justice
- a balance between the rights of offenders and the needs of victims
- a balance between the need to rehabilitate offenders and the duty to protect the public.

Those balances are usually portrayed visually by something like this:



Methods for accomplishing these balances vary widely and are being practiced effectively around the world more than in the United States. They include victim/offender mediation, community conferencing, sentencing circles, and yes, truth and reconciliation commissions. But no matter the method, the focus is on bringing the offender and the victim/community together to repair the harm, which is another method of accountability.

I know that in this country, we believe that the only way to stop criminals is to put them in jail. This is demonstrated by the fact that we now have the highest incarceration rates in the world (750 inmates per 100,000 persons, the world average rate is 166 per 100,000 persons) and spend over $200 billion annually on enforcement and corrections. But if we look at recidivism rates, its pretty clear that our current system focused on punishment alone is not working for either rehabilitation or public safety.



Those statistics show that our current system doesn't work too well in preventing criminals from re-offending. But you might say that the threat of punishment does deter people from committing crimes in the first place. As NCrissieB pointed out in a great diary at dkos last week, that only holds true if you believe in the "myth of the rational criminal actor." The reality is that most crimes are either committed in a fit of passion or are supported by a criminal culture that outweighs the risks of punishment.

If we want to prevent people from committing crimes in the first place, we need to provide the kinds of supports that mitigate outbursts of passion and work to dismantle the reality of criminal cultures. That's much harder and messier work than waiting until someone is hurt and simply throwing the offender in jail.

In terms of recidivism, the practice of restorative justice is not yet widespread enough to draw too many conclusions, but the current data is promising (pdf). And for those who might think that restorative practices fall in the category of being "soft on crime," the reality is that "the more serious the offense, the better the results."

My conclusions are that if we want to better approach a system of justice in this country and impact the levels of crime in our culture, be it on our streets, in our homes, in the dark corners of the MIC, or in the financial markets, a combination of preventative measures and restorative practices are where I see the signs of hope.

On Justice

I've heard it said that approximately the same number of people control 95 percent of the world's economy as are in solitary confinement in the United States. There can be little doubt as to which group has killed the greatest number of people. The same would hold true for which group has stolen the most, especially if we include resources, and which group has most damaged the planet. It is entirely possible that we have the wrong population in solitary. But, of course, so long as those in power decide who goes to prison, those in power will not go to prison.

-Derek Jensen, The Culture of Make Believe

I think that most of us learn from an early age to view the world as it is presented to us and part of that means an implicit agreement about when to be outraged and when to be fearful. We've created whole belief systems and myths about this that we assume are designed to both punish criminals and protect ourselves. And yet, as Jensen points out in his book and as buhdy noted a couple of days ago, the system is rigged from the get-go.

As an example, following the above quote, Jensen goes on to discuss the Union Carbine chemical explosion in Bhopal, India that killed eight thousand and injured two hundred thousand in 1984. The Chairman and CEO of Union Carbide at the time, Warren Anderson, has been charged with manslaughter in Bhopal, but the US has ignored requests for extradition. It seems as though he's enjoying a pretty comfortable life in the Hamptons these days.

On the other end of the continuum, we might talk about something pretty close to home for me that I mentioned last week...my two friends who's home was raided, had all of their money and possessions seized, and were hauled off to jail in handcuffs for growing and selling marijuana.

And we have the audacity to talk about a system of justice in this country?

But in my mind, its even more serious than that. Even if we could figure out a system of fairness and equality in finding the real criminals and bringing them to justice, what would that mean? Cases go to court systems where the best (and therefore most expensive) lawyers can either determine justice or tie up a case so long that it becomes almost meaningless. As an example, the Exxon Valdez oil spill happened in 1989. Litigation for damages was just completed in 2008, nineteen years later.

And finally, even if we could fix all of that, I think the consequences we come up with are more designed for retribution and revenge than they are for any kind of rehabilitation or restoration; all of which fuels recidivism and more people are hurt in the end.

I get a front row seat almost every day in seeing the makings of what we define as "criminals" in our country because of the work that I do. And I can say that, without a doubt - after over 30 years of experience - criminals are made, not born. They are made because we really don't understand our responsibilities to each other and so we ignore all of the ways that human beings are hurt and damaged and then reach out in anger and retribution when we've had enough.

Don't get me wrong, I'm not saying we should rush in with hearts and flowers when people do evil and criminal things. I am a firm believer in accountability. But if I was "Queen of the Universe" (ha-ha), we'd go back to square one and re-think this whole process from top to bottom.

On being authoritative

Last Sunday, I wrote an essay on power, talking about moving our culture from one where power is based on dominance to one of partnership. I'd like to dig a little deeper on that topic this week. In my professional life I've been exposed to some knowledge that has helped me understand the dilemmas we face in understanding what partnership looks like.

A psychologist by the name of Diana Baumrind developed a theory about types of parenting based on two factors: demandingness and responsiveness. With that, she developed four styles of parenting:

1. Rejecting - not demanding or responsive
2. Permissive - responsive but not demanding
3. Authoritarian - demanding but not responsive
4. Authoritative - both responsive and demanding

For our purposes, I'll simply ignore the rejecting style. That's because, in a system where power is based on dominance, we tend to focus on a style of relating that is either authoritarian or permissive. The former are the dominators and the later are the dominated. This all fits in nicely with the recent application of parenting styles to the political arena in the discussion about authoritarianism and John Dean's book Conservatives Without Conscience.

So when we analyze political interactions, we tend to see the partisanship of the authoritarian style as one option and the bipartisanship of permissiveness (or appeasing) as the other. Given only a frame of power based on domination, we're faced with an either/or dilemma and will choose domination any day in a high stakes play for power. In my way of seeing things, this is what leads to everything from flame wars to actual wars.

But what this literature tells us is that there is a third way...authoritative. In the parenting literature, this is how that style is described:

These parents set standards, but also give their child choices. They recognize the good things that their child does, but they do not overlook the bad things. These parents are more confident and nurturing.

One of the parenting experts I worked with for years, Jean Illsley-Clarke used to talk about the importance, especially when dealing with teenagers, of knowing what's negotiable and what's not. Then you know where there's room to give and where you have to take a stand. Most relationships require a little of both. And any coalition that is going to have an impact will require it as well. As Bernice Johnson Reagon said:

There is an offensive movement that started in this country in the 60's that is continuing. The reason we are stumbling is that we are at the point where in order to take the next step we've got to do it with some folk we don't care too much about. And we got to vomit over that for a little while. We must just keep going.

An authoritative position is one of great strength. But its not the strength of getting someone else to do what you want them to do by the force of fear and/or violence (of words or actual weapons). As a co-worker of mine says, the minute you feel like you have to prove that you deserve respect, you've lost the battle. If you know what you believe, as well as what's negotiable and what's not, you can enter a conversation with anyone about anything without having to be passive and give in or get defensive and go into dominance mode. Here's John F. Kennedy at his inauguration making a strong and powerful case for partnership during the time of a high stakes battle for world domination with the Soviet Union.



So whether we're talking about the global struggle, national politics, blog discussions, or personal relationships, it all comes down to having a sense of security in what you believe and in your own power. That's the hard part. But for me, its where my evolution is happening as we speak.

On Power

Underneath all the complex and seemingly random currents and crosscurrents, is the struggle between two very different ways of relating, of viewing our world and living in it. It is the struggle between two underlying possibilities for relations: the partnership model and the domination model.

Riane Eisler

I have written often about Riane Eisler, the author of The Chalice and the Blade. That's because I think her concept of partnership vs. dominance is critical to understanding both the challenges we're facing as a culture as well as the possibilities for change.

Last week I wrote about Saul Alinsky, who based his model of community organizing on understanding and working with the dynamics of power. He knew that the only kind of power folks in the forgotten areas of Chicago had was the power of large groups of people working together in partnership - especially when they came up against the monied interests.

All of that merged with what I've learned from Eisler when I read a diary this week at dkos by NCrissieB titled Obama Powerless? Not exactly... NCrissieB spent some time talking about power theory from a relational perspective and included this chart.



Of course, most of our understanding of power comes from the assumption of "power over/against." Almost every system and relationship we've seen modeled is one of competition and/or dominance. So its no wonder that our politics are focused around a competition to see who gets to be the dominator. And as long as money=power, the powers that be (PTB) win either way.

I'd like to digress just a moment and tell a quick personal story. Back in 2003, I became a hard-core Deaniac. It wasn't because of his policies. What really solidified my support was that he was the first politician I had known that seemed committed to the idea of "people power," which for me looked like a rejuvenation of democracy. And he didn't just talk the talk. Being a part of his campaign was an experience unlike anything I'd had before in the political arena - a true bottom-up organization. I never thought Dean himself was the draw for most of us that were involved. It was a movement of the people!

What I saw in Dean's take-down (which I believe was fueled by the establishment Democrats as much as the media and the Republicans) was that he had gathered enough of us to pose a serious threat to the PTB. I took his downfall very hard because it felt like a signal that the people really didn't have any power when the establishment decided to silence us. For the next few years, I believed that democracy was over in the United States. When the 2008 elections started heating up, I just assumed that the establishment candidates - Clinton and Guliani - would prevail and politics would go on the same regardless. BOY WAS I WRONG!!!!!!

I tell that story simply to demonstrate my priorities and to point out how shocked I was to learn - rather late in the campaign - that Obama was building on what Dean had done all along. And it seemed to be flying under the radar of most people's attention - including mine. It should have come as no surprise...Obama was schooled in the power theories of Alinsky and was building a partnership movement from day one.

But the question is: what does it mean now that he's been elected and is in the position to govern? Does he go back to the dominator model of power over and beat down the opposition? Does a partnership model of power affect how he handles foreign policy? I have to say that we progressives seem to favor partnership when it comes to foreign policy and dominance in domestic matters. I have to question our real commitment to the tough work of diplomacy if we think its the right approach to use with Pakistan but not good enough when it comes to the Republicans.

Of course, in a partnership model, none of us gets all that we want - only dominators get that. Partnership is messy and difficult. Its not the black and white thinking that leads to "you're either with us or against us." It takes a great deal of strength to listen to people we disagree with, hold on to our principles, and try to find a way to move forward together. Are we willing to live with that?

And finally, do we believe that the power of the people is strong enough to challenge the entrenched dominators? I don't think we know yet and frankly, sometimes I'm scared about the kind of reaction we'll find as we get close. But I'm willing to take a chance on it. Because for me, everything else is meaningless if democracy/partnership isn't possible.