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Restorative Justice

Joshua Johnson-Domio

Corrections - CSU Chico

Final Paper


In this current era of corrections the community is used to seeing the criminals of society dealt with using retributive justice, the theory of justice that prefers punishment as the best response to crime. The theory of retributive justice defines crime as a violation of the state, focuses on establishing guilt for past offenses, makes punishment the definition for offender accountability, replaces one social injury with another (incarceration or punishment), and creates adversarial relationships between the victim and offender (Zehr 2001). It’s hard not to wonder what kind of impact does this theory have on victims and offenders? In one particular murder case the state “stole the crime”, in a sense, away from the victims family and decided the offender did not need to be punished. Punishment is used as a response to crime in retributive justice in order to deter abusers and stimulate behavioral change, however California has the highest recidivism rate in the nation and has major overcrowding issues within the prisons. If the main goal of the correctional system is to prevent crime, then the theory of retributive justice isn’t the answer. The correctional goal should be to restore both the victim and offender, as well as their relationship, and to focus on repairing the social injury that has been caused rather than punishing or not punishing the offender and completely ignoring the victim. The main focus of the correctional system should be on the justice theory of restoration.

One night in Sanford, Florida a man named George Zimmerman, who was a local neighborhood watch volunteer, was patrolling the neighborhood when he saw a young “suspicious” african american male, named Trayvon Martin, in a black hoodie. Zimmerman then called police who told him to wait until they got there, however he was unsatisfied with this and ended up shooting and killing the unarmed Trayvon. Zimmerman was charged with second degree murder and the verdict determined he was acting in self defense, he was acquitted due to Florida's stand your ground law (Reid 2013). After the verdict Trayvon's mom had this to say: "Wrap your mind around no prom for Trayvon, no high-school graduation for Trayvon, no college for Trayvon, no grandkids coming from Trayvon, all because of a law that has prevented the person who shot and killed my son to be held accountable and to pay for his awful crime" (Gambarcorta 2013). Although the case is now over this is still a justice issue because Trayvon's mother's pain and dissatisfaction with the outcome can be felt through her quote, and the dissatisfaction can be felt in the community with all the rioting and protesting.

There are many issues with our correctional system which make change a necessary option for the improvement of offenders, victims, and our justice system altogether. Crime is defined as an offense against the state rather than the victim, the focus is to establish blame rather than solve for the future, the victim is ignored, and an adversarial relationship is created between the victim and offender (Zehr 2001). Incarceration causes a lot of problems for offenders and most of the time makes them more “hardened” hence making them more likely to commit more crimes once they are released back into the community. Prisons impose hardships on inmates to deter them from committing future crime, however only about thirty percent of offenders “learn their lesson” and do not recidivate causing the recidivism rate to be seventy percent. Prisons are the most expensive form of social control available today, corrections expenditures increased from forty dollars in 1982 to two hundred and nine dollars today, a 423 percent increase (Delisi and Conis 2013). At state level prison expenditures make up eighty percent of correctional spending, but is spending all this money to keep offenders locked up really worth it in the end? The offenders, as I mentioned before, do not learn their lesson in most cases and the victim not being able to take part in the justice process leaves them unsatisfied and resentful of the offender and justice system just as Trayvon’s mother was. We are clearly wasting our time and money with this theory of justice.

The recidivism rate is so high because incarceration actually worsens inmates' anti-social attitudes and behaviors and teaches them more about crime from other criminals who help offenders develop new skills (Delisi and Conis 2013). Another problem is that when an offender commits a crime it is treated as crime against the state rather than the victim, when the state punishes an offender they are denying the victim their rights and needs and aren’t allowing the offender to take responsibility (Zehr 2001). If an offender is able to hear from the victim about his or her losses and the harm they have caused, the offender will in most cases realize the impact of his actions and willingly move towards reforming (Johnstone 2001). When the offender realizes what their actions have done to the victim and they are truly committed to reforming, they will apologize and and try to negotiate a solution, which allows the victim to become involved and gain a greater sense of justice and peace. In one particular case a teenager was arrested for a robbery, he was a victim of child abuse, homeless, resented his family and most of his teachers, and felt alienated from the world. He was like many teenagers arrested for robbery in this area, however there is a major difference between the outcomes of this young man and another. Another teenager arrested for robbery was just like the one previously described, a victim of child abuse and angry with the world and alienated from it. This young man was sent to court and sentenced to six months of incarceration where he suffered more violence and acquired a heroin habit. When released he comes out more desperate and alienated than when he was first incarcerated. He “sustains his drug habit for the next 20 years by stealing cars, burgling dozens of houses and pushing drugs to others until he dies in a gutter, a death no one mourns”. The difference between this young man and the first one described is that rather than being incarcerated, he was referred by an arresting officer to a facilitator who convenes a restorative justice conference. Since the young man disliked his family and teachers the facilitator tried to track down people who treated him good. He brought in the young man's sister, uncle, hockey coach, and the victim along with her daughter to participate in the conference. They sat in a circle while the facilitator introduced everyone, the young man/offender named Sam is then asked to explain what happened in his own words. His uncle is then asked what he thinks of Sam’s response, followed by the hockey coach, and then his sister who was too emotional to speak. Then the victim explains how the robbery caused her a lot of trouble and her daughter lets Sam know that her mother is now afraid to go out in fear of being re-victimized. After taking a break the conference resumed and Sam’s sister spoke to him with love and strength, causing the victim to cry out of understanding of Sam’s situation. Once his sister started speaking Sam became emotionally engaged in the conference and apologizes to the victim for what he has done. He says he would like to pay it back but has no job or money, and ensures her that he is not going to stalk her. Feeling relieved the victim says she wants her money back but would feel better if they can talk about what to do to help Sam find a home and job. His sister says he can stay with her for a while, the hockey coach says he has casual work for him to do that would be enough to pay his debt back and leave him a bit extra, and he says if Sam does well he will write him a reference for applications for permanent jobs. As the conference ends Sam apologizes again and the victim hugs him and tearfully wishes him good luck, in the end she got her money back and Sam maintained employment and mostly stayed out of trouble (Braithwaite 2001).

Justice for victims needs to deal effectively with the offenses committed and not provoke or maintain further violence. Justice and peace are two resolutions that go hand in hand and would compliment each other. A successful correctional system would incorporate both concepts into its solutions. Throughout history Acephalous societies, early hebrews, indian hindus, maori tribes, aztec tribes, and other indigenous cultures have relied on peacemaking circles to restore peace among the victim, offender and the community (Weitekamp 2001). This was interesting when stumbled upon during research “The custom though is more than a symbol, it is a practice that relies on the same structure as a peace sign: three players rather than three lines -- the victim, offender, and the community -- intersect at the center to repair a harm, to establish peace” (Trubow 2013). Peacemaking circles have been around for centuries but have only emerged in the contemporary world in the last forty years, they are a common practice within the theory of restorative justice, it has the victim, offender, and community voluntarily meet up and use respectful dialogue to repair a conflict (Johnstone 2001).

Unlike retributive justice, restorative justice defines crime as a violation of one person by another, focuses on problem solving and the future, uses restitution as a means of restoring both parties (the victim and offender), defines the success of justice by the outcome and relationship between the parties, uses the community as the facilitator in the restorative process, and defines offender accountability as understanding impact of action and helping decide how to make things right (Zehr 2001). "Restorative justice has such tremendous potential to transform our culture and transform the retributive justice system, a system that is based on harming people who harm people to show that harming people is wrong. And we know that harmed people go on to harm people until our whole culture is pervaded by harm," said Fania Davis, a grassroots leader in restorative justice (Trubow 2013). It is obvious from the quote from Fania Davis that retributive justice is an endless cycle of unnecessary pain and punishment leading to more and more recidivism. Restorative justice is said to be a healing, forward looking option that ensures offenders accept responsibility for the offenses they have committed and benefit from the possibility of reconciling with their victims just like Sam did (Johnstone 2001).

Although Sam's story shows how positive and effective the theory of restorative justice can be, Trayvon's story demonstrates the pain and agony that can be caused with retributive justice. In this case the victim would be Trayvon's family and they were completely left out of the justice process which is what caused them to feel such injustice when Zimmerman was acquitted. Zimmerman had no contact with Trayvon's family so he could not completely understand the impact of his actions. His family never understood why he acted the way he did, which led to the feeling that Zimmerman did not get what he deserved in order to pay for the crime he committed, and that trayvon did not receive justice. Zimmerman did not have the chance to let the family know whether he takes accountability for his actions or not, if he was sorry for his actions, and what caused him to commit the murder since he was unable to hear about the families loss. In Sam's case he was able to hear from the victims and his loved ones to become aware of what he had done, and how he could repair the social harm he committed. If a peacemaking circle would have been put into action during this case Zimmerman may not have been able to repair the social harm, but he could have made peace with the victims family so justice would really be served.

The benefits of a restorative justice system are obvious, as well as the harms caused by a retributive system, it is obvious that a change needs to be made. In 2006 California's prison population reached an all time high of 144,000 inmates when the system's capacity was set at 84,000. Overcrowding conditions were so bad that inmates were dying at a rate of one inmate per week. “Federal judges looked at the system in 2005 and declared it cruel and unusual punishment. Since then, the state has spent hundreds of millions on prison health care facilities, and last year, it implemented Brown's realignment plan: reducing prison populations by keeping lesser offenders in county facilities or on parole and, theoretically at least, strengthening drug and other programs to cut down on recidivism...” (Bay Area News Group). With money needed for education, drug and mental health treatment, and other crime prevention programs we can’t risk spending even more money on prisons than we already do. Although most of the nonviolent, low risk prisoners have been released from prison the courts ruled that it wasn’t enough and ordered another 9,600 to be released, but nearly 90 percent of the current prisoners are there for a serious or violent felony. The governor is eventually going to have to release as many nonviolent offenders as he can, but some people are saying it is time for him to adopt a smarter approach to crime, wouldn’t restorative justice be a good approach to dealing with crime and prison overcrowding? Zimmerman was released although he committed a murder, but if we used peacemaking circles than other offenders with lesser offenses, and apparently some offenders who committed murder, can avoid incarceration by repairing social harms.

References 2013. Sacrificing Peace or Justice. (April)

BBC Monitoring Africa. 2013. Ugandan paper cautions against one-sided look at ICC's work in Africa. (April)

Braithwaite, John. 2001. In A Restorative Justice Reader, ed. Gerry Johnstone. United Kingdom: Willan Publishing

Delisi, Matt and Conis, Peter. 2013. American Corrections: Theory, Research, Policy, and Practice. Burlington, MA. Published by Cathleen Sether

Gambacorta, David. 2013. Trayvon’s mom shares pain, hope for progress. McClatchy- Tribune business news: washington (July)

Johnstone, Gerry. 2001. A Restorative Justice Reader. United Kingdom: Willan Publishing

Oakland Tribune. 2013. Contra Costa Times editorial: California must comply with court order on overcrowded prisons. (July)

Reid, Harry. 2013. ‘Stand your ground’ laws are indefensible. The Herald: UK (July)

Trubow, Danielle. 2013. Conference to explore making peace: Approach allows victim, offender to repair a harm. The Blade (June)

Weitekamp, Elmar. 2001. The history of restorative justice: A restorative justice reader. United Kingdom: Willan Publishing

Zehr, Howard. 2001. Retributive justice, restorative justice: A Restorative Justice Reader. United Kingdom: Willan Publishing

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