Restorative Justice
E-Mail   by Stephen Fraley   Bio/Address

Introduction

    The real key to reducing crime is to focus on social problems: ineffective parenting, inadequate schools, hunger and homelessness, nonexistent health care, negative media images and stereotypes, drug and gun proliferation, job discrimination, and the general alienation of the oppressed. These are the roots of crime, the type of "crime generative factors' that Eddie Ellis (1995) is referring to in his article "Non-Traditional Approach to Criminal and Social Justice" (p. 99).
    According to JoAnne Page's (1995) lament in her article 'Moving Toward (Moral) Center," about the loss of a moral center in our society, the trend in government is not to address these problems but to abdicate all responsibility for them. I share her sentiments. The criminal justice system is simply another social problem because it does not work. Ellis (1995) has it right when he says that "[t]here are no prison problems, only community problems that impact on prisons (p. 104)."
    In general, we inmates who are primarily African American, want a more just society, while the free citizens (majority white) want individual "justice" for lawbreakers and feel we have no right to pontificate about a greater society. The reality is that few non-prisoners take the time to question the functioning and effectiveness of our justice system. Rather, they totally rely on the conclusions presented on the evening news. To make matters worse, they take no action based on the information they receive.
    The recent "Fleecing of America" series on NBC showed that we indeed have not only two nations, one black and one white, as the Kerner Commission concluded three decades ago (Kerner Report, 1988; the latest edition), but two other nations that are also diametrically opposed: one where there is always money to waste on unnecessary luxury courthouses, weapons, and government subsidies (welfare for the rich); and another in which the oppressed are ignored, and these include the perpetrators as well as the victims of most crimes.
    What do most people do when they are informed of this enormous waste and greed, which is really the tip of the iceberg of government corruption? They do not express their outrage and demand accountability. Rather, they wring their hands and complain about what a shame it is! Justice should start at the top. The bigger shame is that the voters act as if they have no stake in the government their tax dollars pay for except for when government 'wastes" money on social programs and college for prisoners!
    Granted, people are fed up with prisoners not accepting responsibility for their lives and their crimes. But part of the problem with justice in America is that the large majority of "outsiders" lack the understanding necessary to be empathetic with those in prison for breaking the law, whatever the reason.
    Prisoners and non-prisoners are polarized to the point that many of us no longer acknowledge each other as human; 'they' have become the nameless, heartless squares who are hell-bent on keeping us down, and 'we' are perceived as the callous enemies of the real Americans.
    That's why we lost eligibility for Pell grants and other necessities for improving our lives. Many of us are seeking redemption, but it's not something that society, God, or some individual can bestow upon us. Society can only forgive us; redemption involves a struggle to reclaim and transform our own souls, with God's guidance, and then to live according to the spiritual growth we have experienced. Redemption does not depend on the severity of the crime, but on the seriousness of the transgressor's commitment to change.
    The past correctional philosophies of incapacitation, deterrence, retribution, and rehabilitation have all failed, and our society continues to imprison more people than it releases. In this, the 26th year after the 1971 Attica Prison Rebellion, in which 43 men perished, we must try something new.

Restorative Justice

Justice, generally speaking, means fairness and equality. That is, to receive justice one must be treated fairly by one's peers and judged by equal standards.
    With regard to criminal justice, as opposed to social or moral justice, there is presently little for the offender or the victim. The victim is usually forgotten and the (usually poor) accused is pitted against the immense power and resources of the State. Fairness and equality rarely apply. I can hear some ultra-conservative shouting gleefully: 'Good, the better to ensure a conviction.' But that's not justice. Street-sweeping maybe, but not justice.
    From the apparently self-serving viewpoint of the offender, the only way the current system can be fair is to provide the accused with equal resources, not the pittance that the public defenders receive. This would be extremely costly and, in fact, prohibitive, with the cost of criminal justice and corrections escalating. So, what is to be done?
    Simply put, the law should seek to restore all parties to wholeness. This is called restorative justice, a more civilized and productive approach than any tried thus far. We need a paradigm shift.
    David Leven (1996) quotes Dr. Howard Zehr, the director of the Mennonite Central Committee U.S. office on crime and Justice, who testified at a public hearing of the state legislature, which deals with the subject: 'The criminal process, then, not only fails to encourage a real understanding of what (offenders] have done, it actively discourages such a realization. And it does nothing to encourage [them) to take responsibility to right the wrong they have committed" (P. 3).
    Punishment does not restore the offender to a healthier, non-criminal, more just attitude and it does nothing to repair the damage to the victim. Therefore, I don't support punishment, but restorative (reparative) justice. It is based on unconditional love, a radical concept. It means equal concern for the victim and the offender, with no conditions or biases.
    Prison should be a place to fix not only our broken parts, but to improve those parts that are merely functional. It is also a place to begin making reparations to the victims. In this way, the victim can experience a sense of satisfaction not to be found in punishment, except perhaps on the surface and temporary.
    Zehr further argues that the restorative approach requires that '. . . instead of owing some kind of abstract debt to society, paid in an abstract way by experiencing punishment, the offender would owe a debt to the victim, to be paid in a concrete way. In other words: Restoration, making things right, would replace the imposition of pain as the expected outcome in a new paradigm of justice . . . instead of committing one social injury in response to another' (P. 4).
    Victimizers would not get off with a mere apology, however. In restoring both offender and victim to wholeness (i.e. health), it is often necessary to put the offender through some unpleasantries which are intended for his own good. He doesn't get to choose his form of treatment or to decide whether he needs restoration. That is society's prerogative, but I would caution those responsible for administering justice to always do it out of a sense of shared humanity, not out of anger or revenge.
    It may seem to some that to be human is to seek revenge when wronged. This is so because revenge is a social phenomenon that has been with us throughout human history. It is one of the primary reasons we have such a violent past, including everything from individual retaliation to world conflict. This lust for revenge has now permeated nearly the entire society (indeed, the world). So much so, in fact, that many victims and certain segments of society don't want the offender to become a better person because this would eliminate him as a meaningful focus for their anger and revenge.
    This attitude is spiritually immature and dangerous, and will only lock the victim into a life of hate and bitterness senseless, unnecessary burden. This is a sensitive area and I may seem insensitive to some because I used the term "immature." That is unfortunate, but the truth is too important to be tossed over simply because it may rub someone the wrong way.
    Those who victimize others are emotionally childish to think that they can achieve happiness or fulfillment through immediate gratification or "power."   On the other side, the 'law and order' advocates are spiritually immature when they insist on ignoring the social dynamics of crime and focus solely on getting even.
    They need to be concerned about how we arrived at this point as a society and how that robber or murderer fell so low. Quite frankly, we need to grow up as a nation and start taking more responsibility for ourselves, our decisions, and our fellow human beings. In short, we need a moral foundation for our criminal justice policies.
    When I read an earlier draft of this paper to a friend she asked me a challenging question, "How would you react if your wife and daughter were brutally murdered?" I struggled with the image, but finally responded that I would be extremely angry and distraught. I would grieve for a very long time. I would never be the same after such a tragedy, but I would have to get on with my life at some point. At any rate, it certainly would not help me to pray each night for the offender's death or suffering.
    The morning after this discussion, I happened upon an interesting entry in Our Daily Bread for July 17, 1996. Its relevance to the concept of forgiveness, coupled with its timing, is uncanny maybe even a small miracle. The passage is called "Because We're Forgiven," and was written by Vernon C. Grounds.

He says:

    If somebody killed your child, could you ever forgive them? By God's grace the raging desire for revenge may eventually die down within our hearts, but most of us would probably prefer never to see that person again or to help him in any way.
    Yet that was not the reaction of Walter Everett, a Methodist pastor in Hartford, Connecticut. When Michael Carlucci was convicted of manslaughter for shooting Everett's son, the bereaved father set an example that challenges all of us who claim Christ as savior.
    Walter said he forgave Michael because people 'won't be able to understand why Jesus came and what Jesus is all about unless we forgive." Was that mere rhetoric? Not in the least! Michael became a believer while in jail, and when he was released and wanted to be married, Walter performed the ceremony.
    If we have experienced the wonder of God's forgiveness, we will forgive others as He has forgiven us through Christ (Mt. 18:21-35; Eph. 4:32). It may require an agonizing emotional struggle and fervent prayer on our part. And full restoration of the relationship may not occur. But with the power of the Holy Spirit we can forgive because we are forgiven (emphasis added).

    Walter Everett is amazing! And it will take amazing grace for any victim to avoid the emotional trap of hate and revenge. While the current paradigm focuses on getting even for past wrongs, restorative justice encourages future dialogue, negotiation, and interpersonal harmony.
    The proper application of restorative justice would consider all mitigating and aggravating circumstances, such as background, mind-set at the time of the incident, past crimes (unless excluded due to the potential for extreme prejudice or lack of relevance), and potential for restoration. Judging from all that I have heard and read about him, Richard Alan Davis, convicted rapist who killed Polly Klass in California, for example, would not have been released under the restorative justice model, because he had obviously not been restored. There would have been more "checkpoints" at which to pick up his potential dangerousness.
    In dealing with large numbers of people, strict due process must be adhered to if justice is to be done. Exceptions in this regard can erode the guidelines to the point of injustice. In other words, the same basic standard objective and subjective must apply to every case, regardless to race, sex, or socioeconomic status.
    Minor crimes should be referred to a victim Offender Reconciliation Program for mediation. This would free up limited resources for more serious offenses. In such a program, a mediator first interviews the victim and the offender separately. They are scheduled to meet and attempt to settle the conflict only after both parties agree to participate in good faith.
    Many of these programs have changed their names to Victim Offender Mediation because some victims felt that the original name suggested that they would be required to reconcile. In her article 'What is V.O.M.?" Lois Davis (1994) explains that mediation is not only about forgiveness but growth for both parties.
    Restorative justice may sound to some like 'coddling the criminals," but it is not. The same or similar sentences would be administered in many cases, but with a different correctional philosophy and with hope for and means to produce renewal, rather than mere destruction of more lives.
    As a concrete example, here is a hypothetical sentence for murder that I believe is realistic:

  1. mid-range indeterminate incarceration with maximum of life

  2. reasonable restitution agreed to by both parties for the victim's burial expenses and future earnings (paid for from the offender's savings or post release wages

  3. mandatory counseling (I am assuming that with a sentence that the offender perceives as just, he will be open to counseling voluntarily, and his therapy can therefore be meaningful and effective; otherwise, his recalcitrance will delay his release from prison. By the way, any competent psychologist can spot a fraudulent client in a few sessions. The offender will have to satisfy numerous mental health professionals, depending on the length of his sentence.

  4. meeting(s) with the victim's family when both parties are ready and willing to express their anger and grief (and perhaps forgiveness) on the one hand and remorse and responsibility on the other

  5. release at or after minimum sentence depending on the circumstances of the crime, psychological prognosis, and parole board determination as to whether the offender has been restored to the extent that he is no longer a threat to society or himself

  6. life parole if released, or until such time that the offender demonstrates by his sustained good behavior in the community that supervision is no longer necessary or cost effective; and

  7. meaningful community service while on parole.


    Judge E. Jeanette Ogden of Buffalo reflects my attitude toward community service in an article about her career called 'No Excuses.' The author Paula Voell (1996) says:

Often she sentences offenders to work in their neighborhoods, doing such things as serving meals at the Night People Drop-In Center or scrubbing graffiti through Precinct 19-s program. It's her philosophy that if you've hurt the community, you have a responsibility to help it (P. E-2).

    As for psychological counseling, we must go beyond the medical model, which focuses on discrete problems, to a more holistic approach. I explained this approach in an earlier article, 'Key Unlocks My Personal Chains,' as it relates to my experience with Cephas, a Rochester-based organization that helps prisoners transform their lives. I stated:

    The key to the effectiveness of Cephas is that the program is holistic. That is, it addresses the entire life and lifestyle of its members -in and out of prison- rather than treating each problem individually. Most other rehabilitation programs are geared toward single issues, such as drug abuse, alcoholism, violence, sexual abuse, and AIDS/HIV.
    Cephas deals with all of these, the connections between them, and all other aspects of life. Moreover, while we do not seek to indoctrinate members into any religion, we focus strongly on spiritual development. Cephas seeks to transform the entire person rather than simply eliminate the 'problem behavior" (1996, P. 9A).

    On the question of appropriate time of release on parole, those making these decisions under restorative justice would be tough but fair. They would even be predictable in the sense that if an eligible prisoner meets the criteria, he is released without political consideration.
   Restorative justice is harder in some ways. Many people don't mind coming to prison, but would find items 2,3,4, and 7 in my hypothetical sentence extremely distasteful. This may be the first opportunity for the offender to be a responsible adult-to pay his own way! But if we demand restitution, we must also see that the offender has a job.
    In an article called "More Familiar, Life in a Cell Seems Less Terrible," Don Terry (1992) makes a strong case that young, poor, (nearly always) minority offenders no longer fear going to prison because of the dreary conditions in their inner city communities. That's why restorative justice must have a community restoration component.
    Uta Allers (1993), an Alternatives to Violence Project facilitator, shares the experience she had with a man who was doing 15 years to life as an accomplice in a homicide. After a role-play in which he acted as his victim, Ms. Allers asked him if he had anything to say to the dead man. He choked back tears and said, 'I wish you were still alive." She continues, 'But that is as far as he can go with his remorse; prisons are not set up for making amends to victims and their families. with restorative justice, those victims and offenders who are ready may meet in a supervised, supportive setting, see each other as human beings and take the first of many steps in healing the terrible hurts done by one to the other" (P. 9A).
    I could be that man to whom Allers refers. In my former drug-abusing lifestyle, I killed another young, alienated African-American man. I don't know his family and have never heard from or about them. In 'Letter from Prison' (1992), I expressed my feelings about this:

    When I think about him, a man who is no longer with his family at all, I feel remorseful. I feel a moral responsibility for his death. . . .  I've talked at length about my family, but what about his family? I am very sad about their loss, and can only imagine what it would have been like if my folks had lost me. I wish there was some way I could make it easier for them. Some day, perhaps... who knows? I pray for them (P. IIA).

    And in the current state of criminal justice, that's all I can do for them - pray... and transform my own life so that such a tragedy will never happen again.
    One of the novel aspects of restorative justice is that the victim has a responsible role to play in the process. He should: a) openly and honestly explore his emotional reactions to the offense; b) participate fully in the healing process, whether in counseling or with family and friends; and c) understand that an attitude of retribution will only prolong his suffering and do nothing to address the criminal behavior.
    I am encouraged by Rev. Ginny Mackey's (1994) observations in her article 'Goal: Restorative Justice.' According to her, those victims who meet with the offender ". . . often find that the offender will acknowledge responsibility and agree to some form of restitution. This helps the healing and closure process of the victim' (p. 5). It would also help the victim if he came to understand how the offender arrived at his criminal behavior.
    The focus of restorative justice is clearly on the victim, offender, and any other persons affected by the criminal act, but society also has . responsibility. Its role is to: a) protect the victim from further harm; b) protect the offender from revenge; and c) facilitate the healing process.
    One of my fellow prisoners called it bizarre to pay money for a victim's death. I disagree. At any rate, it is no more bizarre than taking someone's life or taking his hard-earned cash or jewelry at the point of a gun.
    To some it may be considered trivializing life to have offenders pay the family for killing a loved one, but legal consistency is crucial to justice. If robbers, burglars, and thieves must pay back the value of what they stole, we must, as unsavory as it appears, place some relative value on human life. Let's be practical. A lost adult life is lost income, and a lost child is a lost dream, which is also quite valuable! In fact, the law already provides for civil wrongful death lawsuits, such as OJ Simpson.
    Furthermore, the idea of paying restitution for unlawfully killing another human being goes back to medieval Europe, as found in the great sagas and epics of the Middle Ages (See e.g. Chanson de Roland, French; Des Nibelungenlied, German; Beowolf, English; Poems de mio Cid, Spanish, and numerous Swedish, Norwegian, and Danish sagas).
    The Germans called it wergild, which means, "Money paid to the relatives of a murder victim in compensation for loss and to prevent a blood feud" (Random House Dictionary, 1987). This fundamental aspect of restorative justice is based on old customs, and should be given careful consideration.
    The Minnesota Department of Corrections has incorporated restorative justice into its traditional structure. Summarizing an article by Kay Pranis in the April 1996 issue of Overcrowded Times, Clare Regan (1996) offers useful ideas in her own article 'Restorative Justice Minnesota Style" about how to gradually bring restorative justice into existing systems.
    In addition to addressing many of the details mentioned in this paper, restorative justice in the Minnesota DOC ". . . is part of the mission statement, is taught in the training academy for new employees, and is included in the promotion requirements for career probation agents and institution case workers.' According to Regan, "The rationale for its inclusion is to minimize the harm caused by crime by involving the victims, offenders, as well as the community" (p. 5).
    Finally, Regan addresses the issue of racism, an old and persistent problem which could defeat the entire purpose of this new approach to justice. She states:

    There is a continuing fear that restorative justice will be applied in a biased manner, favoring its use with some racial and ethnic groups and not others. It would only add to the disparity in incarceration rates if the punitive approach is used with some offenders, the restorative approach with others. Any disparate treatment will in the end lead to a less safe society. There must be eternal vigilance to prevent this from happening (P. 5).

    Criminal justice reform should incorporate the ideas and practices of all forward-looking programs in an effort to set policy that actually reduces (as opposed to merely controlling) crime and makes society safer and more humane.

Conclusion

    As a practical matter, when we prisoners advocate good time, increased work release, and early parole, which would be part of the restorative justice model, we must be willing to offer something substantial in return for society's good faith. This new judicial paradigm would be a revolutionary leap forward. The beauty of it is that it would not only be much cheaper, but would be better for the victim, the community, and the offender.
    At first glance, many will say that this new criminal justice model is unrealistic, naive, and unworkable. Granted, there will always be some offenders who will not take responsibility for their actions and benefit from restorative justice. At the same time, some victims will never get beyond their need for revenge. It is a burden they will dutifully carry to their graves, because they think it's the right and responsible thing to do, the proper way to respect themselves or to honor their loved one who was victimized. The fact that restorative justice will never be a perfect solution to crime is not sufficient reason to abandon it. Restorative justice must be compared to what we currently have. Seen in that light, it is a definite improvement, and will get better with time.
    New ideas take some getting-used-to. For my own inspiration to continue looking for better ways to achieve the beloved community of humankind, I harken back to Martin Luther King Jr. Before his dream of brotherhood became the rallying cry of all dispossessed groups-not just African Americans struggling for justice-he was criticized as a dreamer.
    Fortunately King knew, as political scientist Charles Henry (1991) says in his book Jesse Jackson: The Search for Common Ground, that meaningful action is impossible without vision. By analogy, the details of a restorative justice model for New York State, and eventually the nation, cannot be implemented without first a larger strategy. I hope this paper is a step in that direction.

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