Transformative Justice

Prisons are destructive to the individuals who are kept in them, and to society at large. Reform is futile. We must transform. 

No one could have warned the Quakers that, by replacing capital punishment with prisons, they were establishing a punishment that can be worse than death. 

The introduction of the indeterminate sentence, with a parole board deciding on a release date, was intended to facilitate the process of rehabilitation. No one warned the policy makers that the indeterminate sentence would result in virtual life sentences for individuals whose crimes aren't necessarily serious but who can't adapt to prison. Parole boards become political tools of politicians, who, in turn, are guided by popular opinion, formed via the media. 

The history of prison is the history of prison reform: religious teachings, teaching women to be feminine and men to be hard?working, pastel paint on the walls, actual beds to sleep in, health care services, educational and vocational programs. No one warned the reformers that with every reform the prison is reentrenched as the dominant response to social problems. Punishment is taken for granted. Everything else is an alternative. In the United States, at the current rate of increase, in 30 years half the country would be imprisoned and the other half would be guarding them. It's an untenable trend. 

Most seriously, no one warned early advocates of alternatives to prison. Home confinement, wearing bracelets, was seen as a decarcerative measure, to reduce the numbers locked up. But instead of having the effect of closing prisons, it increases the numbers of people under surveillance by the state. It conditions people to the practices of a police state. So-called alternatives to prison, when handled by the criminal justice system, reinforce the ideology of surveillance as the state sanctioned means of social control. 

The net is widening. And this time, with state-sponsored restorative justice, we are being warned. In particular, Native women and women who work with victims of men's violence have expressed emphatic rejection of restorative methods as they are being practiced in First Nations communities and as they affect women's rights to safety. 

This is when the restorative justice policy-makers begin to ask, "so what the heck do you people want?" 

The choice is not just between retributive justice and restorative justice as sanctioned and institutionalized by the state. We also have the choice of bypassing the criminal justice system when no one's safety is at stake, and when resolution can be found within a community context. This is common practice already, and always has been. Most problems are resolved between the parties affected, often with informal intervention or counsel from neighbours, friends, family and community members. Informal conflict resolution is an everyday experience in most communities. 

The women's liberation communities of the 1970s were havens for many women who were vulnerable to state control and punishment. Whether feminist or not, a tight community can prevent crime and heal those affected by it, including those who commit it. There's no alternative to people taking care of each other. 

Most crimes are never reported. Often this is because of lack of trust in the criminal justice system, but often it is because the person who offended and the victim are personally connected in some way. It's much easier to call the police on a stranger than to turn in a family member or a friend. 

We do not have to throw out restorative alternatives to retributive justice, and slog along with the prison system as the only recourse for a victim of violence. Rather, the lessons we can learn are first that we need to ensure that everyone is safe; this means that some people are confined, not in the conditions of our current prison system but, rather, under rehabilitative conditions that promote healing and growth. Secondly, we learn that we must measure the balance of power in both traditional and alternative or restorative approaches, and to acknowledge the power imbalances which obstruct equitable justice. 

Restorative justice works very well for those with relative power - an adult vs. a child; white man vs. Native man; man vs. woman; professional vs. working class; the rich vs the poor, and so on. Only if the two parties have the same degree of power is that process likely to be a win-win situation. 

Prevention is the most obvious goal of transformative justice. The feminist project of re-educating the public about child abuse and violence against women has been a key prevention project in the past quarter century. It is now well-documented that wherever there are adequate spaces in women's shelters, there are fewer spousal homicides. The community that provides a safe place is protecting the victim from the violence and protecting the perpetrator from a fatal deed with lifetime consequences. Relatively few people in 2001 North America believe that men have the right to beat their wives; men who do so are often very sorry afterward, each time. Men who seek counsel are learning ways to reconfigure their attitudes toward women, and ways of managing their anger. This is the kind of transformative justice we need to be doing if we're to reduce the demand for punishment. 

We need to respond not just to the behaviour but to the underlying reasons. If someone steals we should figure out the reasons. If they steal to sell the goods and buy drugs, their addiction is the problem that needs to be addressed, and drug addiction is a health problem (mental and physical) which doesn't belong with criminal justice, as many officials in both professions now agree. They still have to be held accountable for the theft, but rather than mindless punishment in a prison where legal and illegal addictions are maintained, they should be given a chance to work with their problems in a supportive environment where true healing can occur. Healing and institutionalized punishment are antithetical; one cancels out the other. 

Community service is the most sensible reparation for lawbreaking which does not threaten violence, and holds the most promise for assisting the person who offended with the process of reintegration. Courts have used this sentence liberally for two decades but only for very minor offences. I'd like to see assaultive people on supervised day parole sentenced to carpentry crews, to build more shelters. 

Howard Zehr gives an example of a case on which he was consulted. A 16 year old accidentally put out a girl's eye with a knife in a robbery. Zehr recommended a sentence to include a short period of confinement, community service, restitution to the victim, counseling, employment, and supervised living. Instead he was sentenced to 20 to 85 years in prison. The desire for punishment prevailed. The judge remarked "I hope by the time you come out you will be less likely to turn to violence." But 20-plus years in prison is antithetical to learning about non-violence. He won't learn to understand the human consequences of his behaviour. It won't help him take responsibility. Instead of teaching accountability it perpetuates payback justice, and instills vengeance. The victim now lives with fear; the world is no longer a safe place. Even when victims press for punishment, when it's enforced, instead of feeling their power restored, victims feel abandoned. The state has all the power. 

"An eye for an eye, a tooth for a tooth" is not about exacting vengeance, but rather about limiting vengeance. 

Retributive justice is in the hands of the state and assumes adversarial outcomes: one side wins, the other loses. Ideally, restorative justice focuses on needs and obligations, giving victims a central role in defining the outcome. The monopoly of prisons and ideologies of punishment have the effect of limiting our imaginations. We go back to Nils Christie's observation that we need to return to communities the responsibility to handle their own problems and create conditions through which restitution and reconciliation can occur. Just as important as confronting the offender is the need to confront the ways by which economic, political and social forces generate social divisions and inequities which produce individual offenses. Without a fundamental commitment to resolving power imbalances, alternatives are simply absorbed into an inequitable system. Hence, netwidening. 

In circle sentencing and other hybrid approaches to restorative justice, the state still has the last word. This is not motivating to communities or victims, and certainly not to offenders. 

In the present system in the Western world, even when the parties involved can find resolution, the state interferes and insists on punishment for crimes against the state. But we do not have to involve the state, or professionals who are trained for state support work. Beware of "treatment." 

We are a very young country. We do not have to mimic the U.S. in our social policy, and there are many examples of how we do better: health care (now threatened), gun control, the "war on drugs" - we have many fewer people in prison for simple possession. We have reason for optimism because we have autonomy as a nation, and considerable latitude by region and local jurisdictions. Left to ourselves we can solve our problems. Let's make punishment and penalty the alternative. 

Ultimately we seek a world where mutual respect is the norm. Where resources are equitably shared. Where we learn to forgive because we know that we ourselves can also be vulnerable to actions of which we may be ashamed. We need to regard one another as human beings, not as professionals vs. ordinary citizens, not as oppressors or oppressees, not as representatives of the state vs. those without a voice in public discourse. It's in our self-interest to stop demonizing the mythical offender presented to us by the media and to take charge of our own lives with democratically determined limits on all our behaviours, a sacrifice we make happily to ensure our own and the community's safety and health.