What should be the primary and overarching goal of the U.S. criminal justice system? Public safety is an obvious answer, but quickly leads to more questions. What is “safety”? What is “public”? In practice, “public safety” primarily means keeping the lower classes under state control and the economic hierarchy intact. Law officers patrol poor urban neighborhoods, intimidate peaceful protestors, and stay out of corporate boardrooms. This is also called “order.” Here’s a different answer: The goal of a criminal justice system should be the reduction and prevention of all forms of violence, following Johan Galtung’s definition of violence as “avoidable insult to basic human needs,” which include survival, well-being, identity, and freedom.
Currently, the criminal justice system emphasizes retribution above all else, reflecting a culture of punishment. Recent public response to the sentencing of a convicted rapist, as I have discussed elsewhere [https://zcomm.org/znetarticle/the-confessions-of-brock-turner-and-a-culture-of-punishment/], reveals an obsession with inflicting torment upon wrongdoers, even if such penalties do nothing to reduce violence.
By comparison to Western Europe, U.S. criminal punishment is extremely harsh. In Norway, the maximum prison sentence is 21 years, even for multiple murders. In Portugal, it is 25 years. The European Union has abolished the death penalty. The U.S. system has mandatory minimums, “three-strikes” laws, lifetime incarceration, solitary confinement, and executions. At any given moment, the total number of people imprisoned in the U.S.A. is well over 2 million, giving it the highest incarceration rate in the world. Simple comparisons regarding complicated, multi-causal issues can be misleading, but if harsh punishment—presumably as deterrent or corrective—leads to a less violent society, we might expect to find much lower crime and recidivism rates in the United States of Incarceration than in other wealthy, liberal democracies. Yet U.S. rates for homicides, rapes, robberies, assaults, and recidivism remain higher than in Western Europe. “Public safety” is not making us safe.
In fact, harsh sentencing may encourage rather than deter violence. Incarceration, particularly without adequate health care, rehabilitative therapy, meaningful work, and protection from assault, is a form of violence. When the state condemns a person to death or long-term confinement in horrid conditions, it is announcing that vengeance is honorable, violence is a legitimate response to injustice, and some lives are not redeemable. Destroy your enemy. In a stressed out, heavily armed, profoundly unequal and racist society, this is a dangerous message.
Victims of violent crime typically demand harsh punishment for their violator. They may think, wrongly, that sufficient vengeance will bring emotional closure. They may hope severe punishment will cause the perpetrator to reflect on his actions and feel remorse, but it may just inspire him to ponder racist and classist disparities in law enforcement and feel victimized and resentful.
Furthermore, the threat of extended punishment may encourage the perpetrator to plead innocent, thus dragging the victim onto the witness stand and through a lengthy ordeal.
The emphasis on punishment extends beyond incarceration, as the well-being of former prisoners is an afterthought. The stigma of a felony limits job opportunities. Lifetime public registration keeps sex offenders isolated and alienated, despite low recidivism rates. The underlying, and reasonable, assumption is that time behind bars in the U.S.A. is degrading rather than rehabilitating. Some states permanently disenfranchise convicted felons—a political device to weaken black and Latino voting power. Meanwhile, the privatization of prisons enriches corporations that lobby for stricter laws and harsher sentences.
What we have, then, is a mutually reinforcing triangle of cultural, structural, and direct violence. The culture of punishment is a feedback loop. The retributive justice system does not lessen suffering. Violence begets violence.
To reduce violence, some form of restorative justice is required. Rather than punishment for its own sake, the primary concern of criminal justice should be the well-being of all involved: victim, perpetrator, and other community members. In restorative justice programs, dialogue and mediation are critical. Victims are invited to participate, to express their hurt and their needs, to have their loss acknowledged—a very different scenario than hostile interrogation by defense counsel. Perpetrators are encouraged to reflect on harm they caused and take direct responsibility for their actions by making amends through apology, payment, community service, and other positive means—punishment is not restitution. For convicts, this is a first step toward rehabilitation—cultivating accountability rather than resentment, preparing for reentry into society with less likelihood of repeat offenses.
But “restorative” can be a misleading and limiting description. Restoring society to status quo ante will likely leave in place the structural factors that contributed to the crime. Consider the woman arrested for stealing baby formula—not unheard of in the U.S.A. Her methods may be unacceptable; her goal may be legitimate. Retributive justice demands punishment for her sin, especially if previously convicted, so incarceration is ordered, separating mother from child. Who does that help? In simple restorative justice, the merchant explains how the theft caused harm, the mother admits guilt and somehow makes restitution, the judge might sentence her to counseling and probation. Then what? The perpetrator must be heard. Why did she turn to theft? Does she have unmet basic needs? Sorry, vengeance-seekers and moralizers, if the goal of the criminal justice system is less violence, the perpetrator needs advocacy, in this case perhaps to address issues of employment and daycare. Will the same merchant hire her? This more radical form of conflict resolution sees the theft as an opportunity to investigate and reduce structural violence, meaning that which is built into political and economic systems. Individual responsibility is necessary but insufficient.
After several decades of intensified punishment obsession, U.S. society may be reversing course. Slowly, state by state, public officials and voters are eliminating mandatory minimums, decriminalizing marijuana, and suspending executions—tacit acknowledgment that punitive justice has failed to make society less violent. But more radical change is required. Reducing a death sentence to permanent imprisonment, or ten years of incarceration to five, while immensely important to the one being sentenced, won’t substantially reduce violence in society. The culture of punishment must give way to a culture of rehabilitation.
In fact, that process is underway, albeit largely unnoticed by national politicians. Prisons and juvenile justice programs in the U.S.A. have been experimenting with restorative justice for the past thirty years, with promising results: decreased crime and recidivism rates, less desire for vengeance by victims, and lower financial costs. Many school districts in major U.S. cities have adopted such programs, emphasizing dialogue and mediation over suspension and expulsion, seeing misbehavior as an opportunity for teaching responsibility and self-worth. When young people internalize the assumptions of nonviolent conflict resolution rather than the punishment imperative, they are less likely to employ violence against those who offend them. Less violent child-rearing and schooling is a key component for a less violent society. Start early.
Norway, with strong restorative justice programs, is an instructive example. (New Zealand’s institutions are also worth investigating.) Norwegian schools utilize peer mediation: troublemaker today, peer mediator tomorrow, peacemaker the next. The justice system provides victim-victimizer mediation, also street and prison mediation, and emphasizes rehabilitation over punishment, contributing to extremely low incarceration and recidivism rates. U.S. journalists tend to describe Norway’s prisons as “cushy,” even “luxurious”—incarceration is considered punishment enough. After a Norwegian right-wing psychopath massacred 77 people, in 2011, the predominant public response was, essentially, “we must not become like him”—so different from “kill the bastard,” as often heard in the U.S.A. The Norwegian prime minister insisted, “We will answer hatred with love.” Fyodor Doestoevsky’s observation comes to mind: “The degree of civilization in a society can be judged by entering its prisons.” Peace begets peace.
With this in mind, the promotion of restorative justice programs in the U.S.A., at all levels, can be an issue that unites progressive activists. A racial divide frequently arises among progressives—indeed, this appears to have contributed to black support for Hillary Clinton and her business-as-usual campaign, even as blacks stand to benefit from the New Deal-type reforms proposed by Bernie Sanders. As the criminal justice program disproportionately convicts and sentences by race, and as inner-city schools see high rates of suspension and expulsion, blacks and Latinos have good reason to support restorative justice programs. For progressives in general, restorative justice offers a humane path toward less violent communities, even while undermining the power of prison-industrial complex. Note to the progressive majority on the Democratic Platform Committee: Make restorative justice a non-negotiable plank.
But wait, there’s more. By reducing the obsession with punishment, restorative justice programs offer hope of reducing war-making. Say what? The UNESCO constitution reminds us that “war begins in the minds of men.” Current U.S. foreign policy makes clear that changing presidents does not end imperialist wars. Thinking must change—from the bottom up. If schools and juvenile justice programs stop teaching the punishment imperative, if future generations learn nonviolent conflict resolution rather than “destroy your enemy,” then we can expect a decline in public support for war.
Timothy Braatz is a playwright, novelist, and professor of history and peace studies at Saddleback College in Mission Viejo, California. His most recent nonfiction book is Peace Lessons.