Restorative Justice – Law Street

Transformative Justice Transforming Mass Incarceration?

Jennifer Polish — Thu, 25 Jun 2015 15:00:49 +0000

As mass incarceration and state violence vis a vis police brutality are coming increasingly under fire, even in mainstream media, many communities are turning toward alternative methods of addressing violence. Transformative justice–as opposed to criminal justice–seeks to create alternatives to incarceration in a similar manner to its less-radical cousin, restorative justice. But transformative justice does something else, as well: transformative practices encourage communities to avoid involving police in crimes, even in instances of violence.

How can community practices of transformative justice transform the larger criminal justice system? Can community-based methods of addressing violence be the key to transforming this society?

What is Transformative Justice?

According to Generation Five, an organization dedicated to transformative justice in cases of gender-based violence, especially child abuse, transformative justice is described as the following:

Transformative justice [is] a liberatory approach to violence…[which] seeks safety and accountability without relying on alienation, punishment, or State or systemic violence, including incarceration or policing.

Three core beliefs:

Individual justice and collective liberation are equally important, mutually supportive, and fundamentally intertwined—the achievement of one is impossible without the achievement of the other.

The conditions that allow violence to occur must be transformed in order to achieve justice in individual instances of violence. Therefore, Transformative Justice is both a liberating politic and an approach for securing justice.

State and systemic responses to violence, including the criminal legal system and child welfare agencies, not only fail to advance individual and collective justice but also condone and perpetuate cycles of violence.”

Because of these core beliefs, rather than seeking to integrate transformative practices into the current criminal justice system, transformative justice practitioners actively advocate for remaining outside of state intervention.

Transformative Justice is a response to the State’s inability to provide justice on either individual or collective levels. Therefore, in this paper, we propose a model that responds to experiences of violence without relying on current State systems. We believe this to be a liberating politic that creates opportunities for healing and transformation rather than retribution and punishment. Transformative Justice moves us toward equity and liberation rather than maintaining the inequality that the current State and systems maintain.

Herein lie the crucial differences between transformative and restorative practices (whose alternatives-to-incarceration practitioners actively seek representation within the criminal justice system): transformative justice practitioners reject state power as fundamentally unjust, and seek to untangle their work from state control.

Why? Because, according to transformative justice advocates:

The epidemic of mass imprisonment has made Black synonymous with criminal. But there is another reason why this keeps happening. Why after Trayvon Martin, was there Renisha McBride? And after Renisha, why was there Eric Garner?It’s because when we call for justice for these victims of race-based violence, we’re calling for the criminal prosecution of their killers. And criminal prosecution alone will do nothing to shift the culture of fear, hatred and oppression that allows these race-based killings to happen over and over and over again.

That is because a criminal prosecution is not about justice, healing or repairing harm. And it’s certainly not about preventing such harm from re-occurring in the future. And there’s a deep, terrible, tragic irony here — that we have to look to the very system that was an accomplice to these killings for relief — for some facsimile of justice.

Transformative justice practitioners argue that there is a choice, however: by equipping communities to engage in transformative practices instead of resorting to the only option often presented to people–involving the police in cases of violence–harm can actually be repaired and further harm can actually be prevented.

Can Transformative Practices Achieve Justice?

While many people across the country increasingly accept alternatives to incarceration for youth who are convicted of minor, nonviolent offenses–indeed, restorative practices dealing with those kinds of cases are becoming more common–many are skeptical about transformative justice advocates’ claims that alternatives to incarceration should also be used in cases as grave as rape and child abuse.

Critics of transformative justice are often alarmed by the conception that transformative practices in cases of violence “can often emphasize the needs of the offender rather than the needs of the victim.” These kinds of concerns–the argument that only incarceration or even death can help survivors of extreme violence achieve a sense of justice–are often debated in advocacy for and against the death penalty. Critics of transformative justice argue that only the criminal justice system can achieve justice for survivors.

Transformative justice advocates respond by highlighting the extreme depths of injustice that the criminal justice system currently produces: because the criminal justice system targets individuals and communities of color for state violence and mass incarceration, advocates argue, this system by nature cannot protect or bring justice to already marginalized peoples. Therefore, any solution sponsored by the criminal justice system specifically, and the state more generally, cannot help but to reinscribe injustice. In order to avoid this, transformative justice practitioners work outside of the criminal justice system.

These advocates further argue that even in situations in which people do turn to the criminal justice system for justice, it fails to achieve it. Not only have studies shown that third parties are more likely than directly affected parties to seek retribution for non-violent crimes, but the retributive (punishment-based) criminal justice system has been shown over and over to fail survivors of violence. These individual failures, combined with systemic critiques, have spurred transformative justice advocates to practice alternatives to both incarceration and police involvement.

But does anyone actually practice transformative justice?

There are an abundance of transformative practices that many communities across the United States are using instead of relying on calling the police when violence occurs within communities. From Action Camps in Philadelphia that teach advocates to bolster their communities against child abuse to communities mobilizing around known instances of domestic violence to provide survivors with alternative places to stay, staying with the survivor in their own home to ensure that they are never alone and exposed to violence, etc.

The idea of transformative justice is that the state actually creates prime conditions for a great deal of violence, so communities refusing to ignore instances of violence by collectively holding perpetrators accountable and making help available to them can and has brought an end to a great deal of abuse within communities.

In addition to communities mobilizing into community-based watch networks as alternatives to calling cops, transformative justice can occur however specific individuals and communities deem fit for them. A principle tenet of transformative justice is community–no one community or individual can decide how others can or should respond to violence. Therefore, transformative justice advocates believe, as demonstrated in the audio clip below, that each community must determine for themselves which alternatives to the police are appropriate for them.

In one example of transformative justice principles being used in an effort to keep targeted communities safe without resorting to state intervention, the Bed-Stuy, Brooklyn queer of color youth collective Safe OUTside the System launched a campaign in 2007 in line with transformative justice principles and practices:

In 2007, the collective launched the Safe Neighborhood Campaign. Similar to the Dorchester Green Light Program of the 1970s, the campaign provides safe havens from sexist, homophobic, transphobic, and racist language, behaviour, and violence of all sorts. The campaign has three phases. In the first, neighbourhood public spaces such as restaurants, schools, churches, and businesses agree to visibly identify themselves as safe havens for those threatened with or fleeing from violence. In the second phase, the campaign incorporates an educational component to address some of the causes of anti-gay and anti-trans violence. Members of the campaign train the owners and employees… [on] ways to prevent violent without relying on law enforcement. In the third phase, Safe Space advocates recruit other community members and public figures into the campaign.

In ways that are formal–like these Safe OUTside the System’s effort–and informal, strategies of transformative justice are providing alternatives to the criminal justice system across the country.

Transforming criminal justice?

While transformative justice can be criticized for not offering a structured, consistent approach to providing alternatives to policing, transformative justice advocates continue to emphasize the importance of promoting truly individual and community-based alternatives–which vary with each circumstance–rather than attempting to dictate what is best for different communities. This is because ultimately, the priority of transformative justice advocates is not to transform the criminal justice system, but rather to work outside of it until it can be dismantled and rebuilt in a transformative way that does not continue to target already marginalized peoples.

Resources

Generation Five: Transformative Justice

Generation Five: Toward Transformative Justice

Huffington Post: Seeking Transformative Justice in Ferguson, Dearborn, and Beyond

Huffington Post: Criminalizing Victims: How the Punishment Economy Failed Marissa Alexander

Philly Stands Up!: Transformative Justice Anti-Sexual Assault Action Camp!

US Prison Culture: Thoughts About Community Support Around Intimate Violence

Safe OUTSide the System: The SOS Collective

Jennifer Polish

Jennifer Polish is an English PhD student at the CUNY Graduate Center in NYC, where she studies non/human animals and the racialization of dis/ability in young adult literature. When she’s not yelling at the computer because Netflix is loading too slowly, she is editing her novel, doing activist-y things, running, or giving the computer a break and yelling at books instead. Contact Jennifer at staff@LawStreetMedia.com.

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Does Juvenile Incarceration Actually Work?

Kwame Apea — Sat, 20 Jun 2015 12:30:54 +0000

Image courtesy of [Niklas Morberg via Flickr]

Incarcerating teens–a punishment that is meant to prevent crime–often tends to push youth away from schools and into even more crime. This revelation comes from a recently published study in the Quarterly Journal of Economics, which found a new connection between juvenile incarceration and troubles later in life. The study’s conclusions might not come as a surprise, but it helps explain an all-too-familiar pattern in which offenders return to prison shortly after their release. These findings also point to a larger question: is it time to abandon juvenile incarceration for other alternative methods such as counseling and restorative justice?

In the study, researchers examined the outcomes of more than 35,000 juvenile offenders in Chicago over a 10-year period. They found that incarceration lowered graduation rates by 13 percent and increased the chance of adult incarceration by 23 percent. The incarceration of these juveniles, especially those around the age of 16, significantly decreased the likelihood that they would return to school and graduate.

Researchers compared groups of juveniles who–for the same offense–received either an incarceration sentence or some alternative form of punishment. Doing so helped the researchers understand the direct effects of incarceration, particularly because the likelihood of such a punishment varies between judges. Joseph Doyle, who co-authored the study, further explained this point in a press release,

Some kids get a judge who will place them in juvenile detention, other ones get a judge who will be less likely to do so, and comparing the outcomes of the kids across the judges, we can actually say what the causal outcome is of placing the kids in juvenile detention.

Doyle believes that during periods of incarceration, teens meet others who are in trouble, which could lead them to form social groups that are not beneficial to already struggling juveniles. Doyle also says that, “there could be a stigma attached to it, maybe you think you’re particularly problematic, so that becomes a self-fulfilling prophecy.” This is known as labeling theory in the criminology world, where an offender’s actions are influenced by the way he is described and classified. Labeling theory argues that by incarcerating an individual, he begins to see himself as a criminal and will likely commit more crimes in the future.

Juvenile incarceration creates a vicious cycle where an incarcerated teen eventually becomes imprisoned as an adult, which can often lead to the loss of federal assistance benefits such as loans, food stamps, and welfare. As a result, they have a harder time finding a job, which further incentivizes crime as a source of income. With 75 percent of state prisoners and 69 percent of federal prisoners having not finished high school, education seems essential to preventing criminal offenses. Incarcerating teens takes them out of school and dramatically increases the likelihood that they will not return later on.

In light of this research, alternative measures to combating juvenile delinquency might be the wave of the future. Alternatives like restorative justice, which focuses on repairing harm caused by the offender instead of simply punishing him, have already proven to be effective in combating delinquency.

A restorative justice program often involves both the offender and the victim through counseling, victim-offender conferencing, restitution, and community service. In victim-offender conferencing, both parties are encouraged to discuss their issues in the hopes of finding a resolution and punishment. This is often a more attractive alternative to putting the punishment and resolution process in the hands of a judge, who might be inclined to incarcerate the offender. Restitution simply involves showing remorse and paying the victim back for what was taken.

For more information on restorative justice check out Law Street’s explainer.

In an effort to find an alternative to juvenile incarceration, Barron County, Wisconsin Circuit Court Judge Edward Brunner helped form what would become the Barron County Restorative Justice Program back in 2000. The program employed incarceration alternatives including victim-offender conferencing and teen court, both of which gave juvenile offenders the opportunity to make things right with their victims and the community.

By 2007, Barron County saw a dramatic decrease in juvenile offenses relative to the rest of the state. Barron County’s juvenile arrest rate was 34.2 percent lower in 2007 than it was in the year before the program’s inception, meanwhile the rest of the state only saw a 21.7 percent decrease in the same time span.

Other places, both inside and outside the United States, also experienced decreases in juvenile crime after implementing restorative justice programs. New Zealand saw drastic reductions in juvenile offenses and recidivism after instituting a similar system, and its satisfaction rates among the victims and offenders rose as high as 90 percent.

This recent study shows that juvenile incarceration may not be the best solution for deterring future crime. Kids who are introduced to the juvenile prison system tend to commit more crimes and carry their high recidivism rates into adulthood, and as a result, the vicious cycle of a “career criminal” begins to emerge. If the goal is to prevent crime and help juvenile offenders, perhaps it is now time for society to seek an alternative to incarceration.

Kwame Apea

Kwame Apea is a member of the University of Maryland Class of 2016 and a Law Street Media Fellow for the Summer of 2015. Contact Kwame at staff@LawStreetMedia.com.

The post Does Juvenile Incarceration Actually Work? appeared first on Law Street.

How Can Restorative Justice Change the Criminal System?

Jennifer Polish — Wed, 17 Jun 2015 16:00:36 +0000

Image courtesy of [David Vespoli via Flickr]

With mass incarceration under scrutiny, questions arise about alternatives to the punitive practice. One such set of alternatives–a process called restorative justice–is on the rise across the country in youth courts and schools.

Restorative justice has been practiced around the world for quite some time, but how do these dialogue-based alternatives to incarceration operate within the United States’ criminal justice system? Is restorative justice a radical means to advance social justice in an age of mass incarceration, or is it merely another way to reinforce the power structures of the current system? Read on to learn more.

Retributive Versus Restorative Justice

In order to appreciate the differences in approach that restorative justice poses, it is important to first understand that the United States’ criminal justice system operates under a retributive justice approach. Retributive justice is based on the idea of punishment, and the theory behind it is that the state is the ultimate victim of crimes and thus has the power to punish people it deems criminals. This domination-based form of justice is one basis for punishing “victimless crimes” such as drug offenses so harshly. Under retributive justice theories, the state is positioned as the victim.

In other words, the current criminal justice system’s emphasis on retributive justice relies on the logic that:

Retributivism answers the question ‘why punish’ by saying that the offender deserves punishment, and as simple as this statement sounds, its underlying meaning contains a couple of important points about morality and law. Retributivism as a theory of punishment requires retribution as a rationale for law. A retributionist assumes that the law exists for a reason — a moral reason. All crime, even victimless crime, involves a social harm — a moral harm. In other words, violating the law not only offends against the law of the land, but the moral code of the land.

Restorative justice, however, is grounded in an entirely different logic, philosophy, and practice. Restorative justice is defined by restorative agencies such as the Insight Prison Project as:

A philosophy and a social movement which provides an entirely different way of thinking about crime and victimization. Our current retributive justice system focuses on punishment, regarding the state as the primary victim of criminal acts and casting victims and prisoners in passive roles. Restorative Justice, by contrast, focuses on healing and rehabilitation… It assumes that the persons most affected by crime should have the opportunity to become involved in resolving the conflict. The goals of restoring losses, allowing prisoners to take responsibility for their actions, and helping victims move beyond their sense of vulnerability stand in sharp contrast to the conventional focus on past criminal behavior and increasing levels of punishment.

By taking the ideals of community and individual accountability and upholding the goal of mutual understanding and healing, restorative justice processes ensure that police, prosecutors, and judges are not the only ones with power over deciding someone’s fate after a crime has been committed. When prosecutorial and/or judicial discretion is utilized to make restorative processes available to people, the power of deciding how to move forward shifts to the person accused of committing a crime and the people most closely impacted by that crime.

This power shift can involve processes such as victim-offender mediation, conferencing, service provision, and “victim” assistance, as applicable. In the most well-known and widely used forms of restorative justice–mediated community conferences and circles–the offender(s), victims(s), and other closely impacted community members will come together in a mediated dialogue to address the context and harm done by the crime. During this process, the offender is expected to accept responsibility and agree to the group consensus of how to move forward, whether through community service, rehab, or other options. In these types of processes, the offender must agree to following through on the agreement; failing to do so will trigger a return to a traditional, retributive justice approach that will likely result in jail time.

Restorative Justice in Action

Currently in the U.S., restorative justice is most often used in the context of youth offenders and the juvenile justice system. Especially due to the extremely high rates of recidivism in the juvenile justice system, restorative justice, which often produces extremely low recidivism rates, is becoming increasingly popular as an alternative to incarceration in many juvenile courts across the country.

Many schools are using restorative processes as a way to keep their youth out of the school-to-prison pipeline. By engaging in restorative processes of mediation, schools are doing the following:

Forging closer, franker relationships among students, teachers and administrators. It encourages young people to come up with meaningful reparations for their wrongdoing while challenging them to develop empathy for one another through “talking circles” led by facilitators.

These talking circles, a trademark of restorative processes, often serve as alternatives to the suspensions and expulsions that fuel the school-to-prison pipeline. By resisting racialized zero-tolerance policies that do not give students a chance to repair any harm they might have done–and that might have been done to them–restorative practices in schools give students, teachers, and administrators the opportunity to identify deeper causes of problems in schools that allow more holistic approaches to students acting out.

Schools from California to Colorado to New York are implementing and expanding their restorative justice programs in order to avoid shipping their students directly into the juvenile justice system. In New York City, restorative programming in schools is being used with increasing frequency and impact:

Over the past few years, the Department of Education has been building its capacity to implement restorative justice programs. The department has provided training to teachers from 55 middle and high schools through the Morningside Center for Teaching Social Responsibility, which will be training 45 more schools this July and plans to add another 45 in the fall.

At Flushing International High School, where students hail from over 40 countries, social worker Tania Romero said that restorative practices have decreased incidences of violence between students of different nationalities and allowed for deeper conversations on issues like racism. “All schools should be entitled to this,” she said.

While experts acknowledge that restorative justice does not offer a quick fix either to juvenile justice or to schooling issues, many schools are becoming committed to advocating for the kinds of structural and cultural changes that can make restorative justice processes even more effective.

In other cases, however, restorative processes resemble traditional court processes more than they do school-based conferencing or mediation. In Brownsville, New York, for example, where youth of color are particularly targeted by the criminal justice system and jailed at extremely high rates, the city has established a youth court system in which youth offenders try and sentence each other to various sanctions, including community service, essay-writing, and tutoring. In this program, youth are trained for 30 hours and take a 16-page bar exam to prepare for the responsibility of trying and sentencing their peers. Though some might be skeptical of the ability of youth to effectively diminish the crime rates of their peers, the youth going through these restorative processes have a 93 percent compliance rate, which indicates an extremely low recidivism rate–much lower than that produced by the traditional juvenile justice system.

What Are We Trying to Restore?

Despite its success at lowering recidivism rates, restorative justice is often the recipient of criticism. Because restorative justice is a process that relies on the actions of those in the criminal justice system–judges and prosecutors must refer defendants or people convicted of crimes to restorative processes, and reserve the right to re-enact retributive processes if restorative methods are deemed ineffective–many people and organizations criticize restorative justice for being powerless to truly change the criminal justice system from within.

The co-opting of restorative processes by the state actually risks reinforcing the power structures that shape the harm done by crimes to begin with. For example, state-mandated restorative processes may force mediation event participants like police and youth of color together, ignoring the extreme power differences between these individuals and therefore ignoring structural power dynamics and risking perpetuating harm upon people who may have committed a particular crime, but who are also targeted by state violence.

As such, it is crucial to note that restorative practices may be practiced in disproportionate ways that ignore societal power structures. One study shows that schools with more Black students are less likely to use restorative processes because of racialized assumptions about the student population. Further, some question whether restorative practices are accessible to people living with certain dis/abilities.

What then does restorative justice seek to restore? If structural inequality was the baseline condition under which a crime was committed, is restorative justice satisfied with restoring that unjust baseline? Critics of restorative justice and advocates of the more structurally minded transformative justice argue that restorative justice, by nature of working within the criminal justice system, can never truly address these issues of systemic oppression.

So What’s the Verdict?

Restorative justice–especially in the context of the juvenile justice system–has tremendous potential to offer alternatives to incarceration for people who would otherwise be targeted for mass incarceration. Recidivism rates decline and community involvement increases, and these are all impacts that critics of mass incarceration certainly applaud. However, while restorative justice is certainly an important move toward reforming the criminal justice system as is, its lack of emphasis on structural and systemic oppression that is the basis for mass incarceration to begin with makes it an inadequate means of truly transforming the criminal justice system.