The Failings of Retributive Justice

justiceI’ve been thinking a lot about justice lately. (Pick your reason.) I’m particularly interested in our default definition of justice and how the tight circumscription of that definition keeps us from exploring ideas and actual practices that might benefit victims, society, and (heavens!) the perpetrators themselves.

My assumptions are just that, but it appears that when most people think about justice in the legal sense, the ideas that come to mind are punishment and fairness. The question “was justice done?” tends to elicit a checklist of some of the following:

  • is the perpetrator being punished?
  • does the punishment fit the crime?
  • was the accused given a fair trial?

If you’re versed in the economic and procedural failings of our legal system, you might also ask:

  • did the accused receive adequate legal representation?
  • was the evidence sufficient to support the guilty finding?

And if racial justice is your thing, you could add:

  • was the accused met by a jury of their peers?
  • was the perpetrator’s history considered in the sentencing?
  • was the accused forced to confess to a crime they didn’t commit out of fear the legal system would not fairly serve them?

and probably at least ½ dozen more.

These are all good questions, and answering all but the last in the affirmative is essential to keeping making our retributive system fair. But what’s interesting to me is that none of these questions have anything to do with the victim. We see the judicial system as a stand-in for the victim, but it only serves to punish the criminal, not to heal the person harmed. There are good reasons why we don’t involve the victim in the sentencing. Victims are notoriously unfair prosecutors. The law serves to prescribe a punishment free of emotional influence. The punishment should serve society in general and the victim in particular, but outside of the occasional monetary reimbursement for a quantifiable crime, how is the victim served?

Restorative Justice proposes that the well-being of the victim can be an integral part of the system. That the most beneficial path for the perpetrator can even be part of the system. Maybe it can’t work for every crime. It can’t work when the accused doesn’t take responsibility for the crime or isn’t willing to try and make amends. Perhaps it can’t work for repeat offenders or homicides or rapes, though I may argue against that at another time. But when someone snatches a purse and is caught, with negligible financial loss to the victim; or a car is stolen and totaled and the loss is so great the thief can’t possibly repay it, what happens then? How can this be “made right” – I like that framing – or can it? What if both these perps are first time offenders? Let’s say they’re each sent to prison for 6 months. What good does that do?

  • the offender is off the street, which may make the victim and community feel safer
  • the offender “learns” that what they did was wrong, and that they have to pay the consequences

Anything else?

What harm might be done in this scenario?

  • the offender loses their job, place in school, perhaps custody of their kids
  • the prison environment teaches damaging behaviors and can be psychologically traumatizing
  • since both of these can be federal crimes, the person may lose their right to housing, food stamps, certain jobs or even the ability to get past the application stage, college loans, etc.
  • lacking these options, the person is put in a situation where they might feel compelled to commit the same crime again
  • having lived through prison once, returning might seem worth the risk

Some of those are just guesses. But even the best possible outcome does little for the criminal, the person harmed or the community.

What if, instead of sending them to prison, the person was asked to accept responsibility for the crime and seek a way to make it right with the person they hurt? What if that person came to the table and listened to the story behind the theft and the offender’s commitment to make up for it and not reoffend? What if they were able to define what the offender could do to make them feel safe again? What if members of the community came with ideas of how the offender could demonstrate their commitment to reducing the harm they caused? What if the community also accepted the offender’s apology and provided resources to support the victim and the offender? What if everyone saw each other as people, not labels, and started generating compassion for each other?

Clarence Darrow said this (thank you, Preet Bharara)

Every human being’s life in this world is inevitably mixed with every other life and, no matter what laws we pass, no matter what precautions we take, unless the people we meet are kindly and decent and human and liberty-loving, then there is no liberty. Freedom comes from human beings, rather than from laws and institutions.

The law is not enough. If it were, we could enter the facts of a case into a computer and get a formulaic sentence. It might be fairer than the system we currently have, but would it be more just? I think we can do better.

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