Leaving Punishment Behind Embracing New Ideas of Justice

[Music]

a few years ago

i was telling a friend of mine another

lawyer

about an innovative project using art

and restorative justice

to respond to intimate partner violence

instead of going to the police or using

the courts

people could use this alternative

approach

and when i said this my friend grimaced

and then he said well this

this being the criminal legal system

this is how it’s always been done

i nearly fell over and to be fair to my

friend

he immediately realized that he was

making a historically and geographically

global statement

without any real basis and he walked it

back

real quick but the moment stayed with me

and it stayed with me because that

moment

that immediate knee-jerk response is

such a common response in so many of the

conversations i have

about justice we cannot imagine an

alternative response to harm

because it feels like the way we have

been doing things

the way we have been responding to harm

is the only way we are so

mired in the current system that we our

immediate instinct is to push back

against

any alternative

we didn’t get here on our own we were

trained up this way

in this country from the time you are

young

popular media teaches you that law and

justice

look a certain way there are the obvious

examples

the incredible amount of television and

film

about policing and criminal trials

but there are less obvious examples as

well

tv shows from he-man to star trek seek

to impart lessons in

all aspects of law from rule of law and

governance

to what constitutes an acceptable

contract

and if you go to law school like i did

then you are even more entrenched in the

system

and i was i’m a law professor at the

university of south carolina

with a background in international human

rights

and for a long time when i thought about

problems of violence particularly

gender-based violence

i immediately thought about how to get

the state to step

in in the international human rights

system that i was trained in

criminalization was a key recommendation

to respond to certain problems of

violence

but it was hard to look away

from the harms that were being committed

by

the very criminal legal system we were

looking

to for protection

in the united states criminal policies

disproportionately

impact young black men from lower income

neighborhoods

communities of color lgbtqia communities

and certain immigrant groups

among others report negative experiences

with police

and courts even when they’re the ones

reporting the harm

people who have been convicted of a

crime have difficulty finding housing or

employment

even after serving their time and

repaying their debt to society

so to speak but what about the victims

you might ask the criminal legal system

is not built to help victims

in 2016 the alliance for safety and

justice published the first

ever national survey on victims views on

safety and justice

and according to this survey two out of

three crime victims did not receive

any support to help them recover from

the impacts of being victimized

of those who did receive support the

majority received it from friends

family or hospitals

not the criminal legal system

the survey also reported that a

significant majority of victims

actually prefer alternatives to

punishment and incarceration

yet even knowing all this

people still argue in favor of a

punitive

criminal legal response

it is hard to imagine another way

remember that friend i was telling you

about the one who was struggling with

the idea of restorative justice

he like many others couldn’t imagine

another way he couldn’t imagine using

restorative justice

a non-punitive approach to respond to

problems of intimate partner violence

let me back up for a minute what what is

restorative justice

well there’s no single model

commonly in response to a harm

restorative justice will bring together

the people who have been harmed

the people who have committed the harm

and community stakeholders

conversations will include in-depth

discussion of the harm that’s been

committed and its impacts

in the criminal system a person’s

testimony can be limited by rules of

evidence

or a lawyer’s strategy about how to tell

the story of what happened

restorative justice on the other hand

delves fully into what happened

the intended outcome is accountability

accountability requires the responsible

party

to acknowledge the harm that they’ve

committed and its impacts

to make appropriate reparation to the

people they’ve harmed

and to take steps to ensure that they

won’t do it again

restorative justice asks us to shift

away

from a focus on punishment and instead

focus on arriving at real accountability

i used to be quite skeptical of

restorative justice

but i’ve since come around to it well

more than come around to it i really

believe in it

in addition to being a law professor i

am the executive director and founder of

the south carolina restorative justice

initiative

our mission is to promote education and

dialogue about restorative and

transformative justice

and to support the development of

restorative practices in south carolina

restorative justice is now a significant

part of my work

interest in restorative justice has been

growing and that’s exciting right

people will learn about restorative

justice they’ll incorporate it into

their work and i’ll be happy

job done not quite

i’ve noticed that even as acceptance in

restorative justice has been growing

so much of that new acceptance continues

to anchor itself in the idea

of the retributive criminal legal system

as the primary default response

for example when people

talk about restorative justice so many

of them speak only of healing

and forgiveness i can recall

one particular documentary film about

restorative justice

which highlights the case of a woman who

not only forgives the young man who

killed her son

she embraces him she welcomes him into

her life and calls him her son

he calls her his second mom

and it’s beautiful it’s very moving but

it’s sold as the story of restorative

justice

not by any of the practitioners i’ve met

who are

very frank and down to earth about their

work

but among mainstream audiences so much

of the storytelling around restorative

justice focuses on these

larger-than-life individuals

in this narrative it is easy to perceive

restorative justice as something that’s

only available to a small group of

people who are special enough

to participate in it restorative justice

becomes this magical

exception and the criminal legal system

is treated as the justice inevitability

it doesn’t stop there i’ve been having

conversations with people

all around the country who are

interested in learning more about how to

support

and implement restorative practices in

their communities

and a good number not all but a good

number of them only want to hear about

restorative justice in the context of

juvenile justice

or face-to-face dialogue with people who

are incarcerated

or as a diversion program that’s

attached to courts

even though we have examples of other

types of restorative practices right

here in the united states

and look i’ll support any move to a more

restorative approach

but the fact is it is easy to reach for

those three options

because they do not require you to

re-evaluate the existing

system if you can only imagine

restorative justice working for people

who are under the age of 18

or who are already incarcerated or as an

outgrowth of a criminal process

then you are limiting what restorative

justice can be

and you continue to elevate the punitive

criminal legal system as

the default but we are not

bound to the carceral state we are not

limited to the existing criminal legal

enterprise

the criminal legal system does not have

to be

the default

restorative justice can be for everyone

for angry people for impatient people

old people young people and

people who have committed multiple types

of harms

we can look to historical and

comparative examples for support

for example in uganda many traditional

justice institutions use practices and

principles

that we see today reflected in the

modern american restorative justice

movement

specific practices vary across clan or

tribal group

but generally when a harm has been

committed

some form of reparation is offered to

the person who has been harmed

and the community is responsible for

educating the responsible party

and helping them change their behavior

today we see these practices used in

regular

everyday justice in a process called

reconciliation and i have met

multiple practitioners who use

reconciliation to address cases of

domestic violence

this practice is not limited to

juveniles it doesn’t relate to

incarceration

and it can occur completely outside the

courts

this practice is not limited to a

special group of angerless individuals

with hearts bigger than the universe

in fact i can think of one example

a case in which a woman and her partner

entered into a process

to resolve the violence that she was

suffering at his hands

not only did she openly and freely

express her anger

but at the end of the process as part of

his accountability agreement

her partner agreed that he would stay

away from her

and that they would end their

relationship

the process still offered both parties

what they wanted

and needed an opportunity to speak their

truths

to ensure that appropriate reparations

were made

and to have a plan for the future that

worked for the both of them

and the community

i don’t romanticize these processes

they can perpetuate harm in the case of

gender

gender-based violence they can and at

times have

reinforced harmful patriarchal norms

but this process

offers an approach to resolving disputes

in a way that can work better for the

parties involved

and that also seeks to change

future behavior uganda is just one

example

other examples exist elsewhere in

sub-saharan africa

in asia and among various indigenous

groups in the americas

to name a few and what these examples

reveal

is that the american legal system’s

response to harm

is not an inevitable result of the human

condition

other approaches have existed and

continue to exist

as we seek to incorporate restorative

principles

we do not need to anchor them in our

system’s punitive

justice experiment

there can be another way

restorative justice might not even be

the final answer there might be

an even better way but we will never get

there

if we do not give ourselves the freedom

to more openly embrace

new approaches to justice

thank you

you