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