Restorative Justice Rewards Intimidation
The New Jim Crow author Michelle Alexander makes a pitch for restorative justice in an NYT op-ed. She opens with the sensible observation that ending low-level drug offenses won’t make much of a dent in mass incarceration. Then, the first head-scratcher:
“That’s why fully 90 percent of survivors in New York City, when given the chance to choose whether they want the person who harmed them incarcerated or in a restorative justice process — one that offers support to survivors while empowering them to help decide how perpetrators of violence can repair the damage they’ve done — choose the latter and opt to use the services of Ms. Sered’s nonprofit organization, Common Justice.”
What jumps out to me initially is that we aren’t told the crimes at issue here or who the victims are. Who, exactly, was “given the choice” to use restorative justice, and why? If you pick well, of course you can get 90% of the group you picked to agree with you.
(You can use the same techniques to manipulate recidivism numbers, also cited in the article)
Why do they choose restorative justice?
“In fact, many victims find that incarceration actually makes them feel less safe. They worry that others will be angry with them for reporting the crime and retaliate, or fear what will happen when the person eventually returns home.”
That’s not good. “Mitigate punishment because harsh sentences make the criminals angry” is not the kind of argument you usually hear in favor of restorative justice, mostly because it’s a terrifying abdication of responsibilty. If anything, it suggests harsher custodial sentences, more supervision of parolees and stricter policing.
If the argument is “we can’t protect victims so ‘accountability circles’ are the best we can do lest we piss them off too much,” you’re really just arguing for a more effective carcereal state. “Forgive this guy or we lock him up and he’ll slash you with a box cutter in 3-5 years” isn’t progressive, it’s abdication.
There’s so much that needs to be done to improve criminal justice. Prisons are nightmares, public defenders are astonishingly overworked and prosecutors will stan for the cops no matter what. All of that needs reform. But letting violent criminals use intimidation to avoid consequences and calling that an innovative technique to achieve justice is sad.
I sympathize with the feelings that underlie this – and it’s not like I have anything invested in the idea of “restorative justice” – but I think the problems you’re looking at are more intractable, more inherent-to-human-interaction, than you’re acknowledging here.
If a victim takes actions that result in major negative consequences for a perpetrator, a lot of the time, the perpetrator will be pissed-off and bitter about it. Some fraction of the time, a pissed-off bitter perpetrator will be sufficiently impulsive (or sufficiently lacking in anything to lose) that he’ll go for vengeance. That’s not the result of a bad punishment system, that’s just how punishment works. It is a cost of doing business.
You can try to mitigate this problem in various ways. You can, in theory, have rehabilitative punishments so good that the perpetrators come out uninterested in vengeance…except that we definitely don’t have the social technology to do this in practice, and if we did it would probably be unconscionable brainwashing shit. You can have punishments so comprehensively incapacitative that the perpetrators are never able to enact vengeance ever…except that this turns out to be grossly draconian, unfair, and expensive, as America’s various tough-on-crime policies have illustrated so clearly. You can have every victim go into the equivalent of the Witness Protection Program, which is so staggeringly inconvenient that most people would rather just let the bad guys get away.
You can, in essence, negotiate with the perpetrators, finding some compromise between their interest in not getting punished, the victims’ interest in being made whole, and society’s interest in deterrence. This is the restorative justice strategy, and it’s not new. Basically every form of non-bureaucratic community justice ever has run on this engine – and, yes, it tends to be grossly unfair to victims (especially certain classes of victims), because the costs of punishing useful important people and creating destructive rifts in the community are often much higher than the costs of making some rando suck up ill-treatment.
Or you can say “fuck it” and simply accept that there’s going to be a certain-level of perpetrator vengeance and that this is one of the dangers of seeking justice.
There are lots of answers. None of them is great. Certainly I prefer some and think that others are unacceptable. But it’s not like there’s any answer that solves this problem as opposed to simply landing on a different point in social tradeoff-space.