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We seek a restorative justice, not a retributive justice. --Desmond Tutu

Spotlight on Restorative Justice

--by Shari Swanson, Apr 26, 2018

A crime or harm disrupts the balance -- in a community, among people, and within a family. Trying, convicting, and incarcerating the wrongdoer separates them from society but may do little to reclaim that lost balance and less still to improve the underlying conditions that led to the harm. Restorative justice takes a broader view with efforts that may include facilitating reconciliation between the victim and wrongdoer as well as addressing the underlying causes of crime and distress, potentially improving the broken community.  Restorative justice can be transformational for all concerned. In this Spotlight on Restorative Justice, we look back at Daily Good features that advocate for a more equitable answer to the question of crime.

In America alone, more than 2 million people are incarcerated, millions more on probation or parole, and tens of millions more with a criminal record. What distinguishes us from them? What if there were no 'us' and 'them' when it came to criminal behavior? What if we all had, at one time or another, fallen short of a perfect, law-abiding life? Would that realization make us more open to rehabilitation and less inclined to imprisonment as the first recourse?

With her non-profit, "We Are All Criminals," Emily Baxter is working to dispel stereotypes and inspire empathy, disrupting the barriers that seemingly separate us. She urges listeners to recall a time when they might have strayed from the law:

"Perhaps the listeners today have recognized something of themselves from the stories that I've told, or perhaps through other memory triggers they've recalled past transgressions. So first, there's that -- recall what you've done, and it doesn't have to be something that you're ashamed of. It can be something that you're proud of. It can be something that's completely unmemorable. It can be something that you didn't even realize was an offense, but now thinking back on it you can see that if you viewed it with the lens of criminality, "Oh yeah. That's a felony." Then, take note of the context that you allow yourself when you are recalling that memory. "I was young. I was drunk. I was stupid. I was in a bad relationship. I gave it back anyway. It wasn't my idea. No one got hurt." Whatever that context is, recognize that it may have existed for somebody who was caught as well. Now it's not necessarily an excuse, but it is an opportunity to recognize that common humanity. Then take note of the privilege that you've experienced, be it race or class or gender or geography or era or luck, and acknowledge that not everybody has been able to benefit from that same privilege. Reflect upon how patently different your own life could be and recognize how drastically different life is for individuals who were caught."

For them, "their lives are defined by past mistakes and they are often unable to move on -- literally 100 million people are suffering because of this. Keep in mind that these individuals don't exist in a vacuum. They have sons and daughters. They have brothers and sisters. They have mothers and fathers, spouses and partners and greater community members who can all be profoundly impacted when someone is defined by a past mistake and not allowed to fully engage in society and life again. Now what's key to understanding all this, is that we are not all affected to the same degree. The criminal justice system doesn't touch all of us as profoundly and as devastatingly as it does others. For example, the lifetime likelihood of imprisonment for black men in the United States is one in three. One in three."

Bryan Stevenson founder of Equal Justice Initiative emphasizes, "Each of us is more than the worst thing we've ever done." And yet, for those convicted of crimes, that conviction becomes their single defining trait, a factor on every job application and, potentially, leading to a permanent loss of voting rights, and status as a pariah. But when we realize that convictions disproportionately affect people of color and the poor, we confront a more complicated truth: Justice isn't blind. Accordingly we, as a society, need, as Stevenson notes "commitment to truth and reconciliation because our humanity depends on everyone's humanity."

Prosecutor Adam Foss wondered why we, as a society, spend so much on jailing a person rather than working to prevent the crime from happening in the first place:

"Those convicted of murder were condemned to die in prison, and it was during those meetings with those men that I couldn't fathom why we would spend so much money to keep this one person in jail for the next 80 years when we could have reinvested it up front, and perhaps prevented the whole thing from happening in the first place.

"History has conditioned us to believe that somehow, the criminal justice system brings about accountability and improves public safety, despite evidence to the contrary. We're judged internally and externally by our convictions and our trial wins, so prosecutors aren't really incentivized to be creative at our case positions, dispositions, or to take risks on people we might not otherwise. We stick to an outdated method, counterproductive to achieving the very goal that we all want, and that's safer communities."

Foss decided to try another way:

"And that's how we do it in Boston. We helped a woman who was arrested for stealing groceries to feed her kids get a job. Instead of putting an abused teenager in adult jail for punching another teenager, we secured mental health treatment and community supervision. A runaway girl who was arrested for prostituting, to survive on the streets, needed a safe place to live and grow -- something we could help her with. I even helped a young man who was so afraid of the older gang kids showing up after school,that one morning instead of a lunchbox into his backpack, he put a loaded 9-millimeter. We would spend our time that we'd normally take prepping our cases for months and months for trial down the road by coming up with real solutions to the problems as they presented.

"Which is the better way to spend our time? How would you prefer your prosecutors to spend theirs? Why are we spending 80 billion dollars on a prison industry that we know is failing, when we could take that money and reallocate it into education, into mental health treatment, into substance abuse treatment and to community investment so we can develop our neighborhoods?"

Shaka Senghor believes a culture of punishment run amuck is destroying the fabric of society. He devotes his time to transforming the prison system and reducing the need for incarceration.  As someone who transformed his own life after 19 years in prison, 7 in solitary confinement, he’s already helped mothers of murder victims to forgive, inspired young men in the streets to choose a college degree over a prison number, and shifted the thinking of ‘tough-on-crime’ advocates from the ‘lock them up and throw away the key’ mentality to believing that redemption is possible. His TED talk “Why Your Worst Deeds Don’t Define You” has received over one million views.

Similarly Gregory Ruprecht’s work in Colorado shows "how police officers with conventional views of justice—‘lock them up and throw away the key’—can change over time as a result of direct experience of the alternatives.

"In Ruprecht’s case the turning point was his arrest of a group of 10 and 11-year old boys who had broken into a chemical plant. Instead of charging them with a felony, he agreed to take part in a series of “restorative justice circles” that were designed to bring the boys into direct contact with the people they had harmed, along with their parents and a trained facilitator. At the end of the process, the boys signed a legal agreement listing how they were going to set things right, ensuring accountability without having to process yet more people through the justice system and eventually into prison....

"These alternatives make sense far beyond any particular party line. At heart, very few people would deny the basic needs that exist inside everyone to be understood, heard, and seen; to be given a chance to redeem; to confront the impact of our actions and be given the opportunity to re-enter the collective endeavor of society."

As demonstrated by Ruprecht's work, it is never too early to consider restoration over retribution. In a classroom in Oakland, the administration used restorative justice over suspension, and what they discovered was astounding:

"They walked together to the restorative justice room. Slowly, the boy began to open up and share what was weighing on him. His mom, who had been successfully doing drug rehabilitation, had relapsed. She’d been out for three days. The 14-year-old was going home every night to a motherless household and two younger siblings. He had been holding it together as best he could, even getting his brother and sister breakfast and getting them off to school. He had his head down on the desk in class that day because he was exhausted from sleepless nights and worry.

"After the principal heard Tommy’s story, he said, “We were about to put this kid out of school, when what he really deserved was a medal.”

"Eric tracked down Tommy’s mother, did some prep work, and facilitated a restorative justice circle with her, Tommy, the teacher, and the principal. Using a technique borrowed from indigenous traditions, each had a turn with the talking piece, an object that has a special meaning to the group. It moves from person to person, tracing a circle. The person holding the talking piece is the only one talking, and the holder speaks with respect and from the heart."

An emphasis on restorative justice was key in arriving at a solution that gave voice to all parties and an outcome that caused growth and healing rather than punishment alone:

"The hallmark of RJ is intentionally bringing together people with seemingly diametrically opposed viewpoints—particularly people who have harmed with people who have been harmed—in a carefully prepared face-to-face encounter where everyone listens and speaks with respect and from the heart no matter their differences. The talking piece is a powerful equalizer, allowing everyone’s voice to be heard and honored, whether that of a police officer, a judge, or a 14-year-old youth.

"If the school had responded in the usual way by suspending Tommy, harm would have been replicated, not healed. Punitive justice asks only what rule or law was broken, who did it, and how they should be punished. It responds to the original harm with more harm. Restorative justice asks who was harmed, what are the needs and obligations of all affected, and how do they figure out how to heal the harm."

The notion of providing a safe space for all to be heard and to give voice is key to restorative justice. And these principles in action are having remarkable results: "Oakland is considered one of the most violent cities in the nation. However, today hundreds of Oakland students are learning a new habit. Instead of resorting to violence, they are being empowered to engage in restorative processes that bring together persons harmed with persons responsible for harm in a safe and respectful space, promoting dialogue, accountability, a deeper sense of community, and healing."

Martin Leyva should know. He did time for robbery but knew when he walked out of Chino State Prison he would never come back. Instead, Leyva used his troubled past to become a beacon of hope for others in similar situations. He says, "The whole process [working with youth] feeds my fire for social justice because these youth are so important to our future -- to everyone's future. And youth are vulnerable. We adults have so much power over them-- to make them or break them-- and because so many people and institutions are threatened by them they use their power to break them. So when the youth get to a program like AHA! where they feel safe, where the adults are really committed to supporting and uplifting and empowering them, it changes the game. It changes how the youth see themselves --as inherently worthwhile people. Seeing them recognize their potential -- even just getting a glimpse of it -- feeds me."

Sujatha Baliga finds  her work in the Restorative Justice field much less limiting than in the criminal legal field:

"And so that feels like a very good fit with Restorative Justice as opposed to the criminal legal system, which forced me to have to be a victim advocate or a defense attorney or a prosecutor. The system forced me to choose a side I was trying to have a victory over. And really, there is no such thing as “victory over.” There is only collective liberation, and that grounds my attraction to Restorative Justice as well as my hope that we have outcomes that are beneficial to everyone. 

"A good Restorative Justice facilitator operates with equal parts compassion and partiality. So instead of the imagined, and fictional, neutral mediator, we are equally partial to everyone in the circle. We want everyone’s best interest to rise and for us to come up with a plan to attend to those interests."

A retributive legal response seeks to punish, but a restorative justice model seeks to give all parties a voice, encourages forgiveness and reconciliation, and can restore community. If the principles of restorative justice are used early, as with the youth above, they may even be instrumental in breaking cycles of crime and preventing crime before it happens.

Sujatha Baliga believes that restorative justice and forgiveness are "interesting cousins". She says, 

"I can’t think of a better cauldron for cooking up forgiveness than a Restorative Justice process in which a victim feels completely heard by the person who harmed them, and the perpetrator has some desire to make amends. The completion of that process can help with a victim letting go of their anger.

"That being said, a Restorative Justice process never has forgiveness as a prerequisite or an expected outcome. It may or may not happen, but there is never any pressure on survivors to forgive, because they might not be interested in forgiveness. They might just want their car back!"

That possibility of forgiveness and reconciliation in a restorative justice model is no small thing. In fact, it may provide key insights in seeing each other in community and may foster healing. In her mesmerizing TED talk, Valarie Kaur underscores how love is the foundation of justice, and how that act of loving those who wrong you may be just the revolutionary act that will help to restore balance in a time of rage. This, it is important to note, is work for all of us to do, not just those in positions of power in the legal system. Kaur states, "I am an American civil rights activist who has labored with communities of color since September 11, fighting unjust policies by the state and acts of hate in the street. And in our most painful moments, in the face of the fires of injustice, I have seen labors of love deliver us. My life on the frontlines of fighting hate in America has been a study in what I've come to call revolutionary love.Revolutionary love is the choice to enter into labor for others who do not look like us, for our opponents who hurt us and for ourselves.In this era of enormous rage, when the fires are burning all around us, I believe that revolutionary love is the call of our times."

Restorative justice is hard work, opening us up to reexamining long-held truths and biases, and committing to stepping forward together with a firm belief that no individual should be discarded from society, but that each is vital. With reconciliation we heal our communities and move forward, addressing wrongs and honoring victims, working toward win-win solutions.

***

For more inspiration, join this Saturday's Awakin Call with Karen Lischinsky, founder of the Transformational Prison Project. RSVP and more details here.




Shari Swanson is a lawyer, teacher, writer, and member of ServiceSpace where she works as a writer/editor for DailyGood and Kindful Kids. You can find her at www.quotablecreek.com or www.shariswanson.com. 


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