The Use of Restorative Justice Programs

Introduction: Overview of the Relevant Facts
One of the problems of criminal justice today is the challenge of systemic racism that has been leveled by critics such as Angela Davis (2012) and numerous others. The charge is that the criminal justice system is inherently racist for a number of reasons (Lentin, 2020). These reasons include the existence of a for-profit private prison industrial complex that represents a clear conflict of interest to the system since the complex profits off incarcerations and businesses exploit the labor of the prisoners by paying them pennies on the dollar (Pelaez, 2019); and the fact that 37% of America’s prison population is black, yet blacks are only 12% of the total US population (Bureau of Justice Statistics, 2014). On top of all this is the practice plea bargaining, which is pushed on those charged with a crime by prosecutors, essentially robbing the accused of due process rights afforded by the Constitution, as those charged are told they will risk a stiffer sentence if they do not take the generous plea deal.
As Grossman (2005) notes, “the process by which criminal convictions come about through guilty pleas in exchange for sentencing considerations carries with it the almost inevitable result that those who refuse a plea bargain are punished for exercising the right to trail” (p. 101). Additionally, Nilsen (2007) points out that “sentences are longer and meaner, prison conditions are more degrading and dangerous, and post-release reintegration is severely hobbled by numerous barriers that guarantee a permanent underclass” (p. 111). Aside from this is the fact that America has the highest incarceration rate of any country in the world with 2 million people incarcerated currently (Gramlich, 2018). Many of these people are funneled into the prison industrial complex, a term that is more than two decades old and that refers to the “complex configuration comprised of the US prison system, multi-national corporations, small private businesses and the inmate population in the social and political economy of the 21st century United States” (Smith & Hattery, 2006, p. 1). 
All of this taken together should be enough to indicate that there is indeed a major problem in the criminal justice system. It is a problem, however, that a move away from punitive justice could fix. This means that embracing restorative justice could be the way to root out the racism in the criminal justice system.
Restorative justice is the idea that an offender owes a debt to society and sentencing should focus on enabling the offender to repay that debt through community service or some other form of restorative justice. The idea is that it helps to reduce social conflict by helping the person to see that his actions have consequences and that he is part of society whether he likes it or not. Restorative justice can also satisfy the victims as they feel like they are being restored or that justice is actually being served. If the offender is simply sent to jail there is no real satisfaction in the sense that any restoration is obtained. Restorative justice allows for the victim and the offender to feel better about themselves and each other and the justice system.
Johnson et al. (2015) have found that the idea of restorative justice is more meaningful for members of society than punitive justice is; and this includes for both the victims and the offenders. According to Johnson et al. (2015), victims especially “reported higher perceptions of fairness and greater feelings of justice through the restorative justice programs as opposed to victim reports of traditional justice programs” (p. 2349). Moreover, restorative justice works at reducing crime: in regions where restorative justice programs have been implemented, recidivism has fallen 26%. Instead of sending people off to prison where they get stuck in a cycle of crime, restorative justice has the opposite effect: it teaches offenders that they are part of society and need to do a better job of acting like contributing members. It is a program that can help to fill the gap identified in social bond theory, which posits that people commit crimes because they do not feel any sort of social bond to the community. Restorative justice thus not only addresses the issue of injustice in criminal justice system but also provides a solution to the problem of why crime is committed in the first place, as presented by criminologists.
The Major Ethical Issues and the Relevant Underlying Values of Each Opposing Side
The three main ethical systems are virtue ethics, deontology or duty ethics, and utilitarianism. Since the time of Confucius in the East and Aristotle in the West, virtue ethics has been the primary foundation for universal ethics. Virtue ethics posits that morality is determined by the extent to which one’s actions enable one to conform to one’s character to the good. Under Kant, in the modern era, the system of duty ethics gained in popularity. In this system, morality is determined by the extent to which one’s actions conform to one’s duty in life. Under Mill, utilitarianism was put forward. It posits that morality is determined by that which provides the greatest common good to society (Holmes, 2007).
In the postmodern, post-truth world of today, a fourth system known as ethical egoism has prevailed. Ethical egoism posits that the ends justify the means and that whatever allows one to achieve one’s own goals is moral. It is a decidedly subjective approach to morality, whereas the other three systems at least rely upon an objective sense of the good (Holmes, 2007). Today, there is no social focus or insistence upon an objective or universal good. One’s truth is whatever one wishes it to be. This presents certain problems for understanding the ethical issues underlying this issue because depending on what ethical system one adopts, one’s views are likely to differ from another.
When it comes to criminal justice today, the emphasis is clearly on punitive justice (Davis, 2012). Yet, when people think of prison they think of it as a place where offenders should not just be punished but also reformed. If criminals are going to be released back into society, society wants to believe that these people have been rehabilitated and no longer represent a threat to the community. However, recidivism rates show that the justice system is not succeeding in this department (Johnson et al., 2015). From a virtue ethics standpoint, offenders are not developing the type of character in prison that could help them to lead more righteous, law-abiding lives. From a duty ethics standpoint, offenders are not being given a sense of their duty and responsibility with respect to society, as they are not taught to recognize or appreciate the social bond. From a utilitarian standpoint, they are not taught to see the common good, as they do not recognize themselves as part of the common society. What they learn from incarceration is merely that the only prevailing ethical system in the postmodern world is ethical egoism—i.e., do what is best for oneself and forget everyone else.
Ethical egoism does not prepare them for reentry into society, nor does it address the other issues that plague the system, such as the problem of systemic racism or the denial of those charged their due process rights. To achieve a more equitable system, one that is fairer, and geared towards rehabilitation instead of towards punishment, restorative justice should be implemented. Restorative justice teaches the offender to develop his character. It teaches him what his duty is to society. It provides him with an opportunity to develop a social bond with the community where none existed before. It satisfies the victim and helps to rehabilitate the offender and decrease recidivism rates (Johnson et al., 2015). It negates the conflict of interest and injustice at the heart of the for-profit prison industrial complex. It reinstates due process for those charged with a crime by denying the plea deal bargaining process that puts offenders in for-profit prisons. It is a solution that provides many answers to the problems in the system today.
Those who oppose restorative justice do so because they are primarily interested in two things: punitive justice and profitable justice. They want offenders to do time behind bars and they want those offenders to work for corporations that make money off their cheap labor (Pelaez, 2019). In other words, the opposing side of this issue is not interested in virtue ethics, duty ethics or utilitarianism. They are ethical egoists themselves, much like the criminals they prosecute. The only difference is that they are on the side of the law. But when the system institutionalizes the same ethical system that the offenders live by, what does that say for society? Society itself is in need of rehabilitation, and that will not start until society allows for the rehabilitation of offenders. Restorative justice is thus the way forward.
Ultimately, the ethical issue comes down to what society should do with those who commit a crime. Should every offender be punished with incarceration for as long as there is another prison to be built? Or should society itself take some care and responsibility in the rehabilitation of the offender while also providing the offender with an opportunity to right a wrong as best as can be done? What is the right or moral way to proceed? Clearly, the current system emphasizes punishment and incarceration for numerous reasons—profit, racism, convenience. But are any of these reasons associated with the good that should underscore all moral actions? No, they are associated with the contrivances of ethical egoism and nothing more. Thus, to proceed, one must make a chose between oneself and one’s society—what is the perceived good for one’s own self and what is the objective and definable and principled good upon which every society must be established. One has to make that choice. If one is going to think about criminal justice in terms of morality, one should see that the current approach does not satisfy one’s moral obligations.
Recommendations
Any one of the main three ethical systems could be used to justify restorative justice. However, utilitarianism is the one that will be used to justify the policy in this report, since it focuses on the common good of society, and the common good is what a representative in government is supposed to focus on more than anything else. The common good is why the system of democracy exists in the first place. It was set up so that the common good could be achieved by all in this nation. Those who offend and commit crimes are ones who make mistakes—but that does not mean they should be consigned to perdition for the rest of their lives. There is more than one way to rectify a mistake—and restorative justice proves that restoration can be made in some way to society when one offends or violates the principle of the common good (Johnson et al., 2015).
Not only does restorative justice help to right a wrong, but it also helps to satisfy the need for justice on the part of the victim or the victim’s family. Some wrongs, such as murder, cannot be made up completely—but when the offender is seen out in the public doing good works to repay the debt he owes to society as a result of his offense, it shows to the world that there is such a thing as turning a new leaf. It is far better for this course to be taken than to send the offender off to prison for the rest of his life where he can contribute in no positive or meaningful way to society; where, instead, he becomes the target of exploitative corporations seeking cheap labor via the prison industrial complex just as they do with wage slaves in Asia.
Utilitarianism promotes the idea of a common good, a good that can be shared by all. From the utilitarian perspective, there is no common good to having a prison industrial complex: it does not benefit communities; wrongs are not righted; if anything, families are hurt more since fathers, brothers, sisters and mothers are incarcerated and then face the difficulty of finding work once they are released. Once in the system, it is hard to get out and get back to a normal life. That is why recidivism rates are so high: the system does not care; it wants these people in there for life because it is a system from which certain groups profit. That is not profit for the common good: it is profit for a handful of corporations involved in the prison industrial complex.
Meanwhile, communities are harassed and made unstable by the constant policing and racial profiling methods of law enforcement instead of being supported and assisted through community policing. Police are there—or used to be there—to serve and protect; but along the way, police started implementing military style tactics and operating as field agents for the for-profit prison industrial complex (Davis, 2012). They have not preserved the principles of community service that used to underscore their focus. That principle should be re-established and community policing is one way to help do that—but so too is restorative justice.
Restorative justice helps to restore the principle of community service because it shows that crime is an offense against the community, and that even though it is a wrong it is a wrong that can be righted. It shows offenders that even though they may not feel a social bond with their community they can be made to realize that bond. Restorative justice focuses on rebuilding communities that have been violated and broken down; it focuses on justice that is directed to the common good rather than to the pocket books of exploitative corporations.
Why Restorative Justice Works
Why does restorative justice work? If social bond theory is correct that people fall into crime because they have no sense of place, commitment or relationship with society, then it stands to reason that offenders need to develop those senses before they can be considered contributing members of society who add something to the common good. Offenders are unlikely to develop this sense in prison. So how are they going to develop it? Restorative justice provides the answer.
Restorative justice should be implemented more in states across the US. Seeing offenders working in the communities and working among the people should not be an uncommon sight: it should be more common. There is even a deterrent aspect to restorative justice because it shows people in the community that offenders do have to pay back for their wrongs. When the offender is packed off to jail and never seen or heard from again, there is no tangible or visual evidence in everyday life that shows people in the community that there are consequences to wrong actions. But when restorative justice programs are used, people see that those who violate the laws do have to pay for the violation by righting the wrong in the community.
When people see that there is a consequence to crime in this way, it can uplift the consciousness and have a meritorious effect. The social bond is strengthened all across the board—for the offender who sees that he is indeed part of a community and must right whatever wrong he has committed. Those in the community see that the offender is part of the community and they are taught to accept that a wrong was committed and that wrongs can be righted and past sins forgiven. They are taught in this manner to forgive and not to look down on or to think badly of those who make mistakes, even serious ones. Instead, they learn to go in fear and trembling because if others can fall and make mistakes, then so too can they. There is a strong moral lesson just in the visual aspect of restorative justice.
As governor, you must appreciate how important the common good is for society. When the common good goes missing, society becomes fractured; communities break apart—each goes searching for its own meaning, its own lot, its own gain. Each faction turns to ethical egoism and uses the ends (self-gain) to justify the means. But communities cannot stand on such a shaky and subjective ethical foundation. The common good has to be asserted somewhere along the line.
The governor should be the one to assert that common good. He is the leader, elected to represent the will of the people, a people who believe in a common good or else they would not have voted for you. But that common good often gets suppressed for reasons that go against it. Instead of serving the community, police end up serving the corporations; instead of dispensing justice in a way that restores communities and social bonds, the justice system ends up repressing communities and serving the same corporations profiting from the prison system.
Incarceration is a punitive form of justice that does not end the cycle of crime. In fact, it makes it worse. Restorative justice programs, on the other hand, have been shown to reduce recidivism rates (Johnson et al., 2015). Just think what would happen if more time and attention, energy and resources, were given to fighting crime by promoting restorative justice. It is not a stretch of the imagination to believe that recidivism rates could be reduced by half or even more. The study by Johnson et al. (2015) was limited in terms of length of time in which the data could be inspected—but if one is looking at the macro perspective, one should be able to see that there would be a major effect on society and the community in terms of deterrence as well. If crime rates drop as a result of people seeing the consequences of crime in real everyday life, how much more effective overall does restorative justice become? This is a program that should be implemented everywhere.
Conclusion
Restorative justice programs promote the common good, which from a utilitarian perspective is what every representative in government should be concerned with. Too many people are being incarcerated in America. Once in jail they are being exploited by corporations who want to profit from their cheap labor. Those charged with crime are dissuaded from exercising their due process rights by zealous prosecutors offering plea bargains. The system is not oriented towards restorative justice—it is oriented towards exploitation. It needs to change. Restorative justice programs can bring about the common good that society needs.
References
Bureau of Justice Statistics. (2014). Prisoners in 2013. Retrieved from https://www.bjs.gov/content/pub/pdf/p13.pdf
Davis, A. (2012). The Meaning of Freedom. San Francisco, CA: City Light Books.
Gramlich, J. (2018). America’s incarceration rate is at a two-decade low. Retrieved from https://www.pewresearch.org/fact-tank/2018/05/02/americas-incarceration-rate-is-at-a-two-decade-low/
Grossman, S. P. (2005). An Honest Approach to Plea Bargaining. Am. J. Trial Advoc., 29, 101.
Holmes, A. (2007). Ethics: Approaching moral decisions. Downers Grove, IL:InterVarsity Press.
Johnson, T., Quintana, E., Kelly, D. A., Graves, C., Schub, O., Newman, P., & Casas, C. (2015). Restorative Justice Hubs Concept Paper. Revista de Mediación, 8(2), 2340-9754.
Lentin, R. (2020). Incarceration, Disavowal and Ireland’s Prison Industrial Complex. In The Carceral Network in Ireland (pp. 259-278). Palgrave Macmillan, Cham.
Nilsen, E. S. (2007). Decency, Dignity, and Desert: Restoring Ideals of Humane Punishment to Constitutional Discourse. UC Davis L. Rev., 41, 111.
Pelaez, V. (2019). The Prison Industry in the United States: Big Business or a New Form of Slavery? Retrieved from https://www.globalresearch.ca/the-prison-industry-in-the-united-states-big-business-or-a-new-form-of-slavery/8289
Smith, E., & Hattery, A. (2006). The prison industrial complex. Sociation Today, 4(2), 1-28.