Restorative Justice vs. Punitive Justice: Fixing Systemic Racism

Introduction: Systemic Problems in Criminal Justice

One of the defining problems of criminal justice today is the challenge of systemic racism, a charge leveled by critics such as Angela Davis (2012) and numerous others. The allegation is that the criminal justice system is inherently racist for several reasons (Lentin, 2020). These reasons include the existence of a for-profit private prison industrial complex that represents a clear conflict of interest, since the complex profits from incarcerations and businesses exploit prisoner labor by paying inmates a fraction of a living wage (Pelaez, 2019). Compounding this is the fact that 37% of America's prison population is Black, yet Black Americans constitute only 12% of the total U.S. population (Bureau of Justice Statistics, 2014).

On top of these disparities is the widespread practice of plea bargaining, which prosecutors push on those charged with crimes, essentially depriving the accused of due process rights afforded by the Constitution. Those charged are told they risk a stiffer sentence if they do not accept the 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 trial" (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). Beyond this, the United States has the highest incarceration rate of any country in the world, with approximately 2 million people currently incarcerated (Gramlich, 2018). Many of these people are funneled into the prison industrial complex — a term more than two decades old — which refers to the "complex configuration comprised of the U.S. 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).

Taken together, these facts indicate that there is a major problem in the criminal justice system. It is a problem, however, that a move away from punitive justice could help fix. Embracing restorative justice may be the most effective way to root out systemic racism from the criminal justice system.

The Case for Restorative Justice

Restorative justice is the idea that an offender owes a debt to society and that sentencing should focus on enabling the offender to repay that debt through community service or other restorative means. The approach helps reduce social conflict by encouraging offenders to recognize that their actions have consequences and that they are part of society. Restorative justice can also satisfy victims, who feel that they are being genuinely restored and that justice is actually being served. When the offender is simply incarcerated, there is often no meaningful sense that restoration has been achieved. Restorative justice allows both the victim and the offender to arrive at a healthier relationship with each other and with the justice system itself.

Johnson et al. (2015) have found that restorative justice is more meaningful for members of society than punitive justice — for both victims and offenders. 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 demonstrably reduces crime: in regions where restorative justice programs have been implemented, recidivism has fallen by 26%. Rather than sending people to prison where they become entrenched in a cycle of crime, restorative justice has the opposite effect — it teaches offenders that they are part of society and need to act as contributing members. It is a program that addresses the gap identified in social bond theory, which posits that people commit crimes because they do not feel any social bond to their community. Restorative justice therefore not only addresses the injustice within the criminal justice system, but also provides a solution to the problem of why crime is committed in the first place.

Ethical Frameworks and Opposing Values

The three principal ethical systems are virtue ethics, deontology (duty ethics), and utilitarianism. Since the time of Confucius in the East and Aristotle in the West, virtue ethics has served as the primary foundation for universal ethics, positing that morality is determined by the degree to which one's actions conform one's character to the good. Under Kant, in the modern era, duty ethics gained prominence, holding that morality is determined by the extent to which one's actions conform to one's duty in life. Under Mill, utilitarianism was advanced, positing 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 — ethical egoism — has gained influence. 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 rely upon an objective sense of the good (Holmes, 2007). Today, there is diminished insistence upon an objective or universal good. This presents challenges for understanding the ethical issues at stake in criminal justice reform, because the ethical framework one adopts will significantly shape one's views on the issue.

When it comes to criminal justice, the current emphasis is clearly on punitive justice (Davis, 2012). Yet when people think of prison, they often imagine it as a place where offenders should not merely be punished but also reformed. If criminals are going to be released back into society, society wants to believe that these individuals have been rehabilitated and no longer represent a threat to the community. However, recidivism rates indicate that the justice system is failing at rehabilitation (Johnson et al., 2015). From a virtue ethics standpoint, offenders are not developing the character in prison that could help them lead more law-abiding lives. From a duty ethics standpoint, offenders are not given any meaningful sense of their duty and responsibility to society. From a utilitarian standpoint, they are not taught to recognize the common good, as they do not see themselves as part of the broader community. What incarceration teaches, rather, is that the only prevailing ethical system is ethical egoism — do what is best for oneself and disregard everyone else.

Ethical egoism does not prepare offenders for reentry into society, nor does it address systemic racism or the denial of due process rights. To achieve a more equitable system — one oriented toward rehabilitation rather than punishment — restorative justice should be implemented. Restorative justice teaches offenders to develop character, understand their duty to society, and build a social bond with the community where none existed before. It satisfies the victim, rehabilitates the offender, and decreases recidivism rates (Johnson et al., 2015). It negates the conflict of interest at the heart of the for-profit prison industrial complex and reinstates due process by eliminating the coercive plea bargaining process that funnels offenders into private prisons.

Those who oppose restorative justice are primarily interested in two things: punitive justice and profitable justice. They want offenders to serve time behind bars and to work for corporations that profit from their cheap labor (Pelaez, 2019). In other words, the opposing side of this debate is not interested in virtue ethics, duty ethics, or utilitarianism. They are ethical egoists themselves — not unlike the offenders they prosecute. When the system institutionalizes the same ethical framework that offenders operate under, it raises a profound question: What does that say about society itself? Society is in need of rehabilitation, and that rehabilitation will not begin 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 crimes. Should every offender be punished with incarceration for as long as there are prisons to house them? Or should society take responsibility for the rehabilitation of offenders while providing those offenders an opportunity to right their wrongs? The current system emphasizes punishment and incarceration for reasons tied to profit, racism, and convenience. None of these reasons are associated with the moral good that should underpin all ethical action. They are the contrivances of ethical egoism and nothing more. If one is to think about criminal justice in moral terms, the current approach clearly fails to satisfy one's moral obligations.

Conclusion

Restorative justice programs promote the common good, which from a utilitarian perspective is what every representative in government should be primarily concerned with. Too many people are being incarcerated in America. Once imprisoned, they are exploited by corporations seeking to profit from their cheap labor. Those charged with crimes are discouraged from exercising their due process rights by prosecutors offering coercive plea bargains. The system is not oriented toward justice — it is oriented toward exploitation. That must change. Restorative justice programs can restore the common good that society urgently needs and that the current punitive system consistently fails to deliver.

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. City Lights Books.

Gramlich, J. (2018). America's incarceration rate is at a two-decade low. Pew Research Center.

Grossman, S. P. (2005). An honest approach to plea bargaining. American Journal of Trial Advocacy, 29, 101.

Holmes, A. (2007). Ethics: Approaching moral decisions. 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.

Nilsen, E. S. (2007). Decency, dignity, and desert: Restoring ideals of humane punishment to constitutional discourse. UC Davis Law Review, 41, 111.

Pelaez, V. (2019). The prison industry in the United States: Big business or a new form of slavery?