It is my belief that the core problem in our justice system lies not in the specifics of certain laws or judge-training situations, but in our basic philosophy of Retributive Justice. The heart of retributive justice is that a crime is an offense against the social order—which is embodied in the State—and that the method for correcting this imbalance is enforced punishment against the offender. The crudest version of this theory is the ‘eye for an eye’ philosophy.
What has happened lately is that, even though both violent and property crime rates have been dropping, the states are imposing stricter (“three strikes”) laws that impose long imprisonment on relatively minor crimes in order to keep criminals off the street (and thus decrease crime). This, of course, treats a criminal as being essentially so; by this term I mean that it has the basic assumption that ‘criminal’ is an innate state which cannot be changed, a criminal once identified can only be hindered from being able to commit crime. When you combine this with the incredibly distorted race and class statistics in our prisons, we begin to see the wisps of eugenics.
As I wrote back in January: “not every criminal is a cut and dry case and not every criminal is the worst case. When we create mandatory sentences for anything, we treat every case as if it were the worst and we remove the humanity from the system.”
So, if, as I believe, one of the core problems in our American justice system is its overwhelming reliance upon Retributive Justice, what is the alternative? There are two related theories of justice which both have equally ancient roots as retributive justice that can begin to provide an alternative: Restorative Justice and Transformative Justice.
At the core of these theories is the idea that for many crimes, the offense is not between the offender and the State, but the offender and the victim or the local community. Restorative justice in particular attempts to mediate disputes by bringing both the victim and the offender together. The victim is given a chance to explain how the crime affected him or her and to receive answers to any lingering questions about the event. The offender is given a chance to face the effects of his or her actions and to see the implications. In cases of crimes against the community, those affected are brought in to share their feelings; a vandal meets the man who has to clean the vandalism, the individuals who couldn’t use the destroyed facilities. Compensation is directed towards the victim—whether an individual or a community—with the goal of restoring balance. The victims are not allowed to profit off of the event. So the offender may serve community service, pay for damaged goods or provide services to the victim. There is also an emphasis on self-education to prevent recidivism.
One example of restorative justice in action are the Circles of Support and Accountability (CoSA), which are small groups of trained volunteers who welcome high risk sex offenders back into the community after serving their time. The mission of the CoSA is:
"To substantially reduce the risk of future sexual victimization of community members by assisting and supporting released individuals in their task of integrating with the community and leading responsible, productive, and accountable lives. (CoSA Chaplaincy Guide)
According to Wikipedia, CoSA has “reduced re-offence by 70% and de-escalated the seriousness of those crimes that did occur.” It’s certainly a long ways from Governor Pataki’s plan to lock up sex offenders in mental institutions after they finished their prison time.
Transformative justice attempts to take the ideals of restorative justice to conflict outside of the criminal justice system. It attempts to view conflicts as inbalances in the parts of larger social systems. If focuses upon mediation in the relationships between people and people and institutions. The goal is not simply to return to the status quo, but to reform the basic imbalances within social relations that lead to conflict. In a sense, every conflict mediation serves to ‘transform’ society into a more just and equitable form.
At the heart of these theories is the idea that the offense is the dual responsibility of the offender who broke the norm and the community who permitted such events to occur. It brings together those affected and attempts to correct imbalances and crimes via restitution, not retribution. Hopefully, the community itself is strengthened through this form of justice since once the all-powerful State has been removed, people can begin to see one another. The victim receives restitution, both physical and psychological, for the crime; all parties realize the influence that our actions have upon one another and come to recognize the interconnectedness of our communities. Furthermore, instead of locking up a generation of young people for possessing a bit of marijuana, we can have their direct participation in our shared communities.
There is a powerful opportunity today in New York, with the incoming of new blood into state government and recent attention to problems in the justice system, to begin to dismantle the retributive, angry-god-like State and allow New Yorkers to begin to see one another once again. Perhaps restorative and transformative justice can give us those tools.
 I would like to mention that I have known judges, lawyers, police officers and convicted criminals who were all decent people attempting to do their best with a flawed system. This essay is meant not to be an attack on well-minded individuals, but upon the system in which we are all entrapped.