System Within a System: Applying Restorative Justice Principles to Criminal Justice Reform

by Christina Warner

Jesus loved and valued those society thought were rightfully despised. In recounting stories of Jesus’ radical inclusion of the outcast, the biblical narrative often highlights the inadequacies of dominating systems. The Gospel of Matthew, for example, cites Jesus as teaching creative alternatives in the midst of existing social and religious teachings: “You have heard it said…but I say to you…” 

By following a different path, Jesus and the early followers lived with a ‘system within a system.’ Restorative justice is one powerful present-day example of this. Where crime weakens individuals and communities, restorative justice attempts–as much as possible–to right what has been made wrong while reflecting the dignity of all those impacted.

Practically, this often means bringing together victims, offenders and broader community stakeholders into dialogue together. These dialogues prioritize the needs of victims in order to name the wrong, assess what it would take to make it right, and decide together what consequences should be set forth for the offender.

By prioritizing the needs of victims, restorative justice recognizes the agency of both victim and offender, thereby dismantling deeply-held stereotypes of both parties. Accountability in this manner highlights the need to restore the wrong (restitution and responding to victims’ needs, breaking down justifications the offender may have about the act) and highlights the humanity of offenders (by accepting that they have both responsibility and ability to address the wrong they have committed).

Responding to individuals as children of God prioritizes the needs of the victim while recognizing the vulnerability of the offender to be victimized as well. Offenders cannot become ‘collateral damage’ just as victims’ needs cannot be disregarded under the guise of criminal “justice.”

Taking part in this (restorative) ‘system within the (criminal justice) system,’ highlights the weaknesses of the broader criminal justice system. Rather than prioritizing the actual consequences of crime, the existing system defines the state as the victim, with carefully defined punishments for offenders breaking the law. Victims, in this scenario, often have little say in how or if their needs will be met.

Likewise, offenders rarely are offered the opportunity to understand or take real responsibility for their actions. Warehoused in prisons and removed from their communities and families, offenders often are completely disconnected from real accountability. Once released, ex-offenders are too often barred for life from meaningful participation in society because of the lasting impact of the criminal label.

The criminal justice system, despite its intent to address public safety, too often creates more needs than it meets. Restorative justice values and practices offer an opportunity to see how the life of Jesus can be applied to present situations by creating a ‘system within a system.’

“Tough on Crime” Policies

“Tough on crime” policies, enacted since the early 1980s, have greatly increased the size and reach of the criminal justice system. Despite representing only 5 percent of the global population, the United States houses 25 percent of the world’s prisoners–2.3 million incarcerated individuals. When individuals on parole or probation are included, that number increases to 7.3 million.

This is due in large part to mandatory minimum sentences, instituted in 1986, which apply a harsh mandatory sentence for a particular crime, usually related to drugs. Although initially intended to provide law enforcement with the tools needed to incarcerate high-level drug kingpins, most individuals convicted of drug crimes are low-level addicts or dealers.

Instead of addressing root causes of the drug trade, mandatory minimums have resulted in filling prisons with nonviolent offenders who would likely benefit from alternative rehabilitative services. The number of incarcerated drug offenders rose from 41,000 in 1980 to 500,000 in 2007, an increase of 1200 percent.

Policies such as mandatory minimums disproportionately affect communities of color. For example, although African Americans are 12 percent of the U.S. population and 14 percent of monthly drug users, they are 59 percent of those convicted of drug charges and 74 percent of drug offenders sentenced to prison.

This preference to incarcerate is most blatantly harmful for youth and mentally ill persons, who are more likely to be sexually assaulted and abused by staff or other inmates.  Currently, prisons hold four times as many mentally ill persons as do mental health hospitals.

Collateral Consequences: Life After Imprisonment

The continuing stigma which stays with ex-offenders far outlasts the prison term itself and is a hindrance at almost every stage of life. Upon release ex-offenders often have to include their criminal record on job applications, making it difficult to get a job.

In many states, ex-offenders are banned from public assistance programs for housing and food, despite the clear need for those without resources or income. This means that individuals with a criminal record often cannot reunite with loved ones who are living in public housing because assistance can be denied to those associating with individuals convicted of a drug crime.

Furthermore, many individuals with felony or drug convictions lose their right to vote. Thus, those with few resources for meeting basic needs like food, housing or employment are barred from the practice that allows one a say in how these decisions are made.

These “collateral consequences” mean that although prison sentences may have a time limit to them, the stigma and label of criminality does not. Punishment lasts much longer than the initial response to the offense, with little hope of regaining one’s position or opportunity in society.

By creating such need among a large portion of the population, ironically the criminal justice system can actually be seen as contributing to further crime. The lasting stigma, combined with the limitations within prison (lack of access to health care, education, job training, fruitful accountability), contribute to a recidivism rate (those who are rearrested) of 67.5 percent.

The War on Drugs blurs typical understandings of “victim” and “offender.” Instead of a clear individual violation, the criminal justice system effectively marginalizes a large population by stripping from them resources needed to participate in society with dignity. They have become our “rightfully despised.” Because the system is so deeply broken, only comprehensive reform would make broader restoration possible.

Opportunities to Create a More Restorative System

Clear policy responses are available in creating a more restorative system. For example, the National Criminal Justice Commission Act would create a commission to study the entire criminal justice system and make recommendations for reform. The study would take into account every level of the system, from the root causes of crime to laws governing life after reentry. At the time of writing, the House has passed the bill, but the Senate still needs to do so.

Another opportunity is the Youth PROMISE Act. If passed, the legislation would offer grants to cities experiencing the highest gang and youth violence in the country. Law enforcement, social workers, teachers, parents, and other local youth leaders and experts would gather to assess the strengths and needs of their particular community as they relate to youth and gang violence.

The panels would then collectively make recommendations and decisions as to how best to address these needs. At the time of writing, the Youth PROMISE Act awaits passage in both the House and Senate and will likely need to be re-introduced in the next session of Congress.

The current criminal justice system is broken. Continuing these patterns will exacerbate crime and maintain the punitive nature of our society. Restorative justice offers glimpses of what is possible as those who are impacted take part in this ‘system within a system,’ founded in the struggle for shalom in the midst of deep challenges, and inspired by the life and message of Jesus.

By  seeking to meet the needs of those most impacted by crime–a simple mandate if not simple in practice–it teaches how we can advocate collectively to recognize the true dignity too often disregarded by the larger system.

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