As a society, what do we attempt to accomplish through our judicial and prison systems? Is it reforming criminals, punishing people that are inherently dangerous to society or simply getting revenge against them for their crimes? Within the discourse that our society has about crime and punishment, all three of those strains of thought present themselves. But beyond intentions or rhetoric, what does it ultimately come down to? At the heart of the issue, with the degeneration of our prison system, isn’t it just revenge? Certainly we can’t be making serious attempts at reform or we wouldn’t have so many repeat offenders. And I don’t accept the argument that people are beyond hope simply on the principle of the thing. Can we really accept revenge as the basis of our prison system; can we really accept that as our notion of justice? And if we cannot, what can we do instead?
One of those never ending issues in philosophy is the definition of the concept of justice. Justice is a broad, amorphous term similar to freedom that can mean many things to many different people and is frequently used in stump speeches by any hack politician. It’s hard for us to even get Americans to agree on whether and what types of taxes are just; how can we possibly hope to agree on issues of law and crime?
Our judicial system sets up parties in a fundamentally conflictual way with both civil and criminal cases having a clear winner and loser — though the practice of arbitration does allow for a less punitive settlement between the parties. With conflict at the heart of any settlement, judicial proceedings are bound to avoid addressing the fundamental causes of any legal case. And social and educational programs can only go so far in addressing the root causes of conflict, because let’s face it, humans are attracted to conflict and there will be times when conflicts arise. It is the question of resolving conflicts when they do come that is the key to determining how healthy our criminal (and even civil) justice systems are. Instead of maintaining a system that does not work, we should embrace a new way of looking at criminal justice, that of the healing philosophy of restorative justice.
Right now the prognosis of the prison system is not too promising. American prisons were founded on the ideal that every person could be reformed, and for much of the 19th century served as models for the world. Alexis de Tocqueville, author of Democracy in America, was dispatched by the French government to research the American system of prisons. Somewhere between then and now, something has gone wrong. Despite attempts at reforming the system through probation, parole, and other means (such as half-way houses), the United States has the largest prison population in the world and repeat offenders are common. What happened to reforming prisoners and where can we go from here?
There are those who would suggest building more prisons, pushing for harsher penalties and increasing police budgets and embracing more aggressive tactics. A serious flaw with all of those strategies is that they do not actually solve the underlying issue that motivates a crime. They only attempt to repress action by fear. Instead of fear and punishment, we should be moving towards restorative justice. By restorative justice I mean a method that incorporates victims, perpetrators and others affected, to try and redress the wrongs committed. The most successful and institutionally applied system of restorative justice is the Navajo Nation’s Peacemakers.
Peacemaking is an aspect of traditional Navajo justice that was reinstated as part of the official legal system in 1982. It is similar to a system of mediation but is different in the role of the “mediator” or Peacemaker and the breadth of participants. The Peacemaker is a respected member of the community that is supposed to help and push the participants to reach a consensus. The consensus is reached by the victim directly relating his or her experience and then offering the perpetrator the opportunity to explain their behavior, and provide justification in front of the victim, their family, the perpetrator’s own family, as well as the respected Peacemaker. From that point, the Peacemaker works towards bridging the gap, relating the case to the community, and creating empathy among the parties involved. The reconciliation stage involves the clarification of the emotional relationship between the parties and the agreement on restitution- whether it be something symbolic or an action taken by the perpetrator, such as counseling.
Many aspects of Peacemaking rely on Navajo values, including their religious framework. But Peacemaking has had some success in addressing the high-crime rates among Navajos, and has even been used for violent crimes such as rape and murder. To the skeptics, a process like Peacemaking will seem absurd to apply within the mainstream American cultural context. And there are also constitutional issues dealing with self-incrimination in the responsibility of the perpetrator to offer a justification for his crime.
If a Peacemaking-style program were to be adopted, it could be voluntary and restricted to non-violent or minor domestic crimes, and given that it would exclude prison time, it is unlikely there would be a lack of volunteers. But policies could be tested in places around the country. It’s time that mainstream society takes the issue of our criminal justice system seriously, and supports more than just building prisons.
There are hopeful signs; the student think-tank, the Roosevelt Institution has taken up the issue of criminal justice reform as one of its three challenges this year. But in order to even test such a system, our society needs to change the way we think about justice, crime, and punishment. For the sake of the future social health of our country we need to embrace reform for the betterment of everyone. We need to shake ourselves out of our complacency and from one heart to another; we need to move from revenge to reconciliation.
Rob Coniglio is a junior in the College of Arts and Sciences. He can be contacted at rjc47@cornell.edu [1]. Guest Room appears periodically.
Links:
[1] mailto:rjc47@cornell.edu