Fulfilling the Preconditions of Victim Healing and Offender Moral Maturity through Restorative Justice Programming.
The ongoing national debate on criminal justice has only amplified an already partisan political climate. Virginia has become a microcosm of increased polarization over efforts to reform, reconsider, or even evaluate existing criminal justice policy. This controversy has most obviously manifested itself in recent months in the wake of the gubernatorial review of parole abolition and truth in sentencing laws enacted two decades ago. Journalists, prosecutors, General Assembly members, former state officials, and commentators definitively cite conflicting statistics that seemingly bolster or reinforce their varying positions on the establishment of the Commission on Parole Review and the anticipated results and recommendations that will be generated as a result of the study. However, it is within the prisms of deference to, and concern for, victims of crime, as well as an end goal of offender remorse and empathy towards those whom they have harmed, that all sides of these debates appear to realize ideological commonalities.
There have been no less then a dozen articles, editorials, commentaries, and op/eds published in the Richmond Times-Dispatch regarding the study of parole abolition and truth in sentencing legislation since June 24, 2015, when Governor McAuliffe issued
Executive Order Number Forty-Four (2015) establishing the Commission on Parole Review. A predominant voice in this continuing dialogue has been Delegate Rob Bell who represents the 58th District (Charlottesville) in the Virginia House of Delegates. Delegate Bell is certainly knowledgeable and well-versed due to his experience as a former prosecutor and his current appointment to the Criminal Laws Subcommittee and as Co-Chairman of the State Crime Commission. Delegate Bell repeatedly professes, above all else, that concern for victims of crime should be paramount when considering criminal justice policy. In at least three articles published in the Richmond Times-Dispatch alone, Delegate Bell passionately defends crime victims with no less vigor than he likely did in his role as a prosecutor.
RJBehindtheWire enthusiastically echoes Delegate Bell’s refrain as well as others who believe that concern for victims of crime, their families, and loved ones should be the hub of the criminal justice system. Consideration for crime victims should be the compass that guides not only criminal justice legislation, but also the Virginia Department of Corrections who are charged with incarcerating and rehabilitating the nearly 40,000 offenders serving felony sentences in Virginia (over 90% of whom will be released to the neighborhoods of the Commonwealth).
That being said let us not be disingenuous in expressing our concern for victims, nor in greater society's desire for remorse and empathy from the offenders. The actual mechanisms the courts and corrections deploy in order to elicit these invaluable emotions do not necessarily reconcile with the mission, goals and objectives as stated by Delegate Bell, the polity, the courts, nor the Virginia Department of Corrections. An inordinate amount of focus is placed upon criminal policy, court processes, and Departmental Operation Procedures, with little emphasis or concern for the actual outcomes for victims or offenders.
The same self-serving motivations that contributed to the offender’s criminality are only carried and reinforced as they trod through the labyrinth of the courts. Upon arrest and incarceration, particularly after transfer from jail to the prison system, an offenders’ focus often rests solely on individual and selfish needs. This self serving or preconventional moral reasoning is again reinforced and perpetuated throughout the offender’s time in prison. In our Restorative Justice Behind the Wire outline we argue that crime is at its core a moral issue. This suggests that offenders operate within a spectrum of preconventional moral reasoning. Typical offender morality is simply a matter of satisfying one's own needs. While offenders may recognize basic moral principles such as justice, criminals apply these egocentrically, only to themselves, demanding fair treatment from others, but not caring whether others are treated justly. This flawed method of thinking continues in prison. In The Justice Structure of Prison: A Theory and Intervention, Lawrence Kohlberg found that prisoners and guards interacted at the lowest level of moral development - one geared towards avoidance of coercion and punishment. However, within their individual groups they interact with their peers at a conventional state of moral reasoning. This state is generally characterized by a desire to please others and a respect of social rules. Their positions on moral issues are typically influenced and determined by what their peers believe, leading them to conform to peer norms.
It should come as no surprise, then, that the current paradigm of prison life tends to mold prisoners into a morality lower than their private best, causing them to disregard virtues or prima facie duties once outside the prison environment. Simply stated, the prison paradigm, rather than making society safer, inadvertently churns out more hardened and morally bankrupt criminals. In doing so, the value that prison, or the threat that re-incarceration holds as an individual deterrent is fully attenuated. In the eyes of the offender, reincarceration is a return to familiar peer and social norms.
It should, therefore, be the goal of the body politic not to provide for general or individual deterrence through fear of punishment, but to encourage offender subscription and adherence to societal laws and ethical norms. Fostering a sense of moral duty in offenders, during their expulsion from civic life, will encourage them to reengage in the greater social contract. Corrections should enable and provide for offenders to advance their moral reasoning skills to a post-conventional or principled stage. This stage is represented by autonomous moral reasoning, in which the offender looks to transcultural universal values - whether in the form of abstract principles of justice and respect, or moral sentiments such as compassion, remorse, and empathy. The preconditions of moral maturity demand the development of these emotions.
This evolved individual moral maturity will help to motivate offenders. People who are morally mature and better at moral reasoning are more likely to act on their beliefs. Those at higher stages of moral development not only sympathize with those who are suffering, but take active steps to alleviate that suffering. They are willing to speak out on behalf of themselves and others when they witness an injustice and will take effective and well thought out action to correct the injustice. Desirable offender moral action involves striving to be the best one can be. Virtuous individuals, those who regard morality as important to their self-identity, are more likely to refrain from criminality, harming others, or engaging in unethical and illicit activities. Not for fear of consequence, but for the personal satisfaction and fulfillment of executing their individual moral duty.
The Virginia Department of Corrections and the General Assembly have yet to provide a venue or the tools necessary for this important moral maturity to occur. Prison and offender re-entry programs are focused on the individual needs of the offender, like job skills, adult literacy, and substance abuse treatment. These programs are undeniably valuable, though they do nothing to ameliorate offender attitudes towards the victims of their crimes, nor the harms that they caused to the community.
Legislators, corrections officials, and often prosecutors associate public safety and punishment with justice. If a criminal receives “just desserts” for an offense, and the victim is safe from harm by that same individual through the incapacitation of prison, then justice has seemingly been served. However, victims of crime need more than a courtroom victory and an imprisoned offender to heal. Restorative justice practitioner and Eastern Mennonite University Professor Howard Zehr suggests that there exists at least five preconditions of healing for victims of crime: 1) information, 2) support, 3) recognition of the harm by the offender, 4) reparation for the harm, and 5) effective protection. As it stands, the criminal justice system is at best inadequately satisfying two of these preconditions. Outlined here are some recommendations through which the General Assembly and correctional officials may not only further satisfy the preconditions for victim healing, but also expedite the positive moral growth and maturity of its charges.
The Canadian Parliament Committee on Justice released a report on sentencing, corrections, and parole entitled “Taking Responsibility.” It highlights the value of encounters between victims of crime and offenders and the resulting benefits, and further recommends legislative changes to facilitate this approach. In addressing purposeful sentencing of offenders the report suggests:
The purpose of sentencing is to contribute to the maintenance of a just,
peaceful, and safe society by holding offenders accountable for their
criminal conduct through the imposition of just sanctions which:
A) Require or encourage when it is not possible to require, offenders to
acknowledge the harm they have done to victims and the community,
and to take responsibility for the consequences of their behavior.
B) Take account of the steps offenders have taken, or propose to take,
to make reparations (or restore) to the victim and/or the community
for the harm done or to otherwise demonstrate acceptance of responsibility.
C) Facilitate victim-offender reconciliation where victims so request,
or are willing to participate in such programs.
D) If necessary, provide offenders with opportunities which are likely to
facilitate their habilitation and or rehabilitation as productive and
law abiding members of society; and:
E) If necessary, denounce the behavior and/or incapacitate the offender.
The Committee went on to endorse restorative justice principles, practices, and programming as the most effective, cross-cultural, and evidence-based practice to achieve these objectives in stating:
The proponents of the concept of restorative justice have long recognized the
importance to both the victim and the offender (and thereby, ultimately, to the
community), of offenders accepting responsibility for their actions and
taking steps to repair the harm done.
As detailed in the introduction and overview of Mending Fences, these restorative justice approaches reduce recidivism, foster offender empathy for victims, serve for social catharsis, enable the moral maturity of offenders, and, most importantly, help to satisfy the preconditions of healing for victims of crime. Additional residual benefits of restorative programming in prisons include the breakdown of the mystification of prisoners as evil human beings that are of little or no value to society, a reduction of in-prison conflict, as well as the potential healing of offender relationships with family and communities of care.
The Virginia General Assembly has likewise conducted no less than two studies of restorative justice practices and their potential application in the Commonwealth’s approach to criminal justice. The bi-partisan Virginia State Crime Commission that the aforementioned Delegate Rob Bell was a member of and now co-chairs, published Report Document No. 48 (2010) on Restorative Justice. The report’s executive summary notes that:
Research has produced consistent findings that victims, offenders, and
communities can benefit greatly from [restorative justice] practices.
In particular, victim-offender reconciliation, also known as victim-offender
dialogue or mediation, appears to be the most widely implemented practice
and provides the most evidence of positive outcomes for victims and offenders
in regards to levels of satisfaction, perceived fairness, and reduced recidivism rates.
Unfortunately, irrespective of the Crime Commission report that openly advocates the development, procurement, and implementation of restorative justice programs as a method of supplementing or enhancing the administration of justice in Virginia, the General Assembly and Department of Corrections have taken few steps to make this type of programming a reality. There exists a gaping hole in correctional programming and a growing demand amongst the prison population for an avenue of reconciliation and restoration with victims, the community at large, as well as with offender families and communities of care. There is little debate that strong, positive networks of social support are an essential element to successful re-entry efforts. Reduced recidivism and enhanced public safety are ultimate end goals of the Department of Corrections, community corrections agencies, and departments of probation and parole. Restorative justice programming, like Mending Fences outlined on this site, as well as numerous other models that are active in prisons nationwide, facilitate the exact type of encounters endorsed by The Virginia State Crime Commission’s report, American Bar Association, Canadian Parliament, as well as numerous other agencies.
A September 2015 PBS episode of “This Week in Richmond” featured Delegate Chris Peace of the 97th District (Hanover), Secretary of Public Safety Brian Moran, and Governor McAuliffe’s Secure Commonwealth Panel member Dario Marquez. Among the many issues discussed were the multitude of studies done by various commissions and agencies of the Commwealth that are published on the Virginia General Assembly’s Website: (http://studies.virginiageneralassembly.gov). Mr. Marquez voiced his dismay that many of these studies are conducted and recommendations made, yet little to no action is taken by the legislature or other government agencies to implement the study recommendations or programs. Essentially the report is filed away and forgotten.
The 2010 State Crime Commission Report on Restorative Justice is now over five years old. It is time that legislators and corrections officials initiate deliberate action to implement meaningful and comprehensive restorative justice programming into Virginia prisons. This may be done by piloting programs like Mending Fences in individual facilities and evaluating its reception and success, or it may be done through multiple models in various facilities. Either way RJBehindtheWire challenges Delegate Bell, Senator Tommy Norment (the patron of the crime commission study), the State Crime Commission, the Virginia General Assembly, executive state officials, and Department of Correction administrators to further their stated advocacy for victims of crime. Let’s make actual outcomes for victims of crime as well as the communities that are impacted by criminality the priority in designing criminal justice policy. All available research, including the endorsement of the State Crime Commission Report on Restorative Justice indicates that this practice “provides the most evidence of positive outcomes for victims and offenders in regards to levels of satisfaction, perceived fairness, and reduced recidivism rates.” The General Assembly and Corrections administrators must take the necessary steps to implement restorative justice programming in Virginia Department of Corrections prisons. We believe it is their duty as elected and appointed officials to make these tools of healing and rehabilitation accessible to victims, offenders, and the community at large.