Retribution & Restoration: Finding Common Ground
How society responds to crime causes no shortage of discussion and debate. This debate persists today in Virginia. How do we punish? Do we reform? Should we rehabilitate? While the debate rages on, our criminal justice system becomes ever more ineffective. Despite the proven failure of the singular retributive approach in Virginia, we keep expecting to incarcerate our way out of the problem of criminality. We expect people who break the law to be punished first, with any thought of actually rehabilitating the offenders only tacitly and grudgingly acknowledged.
Currently, the criminal justice system's consideration for those who have been impacted by crime, particularly after court procedures are over, is negligible at best. It is reasonable to argue that the citizenry of the Commonwealth would prefer a better or enhanced system of criminal justice, one that produces fewer instances of recidivism and therefore fewer victims of crime. A system that is viewed to be working in the best interest of our communities instead of one that is a constant source of frustration and dissatisfaction. If the citizenry and polity so chooses, there is another way to respond to those who offend - a way that offers hope of changing lives and communities for the better. The principles of restorative justice provide a framework for this desired change to occur.
The scope of criminal law is limited. It deals with people as citizens, victims, or offenders. People are far more complex than these roles, and they have many needs that are not addressed by codified penal law. As we outlined in Fulfilling the Preconditions of Victim Healing and Offender Moral Maturity through Restorative Justice Programming, people have moral duties or obligations to others that fall outside the scope of what the courts or corrections currently address. The practice of restorative justice (as a supplement to current criminal justice protocols) provides a substantive mechanism to perhaps narrow the gap of unsatisfied needs for victims of crime, their families, the community, and offenders alike.
The Virginia State Crime Commission has made its position on restorative justice clear. They declare that "The current approach of justice in Virginia can, at a minimum, be enhanced by...restorative justice practices." Some authors and commentators view restorative justice as completely opposed to the current retributive paradigm in Virginia. Others, including RJBehindtheWire, see the two as being compatible in many ways. While there exists profound differences between the two that need to be acknowledged and respected, there are many ways that retributive and restorative justice practices can compliment one another. The possibility exists that the perceived incompatibility between the two models of justice may in fact be a catalyst for creative tension that opens a dialogue for change and mutual objectives. This discussion can extend to the role of retributive and restorative justice models in rehabilitating prisoners.
While restorative justice and prisons can be viewed as occupying opposite poles on a meter, Virginia's prisons (and jails) are overflowing with offenders in desperate need of restoration. These individuals are the most damaged and damaging in the Commonwealth. Unresolved conflicts about their relationships with those they have harmed, as well as with the community, often remain within offenders irrespective of the opportunities for change or individual development that they are presented with while incarcerated.
In Mending Fences, as well as other writings on this site, we outline many of the benefits restorative justice practices provide that transcend the labels of citizen, victim, and offender. We have also spilled a great deal of ink illustrating the dichotomies between restorative and retributive justice paradigms. Again, while these differences need to be acknowledged and respected, retribution and restoration actually posses many commonalities - both aim to right an imbalance that has been created by an offender. Where they differ is the mechanism through which the imbalance will be righted. Both recognize that there should be proportionality between offense and response. However, the currency with which equity is to be established differs in the two seemingly "opposite" models.
There are retributive elements that are part of a restorative approach. If we are to disregard them as being mutually exclusive we therefore ignore the possibility of commonality, compatibility, and reciprocity. Yet, as long as corrections and the polity continue to view criminal justice through the singular lens of retribution, actual outcomes for victims, offenders, and communities will continue to be ignored. Modern restorative justice pioneer and author Howard Zehr asks us to view justice as a continuum, with the principles of retributive and restorative justice as opposites, but, with the possibility of overlap between the two. Some practices are more legalistic while others might be partially or fully restorative in nature.
RJBehindtheWire believes that Virginia's current approach to justice skews primarily to the retributive side of Zehr's continuum. While civil society certainly needs the safeguards of a well functioning criminal justice system, we also need to be aware of the deficiencies of our existing system and take appropriate steps to address these shortcomings. Although the necessary initial response to a criminal event may be primarily legalistic within the prism of identification, and, where appropriate, apprehension, the subsequent protocols should default to being restorative in nature. The system's mission should be to make the justice process as restorative as possible, for all involved. If these processes prove unsuccessful or unsatisfactory to stakeholders, then less restorative and eventually retributive methods can be implemented.
Our primary purpose for creating RJBehindtheWire and Mending Fences is to contribute to the successful growth of restorative justice programming Virginia prisons. We believe that restorative justice, in concert with existing and emerging programming innovations, has the potential to humanize Virginia's prisons (and offenders), improve public safety, and aide in the healing of those impacted by criminality. Although the potential of restorative justice in Virginia prisons is considerable, it should not simply be viewed as a tool to reduce crime and recidivism (though this is a proven residual benefit) but as a means toward empowering offenders to take genuine responsibility for their actions and to make amends to victims and the community.
It appears that Virginia corrections currently lacks the mandate and expertise to implement restorative justice programming. More importantly, restorative programming must include the community's participation and input. Corrections and State officials should consult with local practitioners who have expertise in facilitating restorative programming. Multiple models should be sought out, utilized, and assessed in order to address the broad and varying needs of victims, offenders, and communities of the Commonwealth. To presume that a single program model is a panacea or proverbial "silver bullet" would be irresponsible and a disservice to those most in need of the tools of healing, reconciliation, and rehabilitation that restorative justice provides. In seeking out, acquiring and implementing the sort of restorative programs that Mending Fences represents, Virginia prisons can become institutions of healing and genuine transformation for the offender population, the community, and those directly affected by criminal behavior.