Friday, July 26, 2013

Making Things Whole Again

     One alternative form of justice offered up in recent years is deemed restorative justice. In broad terms, restorative justice techniques focus on a dialogue between the victim, offender, and members of the community about the crime that has occurred, the type of harm done, how it has affected each of the participants, and the ways that the harm can be healed going forward. Often, these processes are facilitated by a kind of mediator who ensures that each person has a chance to express their feelings and be heard by all the stakeholders in a crime. In this way, the ultimate goal of restorative justice would be for the offender to recognize the harm he has caused, make reparations to heal the harm done, and make steps to assure others that the crime will not occur again. Ideally, the victim of the crime will be satisfied with the reparations and, if possible, forgive the offender. The community members will also feel satisfied with the resolution and be able to welcome the offender back into the community after he has made a sincere effort to make things right again.

      Hypothetically, there are quite a few advantages to restorative justice over more punitive forms of justice. One is that the victim of a crime, arguably the biggest stakeholder in the event, has a forum in which to be heard and understood. In our current criminal justice system, victims are often peripheral to the process: if they do have an opportunity to be heard in a court room, it is normally just to testify regarding the facts of the case, not to be able to work through how the crime has harmed them. In this way, the restorative justice process should ideally give more closure and emotional satisfaction to the person who is harmed most by a crime. Further, most of the people who commit criminal acts are not the hard-hearted sociopaths that lack any sort of empathy. Instead, they often rationalize with ideas such as the victim deserved it, can afford it, and so forth. By giving the victim of a crime the chance to be heard by the offender, the offender should ideally come to see the seriousness of their actions and the humanity of their victim.

      Another advantage is that by opening up a dialogue about the events, rather than attempting to establish blameworthiness through traditional court processes, the restorative justice process leaves open the door for the offender to be reintegrated and accepted back into the community. By giving the offender a chance to voice his own experiences, the restorative justice processes seek to understand what may have driven someone to commit such a crime and increase understanding between members of the community. This is not to say that participants should seek to find mitigating circumstances that pardon the offender from any blameworthiness. The actions of the offender should be condemned and participants should seek for the offender to take responsibility for them. However, instead of the offender being seen as a morally-blameworthy person deserving of punishment, participants in restorative justice processes should seek to condemn the actions but understand the person behind them. This is akin to the biblical message of 'hate the sin but love the sinner.'

     The community aspect of restorative justice is important as well--instead of the more broad, nebulous figure of the state being involved in punishment of the offender, the community should seek to understand why someone among them would act in a way to harm their own community and should seek to find ways to reintegrate and accept the person back into their group. This ideally cuts down the sharp, antagonistic divisions between offender and offended, and instead emphasizes interconnectivity and unity. This emphasis lessens feelings of resentment between punisher and punished and should decrease the chances that the offender becomes stigmatized and excluded from society, which in turns decreases the chances of reoffending.

     Despite its hypothetical advantages, restorative justice is not without its problems. On a practical level, restorative justice processes can typically only take place when an offender has admitted his guilt. If the person who has committed the crime has not shown any willingness to take responsibility for the crime, restorative justice processes are essentially ineffective. Further, making the offender's punishment subject to the wishes of their victim has the possibility of becoming even more punitive than a third party, impartial judge. Because of the emotional trauma often involved in a crime, it can be difficult for the victim of the crime to think rationally or avoid vindictiveness. Some speculate that this is the reason why the eye-for-an-eye rule was instituted--to ensure proportional response to crimes, rather than blood feuds in which families were slaughtered wholesale due to the actions of one of their members. In fact, it might be almost offensive to believe that victims of certain crimes could come to forgive and accept a person that has wronged them. However, it is the facilitator and community members' jobs to ensure that the reparations made by the offender are indeed proportional and do not devolve into the type of punitive consequences that restorative justice seeks to avoid. Further, I think that the role of restorative justice processes for the victim should be seen as a way for the victim to work through their trauma emotionally and ensure that the victim is heard. Forgiveness and compassion are eventually ideal, but certainly not required. General statistical findings indicate that victims of crimes are typically more satisfied with restorative processes, but this could be a reflection of the type of people that choose to be involved in such programs.

     Further, communities themselves are not immune to the types of hierarchical power relationships that restorative justice seeks to avoid. Wealthier or more politically powerful members of a community are not likely to face the same type of dialogue that someone lower on the socio-economic rung would face. Communities also often define themselves by what they are not, as opposed to what they are. When an offender is seen as residing outside the community, it can be difficult for restorative justice processes to attain the goals they seek to achieve.

     Additionally, many restorative justice processes rely on instilling shame in the offender so as to inspire him or her to take responsibility for his actions and wish to make reparations. Shame itself is not necessarily an overly punitive tool--shame is a social feeling that can remind us that what we have done is out of line with even our own standards. However, if used excessively or in a way that makes the offender feel as though he is not able to reintegrate into the community, restorative justice techniques can be just as punitive and antagonistic as the forms of justice it seeks to correct. And though it poses itself as an alternative to more punitive forms of justice, it still relies on the distinctions between offender and victim, right and wrong, legal and illegal that underlie our current system of justice. If restorative justice truly seeks to be an alternative to our current system instead of carving out a niche within it, it must seek to engage more radical questioning of divisions between guilt and innocence, legal and illegal, punishment and treatment.

    This leaves us with perhaps the greatest problem with restorative justice: how can one restore that which cannot be restored? Crimes like theft, property damage, and so forth are much easier to repair. But what of crimes like murder and rape? Because of the types of harm these do and the types of emotional trauma involved, restorative justice does not seem appropriate. When someone has been raped, it would seem near impossible to ever restore what has happened or forgive the person that has done that. But to me, creating more ugliness from such a situation is one of the worst possible things to do. Punitive justice systems have, for centuries, sought to ways to justify and explain why two wrongs make a right. One of the first moral lessons that many of us learn growing up is that this is in fact not the case: that striking someone back creates two black eyes out of one. Creating deeper wounds merely adds scars. Giving into feelings of anger and vengeance only leads to bitterness and resentment.

     In this way, despite it's many flaws and problems, I find restorative justice more appealing because it is dialogue-based in nature. It takes an event in which harm is done and it seeks to create understanding and connectedness between all parties. Instead of condemnation, it offers avenues for redemption. The messages of restorative justice are of the 'we' variety, not the 'you and I'. Instead of further shattering lives that are already very apparently broken, restorative processes seek to create something better, something more whole. Can we, as a society, learn the same lesson we did when we were children, that harming someone in response to the harm they visited on us makes us worse, not better.

As a wise man once said, "We must learn to live together as brothers, or perish together as fools."

Friday, July 19, 2013

Prisoner; Criminal

     Think of a criminal. Create a mental picture of someone you think who is locked in a prison right now. Chances are, you imagined someone who is not white, has tattoos, might be a little stockier than average, and is probably quite a menacing figure. Statistically speaking, this might be a good guess considering that Blacks and Hispanics are incarcerated at a much higher rate, making up roughly 60% of the prison population while only making up about 25% of the US population.  

     In any case, this is the standard conception of the criminal. After all, when you imagine someone committing a crime, it generally isn't a white woman wearing khaki pants and a blazer. In all likelihood, when you picture a thief or a murderer, it's a poor, ethnic male who probably looks out of place in white suburbia or higher SES neighborhoods. This is the common meme in our society and its one that perpetuates the idea of necessity being "tough on crime". This is an easy position for political figures to take, considering no one particularly cares for crime, but the underbelly of this message is that being tough on crime involves transforming the "rabble" into people who are inoffensive to the rest of society (i.e. inoffensive to those with actual political power). 

     Even if this were not an incredibly flawed notion, would sending these people to prison be the best way to achieve real reform? Consider what happens when someone has a criminal record. They are shamed in courts. They are put in prison to which is attached to great social stigma. Convicted felons have an infinitely harder time finding a job that would afford them a living wage. Job and college applications have spaces where one must disclose any crimes or infractions one has previously been convicted of. Felons have their voting and many other civil rights stripped from them. And all this serves to do is take someone who was in all likelihood living in unfortunate circumstances and place them in even worse ones. As George Bernard Shaw writes in The Crime of Imprisonment, "Evidently your deterrence does not deter. What it does do is torment the swindler for years, and then throw him back upon society, a worse man in every respect, with no other employment open to him except that of fresh swindling." 

    Many of the prisons in northern Europe have begun to operate by the principle of approximation--the idea that life within penal institutions should resemble life in the outside world as closely as possible. They also take precautions to protect people from public shaming and other forms of degradation that are typically associated with incarceration in America. I have witnessed reactions of surprise to outright dismay at some of the images of Norwegian prisons that are more akin to a vacation cottage than the highly rigid and secure penal institutions of the United States. How could they allow people who have done wrong to experience such lavish lifestyles, these people seem to ask. They don't deserve that kind of treatment. And yet, with a recidivism rate of less than 30%, it's difficult to argue with the results of these types of programs. When someone who commits a crime is dehumanized and stigmatized, what reasons do they have to try and participate in a society that has clearly shunned them?

     Let's think back to the type of people more likely to end up in prison. Minorities are much more likely to end up in prisons than their white counterparts, even for similar crimes. I suspect many of the people who read this blog, at the very least, know someone (quote/unquote) who has, at one point in their life, smoked marijuana. The punishment for misdemeanor possession of marijuana in Tennessee can be a sentence of up to a year in prison. And yet, the person with economic power is much more likely to receive a fine or a light slap on the wrist than someone from a poor ethnic neighborhood. Even if both are arrested and charged, the person with economic power is more likely to be able to navigate the legal system in that they are going to be able to pay for bail, hire a lawyer, and pay any fines levied on them. The poor person does not have these luxuries and is thus infinitely more likely to end up in jail for an identical crime. And like that, the prison becomes a home for someone who has lost what little they already had. After doing his time, he is released into a world that is distrustful and disdaining of him. Perhaps he has lost his home during his time in prison and is now subject to being convicted of crimes like vagrancy and loitering. He returns to jail. Thus, the cycle of imprisonment begins for a person who did nothing we don't expect from thousands of college kids on any given day. 

    In this way, the prison has a vested interest in not reforming its prisoners, as the longer and more frequently they can fill their cells, the more economic power they wield. When private prisons hold contracts with the government that assure them at least a 90% occupation rate over 10 years, there is no reason for the jailers to make any real attempt to reform the prisoners in any authentic way. Thus the prison becomes like the bureaucracy, expanding and creating reasons to justify its own existence. The poor and socially-offensive are permanently branded as criminals so as to justify their forced segregation from the rest of society. Punitive measures in the name of reform become nothing more than social politics and exercises in discipline and conformity.



Tuesday, July 16, 2013

Thoughts on the Zimmerman verdict

     Though a few days late, I thought I would put into words some of the things I've been thinking about the Zimmerman verdict from the perspective of having done research on justice for the past 6 weeks. Here it is:

Based on the evidence, I don't think that Zimmerman is guilty of murder in legal terms. Do I think one could make the case that he committed manslaughter? Probably. I also think that if Trayvon Martin had been a white teenager, he would probably be alive today. If George Zimmerman had been black, I have a very hard time believing he would not have been convicted. 

     Was justice done?

     I'm not particularly inclined to think so, but I don't think that convicting Zimmerman of murder and sending him to jail would have done much more, if anything, to serve justice. At the end of the day, a 17-year-old kid was shot and killed and regardless of the jury's ruling, and Zimmerman will be a condemned man in the public eye for the rest of his entire life. 

     So what do I think would be just? I think it would be just for there to be public recognition, by the state and/or Zimmerman himself, that what Zimmerman did was wrong - that his racial profiling and vigilantism created a threatening situation in which violence was ultimately used. Had Zimmerman decided to go home instead of pursuing Martin, the death of a teenager might have been avoided. But I believe that visiting harm and punitive punishment against Zimmerman--via legal means or extralegal ones--won't restore anything that has been lost. Were this event to be used as a catalyst to spark an open and honest dialogue about race in America, were it to help us to reach out and try and understand one another, that would come far closer to restorative justice. 

     I can also understand the pain and outrage from a community that historically and presently faces unequal treatment under the law. We can imagine the kinds of message this verdict sends to our black communities across the United States. The exoneration of Zimmerman implies that it's okay to follow and harass black teenagers if one thinks that they might be 'up to no good'. In a lot of ways, it validates the stereotype of the African-American male criminal. It implies that blacks are inherently dangerous and not worthy of our compassion or care. And in light of the many injustices and imbalances that poor African-American communities face under the legal system every day, the ruling of this case, legally correct or not, seems to rub salt further into the wound.

     One of the most abhorrent things I found about this case was the media's portrayal and following of it. The outrage stirred up and incited by imbalanced reporting and selective editing of the 911 calls never fully dissipated, even after evidence was released that indicated that Martin attacked Zimmerman. The case was politicized, was drawn among racial lines. Hoodies and skittles became memes. During the trial, news programs treated it as though it were some sort of reality show contest. The sensational coverage utilized by the media nearly ensured that no kind of restorative resolution could come from the case.

    How many other people, regardless of race, were killed that night? How many other people faced unjust court rulings? If you care about the quality of justice done in the Martin case, I ask you to also care for the application of justice in many other unfair ways across this country. If you believe in the validity of stand your ground laws, then I ask you to believe that they apply regardless of the skin color of the assailant or the victim. If you are outraged at the injustice of the murder of a young teenager, I ask you to be outraged by violence committed by anyone in our communities, from abusive spouses to prison administrators, from gang members to overzealous police forces. 

      In the end, no matter what the court ruling, a seventeen year old kid is dead and another one of our citizens faces social death. Justice does not come from reopening and recreating the wounds and pain caused by violence. It does not come from reinforcing the segmentation of us versus them. Can we imagine that the legacy of Trayvon Martin could be something other than a national split over whether or not justice was served? Could it become something more than another youth falling victim to gun violence? Is there some way in which we could be made better from this, rather succumbing to temptations of vengeance and vigilantism that was at root of Zimmerman's own actions?

     For me, justice comes in the form of picking up the pieces of a tragedy and making them into something more whole, something more beautiful.

Friday, July 12, 2013

Behind the Bars

     The prison has, for a long time now, been the bread and butter of American institutional justice. In fact, the United States apparently believes in the efficacy of the prison so much so that, despite the fact that it holds 5% of the world's total population, it holds around 25% of the world's prison population. This is despite the fact that crime rates overall (especially violent ones) have been on a steady decline for the past few decades. In this post, it is my intention to examine some of the ways that the prison functions both as a part of our society as well as a micro-society of its own.

     As Michel Foucault notes, the prison's widespread use was largely born from a desire to punish more humanely. In the era leading up to the 19th century, bodily harm was typically visited upon the criminal. Foucault's Discipline and Punish begins with a graphic description of the criminal's flesh being torn from his body with hot metal pincers before his body is burned. The stock and pillory were common punishments for criminal offenders as well, made to endure extreme discomfort and public shaming. In this way, the punishments were an extreme deterrent for those thinking of criminal acts: See what happens when you commit a crime?

     The prison in present day functions almost in a completely opposite manner. The prison is a place to which undesirable elements are removed and kept separate from society until they can reform. The prison is a place that we don't have to think about consciously. We can be assured that the necessary processes are taking place for the reform of these prisoners, but those who are deemed to have traits incompatible with a smoothly functioning society are kept out of public view, and thus, largely out of public consciousness. This is not to say that the prison doesn't still function as a deterrent measure of justice: we are assured that prison is a horrible place by media that suggests rampant gang rape ('Don't drop the soap!'), daily stabbings and riots, and characters of pitiless evil that reside within the prison walls.

     And yet, how many of us have actually seen the inside of the prison? Viewed the daily inner-workings? Talked to the men and women it houses? In essence, the prison does not solely functions as a way to keep criminals separate from society. Its walls, rigid segmentation, and systems of surveillance also serve to prevent public oversight and interaction with those within the prison. The prison keeps criminals inside and society outside. This both deepens the distinction between the guilty and the innocent (as if they were separate sub-categories of humans) and places the prisoners largely at the mercy of their custodians.

     The guards, wardens, and other staff of the prison are either employees of the state or, in the case of private prisons, are contracted by the state. This means that the order, discipline, and violence visited upon the prisoners can be readily viewed as state-sanctioned. The violations of privacy, rigid disciplinary provisions, and mandatory cavity searches all become state-sanctioned actions under which the prisoner is held under the overwhelming power of the state. The division between the prison and society further places the prisoner in a situation where society's silence over his condition further sanctions the violence visited on him or her. The prisoner is denied private dominion over something so basic and taken for granted as the body. It should be no surprise to us, then, that many forms of resistance used by prisoners are those that are bodily in some way. The weaponization of bodiy fluids is a manner of using the only resources left to the prisoner. Hunger strikes and self-mutiliation are the ultimate demonstration of authority over one's body: that one is so in control of their body that one is willing to sacrifice the flesh. Steve McQueen's film Hunger is an excellent portrayal of such a struggle by imprisoned members of the IRA in the UK.

    And what choice does the prisoner have but to find modes of resistance? As Albert Camus said, "nothing is more despicable than respect based upon fear." If prisoners are placed at the bottom of a power dynamic by which their lives and liberty are fully in the hands of the state, what can they do but to try and reclaim some power. In fact, is this not something that we can all relate to? It is not just the prisoner who is at the mercy of the state. It is not so hard to imagine ourselves in a position under which our own fates could be decided at the hands of a judge and jury. Many of us have likely committed crimes that, under the law, jail time could have been served (from speeding tickets, to underage consumption, to petty theft). And yet, it is generally only the poorest among us who are convicted and separated from society.

    I expect that one counter-argument to these ideas is the notion that those who have committed a crime have forfeited their rights as a citizen. This is a common mode of thinking and is reflected in practices of society like denying felons voting rights, cutting funding for prison outreach organizations that promote education, reform, and vocational training, and so forth. It seems hard for us to imagine helping someone who has committed murders or stolen large sums of money and property or have otherwise visited very legitimate harm on others. As one attendee of a public philosophy lecture put it: why should I care about the health care of violent criminals when I myself struggle to afford health insurance?

    To me, this reflects an important point: that the division between guilty and innocent is not so distinctive as we might wish to believe. We cannot trust the labels between the two to do the work upon which society is founded. It's not difficult to imagine that had we been raised in an environment and subject to the same conditions as these prisoners that we might have gone down the same path. Can we come to view these people not as undeserving of our help, but those who need it the most? Perhaps a rising tide can indeed lift all boats.

     I want to conclude with an anecdote from the John Irwin's Lifers, a book that features interviews with California prisoners who are incarcerated under indeterminate sentencing. One lifer had gotten two of his adolescent children involved in outreach groups that worked with the prison in hopes of preventing poor youth from committing crime. The group, called SQUIRES, had been a very positive force in each one of their lives. It came time for the father's parole hearing for which he was extremely hopeful. The parole board came back with an extension of his sentence and within two weeks, both of his boys had been arrested for separate crimes. Today, both boys, now adult men, are in jail along with their father.

   When we tear away family members and support networks from the communities that need it most, we doom those forgotten members of society into hopeless cycles of incarceration, criminality, and desperation.

Wednesday, July 3, 2013

God and Justice (part II)

     Because of the short week due to the holiday, I spent the past few days revisiting much of what I'd written about last week. I also sat down with Alan Bancroft, the Vanderbilt campus Presbyterian minister to discuss some of what I had written about last week.

     Generally, it's difficult to assume certain things about the religious viewpoint, as religious viewpoints even within certain religions are varied and nuanced. As Bancroft pointed out, it's possible to read biblical scripture in a way that doesn't attribute the three O's (Omnipotence, Omniscience, Omnipresence) to God, even though that's one of conceptions of God that is maybe most widely agreed upon. So while one person in one faith might say that God grants all of humanity grace and thus criminal justice on earth is solely what is necessary for society to function, another reading the same scripture might determine that we have a duty to dole out God's justice because it is the morally correct thing to do. In so far as religion relates to punishment in this way, it's hard to reconcile 'God's justice' with human justice if we can't agree on exactly what God's justice is. For example, one opinion I read was that God's justice was bringing the widow, the orphan, and the poor into society and recognizing them as one of our own. St. Anselm, on the other hand, believed Jesus essentially served a tool for satisfying God's honor and retributive nature. In any case, it's difficult to exactly say how any conception of a heavenly law and earthly law are really intertwined. This is why we see bible verses held up on both sides of the street when people gather outside a prison for an execution.

     Ultimately, my feeling is that people like to think of God as both a harsh judge and a forgiving grace-giver simultaneously because it guarantees a certain outcome: that the people who have done wrong by us, no matter how fruitful and prosperous their present life, will eventually get what's coming to them while God will recognize that any bad actions that we have personally done are forgivable and not done out of malice. In a sense, it's the religious version of the Fundamental Attribution Error.

     The link between organized religion and prison populations is also interesting. When imprisonment began to be viewed as a rehabilitative process, rather than just punishment for crime, the conception of rehabilitation was to essentially lock the prisoner in a cell with a bible and tell him to find God. He would be considered rehabilitated once he had taken up religious convictions. Even today, there is a huge amount of outreach by religious groups into prison life, even to the point of investment into private prisons. The cynic might view this an easy way to reach new converts (a captive audience, so to speak), while others can validly point to social support and community assistance that many of these religious groups provide. In any case, it seems like there is something about imprisonment that often leads to religiosity. My own feeling is that this is because of two different aspects of religion. The first is that many religions preach messages of forgiveness for those who have sinned or done wrong if they provide some sort of atonement; that there is nothing that is unforgivable so long as they open themselves to God. For a prisoner who feels guilty about his actions, this may be a very attractive message. The second is that it guarantees that the prisoner's suffering will end eventually and that he can reach a heavenly afterlife. This is the same line of reasoning that was promoted to keep slaves from rebelling: that life on earth might be horrible now, but what is that compared to an eternity of salvation? So while religion can be an avenue to reform and a source of support for reintegrating into society, it also seems like it can be a force for keeping an entire underclass of society in their place.