Reflections on Restorative/Transformative Justice

The United States comprises 5% of the world population, but 25% of the people imprisoned throughout the world. While we call many other regimes repressive, our imprisonment rate is higher than the rates in Iran, China and Russia. In the U.S. 750 people out of every 100,000 are in jail. Beyond that, the U.S. imprisons more racial and ethnic minorities than any other nation. “In Washington, D.C. . . . it is estimated that three of four young black men . . . can expect to serve time in prison.” As Michele Alexander has pointed out, “Studies show that people of all colors use and sell illegal drugs at remarkably similar rates. If there are significant differences in the surveys to be found, they frequently suggest that whites, particularly white youth, are more likely to engage in drug crime than people of color.” Nevertheless, people of color are arrested and prosecuted at much higher rates. Something else is at work here. That something else is a racially oppressive judicial system. (from Michele Alexander, The New Jim Crow—intro.)

President Obama states, “In too many cases, our criminal justice system ends up being a pipeline from underfunded, inadequate schools to overcrowded jails.” Our current judicial system is undergirded by citizen demands for punishment, laws that mandate long sentences, the prison-industrial complex, the militarization of policing, failing schools and an ever-widening distance between the haves and have-nots. It is a retributive system, based in inequality. This system is so much a part of our experience, that it is difficult to imagine how else we might approach those who break our laws.

Central to a different approach is Transformative Justice, “a way of practicing alternative justice which acknowledges individual experiences and identities and works to actively resist the state’s criminal injustice system. Transformative Justice recognizes that oppression is at the root of all forms of harm, abuse and assault. As a practice it therefore aims to address and confront those oppressions on all levels.” (Transformative Justice: A Curriculum Guide) It is important to note here that transformative and restorative justice practices come to us from indigenous peoples and are not, therefore, something new and untried.

The goals of Transformative Justice are (from Transformative Justice: A Curriculum Guide):

  • Safety and healing for survivors (retributive justice systems do very little except promise a sense of revenge for the harm done)
  • Accountability and transformation for people who harm
  • Community action, healing, and accountability
  • Transformation of the social conditions that perpetuate violence – systems of oppression and exploitation, domination, and state violence

The principles of a Transformative Justice approach to addressing all forms of violence include:

  • Liberation
  • Shifting power
  • Accountability
  • Safety
  • Collective Action and
  • Respect of Cultural Difference

Transformative Justice invites us to ask: How can our communities respond to traumas so that there is accountability for the harm and support for everyone involved in a way that is transformative—[that changes people and heals the situation? When we send someone to jail or demand capital punishment, what has been done to heal the situation? What happens in jail that is transformative for everyone involved?]

  • How do we shift power towards collective liberation?
  • How do we build effective and sustainable movements that are grounded in resilience and life-affirming power? (Generation FIVE from Philly Stands Up)

There are a number of arguments surrounding the terms restorative justice and transformative justice.  As Candace Smith writes, “While Transformative Justice more plainly states its objective of achieving social-level and individual-level transformation, the less ambitious term restorative justice necessarily leads to questions regarding what we want to restore. If one poor neighbor steals from another poor neighbor, are we just seeking to restore the victim to his previous level of poverty? With the term transformative justice, it is more blatantly clear that we wish to not only provide restitution to the victim, but that we want to improve the overall situation for the victim, the offender, and the community.”

Howard Zehr, a practitioner and teacher of Restorative Justice “thinks of RJ and TJ as being essentially the same. While they may lead to some differences in practice, he sees each as aiming to lead to positive social transformation.” (Candace Smith, Restorative Justice and Transformative Justice: Definitions and Debates)

While I know that we haven’t been able to find a way to alter the behavior of psychopaths, they are a very small percentage of those who are in prison. To argue that we cannot move towards Transformative Justice because of that population seems shortsighted to me. Some people will probably need to be imprisoned or placed in mental health care, but it is absurd to think that 25% of our population must be imprisoned, as is currently the case.

Beyond that, I think it is extremely important that we begin to do more to support the survivors of criminal activity. That those who survive are given so little support and attention is tragic. That they are often doubly injured when they have to appear in court is unacceptable. As Sr. Helen Prejean has noted, even the execution of the murderer of a loved one does not often bring relief to the family and friends of the victim.

Some might think that the call for Transformative Justice is an idealized vision, but I think that the story of Jean Valjean from Victor Hugo’s Les Miserables, is a clear example of the difference between retributive and transformative justice. Valjean spends 19 years in prison for stealing a loaf of bread and is released feeling angry at the injustice of the sentence and the fact that he will forever be labeled as a criminal in the paperwork he must carry. An encounter with a priest who shows him love and tells him that he can be a positive part of the community changes him and he fulfills that dream rather than the expectation of the justice system that he is someone to be feared and controlled. This is the significance of what can happen if we treat others as individuals who are an important part of our communities instead of locking them away. Yes, it may not work in all cases. However, the loss to our communities in every way that the retributive justice system ensures is not worth continuing. That is especially true because the justice system has become an extension of Jim Crow and is doing irreparable damage to the black community.

So I want to leave you with these questions to ponder (from: Transformative Justice: A Curriculum Guide). It is essential for us to understand our own responses to these questions and to have public dialogues around them so that we can begin to see how our justice system relates to our values and what we need to do to align the system with our values.

  1. What comes to mind when you think of the word “Justice”?
  2. In the event of a harmful act (anything from sexual harassment in the workplace, to racially motivated hate-crimes & murders), what does it mean to “get justice”?
  3. Who or what makes it possible to “get justice”? Can achieving justice involve causing some form of harm? How so?
  4. How do you know when “justice” has been achieved? What if various people affected by the harmful act do not agree on what constitutes justice?

–Cynthia Lehman

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