The criminal justice system is broken – this is without a doubt. The issue lies in the way we understand the issue, the way we look at what is “criminal” and define what is “justice,” and in how we morally treat each other as human beings. Ethics, no matter one’s spirituality is always inseparable from what we do, however it has gotten confused sometime in history. To analyze what has led to our criminal justice system today and to proactively move forwards towards a better future, we must interpret the past and how it undalates into our present. From there, we can better understand why the solutions of tomorrow, specifically restorative justice, is so beneficial. We’ve learned many lessons in our Rikers course with the assistance of our brothers; the personal relationships formed have opened up perspectives in our various readings that are invaluable. Using this, it is more apparent the evolution of the criminal justice (its past, present and future) and the burden this places on humanity.
In the early history of the criminal justice system, there were two types of trials: the common law of England and the civil law of the Continent. James Q. Whitman chronicles the theological roots of the criminal trial in “The Origins of Reasonable Doubt.” Before the common law of England, that relied upon the testimony of witnesses, and the civil law of the Continent, that utilized ferocious investigative methods to uncover the truth at all cost, there were the superstitious procedures of the judicial ordeal (A.D. 1000). The latter declined as a result of religious attacks, Whitman explains. Though the ordeals were brutal, such as the burning of the hand to establish guilt, they often led to an absolution of the accused from the crime. The accused would invariably healed after the burning iron and the specters would have to accept God’s mercy. This led to a more compassionate, forgiving outcome than what developed afterwards. As the ordeals dissipated from the world, replaced by more rational, proto scientific approaches, the critique on individual guilt bear ever heavier. As a result, we are tough on crime and the truth is synonymous with justice; all that matters is finding it. The process has almost become dehumanized. “What mattered most about the ordeals was their capacity to spare human beings the responsibility for judgment” (Whitman 56). Therefore, it didn’t matter what the facts actually were and the “unpleasant obligation” didn’t rest on the shoulders of witnesses. Justice was mercy; it worked in mysterious ways and it was determined by God.
The ancient ordeals bore a lot of similarities to “The Rule of Saint Benedict,” of which is translated by Abbott Justin McCann of Ampleforth. In both systems, mercy played a prevailing role in judicial affairs. The abbot is advised to “imitate the merciful example of the Good Shepherd” (McCann 76) by taking “charge of weakly souls” that have erred from the good path. Like with the judicial ordeals, it is not pleasant to judge; it is fearful to do so and that is why the monks at Saint Benedict do so with great sorrow and humility. This sense of “sober duty” in punishment is what has been lost in the rational, inquisitorial systems of justice today. Furthermore, Whitman explains that judges are expected to “approach their task in a state of anxiety. The church forbade the shedding of blood” (93). A judge that killed for any other reason than for the “love of justice” committed a mortal sin and was “carried off by demons, struck dead on the bench by bolts of lightening, and more.” Though this is superstitious and appears silly by our modern standards, it deterred one from becoming too heavy-handed and vengeful in the pursuit of justice. Again, like the ordeals, it removed the guilt and responsibility of judgment from our neighbors. There existed a moral fear of condemning another; it is not our right. It is far to easy to get lost in the process, and take pleasure in the control of another human life.
However, the common law and continental law, also known as the jury trial and inquisitorial procedure respectively, pushed the weight of judgement upon others. Focused on being more rational, and relentless in the pursuit of the truth, it still had its own foibles of persecuting the innocent. However, most importantly, it detracted from the environ of forgiveness and mercy that was so constructive in the ordeals. Society as a whole became colder towards those that had erred from the good path. It became something that couldn’t just be remedied through prayer and reflection; it was to be outcasted, condemned, and dehumanized. We no longer feared in causing harm towards another human being; retribution was justice. Now, there is little or no fear of bringing harm to the guilty. As Whitman states, “good judges understood how to kills strictly for justice…” not from spite. There was a lack of moral certainty. Like the ordeals, “The Rule of Saint Benedict” had a merciful approach towards righting wrongs. Human beings are inherently imperfect and through the guidance of someone wiser and more experienced can they heal and find their way back to the path of light. Restoration is possible. On the other hand, we also have had, in the past, the common and the continental law, which was a reaction against the religiosity of the ordeals. Though, more rational, these procedures were more retributive in nature as they lacked a compassionate outcome. And most drastically, they give one the power and the right to cut down the lives of others if one deems it necessary. These different approaches are the ancestors to what we witness today.
In our present day, this personal responsibility and condemnation of the “other” continues. “Stigmatized populations are the public-aid recipients and the street criminals framed as the two demonic figureheads of the ‘black underclass… ’” (Wacquant 74). “Blackness” itself has become synonymous with the criminal, the modern day monstruum. The African American men from the ghetto, he claims, are the ones that are hyper-incarcerated, targeted by the American police, criminal courts, and prisons for over thirty years. The location is the ghetto. The crime is the melanin of the skin, and the rich culture and heritage that surrounds it. Loic Wacquant also attempts to analyze the reason why we punish. He returns us to the early history of the prison when it’s design was to “dramatize the authority of rulers, and to repress idleness and enforce morality among vagrants, beggars and assorted categories cast adrift by the advent of capitalism” (80). Even now, much of that is true and ultimately, it serves to benefit the “metropolis of the neoliberal capitalism.” This neoliberalism that we have retrograded back to is problematic in the criminal justice system as it punishes those convicted further, deigning them as fully responsible for their crimes. This view of personal responsibility is also the basis of Herbert Morris’ argument on the right to be punished. In “Persons and Punishment,” Morris believes that not punishing the individual would display a “lack of respect for the reasoning and choices of individuals” (Morris 487). Though, this is more complicated as we learn in social justice that certain individuals have less of an opportunity to make good decisions than others, say an African American boy in the ghettos.
Furthermore, Quinney agrees with Wacquant on many fronts about the nature of punishment in America. “The criminal becomes a social type… understood by the observer as one who possesses attributes that are believed to be characteristic of a class of people” (286). Thus, those who act out of what society has demanded them to be, no longer playing the role of the perfectly law-abiding citizen, are immediately labeled as deviants and punished. Or as Morris would say, they are distributing the benefits and burdens of society unfairly by being the ones to not abide by the rules. The punishment, thus, exacts the debt they owe. However, we know this to be more complicated at issue than that and some criminal classes are unfortunately already born based on skin color and economic status. The media has shaped our perception to envision blackness and melatonin as a sign of lost innocence, of inherent criminality. The reality of it is that “crime is a definition of human conduct that is created by authorized agents in a politically organized society” (Quinney 15). Crime is political. A judgment has been made by the powerful to create this definition which is imposed over and over upon others. People are defined by behaviors associated, though not causative, of the crime to be criminal. This is how the “other” is created and how it is so effective in the rhetoric of our political leaders today in fear mongering speeches. It is political because those with the most power have the capacity to formulate these definitions. They can impose them on others, shaping the public perception and regulating its behavior to one desirable to the free market. Moreover, these “criminals” are essentially stereotypes; they are social deviants such as homosexuals or marijuana smokers. They are our scapegoats.
The renascent neoliberalism has led to a surge in jail and prison admissions of 12 million annually. The crippling penal state has swelled horizontally, locking in more than 5 million of those under probation and parole. It is likely that those who are under probation or parole will find their way (back) to prison. The purpose is no longer rehabilitation, instead it has become a “penal trap.” Moreover, there is now more funding towards prisons whereas, programs that can combat recidivism and ensure social welfare such as AFDC and food stamps are decreased. Prison and jail expenditures were $70 billion and increasing in 2007. It does not help that the penal state has received nationwide bipartisan support in the U.S. These are a few of the signs that show how the criminal justice system is receding back to neoliberal ways, prioritizing the free market and the individual self. However, this punishes rather than rehabilitates the “criminals” and cycles them in and out of the prison without ever allowing them to leave. It does little to solve the problem of the dispossession of people and discrimination of “blackness,” rather it capitalizes upon it both politically and financially.
However, there is hope in certain restorative institutions that have tapped into the spirit Saint Benedict. This is evident in the penitentiaries of Auburn and Pennsylvania. As with Saint Benedict, isolation is forced upon the guilty and in doing so, the necessary time for self-reflection is provided. Rehabilitation is possible and as de Beaumont and de Toqueville observes of the Pennsylvanian system, it “produces the deepest impressions on the soul of the convict” (59). The guilty man has become more appreciative of work. He is useful to society and has acquired a “taste for moral principles which religion affords. He is grateful because he has been given a second chance, a reformation of his soul. However, one thing that the authors have mentioned is that “when God pardons, he pardons the soul… human institutions, however powerful over the actions and the will of men, have none over their consciences” (56). By removing this “right” to punish another human being, we allow each other to heal and in the process to heal society and the rifts formed in our broken relationships with one another.
This draws back to Whitman’s own assertions on the importance of religion in judicial proceedings. And it makes sense as to why institutions, steeped in religiosity or the moral concepts shared, are more effective on the human soul. Although our punishments are no longer as bloody, we’ve forgotten that we “must protect both the innocent and the guilty” (Whitman 209). The common law and the civil law have left a legacy in which the jurors shoulder the brunt of “doubt” yet they are not able to see all the facts. The judge is not checked. There is no room for character study. It is just the facts that matter and even then, innocents are prosecuted. By then, there is no forgiveness for them. “God alone can judge” (Beaumont, Toqueville 56) and this is a powerful assertion. By bringing back the human conscience, we are demonstrating that it is not the punishment that matters most but the individual and society. People are not inherently broken or criminal.
Understanding this, we can now look briefly into what can be possible in the future for criminal justice, opting to remain with our human conscience towards one another. In “Restorative Justice and Responsive Regulation,” John Braithwaite discusses the foolishness of strategies that aim to punish and persuade consistently. This often backfires, as it doesn’t take into consideration the offender’s own willingness to turn their life around; jail should not always be the answer. He offers a different system, a regulatory pyramid that scales up or down the levels of punishment depending on the guilt of the offender. The whole point of the pyramid is that it should be responsive. For instance, the pyramid says that unless you punish yourself for law breaking through an agreed action plan near the base of the pyramid, we will punish you much more severely higher up the pyramid” (Braithwaite 33). In most cases, the offender is at persuasion or a warning letter, and if they still persist, responsive regulation means that they will escalate up to a civil or criminal penalty depending on the offense. Moreover, the regulatory pyramid could also work in the reverse, where an offender eager to reform under a serious crime, could de-escalate down the pyramid. It has all the strengths of deterrence but none of its weaknesses as it is more forgiving, yet stands firm. Through responsive regulation, Braithwaite hopes to achieve a world “where most punishment is self-punishment” (33).
From my own reflection on this reading and my own experiences, I’ve come to the belief that condemnation through guilt is counterproductive. For one that is willing to compassionately change themselves, facing what feels like an unforgiving wall is disheartening. I’m sure that our brothers can relate to this. Society’s killer instinct to shame and to push guilt on others, crushing them beneath it, as a means to justice, does more harm than good. It creates people that bitterly do what is expected of them without a genuine care, and those that rebel against the system over and over again. Thus, I think this responsive regulation strategy is more optimistic as it gauges where the offender is and places them somewhere on the pyramid where they could improve, and if not, be firmly persuaded back down the regulatory pyramid. It sees people as capable and wanting to improve. This is a better alternative to the consistent nature of punishment that contemporary law enforcement adheres by. It views the offender, most importantly, as an active part of their own rehabilitation. They are responsible to move up or down the pyramid themselves and their actions has direct consequences or rewards. The offender is encouraged to become more self-intelligent, which can prevent the crime from occuring again in the future. And as a whole, society is better because of it.
The reading that resonated most with me was “Changing Lenses” by Howard Zehrs because it has the right values and the rare, but productive mindset of putting society and its relationships first. Crime is defined as the violation of society and relationships. And thus, justice is fixing that relationship and healing society. By these definitions, he proposes a restorative justice lense to understanding crime and how we begin to right the wrongs. Is each offender not borne of society? And do we not all contribute to society and its rights and wrongs? Through this logic, every “criminal” is each of our own responsibility, whether or not it is easier for us to push it away and deign it an undesirable byproduct of our culture. Zehr says, “crime creates interpersonal conflict and sometimes it grows out of conflict” (Zehr 182). So if we do not focus on fixing those interpersonal conflicts, more will sprout from it. The current system treats the victim and offender as separate entities from each other, in a way, with the court intervening and deciding the outcome by law. Zehr advocates for the healing of interpersonal relationships by first laying a groundwork of healing for the victim, and then having the two parties and their families and/or friends meet (as seen in VORP).
VORP’s reconciliation process gives both parties a chance at closure. The participants are not coerced towards it, and it is up to those who choose to undergo it. Even if there is little progress towards a reconcilated relationship, Zehr notes that no longer are “they mad at an abstraction, at a stereotype of a victim or offender. They were now mad at a concrete person” (188). This represents some improvement. And it puts the people, the human back into the equation of justice. One of the advantages of restorative justice is that it also addresses the needs of the offender. They are held accountable for their own actions, seeing the damage that it has down to not only the victim, but those around him/her. They must face the full consequence of their actions, the “ugly emotions” and all, instead of what may actually be easier and less effective, hiding from it behind bars.
Restorative justice gives the opportunity for victims to heal and find closure. The offender can find forgiveness and an understanding of consequences, and accountability, which may have been missing in their thought processes during the crime. This, Zehr offers as an alternative to the harsher, more impersonal nature of retributive justice, which punishes according to the violation of direct rules and systems in place. Does this not take away from the essence of why the rules were created in the first place? To protect relationships, people, and society. Restorative justice brings it back to that. “Unless such needs are met, closure is impossible” (200), Zehr states. Our community will continue to fracture, and unfortunately we have normalized this as crime has become to us so impersonal. We must take back personal responsibility and think of society as a whole. That is justice.
The Rikers class graduation was an emotional one, especially seeing the look of relief and pure joy on Jason’s face. I asked at the beginning of the course if Lady Justice was truly blind.