In response to:
What Replaces Prisons? from the August 20, 2020 issue
To the Editors:
Reading Michelle Kuo’s review of Danielle Sered’s Until We Reckon [NYR, August 20], I could not help wondering if the “restorative justice” practice it discussed could potentially result in further victimization for crime victims. For example, if a case was designated as eligible for this type of prison alternative and the defendant agreed to participate, would not the crime victim also feel pressured to participate? If the victim declined and requested that the prosecution proceed as usual, the defendant could rightly feel that they were now being prosecuted not by the relative abstraction of the state but that they were being prosecuted very specifically by his or her victim. But for the victim’s preference for traditional prosecution, the defendant would avoid prison altogether, thereby increasing his or her motive for future retaliation against the victim (or even present retaliation or intimidation by associates of the defendant).
In our criminal justice system, crimes are tried and punished in the name of the state. In New York, the official designation of all criminal cases begins “The People of the State of New York vs….” This is because the alleged offense has been committed not just against an individual victim but against the state itself and its people. It is a more modern framework of criminal justice, whereas the restorative justice model suggests something more regressive—the ancient practice of an aggrieved party meting out justice on their own terms. While restorative justice may not be as vengeful or violent as those bygone practices, it still crudely places punishment outcomes in the hands of victims.
Criminal law is just that—law. It isn’t an expression of individual preferences between parties. It is law—and when it is broken, certain consequences apply, regardless of a particular victim’s (or family member’s) personal feelings.
Michelle Kuo replies:
I am skeptical when people describe our system as less vengeful or less violent than that of bygone eras. I do not know how to compare forms of cruelty. Quartering was violent, yes, but at least it was quick and public. Solitary confinement—being trapped twenty-three hours a day in a room the size of an elevator, with no human contact—can last your whole life, and there’s nobody to bear witness.
John Fitzgerald wants a system in which impersonal “law,” and nothing else, adjudicates crime. It’s tempting to see the law this way, as Kafka (its most famous critic) did, as something formal and closed: Law with a capital L. In truth, though, law is proliferative and lowercase, and too much of it, as former prosecutor William Stuntz writes, amounts to no law at all.
Stuntz concludes, in his groundbreaking The Collapse of American Justice, that given the voluminous “menu of options” available to prosecutors, there is no rule of law in the criminal system, only the discretionary power of state officials. This is why so many innocent people plead guilty. For those who do commit crime, it is why they might receive a life sentence for paltry crimes. Consider the case of Paul Hayes, an African-American man who forged a stolen check in the amount of $88.30. Under Kentucky law he faced two to ten years; when he refused to sign a plea deal, the prosecutor threatened a second charge under a repeat offender law that carried a life sentence. Hayes chose to go to trial and lost. He appealed to the Supreme Court and lost again.
In Fitzgerald’s critique, restorative justice outsources the prosecution of crime to the whims of a victim, when that person’s vengefulness or magnanimity should be irrelevant to public justice. But how just is public justice? Crime stirs the passions. In California, voters passed the “Three Strikes and You’re Out” law. It was written so broadly that Leandro Andrade received fifty years to life for shoplifting nine videotapes from two Kmarts. The Supreme Court found this law constitutional, noting popular support as one reason for upholding it. Since then, other defendants have received life sentences for crimes such as possessing 0.14 grams of meth, stealing a pizza, and stealing $2.50 worth of socks.
To make progress, we must throw out the idea that criminal law is an instrument of truth: it’s about feeding public opinion and making deals that are expedient for prosecutors. Our law enforcement system, from local police to judges, fails to prevent, even contributes to, an ongoing cycle of violence. Indeed, one reason retaliatory violence is endemic to this system is that low-income communities, including many communities of color, tend to distrust police, for reasons the Black Lives Matter protests have made evident. People in physical danger who do not believe the police can help them will try to solve problems on their own.
Fitzgerald worries that defendants may retaliate if victims don’t agree to restorative justice. But Sered’s program suggests otherwise. Some victims, she shows, choose restorative justice to end a cycle of violence: in her sessions, they have asked defendants to pledge to tell their friends to back off. Victims may fear retaliation if they opt out, but they already fear retaliation if they choose to prosecute the traditional way.
The question of how restorative justice could re-traumatize victims is important, especially in cases when defendants are not remorseful or mentally able to explain the reasons for their actions. But researchers find that restorative justice is more effective in addressing trauma than court. This is in part because the legal process is not designed to be therapeutic. It can re-traumatize victims by subjecting them to hostile cross-examination, exposing them to public scrutiny, and leading them to feel disbelieved or blamed during the investigative process. A process that takes seriously all parties’ emotions and proceeds from the defendant’s acceptance of guilt has proven comparatively more successful than criminal prosecution in reducing PTSD symptoms caused by the crime.
Still, it’s true that restorative justice subverts the aims of Law as it stands. Where traditional justice would assign fault, restorative justice wants to discover how people can heal. It is fair to ask whether healing is what our system is for. But we can’t answer that question truthfully without also articulating the ultimate purpose of our courts and jails, and asking whether they are achieving their aims.