The Problem Is Not Restorative Justice, But Rather How People Perceive It.

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It is no surprise that the Criminal ‘Justice’ System is failing us as a people. Arguably, it was never designed to be successful, not at solving or preventing crime. More contentious however, is the system that we should put into its place, if any. One system that has been implemented in many countries around the world, the United States included, and within many of the states themselves, nonetheless, remains relatively misunderstood. That system or practice is what has been termed “Restorative Justice”. At its core, it is a practice of reconciliation, but even the term itself is often misinterpreted and misapplied. For so long as we lack a common interpretation of what Restorative Justice is, for at least that long will we be unable to discuss its potential, let alone to truly implement a practice that can be truly transformative for our communities.

The Criminal ‘Justice’ System, is a system that can not be called justice by any sense of the word. Even the word “justice” is loaded and surrounded with much confusion and conflict about its meaning. We often hear or read the phrase; “I will get my justice,” or some variation of that. When the word justice is used in this form it is taking on more of the characteristic of revenge or retribution. In terms of the Criminal ‘Justice’ System, justice is primarily taking the form of punishment, which is a very close relative of both revenge and retribution. Given this, and the history of the institution, the Criminal ‘Justice’ System is more aptly titled the Criminal Punishment System because it has very little to do with justice.

The word justice that we now use in the American English language has its roots in the Greek form of an ancient word Aristotle used, eudaemonia, which meant, to provide for the flourishing of all things. If that were the definition still in use then the word justice, much as it is used by many in the social justice arena, then that which is just would provide for health care, and food provisions, for living accommodations and equitable education, and so forth; not punishment and law enforcement. Conversely, when we speak of Climate Justice or Just Transitions, what we are actually discussing are solutions to the problems that face us as people and Peoples that respect our humanity and dignity. The Criminal Punishment System has been proven time and time again to fail at any capacity to provide for the flourishing for any of our people. As such, we can no longer afford to equate anything about the institution with justice.

If we can agree to no longer conflate terms, then we can actually begin to have a meaningful conversation. For example, instead of labeling punishment as justice, it is merely called punishment. Likewise, if it is either revenge or retribution that we do not name it justice. However, when we are talking about a practice, behavior, or an institution whose focus is to provide for the flourishing of human beings, that is what we either call just or justice. If we can come to that understanding and agreement among us, then we have uncluttered the most difficult component of the term Restorative Justice.

The other part of the term is Restorative. Many people get hung up on this word in the term because there is much confusion about what exactly is being restored. In particular it is the person or persons who caused the harm and the person or persons who were harmed that are being restored. Thereby, making Restorative Justice and particular type of justice which is specifically focused on bringing us all above the threshold of not being able to flourish.

The party who was harmed has definitely suffered and deserves healing and restitution for the harms rendered, and this may be more than financial, this may be emotional or spiritual; aspects of our humanity that the Criminal Punishment System denies. Likewise, the party who caused the harm has also suffered, many probably before the time they were the causes of harm.They too deserve healing and it is also true that they must repair the damage they are responsible for. It is the union of all of these interests within and with the community that provides for the flourishing of both individuals and the community, by everyone working together to make sure that the conditions that led to the harm occurring are no longer present. That is the nature of justice.

Adversarial courts, jails, and prisons cannot address preexisting traumas, conditions and harms, and that is because they were not designed to. When the Greek philosophers wrote and spoke of justice and that which is just, this is the interpretation that they were referring to. However, when the framers of the United States Constitution and the many laws of this nation and its States, who were heavily drawing on the Greek philosophers, did not carry this interpretation over. The liberal interpretation of justice during the Enlightenment era, as has trickled down to today, was primarily about protecting property, not restoring human beings. Therefore, the institutions they created would also have at the core the same objectives of protecting property and not restoring human beings. The courts, the police, the jails and the prisons were not designed to restore human beings.

Conversely, a community fully engaged in the practice of Restorative Justice and a further component, Peacemaking Circles, will revolutionize how conflict is managed among its members prior to a harm happening. By not removing the person who was harmed from the equation and learning from them precisely what it is that they need to be restored, and by learning from those who caused the harm the same, then everyone can be healed and this will only make the community stronger and healthier.

This solution was developed and practiced by many Indigenous Peoples around the world prior to and through colonization, long before the practice was ever termed Restorative Justice; and has a proven track record of success when it is done correctly with objectives of the collective in mind.


Scottsboro Boys Panel Discussion

On April 15, 2017, our Executive Director participated in a panel discussion of the Phoenix Theatre and Black Theatre Troupe's performance of "The Scottsboro Boys."  The focus of the panel was the relevancy of the Scottsboro Boys' case to the modern era and ideas for change within the criminal punishment system.

The moderator of the panel sent a prepared set of questions to the panel beforehand.  Because the panel was only 1 hour, we knew that we would not have a chance to answer every question as completely as we wanted to. Moreover, we knew the audience at the panel discussion would be limited. For those reasons, we wanted to publish our Executive Director's prepared answers to three of questions:

Question: Some people might say that shows like the Scottsboro Boys only exacerbate fears and tensions between the community and the police and the justice system, making it harder for law enforcement professionals to do their jobs.  What is the need to draw attention to this case now—what does it help us to accomplish for the benefit of today’s society?

First, I would suggest a reframing of the question.  Because what are we doing when we say that “shows like the Scottsboro Boys only exacerbate fears and tensions between the community and police and the justice system”? What are we saying when we say “isn’t pointing out racism the reason for racial tensions?” which is another of restating how the question was originally framed.

What are we doing? How long have we been doing it? Who is the “we” that asks these questions?

First, we’re erasing hundreds of years of unmitigated, genocidal state violence, and placing responsibility for “tensions” on the victims of that violence, rather than on the perpetrators of it.  And by “genocidal,” I am referencing the definition of racism articulated by Dr. Ruth Wilson-Gilmore:  “the state sanctioned and extralegal production and exploitation of group-differentiated vulnerability to premature death.”

Second, we’re delegitimizing the concerns of black people and all people of color, by failing to even name the concerns, by renaming and sanitizing them at our own will, and by failing to even attempt to address or reconcile them.

Third, we’re setting up this false equivalency between black dissent and the violence of the police and punishment (not justice) system.

Because what this question starts out saying is—“isn’t it just as bad to point out brutality as it is to be brutalized?” “Aren’t those the same thing?”

No, they’re not.

But the framing of this question makes sense to some people, and if it does to you, ask yourself what you may be assuming, missing? Who else does it make sense to? 

It makes sense to media pundits who want to frame Black Lives Matter as a “terrorist group.”

It makes sense to school boards who want to ban any mention or any discussion of slavery. 

It makes sense to everyone who snaps and dances along to the death rhythms, to the minstrel tunes in this show.

But let’s be clear—this framing—the erasure of hundreds of years of unmitigated, genocidal state violence, the erasure and delegitimization of black concerns, the false equivalency—only makes sense in a white supremacist framework.

White supremacy cannot and does not tolerate black dissent or demands for human recognition, and it celebrates the death of black dissent.

And the original framing of this question, rather than challenging that frame, adopts it.

And there are serious consequences to reinforcing that logic.  We see it played out and reproduced every day—in the streets of Ferguson, in Baltimore.  It’s MLK being surveilled by the FBI.  It’s Assata Shakur being placed on the 10 Most Wanted List. It’s Eric Garner telling the cops not to harass him and ending up dead for it.

It’s the Scottsboro Boys refusing to plead guilty and being placed on death row.

By framing black dissent and demands to be treated as human, as something that cannot and should not be tolerated, as something that is dangerous and illegitimate, something that “prevents cops from doing their jobs”—what we’re actually saying is that black people shouldn’t have access to dissent, shouldn’t have access to improving their lives and communities, shouldn’t have access to recognition of their own humanity—whether through art, protest, self-defense, etc.

It’s to say that black people should unquestionably submit to and accept that they are not seen as human and should not and do not even have the right to rights.  It’s another way of saying “know your place.”


With all that being said, let’s talk about the relevancy of this case to the present. 

I handed out a packet, it looks like this.  On the second page is a full page ad, taken out in the NY Times, by our current President, calling to bring back the death penalty.  Or more accurately, it’s an ad our current President took out, in a naked attempt to lynch the 5 innocent black and Latino BOYS, and I say BOYS because they were all under 16, who were part of the “Central Park 5.”


The Central Park 5 case is remarkably similar to the Scottsboro Boys.  They were 5 black and Latino KIDS, charged with raping a white woman.  They were exonerated after someone else confessed (the fact that the DNA didn’t match any of the kids wasn’t a reason to exonerate them beforehand, just like the white woman’s recant of her testimony didn’t matter for the Scottsboro Boys).  But the Central Park 5 spent between 10-15 years in prison.


Because white supremacy needs to produce guilt, primarily black guilt, to justify itself.  And this production of guilt has included the production of the stereotype of black boys and men as “criminals” and “rapists of white women.”

And you saw this immediate production of guilt in the racist way this case was covered—headline after headline referred to these boys in dehumanizing terms-- as “super predators” as a “wolf pack” as “beasts.”

Our current President can even trace his own popular ascendancy to being the head of this nationwide lynch mob.

In fact, even after the boys were exonerated, he doubled down and said he was convinced of their guilt.

So, what does this play have to do with the present?

Well, the Central Park 5 makes clear we haven’t moved past… the past.  We’re repeating history every day—because as my colleague Dr. Alan Gomez, says, “people repeat history, history doesn’t repeat itself.”

We’ve elected the head of a lynch mob—someone who used, and continues to use, racist stereotypes and black/brown bodies to rise to power.

So, the society and criminal punishment system depicted in the play isn’t different than the society and the criminal punishment system of today. And we’ll get into that later, but suffice it to say that this play is just as much about the present moment as it is about the past.


Question: What should policy makers at the state and local level do to improve police and community relations, and to prevent future issues of racial bias and injustice in law enforcement? What specific criminal justice reforms are needed in Arizona today?

I actually want to go in a different direction.  Rather than discussing ideas for reform, which is about tinkering with the system, I want to question whether or not this system should even exist in the first place. I want to challenge the very idea that police and prisons are necessary or that they create safety. I want to challenge the idea that some people are disposable.

I want us to have a serious conversation about abolition.

Before that, however, I wanted to briefly read a quote by Frederick Douglass, delivered to the American Anti-Slavery Society on the eve of its dissolution, shortly after the passage of the 13th Amendment.  Douglass called for the Anti-Slavery Society to remain in existence because he felt that their work was not done.  He predicted that without the Society, the institution of slavery would reinvent itself: "They [will] not call it slavery," Douglass said, "but some other name. Slavery has [already] been fruitful in giving itself names. It has been called 'the peculiar institution,' 'the social system,' and the 'impediment' ... It has been called by a great many names, and it will call itself by yet another name; and you and I and all of us had better wait and see what new form this old monster will assume, in what new skin this old snake will come forth."

So, should the system exist at all? No.

Because our criminal punishment system is a reproduction of the institution of slavery—the very reproduction Douglass predicted.  And I’m not just referring to the forced labor aspect or the for-profit prison aspect, although those are components to the system.  But the statement “the criminal punishment system is a manifestation and reproduction of the institution of slavery” goes beyond those obvious observations and comparisons. 

And this idea also goes beyond and makes an analytic shift from understanding the system as “The New Jim Crow.”  

So, what I’m saying when I say this, is first, that the logic of the slave system is reproduced within our carceral system, the institutions that support it and within our everyday society.  And also, every element of the institution of slavery is seen mirrored in our criminal punishment system:

From the targeting and kidnapping of a particular population:

We see that right here in Phoenix.  If you look at the third page of the handout, you’ll see two maps of Phoenix.  The one on the top of the page maps incarceration rates, and the one on the bottom maps racial demographics.  Do see a perfect overlap?

This is a map of incarceration rates in Phoenix

This is a map of incarceration rates in Phoenix

This is a map of racial demographics in Phoenix

This is a map of racial demographics in Phoenix

We are almost exclusively concentrating our punishment resources in black/brown communities in Arizona.

In fact, 80% of people who return to prison, that’s 80% statewide, come from just ONE, historically red-lined zip code in South Phoenix—85041.

These are geographic sites of racialized social control, and they are the sites of targeting and kidnapping.

After the kidnapping, we see the forced migration from home to the new plantation—as people from these communities are disappeared from their homes and taken to cages in largely white, rural communities.

There’s a similar dehumanization ritual—the legal stripping of people’s human and civil rights, or the refusal to recognize people as human beings within our legal institutions.

There’s the modern auction block—which is replicated in interstate prison contracts, contracts for prison labor and for-profit prison contracts, which by the way, read a lot like slave contracts because for-profit prison companies only enslave young people without significant health problems, who don’t pose a “security risk,” and that’s agreed upon in the terms of the contracts themselves.

Once on the new plantation, you see Willie Lynch’s famous strategies for “making as slave” come into play.  This involves:

Family and community separation, sometimes permanently.  In fact, as my colleague Lola Levesque pointed out, in AZ, after 1 year of incarceration, you are determined to have “abandoned” your child, which means your child may go into the foster care system or put up for adoption.

This involves robbing an individual of their name—in the DOC you don’t have a name, you have a number.  It’s a way for the State to mark you as property.  It’s a branding.

This involves constant physical violence, sexual violence and torture, or living under the constant threat of those things—both on the streets and inside prison and jail walls.  And I don’t want to pass over this point, because it’s not another variable that should be buried in our list of variables.  Physical violence is necessary to maintaining this system.  You can’t “ensure compliance” without a gun.  You can’t shackle people, ankle to wrist, you can’t put them in cages, you can’t keep them from their family and their lives, you can’t relegate whole communities to a second class status without regular, intense violence, torture and medical neglect—all of which reaffirm the enslaved person’s position within the system and society.

Along those lines, you have the hierarchies created inside—both between the overseers and enslaved people and between the enslaved people themselves.  This includes rules limiting communication and contact.  This includes differentiated security levels that awards people with certain privileges, and others with none.  This includes conscripting individuals into doing the work of the overseer—on the yard or in the field.

These are all documented “Willie Lynch” strategies for “making a slave.”

Then, of course, we also see the forced labor and wealth extraction—in terms of labor, in terms of earnings and in terms of social investments.  We see forced labor in prison.  We see the theft of wealth in prison, by both the DOC—which takes a substantial chunk of the slave wages people earn—and by the dozens of corporations who overcharge people inside for basic services, such as making phone calls to their families.

We see the theft of wealth in our fines/fees system, which disproportionately burdens low-income communities of color.  We see it through civil asset forfeiture.  We also see theft of wealth in terms of social investments.  Again, we concentrate punishment resources in particular places.  It costs over $100 million per year to incarcerate people from South Phoenix and Maryvale.  And yet, South Phoenix doesn’t have a hospital.  Schools in South Phoenix and Maryvale are underfunded. These things happen because our punishment system leeches resources away from the social safety net in these communities.

We see the slave system reproduced in the myriad of profit incentives built into literally every aspect of our system—from incentives that police officers have to write tickets or steal property, from the fact that numerous state departments depend on the revenue stream from tickets and court fines, to “pay to play” policies, to the for-profit punishment industry and the role it plays in passing legislation.

We see the system of slavery reproduced in the fact that this system, like the system of slavery, is integral to the functioning of the US economy.  Our goods are as cheap as they are not just because we use and exploit labor in previously colonized countries, what are often referred to as the “third world,” but because we use slave labor here in the US.  And every major corporation participates in this system—which means they have a major stake not just in maintaining it, but in growing the system.

We see the reproduction in the 3/5 clause, which is still in existence and operates through prison gerrymandering—the fact that individuals are not allowed to vote, but are counted, on the census, as residing in the white/rural communities where they are caged.  So that their bodies are literally used to boost the political power of the communities that house the new plantations.

We see the reproduction in the creation and maintenance of a racial caste system—the fact that black men make up 6% of the population, but 42% of our prison system.

The mass group disenfranchisement—the fact that 20% of the black male population in Florida can’t vote.  That 30% of the black male population in Mississippi can’t vote.

The intergenerational physical, psychological and emotional trauma.

And this entire system is held up by the same fundamental logic as the slave system—fear, vengeance, punishment and the idea that some human beings (primarily POC) are not, in fact, human; that some human beings are disposable and can be used and exploited for (primarily) white, corporate profit.

And we accept this because we have accepted that logic, which says some human beings deserve, and DESERVE is the key word, that some human beings DESERVE to be enslaved and DESERVE to be mistreated.

Now, I should acknowledge that when I say the criminal punishment system is the latest manifestation of the slave system, I’m not saying it’s the EXACT same system—in the sense that the current manifestation has been tailored to meet the sensibilities and “common sense” of this generation.

The old system was nakedly about dehumanization and exploited labor for profit.

The new one masks that intention in the garb of “due process," which doesn’t actually exist. 

94% of state cases, and 97% of federal cases are resolved through plea agreements, which because prosecutors have so much leverage (thanks to mandatory minimums and the ability to stack charges) are more or less one-sided and extortionate.  Moreover, the system can’t provide due process.  As Michelle Alexander points out in “The New Jim Crow”—if everyone in the system were to demand a trial, the system would fail, courts wouldn't be able to function answer would go into crisis.  Which means that the system isn’t so much designed to provide due process as it is designed to manufacture guilt. 

“Due process” is a performance, a salve to help make the new reproduction of the system palatable and digestible to the modern era.  It defines who we understand of "deserving vs. undeserving" of basic human rights and dignity.

Part of the mask is also the generation of new reasons to justify its brutality, cruelty and genocidal infrastructure.  And those new reasons can largely be summed up in one word:  safety.

Safety.  Safety.  Tough on crime.

It’s a justification that is easily pierceable and easily undermined simply by looking at the statistics. “Crime” rates are disconnected from incarceration rates, and to the extent they are, it’s in a negative sense. 

So, what the stats tell us is that prisons do not reduce, but produce harm (and I use the word harm as a substitute for crime).  They do not reduce, but produce violence.  They do not create, but rather undermine safety.

And yet, as James Foreman Jr., “our system has never treated the failure of prison as a reason not to try more prison.” It has never been a reason not to build more prisons, not to invest more and more into this failed “solution.”


Because the carceral system does not exist for the reasons we have been told.

It doesn't exist to reduce or solve "crime."  It exists to manufacture and produce guilt.  To manufacture and produce "criminals," that may be warehoused, enslaved, killed and exploited for state and corporate profit.  

That is  the logic underlying the entire system. 

So, once we understand this system as the latest manifestation and reproduction of the institution of slavery—we have to ask what must be done?  Should be tinker with it and reform it?  Or should we take on the challenge of getting rid of it altogether?

And that’s a question I pose to this audience and to the panelists.

When you are faced with such gross immorality, with such naked barbarity, with such manifest injustice—do you work to make it only slightly less brutal and unjust, or do you work to end the brutality and injustice altogether?

And before anyone answers I want to take just a moment to imagine what these conversations looked liked hundreds of years ago, when the FIRST abolition movement started in the US (and I say “first” because there have been abolition movements since and we are in the middle of another one).  When that first group of 4 or 5 enslaved people gathered together, in hushed whispers, to talk about getting rid of the slave system.

What would our country, our world, look like if they had only concerned themselves with improving conditions on the plantation?  Or limiting the number of years people could be enslaved?  Or placing restrictions for harm on slave patrols?

These ideas are not bad ideas.  They certainly could have improved the lives of the people who were enslaved, and that means something.  So, this is not a dig on reform work.  Improving the quality of life for people within the system and lessening the brutality of the system is critically important and necessary work.  But it is not and cannot be an end.

If the first abolitionists had never dreamed of ending the slave system, or if they had allowed their work to stop at improving the conditions on the plantation, their work would have left the inherently oppressive, violent, unjust infrastructure of the system intact. 

They would have left the system intact.

Do we want to do the same?  Is that what we want to truly fight for?  Are those the limits of our imaginations and demands-- a world with a slightly less brutal slave system?  Or do we want to demand a world in which we agree not to cage or enslave anyone?  A world in which “liberation is the true status quo?”

I’ll end with this quote from Bryan Stevenson, at the end of the Documentary “The 13th: “People say all the time, 'I don't understand how people could've tolerated slavery. If I was living at that time, I would have never tolerated anything like that.'... And the truth is, we are living in that time, and we are tolerating it."

When are we going to stop tolerating it?

When are we going to start demanding and dreaming of a world without police and prisons?


Question: In Arizona today, if someone is wrongly convicted and their sentence is overturned what is done to make that person whole again? What support, assistance, compensation is provided to help them get their lives back on track?

This question will be answered by others on this panel, but I want to point out, again, the assumptions and logic and limitations of this question. Why aren’t we discussing the role criminalization plays in the mass warehousing of people and the way that process functions to produce, intentionally produce “wrongful convictions”?  And because we’re ignoring criminalization—what are we assuming about innocence and guilt?  What are we assuming about the system and how are we legitimizing the system in this question?

Finally, I want to ask why we would focus exclusively on those who are “innocent.”  And I ask that question not just because we should be talking about how to “support and assist” both those inside and those coming out of prison, which we should—regardless of whether they’ve been labeled innocent or not—but because embedded in the question is the assumption that those who are not “innocent” are somehow deserving of the torture and mistreatment they receive inside. 

Because if they’re not entitled to support and assistance, if they’re not entitled to being “made whole” which is a personal injury term—then we’re either ignoring and erasing the harm done to EVERYONE inside, or we’re framing what happens to everyone inside as somehow legitimate based on “guilt.”   And I want to challenge that notion and think seriously about how even that question, and the framing of it, undermines our ability to “address past injustices” which was the subject of the last question.

I mean, one of the reasons we are failing to address past injustices is because they’re not solely “past” injustices—they are present as well. And we have yet to challenge the logic of the system that produces, intentionally produces, these results.  And that’s what this question does—it legitimizes the system, rather than challenging the logic of it.

Furthermore, as my colleague Lola Levesque pointed out, how can we even presume to have the ability to give back years of someone’s life or undo the damage of being stuck in a cage and tortured?  

So we should think about how even the questions we ask ourselves reflects anemic imaginaries and how that constrains our ability to create change.



Million Dollar Blocks

The Spatial Information Design Lab, "using rarely accessible data from the criminal justice system," created maps "showing city-prison-city-prison migration flow for five of the nation's cities."  Revealed in these maps is information about the cost of incarceration per city block.  Here are the results for Phoenix:

The colored areas on this map are city blocks where the cost of incarceration ranges between $0.5 million and  upwards of $2 million. In these "Million Dollar Blocks," the criminal justice system has become the most visible and impactful government institution. Here's a comparison of the map with racial demographics (the shaded areas in this map are areas that have high minority populations):

Notice the overlap? 

Here's a close-up of Maryvale's "million dollar blocks":

From this image, one can see that the cost of incarcerating Maryvale residents is at least $30 million a year (Estrella and South Phoenix look worse). And that's just the cost of housing individuals in prisons. That doesn't include the collateral costs of disappearing so many people from these neighborhoods-- the emotional costs borne by children who may live without a parent, sibling, aunt, uncle or mentor; the financial burden borne by families who must manage without a member of their household; the economic drain on these neighborhoods as individuals are funneled away from work and into prisons. 

This is a perverse form of public investment that destroys the lives of those incarcerated and undermines the fabric of communities.  It doesn't have to be this way.

What if all this money was redirected to work force development programs?  Or put into schools and childcare?  Into mental health care services?  Into street lights, parks and transportation?  Into community gardens and farmers' markets?  What would those "million dollar blocks" look like then? What would our Phoenix community look like?

This is why Justice That Works is creating a new system.   Because we believe in investing in people, not prisons.  #redefiningsafety #justicethatworks