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.