Not Just Cause, but Effect: Breaking Down Biases in the Justice System to Effect Alternatives to Incarceration

I’ve been considering going into law lately, so I was thrilled to get a ticket to the 2012 Rebellious Lawyering (RebLaw) conference, held at the snazzy Yale Law School. The conference opened my eyes to a whole new way of thinking of my possible role within the law. The buzzing conversations I overheard and was lucky to have, the most compelling panels I attended, and the overall tone of the conference focused on the concept of transformative justice.

True to the name of the conference, speakers, panelists, and attendees focused on how to question and challenge the status quo. I was thankful to see more nuanced analyses of both the factors that lead to incarceration, as well as the possible solutions for real harms directed towards individuals and communities. Statistics on the racial and ethnic biases of the prison system, though grim, were not earth shattering to me. On the other hand, the alternatives to incarceration presented really surprised me and shook up my worldview in a good way.

It makes sense to trace a problematic stream of action not just to its root cause, but to its full effect. In order to understand the prison population’s incredibly disproportionate racial and ethnic make-up, the school-to-prison “pipeline” must be acknowledged and addressed.

This symptom of institutional and structural racism is one reason that some groups of lawyers, mediators, and community organizers are moving away from leaning on prisons as a trustworthy behavioral correction system. Politicians, prison officials, and community members purport that prisons are an effective method wherein an offender pays penance for a crime, and can theoretically rejoin society as a transformed individual after an appropriate time. This idealistic basis rests on virtually no support from the actual prison system, though: not only are there huge disparities in who is arrested and convicted to start with, the leniency or severity of prison sentences and likelihood of being released early are also determined by race and skin tone. People come out of the psychologically disturbing environment of prison and are barred from being able to integrate into society as full citizens, judging by our incredibly high recidivism (re-offense) rates (which currently rest at about 60%). With people heading into prisons because of the societal factors working against them, and their odds only made worse by a stint in prison, it’s no wonder that the system is deemed to be broken.

What it comes down to, in my eyes, is accountability. As a society, we’re supposedly trying to teach an individual responsibility by putting them in prison: accountability for their own behavior, and accountability to their society. But when the systems in place to teach this are so unaccountable in a myriad of ways, how can we ever expect that to work?

Accountability is a hard thing to pin down—it’s tied up to morals, which are subject to cultural differences; and as a personal quality, it varies from person to person. There are tangible aspects that we can pinpoint, though, that revolve around respecting basic human rights within a society.

What I respect most about models of transformative justice is that they deal with the tangible aspects of harms committed. Where prison separates out an individual so society (supposedly) does not have to deal with them—a punishment model—transformative justice models seek a path that might actually help heal the situation. Transformative justice models like Generation Five and the Kindred Southern Healing Justice Collective focus on shifting the focus from prison time to actual community healing. The key goals are: accountability and transformation from people who harm; and for people who were harmed: safety, healing, and agency.

How is that possible; what would that look like? “Restorative justice” is the name for the short-term implementation. This might sound too good to be true, but the stats don’t lie: an extended dialogue format between offender and victim shows significantly higher rates of both victim satisfaction and offender accountability (for their past actions as well as future ones, judging by the lower recidivism rate). “Victim-offender mediation”, conferencing, healing circles, victim assistance, ex-offender assistance, restitution, and community service all involve both parties, which is key to the equation: the simple acknowledgement that people don’t commit crimes in a vacuum goes a long way toward establishing—and amending—many of the factors that do lead to crimes.

Along this line, involvement of the community (of both the offender and victim) is also essential to the long-term healing process. Most transformative justice models work on the principles of prevention of crises, through establishing peaceful community dealings; intervention when necessary; and true, healthful, safe reintegration of both people who caused harm and people who experienced harm into a community. All this helps to transform not only the players in a given situation, but the specific issues behind their motives: a lofty goal, but it seems to be surprisingly achievable through some alternative methods, and true community commitment.

The most important thing I learned about at the Rebellious Lawyering conference, was a correctional model that, if allowed to reach fruition, would make lawyering obsolete one day—at least the type of lawyering that I see now. Public defenders would no longer need to face a revolving door of harsh odds and enormous client loads—if that door were to eventually stop revolving. Future lawyers, within this system, could become advocates, preferably within their own community.

Transformative justice, through its varied methods, seems to me like a really radical way to work towards this dream: to reshape seemingly insurmountable societal forces that perpetuate inequity and violence by starting with the end, and working our way backwards.

To learn more about the prison system, healing and transformative justice and connect in person with seasoned transformative justice activists, such as Mia Mingus (of generationFIVE), Tamika Middleton and Cara Page (of the Kindred Collective), check out the upcoming From Abortion Rights to Social Justice: Building the Movement for Reproductive Freedom conference this weekend at Hampshire College.

One thought on “Not Just Cause, but Effect: Breaking Down Biases in the Justice System to Effect Alternatives to Incarceration

  1. While I certainly agree with the need for restorative justice, I think it’s important to acknowledge the myth that all people in prison committed crimes that victimized other people. In truth, the largest population in prison is there for drug possession, most for a first offense, and did not necessarily harm anyone else. Also, a large portion of incarcerated people are in prison because they couldn’t afford bail; these people are awaiting trial and have not been convicted of anything. For the much smaller percentage who have victimized others, yes, we need a restorative justice focus.

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