Restoring justice.

• Author: Van Wormer, Katherine
• Position: Law & Justice

RESTORATIVE JUSTICE, forgiveness, healing circles--how sweet they sound. Punishment, mandatory minimums, death penalty--note the discordance conveyed in these notes. As a nation, the U.S. competes with Russia to claim the highest incarceration rate in the world. While crime rates have dropped precipitously, 2,000,000 men and women are behind bars, 1,000,000 of them for nonviolent, mainly drug-related offenses. So many of the nation's African-American males are incarcerated that the Justice Department estimates that 29% of black males born in 1991 will spend some time in prison during their lifetimes.

Crime horror stories which dominate the mass media create a climate for ever-increasingly punitive treatment of prisoners--for example, the reinstatement of chain gangs, the building of supermax units for total isolation and sensory deprivation, the dismantling of college education and recreational programs for inmates, and a spate of executions. Singled out in reports by such international organizations as Human Rights Watch and Amnesty International are overcrowded and inhumane conditions, rape and torture of inmates by correctional officers, the use of stun guns and biting dogs to subdue prisoners, inadequate medical care, and pregnant women shackled during labor.

Retributive justice weighs the crime and the severity of the crime above all else, including the motive and age of the perpetrator. Thus, the negligent driver who kills a family in a car crash may be punished harshly for manslaughter or worse. The child who shoots a classmate with his father's gun in a fit of anger may receive a life sentence without parole. The drug user who sells part of his supply to a friend may end up with a life sentence for drug dealing.

This focus on the act, rather than intent, represents what is classified by psychologists as the concrete operations mode of thinking. Characteristic of early childhood, this allows for no mitigating circumstances. It is considered primitive, a result of concrete thinking.

The legalistic concept of guilt is highly technical and removed from real-life experiences. The process rewards the person who denies his or her guilt and the one who has an aggressive, even ruthless attorney. The ability to demolish a witness, often the victim, is the measure of a successful lawyer. The entire adversarial process, in fact, harkens back to the Middle Ages in England, when hired ruffians fought duels on behalf of accused individuals. Today's trial is the counterpart to yesterday's dueling--one side wins; the other loses.

Because of the ordeal and expense of a full-blown trial, plea-bargaining is the usual way of meting out justice. If an accused person confesses, however, his or her possibility of"getting a good deal" is greatly minimized.

Frequently the adversarial approach is the best way, if not to get at the truth (which it rarely does), to protect the individual's rights. Innocent until proven guilty is chief among these. Often, though, justice can be better served another way--through justice for the individual offender, the victim, and the community. Instead of focusing on a past wrong, what is needed is a form of justice that helps orient offenders toward the present and future state of affairs, toward membership in the community, rather than removal from it.

The present thrust toward imprisonment is receiving much criticism, especially by human rights organizations. Media and Amnesty International reports of sexual abuse of women by male officers and of male convicts abusing each other abound. Because of their often bizarre, unmedicated behavior, mentally ill inmates tend to be brutalized by fellow inmates...