Who Does Justice Fail? – Part three

“…[P]eople do the worst things when they have no ties to people.” – Judge Joseph Flies-Away, a member
of the Hualapai Nation

Crime results in, or is the continuance of, conflict. It also creates (involuntary) relationships where none
existed previously. One who has been impacted by crime may not appreciate either of these terms;
conflict nor relationship. Yet, from a broad perspective, both can be applicable. Antagonism, an indicator
of the presence of conflict, is produced by every crime. Even in so-called ‘victimless’ crimes the
community is affected and, hence, there are conflicting stakeholders. Looking at crime as conflict thus
requires ‘conflict-resolution.’

Some acts are so heinous and cause so much grief and sorrow that there can never be resolution. Thus,
perhaps ‘conflict-handling’ or ‘crime-handling’ could be more appropriate than suggesting
‘conflict-resolution.’ In cases such as murder or rape, for example, the conflict typically spans long periods
of time and successful resolutions remain remote, though not always impossible. The extreme,
unresolvable examples of crime, however, should not necessarily set the mold for all conflict-handling.
(Homicide survivors, sadly, have reported that the incarcerated killer of their loved one has dominated
their lives for many years.)

In parts one and two of this series, we explored ways in which the Criminal Justice System (CJS) fails the
offender and the victim, to include depriving participants of the conflict actual participation in its
resolution. We should recognize that the state monopolizes the entire process and takes the conflict away
from the conflicting parties. The state assumes the role of a detached, punishment administering
bureaucrat, whose imposed solutions often contribute to – instead of heal – the harms of crime. Mediators,
counselors and facilitators who deal with conflicts know that the most common characteristic of
successfully resolved conflicts is the direct involvement of the stakeholders in the process. It is wrong to
assume that our conflicts must be resolved by disinterested and detached ‘professionals’ of the state.

The Web of Relationships
One of the chief contributing factors of crime, according to many sociologists, comes from the divisions
and alienation of people from involvement in and the feelings of community. Peoples’ behaviors have
always been regulated in part by avoiding shameful deeds. This is known as ‘adaptive shame’ and is said
to help align individuals’ thinking and action with their social group/community. An overly aggressive
person, for example, may avoid shame by getting the social message to tone down his or her behavior.
The gradual rise of crime across America, can be attributed in part to the disruption of community, and
we see considerably higher crime rates in urban areas where there is a dissensus of traditional values, a
disenchantment with law enforcement, individuals are more alienated from each other, and atomization is
rampant. In addition to this is an expansion of deviant communities, those which do not prescribe
particular criminal behavior, such as violence within certain street gangs, wherefore shame for criminal
deeds would not manifest.

First and foremost, the CJS should be concerned with public safety through crime prevention. If people
are becoming increasingly disconnected with community, or connected with a deviant community, we can
assume that crime will not abate. By ‘crime’, let us not forget, we are referring to acts which harm people
and communities, not just the breaking of a rule. A sense of community binds people together and tends
to have a moralizing influence on the behavior of its members. Communities are built upon a web of
relationships. Relationships are built upon and maintained by communications, and we know that
effective communication is a key to avoiding and resolving conflict. Conflict-resolution is, in large part,
the (re)building of relationships, which, in turn, strengthens the community. It is crucial, therefore, to
consider and involve the community in the CJS process, from crime prevention to resolving conflicts, and
from the needs of victims to the reintegration of offenders.

People who have committed crimes have responsibilities and obligations to the people they harmed as
well as to the community. The process of accountability is acknowledging the wrongdoing and taking
active steps towards making things right to the extent possible. Meting out punishment to an offender is
nothing remotely close to him or her being accountable for their actions. Since communities are adversely
affected by criminal behavior, they, like the victim, require restoration. There are, unfortunately, few
mechanisms within the CJS which allow for offenders to make amends to the victim, let alone to the
community. Yet, this should be the basis to any sound crime-handling system; the healing and restoring of
harms and breaches. Punishment, the conscious infliction of harm on another for the harm they have
caused, does little to heal wounds or strengthen relationships. When offenders “take their medicine,” they
are left feeling like they paid their debt to society and they should, therefore, be welcomed back to the
community. While under the current retributive paradigm this may in a sense be true, none of the
stakeholders are ultimately made whole simply by the suffering of the wrongdoer. The stigma, shame,
hurt, and antagonism resulting both from crime and the CJS process leaves conflicts unresolved, people
and relationships broken, as well as communities in disrepair.

Community and Communication
Reconciliation and the rebuilding of relationships strengthens the community. Crime, conflict, and
alienation weakens the community. A more restorative style of crime-handling would promote
communication between the victim and offender as well as the community and it would have the goal of
healing people and communities. The CJS largely discourages communication between those embroiled
within its purview. In virtually no stage of the system is dialogue permitted; no discourse, no
conversation, no narration, no interchange, no speaking to one another.

During the CJS process defense attorneys generally speak for the offender, prosecutors speak for the state
and only nominally for the victim. If offenders do communicate about the offense, they speak to the
judge. The victim and others, if given a voice in court, are told not to speak to another party other than the
judge. Anyone put on the witness stand answers questions by attorneys. Virtually all communications are
vertical towards the state. Even the well-known victim impact statement, which, sadly, is not for the
offender to better understand the effects of his or her actions, is directed to the judge. Between the
conviction and sentencing phase offenders are asked if they have something to say, they are given an
opportunity for a speech in mitigation. Unrepresented or poorly represented defendants tend to say very
little, often giving a simple apology and an intention to do better in the future. Offenders of serious
offenses often repeat their apology over and over, not to the victim but to the judge and to the state. Such
statements are barely recognized or responded to and the state certainly does not forgive. At this stage,
offenders generally do not understand the full impact of their actions and the CJS is constructed for them
to remain self-focussed.

Forgiveness or tolerance of the offender is an important element in his or her reintegration back into the
community, perhaps even in the offender’s rehabilitation. Although the CJS shames, it neither forgives
nor includes ‘reintegrative shaming’ (an effective, non-stigmatizing, type of shaming which encourages
the offender to desist, within a continuum of respect). Occasionally, victims have communicated to the
judge that they either forgive the offender or do not desire vengeance. Yet the court generally views such
input from victims as irrelevant. The existing system is unconcerned with the reconciliation of
relationships between conflicting parties.

When empowered with the option of meeting, face-to-face, with the person who wronged them, many
victims choose to do so. Those who have been victimized want answers and information, which often
only the offender can give. They typically have a desire to tell the person who affected them how they
were impacted and express their feelings so that the person can truly understand the results of their action.
A conversation with the victim allows the offender a better understanding of the implications his or her
behavior imposed upon the victim’s daily life. Not until the offender internalizes this impact can an
apology be legitimate and potentially meaningful to the victim. Offenders take part in these face-to-face
meetings, usually referred to as Victim Offender Dialogues (VODs), out of a desire to apologize, to repay
the harm done, and to express their feelings directly to the person they hurt. Aside from or often instead of
compensation, some victims just want offenders to turn their life around, to ensure that they will not
reoffend, so that others will not have to endure similar victimization.

This restorative form of justice for victims, as well as for offenders and the community, revolves around
communication. To ask questions of the offender directly and to hear the response; to have the
opportunity to express the effects of the harm and again to hear the offender’s response; to understand
more about the offender and to help him or her change towards a non-offending lifestyle, all often
contributes to a more satisfied feeling of justice for the victim. This is also a decentralized,
conflict-resolving, type of justice, in which communication is horizontal, and it can have a much more
positive impact upon all involved.

Here in Virginia, VODs are a relatively new phenomenon and are generally only an option after the CJS
trial, sentencing, and the offender is incarcerated. In 2011, the General Assembly passed legislation to
give victims of crime the right to meet with the person who harmed them. Only a very small minority of
crime victims know that this is an option, they are specifically not being told because there simply are not
enough VOD facilitators available. A VOD is a process that takes months of preliminary meetings to
ensure that all involved are fully prepared for the dialogue. From the outset, even when the dialogues did
not go perfectly, the parties involved seemingly were still able to find some measure of healing from the
process. As of the spring of 2018, there are only 4 active VOD cases in Virginia, whereas in Texas there
are over 500 referrals for the same! In one of the active cases, the offender, who had denied his guilt for a
homicide, was finally compelled to own up to his actions. In another case, one of the first VODs in
Virginia, involving an offender whom I know personally, the dialogue concluded with the survivor
actually hugging the man who killed her mother and she left feeling free of bitterness, anger and hatred.

The offender was prepared to be yelled at, cursed and even slapped, but he was unprepared to be forgiven.
He later said that walking into the room with the survivor was the most difficult thing he had ever done in
life and that he would have rather faced a judge and be sentenced to more time in prison. Further, meeting
with the survivor had a profound effect upon him. He told me that even after nearly 30 years he no longer
resented being in prison, that he finally understood the impact of his actions, and he became genuinely
concerned about the wellbeing of the young woman whose life he so profoundly affected.

Around the world, these types of dialogues are increasingly being used to resolve conflicts and help heal
and restore those involved. They often include community members as well, since the effects of crime
ripple out beyond those directly impacted. From New Zealand to Britain to Canada and even in America,
criminal cases are being diverted to restorative justice practitioners. Although such dialogues may not be
appropriate for every criminal case, the horizontal communications within restorative justice circles has
proven to help heal those impacted by criminal behavior and resolve conflicts.

Specifically, after going through the restorative justice process, victims report increased feelings of
security and less intense or fewer feelings of revenge against the offender, and many feel that the process
helped them put the offense behind them. The communications clearly have victim-benefiting aspects. In
these circles, offenders have an opportunity to apologize directly the the person harmed and for that
apology to be acknowledged, and sometimes accepted. They generally feel a greater sense of reintegration
and stronger attachments with their own community of care and with the wider community. Surprisingly
to some, restorative justice tends to be more helpful to those who were victims of more serious offenses.

Community Responsibility
Does the community bear any responsibility for crime? Those of us who are sticklers for personal
responsibility may feel that if a person chooses by his or her own free will to commit an act, where a
reasonable alternative existed, this individual would be completely and solely responsible for the act. Yet,
does situational/environmental context not have an influence upon one’s actions? (See my Fundamental
Error for more on this idea.) Consider the following vignette:

Joey and his three siblings were raised by their mother Simone. Throughout Joey’s life, his father was in
prison, first for dealing drugs and later for homicide. Simone struggled with substance abuse and went
through many boyfriends, more than one of whom were physically and psychologically abusive to her and
her children. By his teenage years, Joey ran around with a local gang of kids who consistently got into
trouble. Positive male role models were completely absent in his life. At the age of 17, Joey and his friend
robbed and shot a man on a street corner. Both were later convicted and sentenced as adults to life in
prison.

The community is a product of individuals just as the individuals are a product of the community. We
know that the community influences individuals, and individuals influence the community. The
community has a responsibility to individuals, and individuals have a responsibility to the community.
Although some criminologists and sociologists believe that the community is both causally and morally
responsible for crime, just as much as the offender is, they stop short of suggesting that community
responsibility should be the chief emphasis in a policy for crime-handling.

Communitarian crime theorists argue that communities should work to detect and change those elements
of the social organization which leads to and contributes to criminal behavior. Instead of treating
offenders punitively, they are in favor of reconciliatory and reintegrative community action. Though the
primary responsibility and accountability may rest upon the offender, the community should have
obligations as well. Stepping back and taking a causal view, it would seem that positive changes in crime
rates may only be achieved through an intervention within the community, not by the infliction of pain
upon the offender.

Punishment and Community Harm
One of the unfortunate aspects of the CJS and its attendant Department of Corrections (DOC) is that it
treats people who have broken its laws as if they will never return to the community. They strive to foster
fear (not remorse) in the offender and believe this should keep him from reoffending. When he returns
from the “House of Horrors” he is expected to cause no more harm in the community. However, the
community is reabsorbing a person ‘trained’ in crime, morally and behaviourally degraded, and so
traumatized that they are often a greater danger to the community than before their entanglement with the
CJS.

The DOC is responsible to the community for the consequences of incarceration. Citizens should be
informed as to the real instrumental value of punishment, especially longterm incarceration, as it relates to
crime-prevention. Evidence suggests that punishment does not reduce criminal behavior, it does not deter
or reform, but instead tends to create more cases of deviant behavior. Perhaps deprivation or
pain-infliction, therefore, should be reserved for those cases in which it is obvious no other sort of
treatment makes sense. Incarcerating nonviolent offenders, for example, is ludicrous. Yet, five years ago
there were 3,278 people in America serving life sentences for nonviolent crimes. Yes, life sentences.
The accumulative harmful effects upon the community by the entire CJS cycle continues unabated.
Things are not getting better. The so-called ‘tough on crime’ era only exacerbated the problems. The home
and personal security systems/devices is a multi billion dollar industry, neighbors are strangers to be
viewed with suspicion, our children can no longer roam free in play, and we have retracted from
community into the safety of our domiciles – our last refuge. Where shall it go from here? Can we become
even more atomized than what we are today?

Conclusion
“He acts like he has no relatives.” – A saying of the Hualapai people about one who commits a criminal
act.
The CJS did not cause the dissolving of community, I wouldn’t think, but it sure hasn’t helped matters.
Humans are gregarious creatures, we need companionship and interdependency. On a basic level, a
community includes those who are united by a common interest, who live in a specific area, or who share
common racial, ethnic or religious identity. Yet, on a deeper level a community should reflect more than
this. There are emotional, psychological and spiritual dimensions of community as well. The community
should be a ‘place’ where people feel accepted, safe and secure, and cared about by others. In our
communities we need to feel rooted, like we belong, and there should be feelings of familiarity, of caring
and hope. Criminal behavior can be an opportunity for community members to mend, to come together
and build relationships (Post Traumatic Growth is a real thing), or it can damage and isolate people even
further if wounds are left unhealed and stigmatizing shame is not reintegrated.

What is the most appropriate response to crime? An opportunity should be provided for the victim and
offender, along with community members, to determine a mutually acceptable response to repairing the
material, psychological and social damage caused by the criminal behavior. That, or we could just
continue with the status quo: punishment of the offender. One of these two models seem to be both a
rational, humane and forward-looking response to crime, which is potentially fair and satisfying to all
involved. The other seems to heal none of the harms nor resolve the conflicts created by crime. One of
these has proven to reduce re-offending through an approach which incorporates the restorative principles
of accountability, restitution and reintegration. The other has an incredibly long track record of high
incidences of recidivism (most people in prison have been there before). One takes individuals’ needs,
circumstances and peculiarities into consideration, while the other is blind and confined by sterile law
codes.

I do not mean to suggest that the CJS is either corrupt or malevolent in its aims for public safety. Indeed,
all those who put forth an effort to ensure public safety and help heal the harms resulting from criminal
behavior should be commended. Instead, I hope that this series simply provokes questions and inquiries
into an institution and branch of government which has deficiencies and requires periodic modifications.
Every person can be an instrument of change. I personally know individuals who have already effected
positive, grassroots change in the areas I have covered herein. Who are these friends? They are survivors
of crime, offenders, concerned community members, counselors, psychologists, clergymen, and
restorative justice practitioners. They bring restorative principles and conflict-resolution skills into the
lives of children and offenders, they inform the public about crime-handling alternatives that seek to heal
those involved, and they facilitate circles in which victims, offenders, and often community members who
have been impacted, may resolve their conflict.

May we always keep in mind that all conflict involves people; human beings. Hurt people hurt people and
healed people heal people. Finally, may fairness and compassion fill the hearts of all those who have a
hand in justice.