For Restorative Justice
1. There are two conceptions of criminal justice at our disposal: retributive justice and restorative justice.
This premise is complex. One debate that may shed light on it is the long-standing tension between two theories of punishment: the humanitarian theory and the Kantian theory.
The former of the two argues that criminals are, too, helpless victims of background, genetics, or a combination, and should be treated like mental health patients. Rather than focusing on punishing them, we should cure them through education and psychotherapy (with a therapeutic attitude, they emphasize).
The latter retorts that detaching punishment (or cure) from the idea of desert will lead to grave injustices, such as restraining someone's freedom indefinitely or using them as a mere means to educate the public. Perhaps treating them as irresponsible denies a part of their human dignity and freedom as free agents. Perhaps the humanitarian-theoretic approach leads to tyrannies governed by technicians and scientists rather than public moral sentiment.
As you might predict, the humanitarian theory rests on a restorative conception of justice, while the Kantian theory rests on a retributive one (a.k.a. retributivism). Two popular articles in this field are “The Crime of Punishment” by Karl Menninger and “Against the Humanitarian Theory of Rehabilitation” by Clive Staples Lewis. Despite their bitter disagreements, both sides admit (P1): that criminal justice can be conceptualized in two radically different ways.
In recent years, a new way to understand justice entered the market of ideas: transformative justice. Advocates and practitioners of this view include Mia Mingus (at the Bay Area Transformative Justice Center) and Mariame Kaba (at Survived and Punished). They argue that the problem inside the prison’s walls lies in the community outside of them. Justice for them means transforming communities and targeting social (as opposed to individual) pathologies of crime. As this view has not been subject to scrutiny quite as extensive as that of restorative and retributive justice, it is not yet generally admitted to (P1).
2. Society disproportionally relies on the retributive sense of justice, which fails miserably at its job.
(P2) consists of two parts.
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(1)Society relies disproportionally on retributivism. By society, most prison abolitionist writers target the US, and for good reason. While the US has around 1/20 of the world’s population, it houses 1/4 of the world’s prisoners. This number soared in the 80s and 90s. In her famous manifesto of prison abolitionism, Golden Gulag, Ruth Wilson Gilmore notes that the California prison population grew by almost 500 percent between 1982 and 2000. As Woods Ervin, an organizer with Critical Resistance, one of the world’s largest anti prison activist groups, points out: “We’ve been indoctrinated by a society that’s been [using] policing and prison to answer for every social and political problem that we have that we have very little practice with the muscle of imagining and solving systemic problems without prison sentences.”
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(2)Retributivism, materializing in the form of prisons, has failed miserably at its job. This claim rests on the question: what exactly is the goal of punishment? Reviewing standard theories of prisons, Gilmore lists four possible answers: retribution, deterrence, rehabilitation, and incapacitation. She concludes that two of the main goals of the prison system, rehabilitation and retribution, are in painful conflict with each other. Moreover, the prison’s role in deterrence has an empirically shaky basis. Incapacitation, the only pillar remaining, truly defines the prison. For Gilmore, this analysis paints a grim picture of prisons as “partial geographical solutions to political economic crises.” Essentially, incapacitation solves nothing and merely changes the location of the criminal scene from one place to another.
3. Society should turn to restorative justice by, among other things, abolishing the prison-industrial complex.
This conclusion roughly follows from the formal properties of disjunction. Namely, that P or Q, not P; therefore, Q. One unfamiliar term is the “prison-industrial complex,” which was taken from the popular military-industrial complex to underscore the complex web of connections between prisons and corporations, suppliers, and the forces governing capital (it is then, to some extent, no surprise that most outspoken critics of the prison-industrial complex are leftists, or even communists like Angela Davis).