The Use of Restorative Justice Programs Term Paper

Introduction: Overview of the Relevant Facts

One of the problems of criminal justice today is the challenge of systemic racism that has been leveled by critics such as Angela Davis (2012) and numerous others. The charge is that the criminal justice system is inherently racist for a number of reasons (Lentin, 2020). These reasons include the existence of a for-profit private prison industrial complex that represents a clear conflict of interest to the system since the complex profits off incarcerations and businesses exploit the labor of the prisoners by paying them pennies on the dollar (Pelaez, 2019); and the fact that 37% of America’s prison population is black, yet blacks are only 12% of the total US population (Bureau of Justice Statistics, 2014). On top of all this is the practice plea bargaining, which is pushed on those charged with a crime by prosecutors, essentially robbing the accused of due process rights afforded by the Constitution, as those charged are told they will risk a stiffer sentence if they do not take the generous plea deal.

As Grossman (2005) notes, “the process by which criminal convictions come about through guilty pleas in exchange for sentencing considerations carries with it the almost inevitable result that those who refuse a plea bargain are punished for exercising the right to trail” (p. 101). Additionally, Nilsen (2007) points out that “sentences are longer and meaner, prison conditions are more degrading and dangerous, and post-release reintegration is severely hobbled by numerous barriers that guarantee a permanent underclass” (p. 111). Aside from this is the fact that America has the highest incarceration rate of any country in the world with 2 million people incarcerated currently (Gramlich, 2018). Many of these people are funneled into the prison industrial complex, a term that is more than two decades old and that refers to the “complex configuration comprised of the US prison system, multi-national corporations, small private businesses and the inmate population in the social and political economy of the 21st century United States” (Smith & Hattery, 2006, p. 1). 

All of this taken together should be enough to indicate that there is indeed a major problem in the criminal justice system. It is a problem, however, that a move away from punitive justice could fix. This means that embracing restorative justice could be the way to root out the racism in the criminal justice system.

Restorative justice is the idea that an offender owes a debt to society and sentencing should focus on enabling the offender to repay that debt through community service or some other form of restorative justice. The idea is that it helps to reduce social conflict by helping the person to see that his actions have consequences and that he is part of society whether he likes it or not. Restorative justice can also satisfy the victims as they feel like they are being restored or that justice is actually being served. If the offender is simply sent to jail there is no real satisfaction in the sense that any restoration is obtained. Restorative justice allows for the victim and the offender to feel better about themselves and each other and the justice system.

Johnson et al. (2015) have found that the idea of restorative justice is more meaningful for members of society than punitive justice is; and this includes for both the victims and the offenders. According to Johnson et al. (2015), victims especially “reported higher perceptions of fairness and greater feelings of justice through the restorative justice programs as opposed to victim reports of traditional justice programs” (p. 2349). Moreover, restorative justice works at reducing crime: in regions where restorative justice programs have been implemented, recidivism has fallen 26%. Instead of sending people off to prison where they get stuck in a cycle of crime, restorative justice has the opposite effect: it teaches offenders that they are part of society and need to do a better job of acting like contributing members. It is a program that can help to fill the gap identified in social bond theory, which posits that people commit crimes because they do not feel any sort of social bond to the community. Restorative justice thus not only addresses the issue of injustice in criminal justice system but also provides a solution to the problem of why crime is committed in the first place, as presented by criminologists.

The Major Ethical Issues and the Relevant Underlying Values of Each Opposing Side

The three main ethical systems are virtue ethics, deontology or duty ethics, and utilitarianism. Since the time of Confucius in the East and Aristotle in the West, virtue ethics has been the primary foundation for universal ethics. Virtue ethics posits that morality is determined by the extent to which one’s actions enable one to conform to one’s character to the good. Under Kant, in the modern era, the system of duty ethics gained in popularity. In this system, morality is determined by the extent to which one’s actions conform to one’s duty in life. Under Mill, utilitarianism was put forward. It posits that morality is determined by that which provides the greatest common good to society (Holmes, 2007).

In the postmodern, post-truth world of today, a fourth system known as ethical egoism has prevailed. Ethical egoism posits that the ends justify the means and that whatever allows one to achieve one’s own goals is moral. It is a decidedly subjective approach to morality, whereas the other three systems at least rely upon an objective sense of the good (Holmes, 2007). Today, there is no social focus or insistence upon an objective or universal good. One’s truth is whatever one wishes it to be. This presents certain problems for understanding the ethical issues underlying this issue because depending on what ethical system one adopts, one’s views are likely to differ from another.

When it comes to criminal justice today, the emphasis is clearly on punitive justice (Davis, 2012). Yet, when people think of prison they think of it as a place where offenders should not just be punished but also reformed. If criminals are going to be released back into society, society wants to believe that these people have been rehabilitated and no longer represent a threat to the community. However, recidivism rates show that the justice system is not succeeding in this department (Johnson…

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…all across the board—for the offender who sees that he is indeed part of a community and must right whatever wrong he has committed. Those in the community see that the offender is part of the community and they are taught to accept that a wrong was committed and that wrongs can be righted and past sins forgiven. They are taught in this manner to forgive and not to look down on or to think badly of those who make mistakes, even serious ones. Instead, they learn to go in fear and trembling because if others can fall and make mistakes, then so too can they. There is a strong moral lesson just in the visual aspect of restorative justice.

As governor, you must appreciate how important the common good is for society. When the common good goes missing, society becomes fractured; communities break apart—each goes searching for its own meaning, its own lot, its own gain. Each faction turns to ethical egoism and uses the ends (self-gain) to justify the means. But communities cannot stand on such a shaky and subjective ethical foundation. The common good has to be asserted somewhere along the line.

The governor should be the one to assert that common good. He is the leader, elected to represent the will of the people, a people who believe in a common good or else they would not have voted for you. But that common good often gets suppressed for reasons that go against it. Instead of serving the community, police end up serving the corporations; instead of dispensing justice in a way that restores communities and social bonds, the justice system ends up repressing communities and serving the same corporations profiting from the prison system.

Incarceration is a punitive form of justice that does not end the cycle of crime. In fact, it makes it worse. Restorative justice programs, on the other hand, have been shown to reduce recidivism rates (Johnson et al., 2015). Just think what would happen if more time and attention, energy and resources, were given to fighting crime by promoting restorative justice. It is not a stretch of the imagination to believe that recidivism rates could be reduced by half or even more. The study by Johnson et al. (2015) was limited in terms of length of time in which the data could be inspected—but if one is looking at the macro perspective, one should be able to see that there would be a major effect on society and the community in terms of deterrence as well. If crime rates drop as a result of people seeing the consequences of crime in real everyday life, how much more effective overall does restorative justice become? This is a program that should be implemented everywhere.

Conclusion

Restorative justice programs promote the common good, which from a utilitarian perspective is what every representative in government should be concerned with. Too many people are being incarcerated in America. Once in jail they are being exploited by corporations who want to profit from their cheap labor. Those charged with crime are dissuaded from exercising their due process rights by zealous prosecutors offering plea bargains. The system is…