† Criminal InJustice is a weekly series devoted to taking action against inequities in the U.S. criminal justice system. Nancy A. Heitzeg, Professor of Sociology and Race/Ethnicity, is the Editor of CI. Kay Whitlock, co-author of Queer (In)Justice, is contributing editor of CI. Criminal Injustice is published every Wednesday at 6 pm.
CI: Redemption, Transformation & Justice, Part 2
by Kay Whitlock
“I’m against the death penalty on principle,” a colleague said recently. “But when I think of what Ariel Castro did to those women and that kid in Cleveland, I wonder what punishment other than death could possibly suffice.” A friend of mine, normally a gentle soul, was livid: “He ought to be drawn and quartered.”
Not only had Castro kidnapped, held in captivity, raped, and tortured three adult women – Amanda Berry, Michelle Knight, and Gina DeJesus – for periods of 9 to 11 years; Berry bore a child and Castro forcibly impregnated and caused Knight to suffer miscarriages. Prosecutors have said they will add murder (“feticide”) charges.
It’s always like that in the aftermath of both real and purported horrific acts of violence or transgression, the race to retribution and vengeance, incited by cases so chilling, so abhorrent that they evoke in us waves of rage and dread.
And in the midst of those powerful emotions, many of us find ourselves awash in our own violent feelings. It’s the kind of electric current feeling that can too easily turn a crowd of ordinary folks into a group of vigilantes; a paramilitary border patrol; a lynch mob; people who torch synagogues and mosques.
That’s the feeling: “Kill the evil. Destroy it. Erase it.” As if the capacity for terrible violence existed – well, somewhere else. Not in us. Not in mainstream society and its systems. It exists in the archetypally dangerous Them. The Menacing “Other.” And the only thing we can think of to help soothe our fear, our dread is the violent erasure of that which frightens and enrages us.
But most of us couldn’t possibly imagine engaging in mob violence. We stand for justice, not against it, right? Right. And still, many of us will permit our most potent feelings of rage, dread, and fear – often fed by media’s “if it bleeds, it leads” dictum and sensational coverage – to be transmuted into structural forms of violence.
This is also the electric current of emotion that powers crime policy in the United States and that limits mainstream awareness and discussion of its violent impacts. It is what too often permits the criminal legal system to function as mob by proxy.
The horrific violent offender – real or imaginary – is the image that is deployed to stop serious discussion about justice that seeks to redeem and transform rather than to administer brutal punishment.
- It’s the image deployed to justify the mainstream nature of mass incarceration, police shootings of unarmed people of color, long-term solitary confinement, other forms of torture, and the CIA’s covert, extrajudicial use of rendition.
- It’s the image that not only tells us that we need a death penalty, but that prisons are inevitable and that the people in them deserve every form of brutality they receive.
- It is that image that that tells us that prisons create “safety.”
- It is the image that shores up the spiritually corrupting notion that the lives of “criminals,” especially those who have done terrible violence to others, cannot and should not be redeemed.
- It is the image that distorts the justice visions of both the Right and the Left.
So let’s start with the current embodiment of that image.
The harm Ariel Castro has done is incalculable, and he must be held accountable for his actions. The three women and the child he held in abusive captivity deserve every possible form of assistance to mend their shattered, interrupted lives. But could he redeem his own life, even if he never goes free another day in his life? Is redemption even possible?
What might be possible (though never guaranteed) if we learn to transform our own desires for vengeance and retribution? If we confront our own fears more directly, with the intention of not having them control our policies? If we commit to forms of justice that value reclaiming and redeeming the lives of all who have been touched by violence – and that seek to change the social and economic conditions that produce so much violence?
The answer, of course, is in the hands of those who have done harm. Surely it was possible for Charles Ramsey, convicted of three felony domestic violence offenses, who completed his sentences, and also worked to transform himself. Unlike the police, he rightly named and came to the aid of a woman who he suspected was suffering from exactly that kind of violence. Surely it was for Stanley Tookie Williams, whose story of redemption and transformation can be found here. (See Of Charles Ramsey and Stanley Tookie Williams ~Redemption and Transformation, Part 1).
Another glimpse can be found in the terrible violence in South Africa that continued to unfold, even in the dying days of formal apartheid.
The Death of Amy Biehl
Easy Nofemela and Ntobeko Peni were two of the four young South African men convicted of the brutal stoning/stabbing death of Fulbright scholar Amy Biehl, white, 26 years old, who had come to that country to study the role of women in transitional regimes. As she attempted to drive several black friends to their home in the black township of Guguletu in Cape Town, South Africa, slowly making her way through the area, an angry crowd formed, shouting anti-white epithets and slogans; she was dragged from the car and murdered.
The year: 1993. While Nelson Mandela had been released from prison, the government remained in white hands. Apartheid-as–policy was dying, but it continued to exact a horrific and often lethal toll from black South Africans and their communities. Not surprisingly, volatile forms of resistance also continued.
In a tragically ironic twist to the story, Biehl wholeheartedly supported an end to apartheid. She had developed friendly relationships with leaders in the African National Congress (ANC) and the Women’s League. Though not a member of either group, she devoted significant time and effort to activities that supported the building of a free and democratic South Africa. She was learning the Xhosa language so that black South Africans would not be expected to speak to her in English.
The four young men convicted of killing Biehl were sentenced to prison. Some time later, they requested amnesty from the Truth & Reconciliation Commission, established in 1995 to help address the impacts of massive violence and human rights abuses on individuals and society as a whole. Biehl’s parents supported their petition.
The four young men apologized directly to Linda and Peter Biehl for killing Amy; they were granted amnesty and released in 1998. We do not know the details of the lives of two of these men, or how – or even if – they dealt with the aftereffects of these events in their own lives in the ensuing years.
But Peni and Nofemala and Amy Biehl’s parents came to know each other very well. It was not possible, of course, to bring Amy Biehl back to life. Even so, these four people, whose lives collided in the most horrific imaginable circumstances, somehow managed to recognize one another as worthy human beings, all touched in terrible and different – but interrelated – ways by the unrelenting white supremacist violence at the center of the bleak heart of apartheid.
Together, they began to do what they felt they could to build a new path to a better future for the children in the impoverished townships of Cape Town.
Peni became an administrator and Nofemala assisted in the coordination of sports programs for the Amy Biehl Foundation, a nonprofit organization founded by Biehl’s parents to help equip children in the Western Cape with positive afterschool programs and opportunities crucial to envisioning and creating better futures for themselves.
But within a culture of violence, a change in administrations, however welcome, never automatically or easily deconstructs that culture. It takes generations and relentlessly persistent political will and community organizing to change the structural violence and poverty that remain in the post-apartheid era.
In the meantime, the Amy Biehl Foundation offers programs in a variety of sports and music; HIV/AIDS peer education, computer literacy, literacy, music and performing arts, and “green” activities that help protect and preserve the environment.
And like so many grassroots nonprofits that work to transform conditions of violence and injustice at the community level, the Amy Biehl Foundation struggles to remain viable.
But that is where the real change happens, at the community level, where there is real potential for transforming cultures of violence into tangible organizing and advocacy for deeper, more comprehensive personal and societal change.
Shifting the Lens Through Which We Envision Justice
As this story illustrates, the possibility exists that even terrible wrongs have the potential to be addressed in constructive ways that help reclaim and redeem many different lives touched in varying ways by violence and other forms of harm and wrongdoing.
Without reliance - or at least over-reliance – on intensified policing and harsher punishments, the possibility exists that some constructive action may be taken to atone for, and perhaps even to repair, at least some of the harm done to others.
Moreover, justice need not be reduced to a zero-sum game, in which the needs/interests of the direct victims of violence are framed as antithetical to those of the people who commit violent actions.
And at the same time, we must also address the massive violence, dehumanization, and human rights abuses that characterize so many criminal legal systems – including the U.S. criminal legal system.
We must address entire cultures of violence that refuse to work to deconstruct systemic, institutional, and community-based acceptance of rape, sexual assault, mistreatment of people with disabilities, and more.
But to do so, we must shift from an ethos of vengeance and retribution to one that promotes positive, constructive transformation for all those who are harmed by or complicit in violence and wrongdoing.
It must promote healing and liberation not only from violence and wrongdoing, but also from a culture/society that promotes and profits from violence, exclusion, and injustice.
Personal, structural, and cultural transformation must go hand in hand.
Growing Interest in Transformative/Restorative Justice
These are not “new” possibilities. Many Native American and other indigenous peoples throughout the world traditionally addressed fractures in “right relationship” through cultural and spiritual practices that focus not on retribution and punishment, but on healing and good outcome for all affected by the harm, including the wider community. But colonial conquest of this continent – racist, violent, and genocidal in nature – shattered for generations the ability of Native peoples to live according to their own traditions.
The criminal legal system that developed in this country was, and remains, rooted in the violence of conquest and the imposition of the institution of chattel slavery. Its evolution over centuries has resulted in the creation of an incarceration society, mass incarceration of people of color, continuing forms of punishment for many once their terms of imprisonment have ended, and the creation of a profit-producing prison-industrial complex, a network of public and private officials and entities who tangibly benefit from more policing, prosecution, and punishment.
Today, some reform efforts that seek to emphasize community corrections fail to address racial and class disparities in the criminal legal system and either support or are silent on the question of whether the coming trend toward community corrections will also encourage private profiteering.
But recently – that is to say, over the past 35 or so years – an ever-expanding range of initiatives have emerged that seek to supplement or replace retributive justice practices.
These justice initiatives are called by many names: restorative, reparative, transformational, healing, community-centered. Where violence and mass abuses of human rights in entire societies have been both both encouraged and perpetrated by the state, and the society must both come to terms with this violence and shift to a better future in which the state actively protects human rights, these initiatives often go by the name of transitional justice.
Elements of Transformational/Restorative Justice Approaches
There is no monolithic approach to restorative/transformational justice initiatives.
Some initiatives emphasize community involvement and are intended to eventually replace the harsh punishment/expanded policing orientation of the criminal legal system, while others are designed to work wholly within that system, as a more recent feature of it. There are many “blended” approaches that involve the criminal legal system, but also have components that operate independently.
Some initiatives look beyond individuals to examine and seek to address the social conditions in which violence regularly occurs, while many others do not.
Even so, some values/commitments are largely shared – but to varying degrees and in different ways.
- Greater focus on harm/wrongdoing/fracture in relationships among individuals and on impacts of same; less emphasis on lawbreaking as an abstract concept.
- Focus on repairing or atoning for harm caused by violence and wrongdoing, to the extent possible.
- Commitment to short- and long-term safety, healing, and constructive support for survivors
- Focus on accountability/acceptance of responsibility and positive transformation for people who harm others; less emphasis on “punishment.”
- Not restricted to courtrooms; survivors and those responsible for harm may voluntarily choose to meet face to face in a mediated/facilitated non-courtroom setting. Other relevant community members may also have a role in processes.
- Active rather than passive involvement of all parties in the processes wherever possible; encouraging a sense of agency in ordinary people in the community.
- Outcome focus on mitigation of harm and prevention of harm, and on positive outcomes for survivors and those who have engaged in wrongdoing.
The earliest and some of the strongest proponents of these non-retributive justice visions have been reclaiming and adapting traditional practices to contemporary needs as well as religious justice advocates from diverse spiritual traditions, including the historical “peace churches” (Mennonites, Brethren, and Quakers), Buddhists, Catholics, and Jews. Today, even some right-leaning evangelical Christian groups have created restorative justice initiatives.
Some of the most innovative and exciting work today is being done by activists and advocates working to support new and hopeful community responses to juvenile justice issues and trying to halt the school-to-prison pipeline, and by those organizing new community responses to interpersonal violence (battering, rape, and sexual abuse) and child sexual abuse.
Advocates include many fighting against repressive regimes and massive state-sponsored violence in Latin America, Africa, and elsewhere, though today, “truth” or “truth and reconciliation” commission” processes have also taken place in or are being considered for select U.S. communities, such as Greensboro, North Carolina, where massive racial and economic injustices, often supported by law enforcement and other “respectable” public and private systems, are seen as instrumental in promoting new outbreaks of violence.
The term “reconciliation” is often contested by those seeking an honest accounting of mass violence and injustice; the question is “on whose terms?” It’s far too easy for “reconciliation” to serve as a feel-good idea designed to let the dominant groups who did the harm off the hook without any effective form of accountability. It can too easily come at the expense of the peoples who have borne the brunt of massive harm and who are not in positions of power that permit them to be equal partners in “reconciliation.”
Restorative Justice programs often include some or all of these approaches: victim-offender mediation/reconciliation processes with trained facilitators; family/community group conferencing that brings a larger group of affected people together to decide how to address harm done and its aftermath; and peacemaking/talking circles designed to develop broader ownership of the justice process in ways that meet the needs of all affected parties. Both conferencing and circle processes are adapted from aboriginal/indigenous practices.
Restorative justice programs advocated by policy makers and Christian-Right organizations often deal almost exclusively with individuals. Initiatives are victim-centered, emphasizing restoration/repair. There generally is little or no concern with larger community and societal structures/cultures of violence and their individual/collective impacts.
Transformative Justice initiatives may utilize some versions of these practices, but there often also are components that emphasize community action, healing, and accountability for harm/violence done to people or even entire communities as well as directly challenging the limitations and structural injustices/violence often embedded in state criminal legal system responses. An explicit goal may be to challenge and transform systems of oppression that are seen to encourage harm. They also seek to involve survivors and those who do harm, as well as communities, in processes that emphasize healing, accountability, and agency.
Communities themselves, not law enforcement agencies, are given skills and tools to help them build/sustain the capacity to assume increasing responsibility for attending to public safety, the well-being of community members, and protection of human and civil rights. This is not a vigilante model, but a community-led education/organizing model that explicitly challenges over-reliance on policing, prosecution, and punishment to address trauma, violence, and other harms.
Challenges, Potential Problems, & Pitfalls.
In 2001, I wrote not only about the promises of a healing/transformative vision of justice, but why we should evaluate initiatives carefully, on a case by case basis:
“In too many cases, restorative justice concepts. . .have been grafted onto federal and state criminal justice systems essentially as an embellishment, while failing to alter the system’s foundation of violence, coercion, and retribution. In such cases – and they are not infrequent – victim–offender mediation programs may open the door to new types of humiliation and psychic battering. Restitution programs are often added onto long periods of incarceration as an additional form of punishment and may leave offenders with a crushing burden of debt. ‘Alternatives to incarceration’ may become a backdoor approach to penalty enhancements when criminal justice authorities utilize them as an add-on rather than a true alternative…
“Many of the most prominent advocates. . .are economically secure, largely white reformers. Usually, poor communities and communities of color are not full partners. . .in defining the meaning of restorative justice or in framing attempts to put this vision into practice. . .In the world of social advocacy, privileges, including economic privilege and white skin privilege, are very real barriers that limit the vision and distort the discussion of any initiative that does not fully reflect the experience, the felt needs, the voice, and the leadership of those who must live with the results. When professional advocates substitute for the affected constituency, the vision of reform they work toward is most often overtaken by the inexorable logic of injustice, exclusion, and retribution. . .
“Without the active ownership of a much broader constituency, [a healing justice vision] is reduced to an empty husk, a new garment to cloak the intact structures of injustice.”
––excerpt from In a Time of Broken Bones: A Call to Dialogue on Hate Violence & the Limitations of Hate Crimes Legislation (pdf download), American Friends Service Committee, 2001
Generation FIVE, an organization dedicated to ending the sexual abuse of children, stresses the need to create intervention/prevention strategies that have sufficient community capacity to sustain the work over time But it is a critical step in creating initiatives that is overlooked because it requires community organizing strategies. Many would simply prefer to lodge a little restorative change in the current criminal legal system and let someone else worry about how to sustain it.
Many advocates of restorative/transformational justice ask how we can ensure that we are not so insular in our vision that we neglect working to challenge/transform social and economic conditions that contribute to violence, harm, and wrongdoing.
Many are concerned that without vigilance, the philosophy of restorative/transformative justice will simply be co-opted by others who do not share the values and justice commitments that distinguish these practices from the criminal legal system. What happens when that system itself is a contributing factor to community violence?
Some programs pay no attention at all to cultural, religious, and status differences present in the communities with whom they work, and this can severely limit the credibility of those programs as well as their effectiveness.
How do we address these concerns? The answers will vary, depending upon the communities affected and the context in which these concerns and challenges arise.
What matters most is seeing the possibilities in these alternative justice visions and then working like hell to translate them into community practice in sound, just, culturally sensitive, sustainable ways.
Are Redemption and Transformation Possible?
You’ve already seen evidence that it is for individuals. If you’re still in doubt, ask Jarvis Jay Masters, San Quentin death row resident, or consider now-executed Karla Faye Tucker, and then let’s talk again.
To Learn More
As always, we encourage you to read carefully and critically. Here’s where you can find some excellent information.
- Prison Culture Blog: Transformational Justice Resources – the best, and a superb, resource page with an astonishing array of valuable links
- Project NIA (Chicago)
- Restorative Justice for Oakland Youth
- Justice as Healing: Indigenous Ways
- International Center for Transitional Justice publications
A Word of Caution: The most prominent restorative justice website, Restorative Justice Online, is operated by Prison Fellowship International and Centre for Justice and Reconciliation, founded by the late Chuck Colson, former counsel to President Nixon who was convicted of Watergate-related offenses.
While others may feel differently, I have no reason to challenge the integrity of Colson’s and PF’s concern for restorative justice, I note that Prison Fellowship’s ministries promote explicitly anti-LGBT and anti-Islam materials and viewpoints; they also promote rigid gender role conformity. To that end, they also help perpetuate and work to solidify structural forms of violence and dehumanization.