Re-questioning what’s Best for a Justice System between Restoration and Retribution
The question of what’s best for a justice system between restoration and retribution is apparently one of the biggest questions before us as we strive to make our society more peaceful. While some societies have adopted a more restorative justice system, many societies are still stuck with the punitive justice system. The degree to which punishment/violence as a means of correction is sanctioned across human societies varies, with some societies still using such means as flogging, amputation or even death sentence. Bringing the realization that punitive justice is archaic to many is still a big challenge, which would require that we try to answer specific questions.
Such questions include: To what extent are individual behaviors and actions which may be criminal or not are product of social conditioning? Is it appropriate to conclude that all crimes are products of personality disorder of some degree and type? Can every personality disorder be resolved? Do crimes have social dimension of responsibility? Does the justice system need to give keen attention to limiting the rate of recidivism to the barest minimum as it seeks to prevent crime and build a peaceful society? Does the rate of recidivism reduces with increasing leaning of the justice system towards the restoration end of the retribution-restoration continuum? Will the establishment of private correctional facilities (which are business entities) as in countries like US help in making the justice system more humane? If there is the need to move justice system further forward along the retribution-restoration continuum, how could that be achieved?
Human personality, it has been argued, is a product of nurture much more than it is a product of nature. The same individual who grew up entirely in a society that normalizes violence (in any of it forms) – and probably makes the individual a victim – and thus grow up to be violent will without any doubt be a totally different person if she had grown up in a perfectly non-violent/humane environment. There is no doubt that the human personality, which defines how much of violence/criminality each of us may put up with or perpetrate, is largely a function of the social conditions through which we grow up. Suffice to say that it is nearly impossible in our present highly interconnected world for an individual to grow-up in a social environment that is either exclusively violent or exclusively non-violent, as each of us are exposed to some degree of violence.
The developing science of the brain (and mind, taking the form of such fields as neurology, psychology et cetera) is increasingly making obvious that there is a wide range of personality disorder and that criminal behaviors are individually associated with specific personality disorders. I have a strong feeling that someday it would be established beyond any question that every criminal/violent behavior is connected to one or some personality defect(s). It is argued that humans naturally have a greater propensity for compassion, love and such other ethical and moral qualities as against criminal and immoral behaviors; and the expression of pain and sorrow that an average human puts up at the sight of some gory event that had happened to some other humans or animals is a proof of this. It thus takes dehumanization for the human to become comfortable harming others and perpetrating criminalities.
With sufficient investment in psychotherapy research, I feel strongly that a wider range of therapy options for the improvement and fixing of personality defects would become available and their effectiveness would likewise be increased, so that every damaged psyche can be fixed. It should be added that the fixing some damaged psyches would no doubt be great challenging as a consequence of the type and especially degree of the defect which the minds have suffered.
Human psyche is damaged by violence — when the individual is either a victim or perpetrator. The foundational violence in any society is the subjection of the individual or a group of individuals to conditions that invalidates the intrinsic wills of the said individual or group. And this is a position that our African forbears recognize, as is reflected in the saying that “a child not embraced by the village will burn it down to feel its warmth.” The popular Yoruba saying that four eyes births a child, but it takes two eyes to raise her’ also signifies the recognition of the social responsibility to ensure that every child has a healthy emotional development, a responsibility which transcend the family to the entire community – which, in our present interconnected world, would mean all of humanity.
Considering that the greater purpose of the justice system is reducing violence and consequently fostering peace, it is appropriate to say that the justice system cannot just be concerned with victims getting a sense of justice, but also that perpetrators desist from perpetrating criminal acts. So a critical concern, and perhaps the most important, must be ensuring that offenders do not become re-offenders.
Perhaps it may be helpful to take a look at some national cases. Norway is said to have one of the most humane prison system in the world and has one of the lowest recidivism rates, which is about 20 percent. The United States has one of the highest recidivism rates (according to havardpolitics.com) and the highest incarceration rate, with reports suggesting that its private prisons are more concerned with business than rehabilitating offenders. And so it is obvious to a cursory observer that increasing leaning of the justice system towards the restorative end of the continuum would mean lower recidivism rate, and consequently less crime and a more peaceful society. Experience shows that attempt to maximize profits through such strategies like reducing staff strength implies less welfare – and consequently less in the form of rehabilitation - for offenders. ‘In the US, an estimated 49% more violent incidents and guards assaults are reported in private facilities than public facilities, and inmates on inmates assaults are said to occur 65% more in private facilities’ reports the criminaljusticeprograms.com. Privatizing correctional services has done and would continue to do more harm than good – if there would be any.
Retributive justice is an age-long notion of justice. ‘It is just to take an eye for an eye,’ many would contend, disregarding that the entire society may end up eyeless. There are sufficient instances to show now that retributive justice is too often ineffective and unsustainable. Take the case of Rwanda for instance, it was estimated that between 500,000 and 1,000,000 persons committed acts of genocide. Executing all of these people was not an option, neither was life imprisonment, as the state would no doubt have serious difficulty feeding and housing that mass of people whose incarceration would mean little or no contribution to economic development of the nation. And so f the need to move the justice system forward towards the very restorative end of the retribution-restoration continuum is beyond doubt. The question before us now really is ‘how do we do this?’
To answer the question of ‘how do we move the justice system towards the more restorative end of the retribution-restoration continuum?’ at least in part, it is argued that the focus of the justice system must become rebuilding relationships among individuals and the entire community. This requires defending the victim’s right to have crimes committed against her acknowledged and addressed, while also affirming the perpetrator’s right to be reintegrated into the community. Focus must shift from just punishing perpetrators to helping victims heal and making perpetrators aware of the harm caused and to understand the duty to repair such harm and desist from same in the future.
