1 Monica Glicken The Criminal Justice Dilemma The United States imprisons more of its citizens than any other country in the world. In 2010, the cost of incarceration was approximately $30,000 per inmate per year with costs as high as $60,000 per inmate in some prisons; it is also estimated that U.S. taxpayers pay about $63.4 billion on incarceration every year (Teichner, 2012). The U.S. culture maintains an out of sight, out of mind mentality, with the belief we should do whatever it takes to get criminals off the streets and that is where our involvement ends. However, the out of sight, out of mind approach, is not proving to be as effective as society would have hoped. This dilemma begs the following question: are there other methods to approach the resolution of crime in our country? This paper outlines two approaches to addressing crime, retributive and restorative justice, as social contracts within our society, looking at the institutions and beliefs that impact them, how they differ and how they shape outcomes within society. This paper will also analyze problems with our current justice system using concepts from class discussions including, critical junctures, the long-term effects of a short-run goal and institutional lock-in. The United States judicial system is largely based on a system of retributive justice. This system is based on the premise that when an offender commits a crime, the crime is considered to be against the state, in violation of laws put in place by government. When an offender commits a crime charges are brought against them. They are then sent through the judicial system where they receive a punishment (Zehr, 2002). Many times this punishment is a sentence they must serve out in jail or prison. The state oversees the type of punishment the offender will receive in response to the crime he/she committed. The principle of an eye for an eye is a foundational concept for the retributive justice system (Zehr, 2002). When a crime is committed, the justice process main concern is punishment of the offender. The main decision makers within our current system are those in the courts that have full control over the fate of the crime and the criminal. Restorative justice is an alternative means of addressing the complex victim/ offender relationship. As opposed to other criminal justice programs, restorative justice directly involves the victim in the justice process. It puts an emphasis on relationships, focusing on how the offender s crime impacted the victim on both a physical and emotional level (Zehr, 2002). An
2 offender only enters a restorative justice program if he/she and the victim are willing to participate and maintain an active role throughout the course of the program. The arresting party must refer an offender to the program. Whether or not they are referred depends on their behavior at the arrest, previous arrests, whether a program exists within the department and a number of other factors. Initially, the facilitator meets with the offender and the victim separately to get a comprehensive idea of what damage occurred, what the motive was, if any, for the crime and prepare all parties for a conference (Zehr, 2002). Then a conference is held that consists of the offender, the victim, a facilitator, law enforcement and community members, which may be a family member. The conference is a discussion where the offender describes the crime and why he committed it and the victim can ask the offender questions as well as voice concerns about how the crime affected them. Another part of this dialogue is to develop a contract that the offender must comply with. The contract consists of a number of actions or items that must be completed in a certain period of time in order to put the case to rest. These items typically include: numerous letters of apology, community service, financial restitution, further counseling, report writing, etc. Each is dependent on the crime committed and the requests of the victim. In a case where the contract is not completed, the offender will be referred back to the retributive system for charges. The purpose of restorative justice and the conference is to give the victim a larger part in resolution of the crime and feel like the right justice was served (Zehr, 2002). The hope is that since the offender plays a larger part in the restitution, he will be more likely to follow through with his commitment. The costs of the restorative justice process varies program to program; the Boulder County Sheriff s program has relatively low costs because it is a volunteer based system with one main coordinator in the office. These two types of justice embody two different methods of responding to crimes. The first type, retributive justice looks at a crime by the offender as a violation towards the state. The second, restorative justice is an interchange between the offender and the victim, which involves other active members from the community that were impacted by the crime, such as family members and neighbors. Each has its own benefits and costs, shaped by their individual goals that influence the outcomes. The goal of retributive justice is a set, structured punishment that should deter any future criminal actions, giving the offender exactly what he deserves (Zehr, 2002). In contrast, the goal of restorative justice is to repair the harm that the
3 offender caused the victim and the community by incorporating moral, social, economic and political aspects into the offense, giving the victim what they need to heal and allowing the offender to take responsibility for repairing the harm (Zehr, 2002). A similarity between both of these approaches is that they deal with a crime after it is committed. Both have the underlying hope that the punishment (retributive) and the rehabilitation (restorative) will make the offender understand the crime was wrong, he should not have committed it and will prevent him from committing crime again in the future. Restorative justice directly involves community members so that others within the population can see the consequences of your actions. It is important to note that restorative justice is not a direct alternative to retributive justice; it is a different way of conceptualizing the criminal and the crime within the context of society. It is difficult to directly compare the outcomes of these two systems as they offer different solutions to the problem of societal justice or different solutions to different types of crimes. One way to compare them, which is an outcome used in a lot of literature on the subject, is recidivism, the rate at which previous offenders recommit crimes. A second point of comparison is the costs of each program as it relates to recidivism. Another outcome variable often considered when evaluating restorative justice programs across the country is the satisfaction of all involved parties with the process and resolution of the crime. Table 1 shows some of the different measurements of comparison for both approaches and their outcomes. Although these two models are different that does not mean that they are perfect substitutes for each other. In many instances the best option may be to incorporate both approaches. Table 1: Traditional Justice System and Restorative Justice Comparative Outcome Measures Traditional Justice System Restorative Justice Recidivism % 27 18 Victim Satisfaction % 57 79 Victim Fear of Re-victimization % 23 10 Offender Satisfaction % 78 87 Completed Restitution % 58 81 Source: Boulder County Colorado
4 In class we discussed the powerful effect of institutions and behaviors that shape many aspects of our society. With respect to justice, the courts, jails, and prisons of the United States are the ruling organizations within our judicial institution that shape our criminal justice system. Our justice system influences our expectations of justice and how we perceive justice in today s society. The formal judicial institution and organizations are the shaping factor in the restitution of crimes in our society today. They are in full control of the rules of the game. Justice, like other economic contracts, tends to have higher costs when institutions and organizations get involved. The informal norms surrounding justice consist of a citizen s expectation of the state to keep them safe from harm. When a crime is committed, people expect that something will be done by the justice system in response to the crime, most of the time the expectation is punishment. In the case of justice, a citizen s peace of mind can be considered a type of property right. When there is a threat to the peace of mind, a citizen expects the law and institutions to protect this property right. In the justice system, the protection of this property includes the punishment of those that infringe on this property right. Expectations of this property right are one aspect that has remained constant throughout history. However, other institutional changes and changes in norms have occurred. A critical juncture is defined as an opportunity for a country that allows for an influential institutional change. Today s current system has not always been in place. In fact the United States has implemented multiple justice systems in the past. After the Revolutionary War the United States shifted from retributive principals, reminiscent of those in England, to a rehabilitative system, one that works to restore those imprisoned for crimes, not impose suffering (Nagel, 1990). This movement allowed for the spread of indeterminate sentencing, where a prisoner would be sentenced until an expected amount of reformation was achieved. Until the 1960s, this approach had immense popularity (Nagel, 1990). The decline of this approach began when U.S. society was not seeing the results they had hoped for, including a lack of rehabilitation and a large amount of discrimination. The institutions were not meeting the needs of the population. It is after this era that a retributive justice system re-emerged. The War on Drugs can be viewed as one of the most influential junctures with respect to the justice system, which marks the tough on crime system we have today. When the war was declared official spending on prisons in the U.S. went up 30%, the DEA s budget increased and the police were given more power (Parenti, 2008). The budget and power increase led to an
5 immense 1100% increase in the number of arrests from 1980 to 2003 (Mauer and King, 2007). As a result, there was also a disproportionate increase in the number of low-income minorities incarcerated. There were three major influential policies that emerged during this reform. The first was severe mandatory minimum sentencing laws for drug offenses that almost tripled the length of sentences for offenders, typically for racially divided crimes (Mauer and King, 2007). The second was the three strikes laws where three convictions automatically led to life imprisonment without parole, which have led to a number of disparities among types of crime and race (Steen and Bandy, 2007). The third was the zero tolerance policy, working to eliminate discretion by promoting mandatory punishment for specific offenses. Due to the increase in discriminatory and costly effects, Mauer and King describe the current situation of our criminal justice system as one of instability and mistrust (2007). The increase in the prison population was not an issue that needed to be addressed right after the War on Drugs because it seemed that it was the right thing to do. Now, however, we are forced to confront the increase because it is not economically feasible. Steen and Bandy discuss how the war mentality when applied to any goal, typically leads to spending at virtually any cost (2007). The declaration of this change as a war is similar to when politicians use the term crisis. This type of rhetoric is used to attempt to alter
6 people s beliefs. The hope was to instill the idea and the fear that this was a necessary reform to our justice system, to justify the policies the politicians implemented. Throughout the war and into today, the justice system has gotten out of hand, leading to outrageously expensive and no longer sustainable policies (Steen and Bandy, 2007). Both the transition to rehabilitative justice and the War on Drugs mark a change in beliefs, initiated by those in power, about what role criminal institutions should play within society. Another example of a dilemma in our current justice system is what Alston and Gallo discuss in The Rise of Peron and the Demise of Checks and Balances in Argentina, as the impact of a short-run goal on the long run of society (2007). In Argentina, the Supreme Court drastically influenced the future of the country when they remained quiet during a time of election corruption. During the great depression, the conservative party in Argentina was committing electoral fraud in order to stay in power. The Supreme Court stood by and did nothing. Although the conservatives helped to maintain the economy of Argentina during this time, making them more well off than other nations during this period, the long-run effect proved to be detrimental by damaging the citizens faith in the Supreme court and producing a lot of electoral instability in time to come. Similar to this situation in Argentina, is the effect of the retributive justice system on the United States. The retributive system seemed appropriate throughout the late 90s, cleaning up the streets and putting criminals away. However, as Steen and Bandy point out no one paid much attention to cost or effectiveness, and that the get tough policies are no longer economically sustainable (2007). Although the goal of the system was to decrease crime and incarcerate less people, the change led to many unanticipated consequences, resulting in the opposite effect of what was expected. A majority of the spending on incarceration is coming from the state level, the same funds that are used to pay for a range of public needs, including, health care, housing, public assistance and education (Hawkins, 2010). Graph 1 shows the total budgets for both higher education and corrections in the state of California. Higher education has a significantly higher budget then corrections, showing its greater value to the public (Anand, 2012). However, graph 2 shows the percent of the general fund expenditures that goes to higher education and corrections. Chart B shows the gradual increase in spending on corrections and the gradual decrease in spending on higher
7 education. In recent years, more of California s General Fund Budget has gone to corrections rather than higher education (Anand, 2012). Graph 1: Total Budgets for Corrections and Higher Education Graph 2: Corrections and Higher Education s Percentage of the General Fund Budget
8 Along with the costs and effectiveness problems of our current system, there are other types of problems that occur when it comes to justice reform. There are two types of persistent institutional lock-in problems that arise when discussing the United States current criminal justice system. The lock-in occurring today is that a retributive system dominates justice programs but it is also shown to have multiple costs to U.S. society, including literal costs related to incarceration as well as problems incorporating prisoners back into the mainstream and lowering recidivism (Steen and Bandy, 2007). The first apparent lock-in issue is problems with information. Although there are other justice programs that take a different approach to crime contrary or supplementary to the retributive approach, these reform programs are not in the mainstream. Many people are aware of the issues with our justice system, but they are not aware of the possible approaches that could be incorporated to improve it. Although restorative justice programs are increasing in popularity, many still do not know what it is or what it actually does. There is reduced knowledge when it comes to alternative programs because it has not made its way into the public eye. The limited knowledge creates hesitation in implementing or testing these types of programs. The second problem within the institutional lock-in of our justice system is that the process of the retributive justice system is widely accepted across the country. In theory, the process is effective with its use of courts and incarceration. The process provides an out of sight, out of mind satisfaction. Once a crime is committed it turns to the courts and is now their problem. However, the problem exists with the outcome, which is an expensive, not necessarily preventative solution to criminal activity. There is also a large problem with prisoner reincorporation into society. Since there is little preparation and assistance for when criminals are let out of prison or jail, it is difficult for them to become a successful member of society, which is why some eventually end up reoffending, when they go back to their old behaviors (Steen and Bandy, 2007). There are multiple approaches to dealing with crime and the one the works that best may not be the same over time and place. Crime and punishment today are not the same as they were a thousand years ago. This paper outlines two approaches to the criminal justice system, retributive and restorative justice. These two approaches are not mutually exclusive, in fact there are many retributive systems across the country that are trying to incorporate more restorative principles into their programs. When it comes to criminal justice, solutions are never really black
9 or white and when they are they tend to be flawed, as in the case of some of the policies of the War on Drugs. In some crimes it is more appropriate to take the retributive approach, such as violent crimes of rape and murder, where many times the victim or victim s family may not benefit from close interaction with the offender. Other times it is more appropriate to take the restorative approach, in cases with young offenders such as property crimes and harassment, when there is a potential for rehabilitation and the victim is willing to confront the offender in order to prevent this crime from occurring for someone else. Of course each crime is case specific, depending on the personal situation of the victim and the offender, deciding on which is the best approach will depend on those details. The criminal justice system is one of the most important institutions within society. It is the force that protects the citizens of a country from evil. Both the system s approaches, and criminal activity it works to prevent, are adapting and ever-changing. A system will develop and evolve to meet the norms and institutions of the time, but sometimes the short run outcomes can lead to unexpected costs and ineffectiveness in the long run. When this happens it may be time for the United States to reevaluate their criminal justice system.
10 Works Cited Alston, Lee J., and Andres A. Gallo. "Electoral Fraud, the Rise of Peron and Demise of Checks and Balances in Argentina." Electoral Fraud, the Rise of Peron and Demise of Checks and Balances in Argentina. Aug. 2007. Web. Anand, Prerna. "Winners and Losers: Corrections and Higher Education in California."Winners and Losers: Corrections and Higher Education in California. NBC News, 5 Sept. 2012. Web. 30 Nov. 2012. <http://www.cacs.org/ca/article/44>. Hawkins, Steven. "Education vs. Incarceration." The American Prospect. N.p., 6 Dec. 2010. Web. 31 Oct. 2012. <http://prospect.org/article/education-vs-incarceration>. Mauer, Marc, and Ryan S. King. A 25-Year Quagmire: The War on Drugs and Its Impact on American Society. Rep. Washington, D.C.: Sentencing Project, 2007. Print. Nagel, Ilene H. "Structuring Sentencing Discretion: The New Federal Sentencing Guidlines." The Journal of Criminal Law and Criminology 80.4 (1990): 883-943. Print. Parenti, Christian. "The War for All Seasons: The Return of Law and Order." Lockdown America. London: Verso, 2008. 45-66. Print. Steen, Sara, and Rachel Bandy. "When the Policy Becomes the Problem: Criminal Justice in the New Millenium." Punishment Society 9.5 (2007): n. pag. Print. Teichner, Martha. "The Cost of a Nation of Incarceration." CBSNews. CBS Interactive, 22 Apr. 2012. Web. 31 Oct. 2012. <http://www.cbsnews.com/8301-3445_162-57418495/the-cost-of-anation-of-incarceration/?tag=mncol;lst;1>. Zehr, Howard. The Little Book of Restorative Justice. Intercourse, PA: Good, 2002. Print.