In Criminal Justice Ethics, Cyndi Banks takes a multi-pronged approach to analyzing punishment. How do we define punishment? What are the end goals and purpose? What values should it promote? These questions reach a broad scope of opinion, depending on who is asked. Regardless, restorative justice fits into the theoretical framework of punishment.

​Punishment should first and foremost serve the function of protecting society. This can be done by incapacitating those who cannot be rehabilitated, and restoring those who can into productive, beneficial citizens. Restorative justice is built on the belief that a supportive community can transform negative behaviors.

Restorative justice aims to heal victims, offenders, and the community. For victims, this may involve restoring property, healing injuries, and bringing back “a sense of security” (Banks, 2013, p. 128). Victims are involved in the justice process and given a voice; they are encouraged to tell their story and have the offender and/or community respond with empathy. On the other end, offenders are supported and controlled by social management, rather than a punitive, detached system. This means they are given the tools and resources to restore their bonds with the community and make better choices. To accomplish this, the community must stretch beyond stigmatizing criminality and adopt a supportive mentality for the victim and offender. True restorative justice occurs with all three entities: victim, offender, and community.

While restorative justice is not a “punishment” in the traditional sense, the way incapacitation or the death sentence is, it falls under this category because, based on Banks’ descriptions, it 1) involves the community showing disapproval (in that an offender must accept responsibility); 2) allows offenders to make amends for the harm they have caused; and 3) will stop offenders from committing crimes again (2013).

Where does restorative justice fit into the justice system? First, one must acknowledge the role of incapacitation and retribution. Some sociopathic tendencies cannot be treated or amended, the crimes so heinous that there are no solutions but incapacitation and retribution. These forms of punishment are important because there is no other leverage in the criminal justice system for protecting against individuals who sincerely do not care about society, law and order, rehabilitation, or the value of life itself. They feel no remorse, so the punishment should treat them with the same indifference. In other words, retribution is a “fight fire with fire” technique; it is concerned with justice and justice alone. Such is the case with someone like the notorious Ted Bundy, who murdered an estimated forty victims, believed killing was a divine experience, and never admitted remorse. He received the death penalty for his crimes, which, given the number of lives he mercilessly took, was the only fitting punishment that didn't violate the constitution...

In the average case, however, the trouble with judging whether someone is capable of rehabilitation or restoration is that remorse is not always easy to discern, especially not in a court setting. There are conflicting ideas of what constitutes an indicator of “genuine” remorse, which makes such a judgment call so subjective (Zong, 2014).

Aside from the extremes, which do not currently make up the majority of our prison population, punishment should be reparative, designed to amend wrongs and prevent further harms to society. These concepts flourish with restorative justice.

There are also aspects of retribution in restorative justice (Banks, 2013). An offender may be ordered to pay reparations to a victim or victim’s family or complete community service. While some advocates for restorative justice argue that punitive tactics like reparations have no place in this method, reparations can serve as a bridge to healing the damage to the community and victims. It might go toward repairing a broken window, replacing a stolen item, helping to rebuild a burnt house, assist with a victim’s medical bills, and so on. This goes toward allowing offenders to make amends.
Opponents to restorative justice argue that victims might feel the crimes they suffered are taken less seriously than those that result in a prison sentence, and it may suggest that “society has a different attitude toward certain kinds of behavior” (Banks, 2013, p. 129). This is not necessarily so; it might just suggest that certain offenders are easier to work with and “restore.”

Additionally, there is always the possibility that telling their story or having an offender reach out to express remorse (which won't always be part of the arrangement) could trigger victims and cause them to relive trauma. However, restorative justice, when done correctly, is supposed to be on the victim’s terms. An offender is approached first to ensure that he/she will cooperate in apologizing and expressing remorse before asking anything of the victim (Sherman & Strang, 2007).

Another argument in favor of restorative justice is that it produces results; in other words, it stops certain offenders from committing crimes again. Punitive measures may or may not have a deterrent effect. For instance, there is no difference in deterrence for crimes that bring about the death penalty versus life in prison (Banks, 2013). Some criminologists argue that the criminal justice system has a deterrent effect; others state that “the criminal may well fear the law but still break it” and professional criminals do not experience the same shock at getting caught (Banks, 2013, p. 119). To truly prevent future crimes, then, we must employ more than fear. Banks points out a perspective that law-abiding citizens act within the law not out of fear but because of “moral inhibitions and norms of conduct” (p. 119). Restorative justice can aim to change these norms of conduct for an offender. Through proper treatment programs and personal management strategies, as well as a supportive community instituting these norms, an offender’s moral mindset may be influenced. This idea draws upon Sutherland’s theory of differential association, which posits that our interaction with others teaches us values, attitudes, and motives. Furthermore, analysis on restorative justice found that it “substantially reduced repeat offending for some offenders,” reduced post traumatic stress for victims, “reduced crime victims’ desire for violent revenge against their offenders,” reduced recidivism, and lowered criminal justice costs (Sherman & Strang, 2007).

Restorative justice is not flawless. It is a difficult task to engage victim and community, especially if the majority believe in a traditionally punitive approach. The process requires everyone to buy into the belief that interacting with offenders will improve the entire situation; otherwise, cooperation from all three entities will be nearly impossible to achieve.

Furthermore, this process does not require families of offenders to participate, though this support system can be critical for an offender to amend behaviors. Incorporating the family could bring about a much larger success rate. Finally, drawing a line between what to be punitive toward and what to be rehabilitative toward can be problematic; who makes these decisions? Who decides which criminals can be “restored” and which are beyond reach?

Not all convicted criminals are “dangerous or dishonest people.” Restorative justice allows people to rejoin society as better citizens, less likely to commit crimes again. When an offender feels a supportive community around him, and a "light" at the end of the tunnel that says a new path is possible, he will be less likely to want to harm that community.

Sources:
Banks, C. (2013). Criminal justice ethics: Theory and practice. Thousand Oaks, CA: Sage Publications.

Sherman, Lawrence and Heather Strang. (2007). Restorative Justice: the evidence. The Smith Institute. http://www.iirp.edu/pdf/RJ_full_report.pdf

Zong, Rocksheng, MD., Madelon Maranoski, et. al. (2014). “So You’re Sorry? The Role of Remorse in Criminal Law.” Journal of the American Academy of Psychiatry and the Law 42:1:39-48. http://www.jaapl.org/content/42/1/39.full
​

The United States currently over-incarcerates its citizens, and it is not morally justified because it is unsustainable, inhumane, and the product of unethical policies. Approximately 2.3 million people are currently incarcerated in state and federal prisons, juvenile correctional facilities, and jails (Wagner & Rabuy, 2015).
​
Before continuing a practice that affects such a large number of our citizens (not just those in prison, but their families and communities as well), we need to ask the question: Is this working? Is it ethical to continue a practice that may be doing more harm than good?

Studies on whether mass incarceration has decreased crime rates have been conflicting over the years. Snyder & Stinchcomb found a study that examined data from 1972-2000 and concluded that “the effect of prison growth on crime diminishes as the scale of imprisonment increases” (2006). Tough on crime policies that lead to higher incarceration rates might have an initial impact on decreasing crime rates, but there is a point where these numbers level off. Furthermore, in more recent years incarceration rates have not had as much impact on violent or property crime rates and has led to certain dynamics that may even cause crime to increase (2006). Based on this research, it would be unethical to continue a trend of mass incarceration when we know that not only is it not working to the extent that it should, but it is also harming communities. This is the main reason that over-incarceration cannot be morally justified.

Secondly, mass incarceration is unsustainable. On average, it costs $31,286 annually, or $85.72 per day, to incarcerate someone in state prison, though costs vary state to state depending on certain factors such as overcrowding, overflow of state prisoners to local jails, and incarceration rates for low-level offenders (Henrichson & Delaney, 2012). This is significantly more than the cost of having someone on probation supervision, which costs an average of $3.50 per day, according to a Pew Center research study (Banks, 2013). As US government debt grows, spending issues become a debate of economics: what are we creating for future generations? Are we operating in a sustainable way? What will be the consequences of unchecked spending? Addressing mass incarceration would be a significant step in addressing such concerns.

For the same reasons that over-incarceration is unsustainable, it is inhumane. When the system is overloaded and prisons have pressure to operate on set budgets, logic would have it that they would cut costs among the prisoners first – from health care to food quality. Standards in prison have to be just good enough to keep prisoners from revolting against guards and administrators; therefore, prisons will budget just beyond that threshold. In California, the US Supreme Court ruled that overcrowded prisons violated the constitution’s amendment against cruel and unusual punishment (Banks, 2013). Prisoners crowding into cells, suffering from inadequate health care, and receiving inadequate nutrition are the effects of over-incarceration. There is furthermore a question of how overcrowding affects mental health, and whether this affect might contribute to high recidivism rates. By providing inhumane conditions in prison, are we simply perpetuating a cycle of violent crime by turning out prisoners with mental health problems?

Finally, mass incarceration is immoral simply because it is the product of unethical policy making. The public has a large influence on criminal justice policy, but it is often driven by hysteria rather than empirical evidence. Moral panics are an “irrational response to that panic that was out of proportion to the actual threat offered” (Banks, 2013, p. 188), and they are driven by media images that are not wholly representative of the truth. Cullen, Fisher, and Applegate argue that “policy making based on what citizens want is unfortunately constrained by the ignorance of the public on many aspects of crime and crime control” (Banks, 2013, p. 193). This shows that mass incarceration has not furthered any objectively good ends, but rather has been the product of irrational behavior.

Moral panic is fueled by media images. News outlets and TV shows choose which stories are worthy of relaying to the public, which is inherently a subjective process; since media rely on viewership ratings, they may be more apt to air stories that are either highly emotional or out-of-the-ordinary for the average viewer. Reiner, Livingston, and Allen point out that crime stories tend to focus on “special” and “discrete” cases (Banks, 2013). This does not enhance people’s understanding of their safety but distorts their image of true criminality, which in effect will cause an irrational approach to policymaking. When people view highly volatile yet “special” crimes on television or the internet from the safety of their living rooms, they begin to perceive the risk as higher than it actually is. As Surette posits in the “law of opposites,” the “nature of crime, criminals, and victims portrayed in the media is generally the complete opposite of the pattern shown through official crime statistics or victim surveys” (Banks, 2013, p.249).

Instead of morality policymaking, we need to look at the solutions empirically proven to work best. For instance, instead of incarcerating people with substance use disorders, drug courts and rehabilitation services could be a more humane, effective (and cost-effective) strategy.

The harm of mass incarceration is tantamount. Aside from the reasons listed above, there is a breakdown of the individual: prisoners learn to function in a system that aims to have total social control, which breaks down their ability to function outside of that system. They are separated from their families and limited in their communication to the outside world. Prisoners in maximum security facilities are restricted from socializing, such as in Pelican Bay, where all meals are eaten in the cells and outdoor time happens in tiny yards confined by 20-foot-high walls (Banks, 2013). These practices all have the effect on the socialization of prisoners who will have a more difficult time returning to society. In a word, they are dehumanized. In such confinement and limitation, they are not gaining soft skills, job training, or interpersonal skills that will help them thrive “on the outside”; instead, they may actually be losing those skills as they adapt to the environment they are in. This in turn exacerbates the problems that may have landed them in prison in the first place, such as lack of socio-economic opportunity, lack of education, anger management problems, absence of respect for human life, and so on. (That said, there are low-security prisons and jails that offer programming of this nature that I will analyze at another time). If we plan on sending millions of individuals back into society after exacerbating root problems that may have led to the initial crime, how can anyone pose the argument that prison protects the public?

In conclusion, mass incarceration is unethical because: it is too ineffective to justify the cost; it is too costly to provide humane conditions; it is perpetuating societal ills rather than solving them; it is the product of unethical policymaking; and it is unsustainable for future generations.

Sources:
Banks, C. (2013). Criminal justice ethics: Theory and practice. Thousand Oaks, CA: Sage Publications.

Henrichson, Christian & Ruth Delaney. (2012). “What Incarceration Costs Taxpayers.” Vera Institute of Justice. http://www.vera.org/sites/default/files/resources/downloads/price-of-prisons-updated-version-021914.pdf

Wagner, Peter & Bernadette Rabuy. (2015). “Mass Incarceration: The Whole Pie 2015.” Prison Policy Initiative. http://www.prisonpolicy.org/reports/pie2015.html