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The U.S. (in)Justice System Doesn't Work. The Alternative Just Might

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I've been thinking a lot about justice lately, pondering the injustice of the way that justice is administered in this country. For years I've pointed out and lamented the racial bias evident in both law enforcement and the criminal courts. For years, I've wished to live in a world in which the determination of guilt and the administration of punishment were both completely uncorrelated to race or any other demographic characteristic.

Today, I'm no longer satisfied with just that.

For those of us living in the United States, "doing justice" is mostly synonymous with administering punishment. We may not literally follow the Biblical edict of "an eye for an eye", but most of us still believe that "the punishment must fit the crime". More than that, many of us are not only willing but insistent that the punishment be cruel decades of incarceration, sometimes in solitary confinement. Punishment, after all, is supposed to be unpleasant. Besides, even the Talmud tells us that

"If we are kind to those to whom we should be cruel, we will ultimately be cruel to those to whom we should be kind."

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Given these options, the choice is an easy one. Surely our friends deserve our kindness more. But why do we have to choose one over the other? More to the point, why must we limit ourselves to just these two choices?

I don't want to choose between being cruel to someone who deserves it and being cruel to someone who doesn't. Sure, that's an easy choice, but it's set up to be an easy choice in order to justify being cruel to someone. I reject the dichotomous options. I refuse to be intentionally cruel to anyone.

Second, the term "kindness" in this context is designed to provoke a negative response. Why should we be kind to those who chose to inflict pain on others? Alternatives to systems that administer retributive justice do not advocate kindness. They advocate compassion -- the not-so-radical idea that this person who may have done some terrible things (let's assume that his innocence is not in dispute) is still a person with the same basic needs as any other person.

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Compassion is not kindness. It is not forgiveness. And it certainly is not a lack of accountability. It just means that I believe that no one is born wanting to rape and kill (psychopathy may be a special case) and the fact that some person has done so -- perhaps multiple times -- means that his/her life has been filled with so much pain that rape/murder was preferable to just carrying on. I don't condone his/her choices and I don't want to do anything to compromise the safety of others, but I feel compassion for the person who experienced such pain.

To be compassionate is to recognize everyone's humanity and to value everyone's needs. This works because compassion is not a zero sum gain. My feelings of compassion for one person do not lessen my compassion for another. To the contrary, my personal experience is that when I am in a more compassionate and loving space, I have more to give to everyone around me.

Though I talk about giving, compassion is not charity either. To be sure, it can be a tremendous gift to another, but it is a gift to ourselves as well. Just as torture and other acts of cruelty dehumanize not only the person tortured but the torturer as well, so do compassion and empathy reconnect us to our own humanity.

I recognize that there are people who lack the capacity to feel empathy for others, people who enjoy inflicting pain. I recognize that our need for safety may require some people to be incarcerated. But I recognize as well that involuntary confinement sometimes results in more violence, not less. For every convict that is rehabilitated, there are probably several that become more angry, more resentful, and more violent especially in a society in which ex-convicts are legally second-class citizens with no voting rights and few employment opportunities.

If there were no better options, we could justify continuing with business as usual. But there is, in fact, an alternative. It's called restorative justice.

There are many restorative justice systems. The one I've been studying is Restorative Circles (RC), a system developed by Dominic Barter in the shanty towns of urban Brazil and now spreading across the world as a means of promoting and facilitating social justice, group cohesion, resilient relationships and personal healing.

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Dominic Barter workging with community leaders to develop a restorative system
(Image by Dominic Barter)
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Restorative Circles provide a way for individuals and communities to handle conflicts, including racial conflicts, compassionately rather than punitively, as well as to heal and learn from these conflicts.

To the uninitiated, restorative processes may appear idealistic and naive. After all, they reject the two core aspects of the traditional justice system: the assignment of blame and the administration of punishment. Instead, the goal of the Circle is for the parties involved in the conflict to first gain mutual understanding of the others' experiences and needs and then to restore or build a mutually satisfying relationship.

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Mikhail Lyubansky, Ph.D., is a teaching associate professor in the Department of Psychology at the University of Illinois, Urbana-Champaign, where he teaches Psychology of Race and Ethnicity, Theories of Psychotherapy, and a graduate-level courses on restorative justice. An autobiographical essay of Mikhail's interests in race relations and basketball is available here.

Since 2009, Mikhail has been studying and working with conflict, particularly via Restorative Circles (a restorative practice developed in Brazil by Dominic Barter and associates) and other restorative responses to conflict. Together with Elaine Shpungin, he now supports schools, organizations, and workplaces in developing restorative strategies for engaging conflict, building conflict facilitation skills and evaluating the (more...)

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