Martin van der Kroon

According to the Bureau of Justice Statistics data from 2015, there were an estimated 6,741,400 people supervised within the U.S. criminal-justice system, 2,173,800 of whom are in either state or federal correctional facilities.

It is in itself concerning that the Bureau of Justice Statistics (BJS) has to ‘estimate’ the number of people within the system. One would think that BJS would know exactly how many people are within the criminal-justice system, or at least that ought to be the case. Regardless of whether the numbers are 100% accurate, the prison population and incarceration rate are both very high compared to any other Western nation relative to population size. The U.S. also has among the longest sentences in the Western world. 

One of the issues I believe is of particular influence is the reasoning that creating a more severe punishment will make it a better deterrent. Regardless of severity, this is a retributivist judicial system, the type used in most countries around the world.

When punishment of crime is strong, we should expect to see recidivism, the possibility of a convicted criminal to commit a crime again, to be really low. This, depending on your idea of ‘low’, is not the case. An examination between 2005 – 2010 by BJS across 30 states shows that 67.8% of released criminals are arrested for committing a crime again within 3 years, and roughly three-quarters are arrested again within 5 years. Don’t worry, I’m not going to advocate for the Norwegian prison system, which has had extensive coverage. 

Regardless, we do know that in order to improve the situation, it is likely that something has to change. Throwing money at the prison system is rather futile; it is a colossal entity, and the private companies running it will do all they can to siphon off the maximum possible. This of course leads to resistance from people, and with good reason; nobody likes their money being thrown away, especially not to improve the “luxury” of inmates, even if it would lower recidivism over time, and help rehabilitate them back into society as participatory citizens.

We may not be able to lower crime rates themselves yet, which is more an issue of income inequality, and a social class problem, worthy of its own in-depth article. We can, however, lower the rates of people going to prison, and the duration of prison sentences.

The criminal-justice system is in place to ensure that ‘justice is served’ to an offender, but not to ensure that closure is found for the victim. It actually doesn’t help the offender much to understand, beyond ‘your action was bad’. The justice system doesn’t aim to show the offender what hurt has been caused; there is no aim to remedy, to heal the rift caused by the offender. As a small detour, I remember a road sign in Alaska saying, ‘Wear your seat-belt. It’s the law!’. This is indeed the law, but why is it the law? Wouldn’t a statement like, ‘Wear your seat-belt; you’ll be 500% less likely to die in a car crash!’ give a better personal reason – one’s own safety, and the safety of fellow passengers? End of detour.

To many the idea of healing might sound like a novel idea; others might have heard about it, and yet other think that this is either Utopian, fantasy, or very European. This idea of repairing something that has been broken, a hurt that was caused and has to be healed, is actually very old, and very North American. Nowadays we call it restorative justice, something that has been practiced by Native Americans, Native Alaskans, as well as the indigenous inhabitants of New Zealand, the Maori. However, the North American Mennonites are believed to have helped bring attention to restorative justice to the rest of the U.S. as well.

Native Alaskan Tribes practice restorative justice for the ‘lesser crimes’. There is however not always a Tribal court though, such as in the Nelson Lagoon Aleut Tribe where Bobbie McNeley is from. In an interview we had, she described that while her Tribe does not have a Tribal court, the direct family, perhaps in presence of the rest of the Tribe, will put forth a resolution to restore the damage done and begin the healing process by bringing the offender back into the community, and do what they can to make things right.

The Tlingit Haida in Southeast Alaska have a more ‘official’ Tribal court system for which they have partnered with local police and the Alaskan State court system. When it comes to capital crimes, a Tribe will let a the State take control so that the victim or family members of the victim can seek harsher punishments. This falls under Public Law 280, which includes many Tribes in the U.S. and Alaska, detailing how Federal, State, and Tribal court systems co-exist. Tribes that do not have their own Tribal court can excommunicate someone from the community, and this, according to Bobbie, is seen more often nowadays, especially when drug-related crimes are involved.

Bobbie argues that while she understands that people might think restorative justice is “light sentencing”, prison sentences do not necessarily ‘correct’ people, and may actually lead to supporting someone in becoming more criminal. This would also partially explain the high percentage of recidivism. Perhaps the most prominent movie illustration of this is from Shawshank Redemption, where the protagonist Andy Dufresne is wrongly convicted, and becomes a criminal in the prison system. Bobbie thinks that it can be worthwhile to look into, for example, the Norway prison system, in a country with a much lower recidivism rate (20%) than the U.S. (67.8%). I would agree that it is at least worth looking into, to better understand how and why this works well in Norway, and perhaps find elements that could work well in the U.S.

Bobbie, who is pursuing a Bachelor of Arts in Alaska Native Studies at the University of Alaska Fairbanks focusing on Alaska Native Law, Government, and Politics, thinks that implementing a  restorative justice system for offenses, such as small misdemeanors and drug-related crimes, might be very beneficial to the United States as a whole – not only from the viewpoint of rehabilitation of the offender, but also in saving billions of dollars on the prison system. Of course there will still be a prison system, but it could be less populated. She further argues that after someone has served their sentence, they are currently released with nothing – no home, no work, nothing to rebuild and create an honest life. This is further complicated as those released are, in a manner of speaking, still not actually free, as they will have a record, which will make it even harder to get a place to live, and obtain a job. Of course some may have family to support them, but overall, regardless of whether you think this is what they deserve or that they should have thought about this beforehand, does this seem like an even barely working recipe to rebuild a life without crime?

Bobbie suggests, “I believe starting small will help, allow the public to see on a smaller scale how the structure can work. It would allow for some small statistics to be taken, and, it may also be cheaper to start small.” This is, I think, not merely a suggestion, as we would require experts on the matter of restorative justice to help guide such processes; let’s call them ‘restorative justice lawyers’ if you will.

Restorative justice practices are a radical departure from what we commonly see as a the regular justice system, putting a focus on the interests of the parties involved, which can be individuals, but also a community. The term ‘interests’ here means a lot more than seeking punitive damages; instead it can involve, for example, community work, counseling, but also for an offender to actually grasp the impact of the offense on others on an empathetic level. On the other hand, an offender may also have interests. For example, a person may be caught shoplifting food, or stealing money. This is, of course, in and of itself wrong, but what if it turns out this person has, due to circumstances beyond control, no money to buy food, and has slipped through the cracks of the welfare system. An interest for the offender could be to get a means of honest income, or even some food to not starve. Of course this example was used merely to illustrate what an interest could look like.

Dr. Brian Jarrett, Chair of The Negotiation, Conflict Resolution, and Peacebuilding Program at CSU DH & Polly Hyslop from the Indiginous Studies Program at UAF and an Athabascan Native Alaskan state that the idea of creating a complete one-size-fits-all, top-down approach to restorative justice systems will lead to failure of such programs. It is here that we might face the biggest obstacle, as it puts a dent in our notion of ‘everyone has to abide by the same rules’. However, we already live under different rules. In some States you go to prison for years for marijuana possession, while in other States it is considered legal, even if it isn’t on a Federal level. The real difference is that within restorative justice practices an agreement is reached based on the interests of the parties involved instead of being pushed from the top, and thus it requires more flexibility in the hands of those negotiating, and finding an appropriate “sentence” based on the circumstances where the individuals reside. By means of an analogy; In Finland the fines for speeding are based on a percentage of someone’s income. A $90 (Finland’s currency is the euro) fine for a low-income person may be devastating, but for a high-income person it may be thought of as a racing entry ticket, but if the high-income person’s ticket is suddenly $58,000, it makes more of an impact. Likewise, within restorative justice there is latitude to make agreements that can reasonably be fulfilled.

Technology could play an important factor to keep an eye on offenders who, together with the victims, have come to an agreement, are on a form of probation. A tracking bracelet could assist with that. Of course these do already exist, but are very big, and thus not very easy to cover up under clothing, which raises wary eyebrows with others. Probably more important pieces of technology would exist for tracking accurate statistics. I mentioned this at the beginning of the article that the BJS “estimates”, and that is not good enough in 2017 and beyond. As Bobbie McNeley suggested, if we were to implement some restorative justice practices, it would be useful to track the success rates, which could be: the success in reaching agreements, recidivism rates, best practices by state, satisfaction rates of victims and offenders, but also shortcomings within the system where there is room for improvement. This would all exist beside more accurate data, which is now collected by various agencies, on the people involved, such as statistics by age, income, biological sex, religion, occupation, and ethnicity.

Even though technology can be a valuable asset, and I myself am a tech-enthusiast, an important part of the restorative process will be a human endeavor.

What do you think? Do you see opportunities with restorative justice, or perhaps roadblocks that could prevent it from functioning?

Thanks to Bobbie McNeley. She is from the Nelson Lagoon Aleut Tribe, receiving a Bachelor of Arts in Alaska Native Studies at the University of Alaska Fairbanks with a concentration in Alaska Native Law, Government and Politics. Also receiving an Associate of Applied Science in Tribal Management and a certificate in Diesel Mechanics and Heavy Machinery, completing all programs in 3 ½ years total. She intends to continue her education at an accredited law school focusing on Federal Indian and Alaska Native Law.

Martin van der Kroon is the Director of Recruitment of the U.S. Transhumanist Party.