Fwd: Restorative Justice in Legal-Judicial-Penal System
Stephanie Van Hook
From: Olek Netzer <olek.ne...@gmail.com>
Date: Sun, Dec 11, 2011 at 1:23 PM
Subject: Restorative Justice in Legal-Judicial-Penal System
To: step...@mettacenter.org
Cc: michaeln...@gmail.com
(Hope Tank)
RESTORATIVE JUSTICE IN THE LEGAL
JUDICIAL-PENAL SYSTEM
Dr. Olek Netzer
Hi, I'm very happy to be able to share this with you. Until last week I didn't even know such concept as Restorative Justice exists. I live in another country.
I am sending you here a program for Restorative Justice (before learning the term from you I called it "Humanization") of the judicial and penal system. It belongs to a number of my projects the realization of which is not in my direct line of action, but I am desperately looking for channels to make them known to people that may act upon them, for two reasons:
First, as a behavioral scientist I put them in the category of social Institutions and socially institutionalized deeply entrenched ideas that are contrary to even the most basic findings in social science or to common knowledge that already absorbed those findings and principles. I don't even see how the present institutionalized ways can be defended or chosen on the basis of any scientific approach. They are pure backwardness, like racism or any institutionalized violence.
Second is a personal, intimate, reason. I am asking each one of you to help this project of change reach more intelligent minds, and in particular those who have more influence on public opinion and the decision makers. In my advanced years I became preoccupied with the task that my projects are not going to be buried with me.
I shall appreciate your feedback and promise to respond - Olek.
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This essay has two parts: 1) The Rationale. 2) Suggested Implementation
RATIONALE: Institution of Restorative Justice in the judicial-penal system depends on the idea: society needs to give up its insistence on punishment as the proper way for treating criminals and people guilty of breaking some law, and for making Justice prevail. This idea is terrifyingly revolutionary, because the belief that it is right and good to either kill or imprison, persecute or torment people as long as we feel they "deserve it" as a punishment, is so deeply and highly entrenched in culture. The magic of words like "Punishment" or "Vengeance" or "Retribution" is in letting our natural worst violent impulses become legitimate, socially sanctioned, often perceived as noble or even godly.
However there have always been individuals who preached not to hurt or be bad to fellow humans under any circumstances other than physical self defense or not even that. Jesus Christ and Mahatma Gandhi, among others, would not have supported punishing others and would not justify punishment such as is practiced in Christian countries or in India. So many years later and after so many changes and so much new knowledge about people's anti-social behavior and ways to prevent it, society has not yet reached the level of understanding that its most venerated leaders did. That is a point for hope, but it also attests to the magnitude of change-of-heart required.
On the simple-factual level punishment, as in the Penal System, is not self-defense. It is behaving bad, cruelly, psychologically and physically tormenting people who are no longer in the position of being bad cruel or violent, but are defenseless prisoners, captive, victims. Punishment is the norm in the criminal world as well, so in that respect, of believing that punishment is justified if they had wronged us, we who intend not to behave like criminals believe and behave as they do.
According to all I know as a scientist about human nature, it is quite possible that people of higher consciousness in the future would regard our devotion to organized punishment with the some kind of astonishment and superiority feeling as we regard those in the past who were dueling (stabbing or slicing each others do death with long knives called "swords") when feeling offended, owning slaves, beating their children (or children of others if they were teachers) as a matter of routine educational practice, or burning alive victims in public places in order to deter others from sinning. Maybe in the future they'd even have trouble comprehending the logic of "punishment", because for them it would be clear that, by definition, criminals are punishing themselves the worst by becoming felons or criminals. – Nothing in adult human nature we know precludes such, for now futuristic, understanding. Common ideas of human nature, reality and morality, are culture-dependent.
The desirability and feasibility of a Legal-Judicial-Penal system without punishment would be considered and weighed relative to the present alternative. Part of a rational for changing it would be therefore to point out, that the punishment-less system will do away with some of the grave, self-defeating results of most of the existing penal systems all over the world:
a) In present, a convict who served his term is considered as "paid his debt to society" and released. It is a common occurrence that criminals are released back to society while everybody who'd known them, the prison authorities and the police, know for sure that they'd be back to crime. They are "punished" and done with, without acquiring even the basic human skills needed to live in a non-criminal society. The purpose of defending the public is thus completely and knowingly defeated. In the punishment-less system criminals will not be released until they are considered safe not to recede to crime.
b) The concept of punishment itself is made travesty in most prisons or arrest cells in which criminals interact with others. The worst criminals are not punished but actually run the prison as its privileged high class, get superior conditions and command an army of servants and slaves. Persons who are not predatory are receiving "unusual and cruel" punishment for which they were not sentenced. They live day after day in instant terror for their lives, they become sex-slaves, and go through life that most people who had not experienced this have no idea of how unlawful it is.
In the punishment-less system, even the worst criminals will have a personal interest in learning the skills of decent living and in becoming reformed, for a number of reasons: They will know their release depends on it rather than on serving time; they themselves will play an active part in designing the program of their rehabilitation; there will be much more common interest between convicts and their keepers as both sides will have a common goal of setting the convicts free as soon as possible. Accordingly, less identification with the criminal behavior code and less antagonism or hatred toward society and its agents is likely to develop.
3) The purpose of correction is defeated by the actual conditions in prisons. Convicts find themselves mostly not in a lawful society that controls them but in a totalitarian fascist-like nightmare. The survival of individuals becomes dependent on criminal behavior either as victimizers or victims. Many inmates are controlled more by the criminal elite than by the jailers. The purpose of having control over convicts is so defeated.
In the punishment-less system criminals would not be able to go about their business as usual waiting until they are released. They won't be released unless they have changed, able to solve their interpersonal problems in ways other than violence, and considered safe not to relapse to violence. So they'd have better motivation to change and to cooperate with the corrective system's officers whose role is to help them change, not to punish them.
4) Prisons are known to be academies of crime. Living in a criminal society makes for adaptation to it, developing the relevant predatory skills. The punishment system makes the crime-scene not only free of some actors, but makes those actors better trained in criminal behavior.
2) Implementation
Our legal system is based on penalty laws. The law defines a crime and postulates "Whoever was found guilty of doing so and so – will be punished proportionally so and so much". The revolutionary concept of Restorative Justice takes out the whole idea of penalty from the entire system of judgment, enforcement of Law, defending the society and making Justice prevail.
The Judiciary: The task of the Court will only be to decide if the accused is guilty as charged or not guilty. The judge will not determine any punishment. If the accused has been found guilty of a felony that the Law requires this, parts of her or his civil liberties will be denied to him and the offender will be entrusted to the care of correctional authorities until his rehabilitation process is complete. He'd have first to do what needs to be done to compensate his victims. He or she will be given their civil liberties back as soon as the correction authorities are convinced they had been rehabilitated and are not a threat to society.
In a standard procedure, I imagine the Judge in Court will tell the person found guilty something like this: "I charge you now with the responsibility to compensate the victims of your crime, to correct all that can be corrected and to reform yourself in order to be released and restored your civil liberties as soon as possible. The Correctional Authority will help you, but the burden of responsibility for it is yours".
This will be all. With no intention to punish, the Court will not have to determine whether or not offenders are punishable, that is sane or insane. All will have to be rehabilitated or healed and all will not be released from custody until they are considered not to be a threat to society or to themselves. Such shameful cases as happen often enough, when the Court of Justice with the help of a panel of experts determine whether a woman who strangled her two little daughters, or a 15-year boy who gunned down 7 of his classmates at school are "sane", will become things of the past. The need to punish makes it necessary to determine whether one is punishable or insane – but the very fact of non knowing, not regarding it as clear by definition that the acts mentioned above are insanity itself, testifies to the inadequacy of our concept about ourselves as human. Those future higher-consciousness people, I believe, would regard the idea that a mother who murdered her little daughters or that 15 years old boy could be believed to be sane - if not as insane in itself, at least as antiquated, preposterous.
Justice will prevail in that society will oblige the offenders to correct the wrong as much as possible and compensate the victims, and in that offenders will not be allowed to be free and equal members of society until they prove and demonstrate their will not to recede to their criminal state.
The Sentenced Offender
Convicts in the present system are stripped not just of liberty but of responsibility. Once they are convicted they can be completely passive and let the prison system take care of them. Many convicted people feel actually relieved, knowing that now they are released of the need to make decisions in their lives. They are psychologically reduced to childlike existence of dependency. Fear of being released back to society in which they'd have to be responsible for themselves is a common result of prison serving along with resulting difficulty to become a responsible adult.
The convicts – perhaps they'd be called "clients" – in the punishment-less system will have full and crucial share in the responsibility for their future. The correction process will immediately start with convicts assigned the role of suggesting the process, step by step, that they will take upon themselves to go through in order to rehabilitate themselves. They will have to do all that is possible to compensate their victims, change their criminal thinking and behavior. and acquire skills of normal behavior in conflict and problem-solving. They will know that they will go free as soon as they finish that correction and rehabilitation process. The correctional agents will be charged with the task of negotiating with the convict in order to reach agreement about each step and procedure. If they'd fail to reach agreement the process will be arrested until they do. Violent criminals will have to learn and to demonstrate their willingness and skills in coping with people physically weaker than they (their wives and children, in the first place) who oppose them, without violence – and that is without "punishing" them.
It could be that convicts, like certain persons committed to a mental institution who cannot get well, will not manage to be reformed and will stay in the punishment-less custody or care indefinitely. With that, all their defenders, lawyers, family, civic organizations for defending prisoner rights and human rights, could become involved and active in their rehabilitation program. They'd could be welcomed. There will be no built-in conflict of interest between the Correctional System and the legal and personal defenders of the convict – both will strive to make him/her released as soon as possible. In contrast to the punitive system, it will be as soon as the convict him/herself makes it possible.
According to all what is known from scientific research as well as from common experience, when people are not treated badly ("You deserve to be punished, to suffer!") but as responsible partners in their own rehabilitation, their motivation to reform becomes stronger. When punished, they want to punish us back.
The Correctional Authority. The task of the correctional authorities will be to help the people entrusted them as much as possible in their task to rehabilitate themselves. They will be, beside security personnel, helping professions professionals. They will facilitate the rehabilitation process and be professionally skilled in testing and assessing the psychological processes and changes their clients go through. The decision that a convict successfully finished his/her rehabilitation and correction process and can be safely released will be theirs.
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