BEYOND RESTORATIVE JUSTICE 5th ANNUAL RESTORATIVE JUSTICE INITIATIVE CONFERENCE Marquette University

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BEYOND RESTORATIVE JUSTICE5th ANNUAL
RESTORATIVE JUSTICE INITIATIVE CONFERENCEMarquet
te UniversityNovember 11, 2008

• David M. Kennedy
• Director
• Center for Crime Prevention and Control
• John Jay College of Criminal Justice
• dakennedy_at_jjay.cuny.edu
• 212 484-1323

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RESTORATIVE JUSTICE

• Extraordinarily powerful and important ideas
• Unnecessarily and unconsciously limited by
  (usually) implicit framework
• If we take the strengths and discard the limits,
  we end up in a place that may be even more
  powerful and important

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RJ CRITIQUE OF CRIMINAL JUSTICE

• Formal social control
• Ineffective and damaging
• Doesnt work as well as wed like
• Overutilizes punishment brutalizing
• Stigmatizes and excludes, often permanently
• Creates polarized others where there should be
  community
• War on crime, war on drugs
• Appropriates standing to state, disregards and
  weakens community

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FOR EXAMPLE

• Baltimore
• 60 black males 16-30 under criminal justice
  supervision
• Lifetime chance of prison for black males 13
• Crime down dramatically while prison population
  continues to grow
• Growth of stop snitching movement

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RJ ALTERNATIVE

• Informal social control
• Internal
• Shame
• Guilt
• Conscience
• External
• The views of those we care about
• Family
• Friends
• Loved ones
• Community

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INFORMAL SOCIAL CONTROL

• More powerful than formal social control
• Cops vs. grandmothers
• Internal more powerful than external
• Operates without state
• (Somewhat less true than sometimes thought)
• Operates more or less constantly
• Operates, usually, without permanent stigma and
  exclusion
• Can lead to reintegration

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RESTORATIVE JUSTICE

• The deliberate activation and mobilization of
  informal social control
• Techniques for activating shame, guilt,
  conscience
• Contact with victims
• Moral engagement
• Challenging competing norms and narratives
• Mobilization of personal and community networks
  to set and enforce norms, narratives, expectations

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RESTORATION AND RECONCILIATION

• Framing of offender as moral agent worthy of
  respect
• Engagement with offenders moral self
• Engagement with family, peers, community
• Weakening negative connections, strengthening
  positive ones
• Central goal of keeping offender in community, or
  reestablishing legitimacy and standing
• Symbolic and actual reintegration

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FRAMED AS FREESTANDING ALTERNATIVE

• Extremely powerful and attractive set of ideas
• Couched from beginning in conscious opposition to
  existing criminal justice system and its
  weaknesses and harms
• Becomes in practice alternative case processing
  system, sidestepping criminal justice system,
  avoiding the damage it does and creating new
  benefits

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PROBLEMS WITH EXISTING RJ FRAMEWORK

• Unrealistic about actual role of coercive state
  power in restorative justice process
• Disregards moral standing of state
• Disregards state interest in public safety and in
  securing a monopoly on criminal enforcement
• Disregards role of sanction and deterrence in
  underpinning good behavior and positive norms and
  narratives

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PROBLEMS WITH ALTERNATIVE CASE PROCESSING
FRAMEWORK

• Some cases not appropriate, even in principle,
  for classic restorative justice
• Domestic violence
• Some cases too serious
• Cannot accommodate need for incapacitation and/or
  formal punishment

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MORE PROBLEMS

• Handcuffs RJ to existing law and police practice
• RJ new back end, but state and police still
  front end
• Focuses on individual incidents and individual
  offenders
• Well-established critique from, for example,
  problem-oriented policing
• Fundamentally reactive
• No strategic focus
• No attention to underlying problems

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EXTREMELY POWERFUL IDEAS VERY LIMITED APPLICATION

• In practice, ends up restricted to relatively
  minor incidents, mostly involving juveniles
• Sweeping critique and response limited and
  low-level application
• Restorative justice has been hobbled by an
  unconscious attachment to traditional criminal
  justice and by framing itself as an alternative
  case processing system

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RJ IDEAS TOO IMPORTANT FOR THIS

• Drop alternative case processing framework
• Not about individual incidents and cases any
  longer
• Need not be about those under arrest
• Groups
• Problems
• Can accommodate serious offenses and offenders
• Can involve state authority and deterrence,
  formal sanction

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FOCUSSED DETERRENCE FRAMEWORK

• Boston model, Ceasefire, High Point
• Strategic intervention aimed at specific problems
• Group and gang violence
• Overt drug markets
• Three-pronged intervention
• Certain formal sanction effective formal
  deterrence
• Help and services
• Moral voice of community or restorative
  justice
• Going on in Milwaukee now, with Marquette Safe
  Streets

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CIRV Network Analysis of Street Sets
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CRIMINAL HISTORIES OF CINCINNATI GROUP MEMBERS
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GROUPS IN CINCINNATI HOMICIDES
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VIOLENCE AS A GROUP/STREET DYNAMIC

• Much violence group-on-group beefs or vendettas
• Powerful peer effects not just an individual
  decision. Street code this is all OK, no
  alternatives, not my fault, dont mind dying,
  prisons not a problem, violence is required
• May not entirely believe this as individuals, but
  group dynamic dominates
• Seen as supported/tolerated by community anger
  expressed at history, police, whites
• Why community moral voice so important

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MANY KEY PLAYERS KNOWN, EVEN WHEN NOT LEGALLY
AVAILABLE

• Legal system needs legal predicate
• Other ways of intervening do not
• RJ framework can often be applied

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CONSEQUENCES

• Group accountability for homicide group dynamic,
  group sanction
• Last resort
• Explained ahead of time
• By any legal means pulling levers
• Most serious sanctions on impact players
• Careful promise sanction on next homicide on
  most violent group
• Reversal of pro-violence peer pressure
• Honorable exit

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HELP

• Focused services
• Employment
• Education
• Treatment
• Mentoring
• Others

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COMMUNITY MORAL VOICE RJ IN A DIFFERENT SETTING

• Clear, direct, community stand
• Figures respected by offenders
• Parents
• Ministers, mothers, activists
• Offenders and ex-offenders
• Set community norms
• Make offenders own what they do
• Challenge street code
• Love the sinner but hate the sin bring them back
  in

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MORAL VOICE, CONT.

• Set community standard
• There is no excuse.
• We need you, youre better than this.
• Moral engagement
• Who thinks its OK for little kids to get shot?
• Do you want your mother standing here?
• Challenge street code/norms
• Shot any CIA agents lately?
• Who helped your mother last time you were locked
  up?
• Do you think your friends wont flip on you?

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HIGH POINT STRATEGY

• Closes overt community drug markets
• Explicitly addresses racial conflict and
  unintended harms from ordinary drug enforcement
• Involves dealers families much more effectively
  than gang strategy large lessons here
• Closed market largely sustained by new community
  standards

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OTHER EXAMPLES

• Street robberies
• Domestic violence
• Prison issues
• ??

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SO RESTORATIVE JUSTICE

• Is an even bigger set of ideas than many
  advocates suspect
• Works with serious offenders
• Can be adapted to core underlying problems
• Need not wait for police or state to act
• Need not focus on alternative case processing
• Engages very effectively with community
  standards and serious offenders consciences
• Can fit seamlessly with formal social control

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TRANSFORMATIVE POSSIBILITIES

• Greatly increase public safety
• Address racial conflict
• Reduce incarceration
• Strengthen communities
• Substitute deterrence for enforcement
• Create pathways for seasoned offenders