Saturday, September 17, 2005

What is restorative justice?: The TPPF report

Can "restorative justice" principles reduce crime and incarceration rates in Texas?

That's the claim of a
new report entitled "Restorative Justice in Texas," written by Marc Levin, director of the Center for Effective Justice at the Texas Public Policy Foundation, a state-level conservative think tank based in San Antonio. I posted the link when it was released, but wanted to adumbrate Levin's arguments in more detail.

Restorative Justice emphasizes making the victim whole rather than punishing the offender for punishment's sake. Levin emphasized the "biblical and tribal roots" of restorative justice, pointing out that the tradition of state-initiated prosecution is a relatively recent phenomenon in human history:

The principles of restorative justice are deeply embedded in all of the world’s major religious traditions. The Vedic civilization (6000-2000 B.C.) of the Hindus believed that reincarnation flows from penance, which must be performed after every sin is committed. Islamic law requires that a murderer compensate the victim’s family and dictates that the victim’s family judges the crime and decides a proper punishment with the help of an individual in the commu-nity who is an expert in Islamic law. In Christianity, the institutionalization of restorative justice occurred in the late sixth century as Celtic monks developed a new approach of reconciliation with God that involved personal penance coupled with confession. Buddhist thought is encapsulated by the Dalai Lama’s statement that the “more evil the crime, the greater the opportunity for grace to inspire a transformative will to resist tyranny with compassion.”

Restorative justice also has deep roots in indigenous justice systems from various cultures, in-cluding American Indian, Australian Aboriginal, and Eskimo traditions. Sentencing circles, an informal process through which a case is heard and the punishment is decided through community dialogue and consensus, are rooted in the traditional peacemaking rituals of both Native Canadians and Native Americans.
Levin dates the shift from restorative to punitive criminal justice practices to the rise of William the Conqueror and the establishment of the British monarchy in the 11th century. William "decided that expanding the state's involvement in criminal law could help strengthen the nobility's fragile reign over the people," so he "made most individual acts committed against a person or his property offenses against the 'king's peace' or the crown rather than private matters to be resolved by the affected parties."

In the American colonies, similarly, "criminal prosecutions were primarily private matters, as victims sought retribution or restitution from offenders." Colonial courts "were far more informal than those today," he said, with case outcomes resembling those in modern civil courts more than criminal prosecutions.

He even finds traces of restorative justice trends in Texas' earliest history:

In 1821, Stephen F. Austin instituted Instructions and Regulations for the Alcaldes, relying largely on English common law. Under these regulations, murder was punishable by hanging. Other crimes against the person like battery and abuse were punishable by a fine not to exceed $100 and incarceration with hard labor on public works for three months. Additionally, in what might be considered an early form of restitution, those found guilty of battery, abuse, or ill treatment were made liable for monetary damages in a civil suit brought by the injured party. Austin’s guidelines took a restorative approach to crimes against property such as robbery and larceny making them punishable by a fine of three times the fair market value of the stolen property and incarceration at hard labor on public works. Austin’s guidelines also authorized citizens to use force to apprehend criminal wrongdoers by making a citizen’s arrest and delivering the suspect into the custody of the alcalde.

Both the 1845 and 1876 Texas Constitutions provided for trial by jury and the creation of local district attorneys in charge of bringing prosecutions. Texas built its first state penitentiary in 1848 and enacted the Penal Code in 1856, further laying the groundwork for the state’s current criminal justice system.
I was especially intrigued to notice the early use in Texas of triple restitution as punishment for theft. That concept dates all the way back to Mosaic law in the Bible, which mandated thieves pay their victims double restitution. To this day, in Texas, if you or I steal something as individuals we can go to jail, but if a corporation steals something, the crimnal penalty is still double restitution.

Levin provided a rundown of programs he places under the rubric of "restorative justice," recommending their use be expanded:

  • Restitution-based programs (including 14 "restitution centers" operated by the state),
  • Victims rights and services, including participation in trials and sentencing decisions,
  • Use of stronger probation and specialized courts to supervise offenders outside of prison, including drug courts to treat addiction, a root cause of crime,
  • Victim-offender interaction programs, and
  • Religious prison ministries: Specifically, he's a fan a Chuck Colson's InnerChange Freedom Initiative.
The restitution programs he examined appear to be especially effective: "These centers are residential facilities where offenders particiapte in activities designed to assist them in paying back individual victims of crime and society as a whole. ... Residents work full time, perform community service restitution, and attend educational and rehabilitative programs," though the total capacity in all 14 facilities is just 737 inmates. Moreover, "A TDCJ study indicates that restitution centers reduce recidivism, as only 21.3 percent of residents discharged from restitution centers were ultimately rearrested."

Besides reducing crime, these programs also reduce costs. Restitution centers are one of five types of "community corrections facilities" in Texas. In 2001, Levin reported, "it cost the state an average of $7,957 to place an offender in a community corrections facility, which is some $32,581 less than it costs to send an offender to prison."

I'm not a big fan of Colson's program. Leaving aside for a moment issues of state-sponsored religious instruction, most of its claimed reduction in recidivism stems from cherrypicking inmates who are less likely to re-offend, not from the rehabilitative genius of the program.

There's a lot more to Levin's study, and those interested should definitely
read the whole thing; it contains a lot of detail and extensive footnotes -- this brief summary hardly does it justice. I don't agree with all of it, by any stretch, but it's highly significant, I think, that conservatives in Texas are rethinking criminal justice policies at this level.

UPDATE, Levin replies via email:
"I have a few very minor clarifications. TPPF is now based in Austin - the entire operation moved here from San Antonio. Also, I did note in my report that the sectarian nature of Colson's program makes it less well-suited to being expanded as compared to Bridges to Life, which is ecumenical. Consequently, I only recommended any state role in the expansion of Bridges to Life."


Adina said...

This is interesting. The prison system has little to recommend it. The biblical system didn't just propose restitution for crimes of property, but for violent crime. There was a complicated system of monetary compensation for physical harm (murder was treated differently).

I don't know whether and to what extent the biblical system was practiced (wonder whether historians and archaeologists know?).

I wonder how this would work economically and psychologically. In order to pay back for a crime, the person convicted would need to have enough skills to work. If the choice was restitution, job training, and garnished wages for years or a prison sentence, would more people convicted of crimes choose restitution.

This method involves some economic unfairness -- a plumber convicted of assault would take less time to pay off the debt than a janitor.

Given the racial imbalance, would large numbers of minorities working to pay back crime debt look like sharecropping? It would be very bad, but it couldn't be worse than prison.

Adina said...

Since writing that comment I read the report. The focus on reconciliation with the victim seems good, and the alternative sentencing was interesting and impressive. The allusion that it would be even better if the victim defined the sentence is terrible. That takes you back to the feud-based system that any kind of civilized process is designed to avoid.

Also, the Colson program didn't come off looking well even in terms of statistical results.

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