Guest Commentary: Enlarging the Discussion on ‘Defunding’

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By Robb Davis

Observing the early evolution of discussions around defunding the police–and after having read The End of Policing by Alex Vitale–it is clear that the real debate is around reprioritizing community health and safety, rather than simply abolishing the police.

I understand that some people are calling for abolition, but I do not sense that this is what most people mean when they speak about ending policing or defunding the police.

Since the start of this national debate, I have felt that a broader conversation about defunding the current criminal “justice” system is in order. The police are merely the first step–the gateway if you will–in a highly developed punitive system that does not lead to justice in any meaningful sense.

Defunding the police, that is, stepping back and revisioning public health and safety is a useful exercise. Still, without taking on the entire logic of the penal system, this reprioritizing will be self-limiting.

Our Penal System

Our current system defines crime as an act committed against a disembodied state that requires those convicted to “pay.” That payment is only rarely rendered to the direct victims of crime, and the system contains many crimes that do not directly affect any identifiable victims at all.

Instead, especially in most incarceration cases, the “payment” is made to society in an abstract way. We still use concepts like “paying a debt to society” as the reason for incarceration. However, we have come to prefer the idea that imprisonment is really about removing “dangerous” people from society. This framing allows us to feel comfortable with the over-incarceration of people that has come to characterize our nation.

District attorneys and judges, along with a supporting role from the police, represent the state and provide the ritualistic practices that remove the dangerous ones from our midst.

In this system, victims, if they exist, are wholly owned by the prosecution and regularly used as proof that punishment is needed to expiate the sins committed against “these poor people.”

This entire system is so deeply embedded within our culture and our cultural understanding about what to do about wrongdoing, that we cannot imagine any reasonable alternative.

Restorative Justice within the Punitive System

Somewhat recently, restorative justice has evolved within the punitive system as an alternative in some instances or particular demographics. It is generally used as a diversion program when the penal system’s worst effects have failed in undeniable ways.

So, we offer restorative justice to low-level youth crimes when it becomes clear that the incarceration of young people leads to increased criminality and violence rather than reducing it. Or, we offer some form of restorative-like diversion programs for people with severe mental illnesses when we realize that frequent arrests, fines, or incarceration change nothing and make no difference in the lives of individuals involved.

More recently, some prosecutors are experimenting with expansions of restorative practice due to an overburdened legal system, choosing to shunt low-level victimless crimes into alternative approaches that provide options to perpetrators that keep their records clean.

Restorative Justice as an Alternative System

While many people have welcomed these incursions of restorative justice into the penal system, the truth is they do not fit. They do not because restorative justice is not merely an option within the penal system but a completely different theory of what crime and justice are.

Restorative justice defines crime as an act that causes harm to people and communities. It understands harms as damaging to human relationships and well-being. It seeks processes that lead those responsible for these harms to know what they are, face those they have harmed, and work out what actions are necessary to make the harms as right as possible.

Note that the depersonalized state is not at the table as an aggrieved actor seeking recompense. The state’s presence in a restorative system is to provide the support necessary to move towards naming harms and making them right.

Victims are involved directly or via proxies depending on their needs for safety. Because the focus is on harms, victims speak about those harms and define what making them right might entail.

Those causing the harms listen, understand the impact of their actions, and take responsibility for making the wrongs right. There is space within restorative justice for the needs of those causing the harms to enter the discussions as well.

An important, often unstated, part of restorative justice is the question of victimless crimes. Restorative justice asks whether a crime is genuinely a crime if there are no identifiable harms. This becomes a critical question in a society that criminalizes possession of small amounts of drugs (as just one example). There may be harms involved in possession, and it may be essential to ask whether the person charged with possession has substance use problems for which they need help. The point is, restorative justice demands a look at what we name as a crime.

A New System: Questions for Reflection

If we were to dispense with our punitive system and replace it with a restorative system, what would it mean for judges, for district attorneys, for defenders, and for the police?

What if we started our discussion of policing by looking at the system for which they are the entry point? What if crimes like simple possession were treated differently than they are now?  Given the large proportion of arrests for such crimes, how would changing the approach immediately change the role of the police.

What would happen to district attorneys if rather than representing the abstract state, they served the needs of real victims, not to advocate for punishment, but to seek answers to what victims need?

What if public and other defenders were given resources to assess the needs of the offender, prepare them to accept responsibility for their acts, and help prepare them, as necessary for engagement with a victim?

What would happen if we examined laws through the lens of the harms they address (or whether they address any harms at all)?

What role might judges play in this system, and how might this affect how we choose them? Would they become mediators or impartial arbiters when things get stuck? Would they play a role in discerning the needs of those who cause harms?  Would they meet with victims to assure they are being treated with respect?

What would success look like in this system? How does that compare to our current system, which arguably has no metric of success?

Beyond Naivete

Are there dangerous people in the world who need to be removed from contact with others? I believe there are. But a restorative system is not afraid to ask why they exist, where they come from, and whether or not they are beyond “redemption.”

Because it seeks to restore victims AND offenders to the community and create healing, restorative justice permits us to explore the underlying causes of violence–including the role of trauma.

In this sense, restorative justice is a genuinely public health approach to criminality–seeking the underlying causes of actions that cause harm. And just as public health practice does not exonerate individuals of personal responsibility, restorative justice does not say that individuals bear no responsibility but it is also willing to investigate the social and economic determinants of harmful behavior.

A final word about victims: criticisms of restorative justice invariably return to victims of violence and the seeming willingness to require their participation in a restorative process or their continued exposure to those who caused them harm. There is nothing inherent within restorative justice that requires these. There are often good reasons to provide physical protection to victims by constraining the movement of those who have harmed them. There is also nothing inherent in restorative justice that requires victims to “confront” their offenders.

What restorative justice does offer to victims is an opportunity to describe their needs. Evidence shows that victims often have fundamental questions that revolve first around needing to regain a sense of personal safety. Often they want to know “why.” Only secondarily are they concerned with restitution.

It is beyond time to defund our punitive legal system by moving purposefully towards a different understanding of the meaning of crime, against whom it is committed, and what is needed to achieve outcomes that will build community.

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24 thoughts on “Guest Commentary: Enlarging the Discussion on ‘Defunding’”

  1. Tia Will

    Thanks for the article Robb.

    Some of us are old enough to remember when the police were tasked with maintaining a peaceful, safe environment in which to live. Al least, that was what the privileged amongst us were led to believe. I can remember my mother telling me if I was lost or scared or thought I might be in trouble, I should ask a police officer for help. It was a warm, comforting view of the police that I did not realize not everyone shared.

    Then came my protests of the Viet Nam war and the beginning of the realization that even living in my white skin, did not exempt me from the use of excessive force. Fortunately, in my area of Long Beach, our protests were peaceful and not subject to more than gentle herding in the desired direction, I slowly began to realize that the civility with which I was treated did not necessarily extend to my black and brown neighbors.

    By the time my children reached their teens, my perception of police was not of a benign entity whose  goal was to help individuals, but rather as a potentially violent force for what by then was called “law and order”. My son’s slightly swarthy skin tone made him less, not equally safe, in my mind, and I raised my kids to consider the police as a last, not first resort.

    So, this is not the first time in many of our lives that policing has been re-envisioned. Personally I believe there is a statistically very small number of situations in which violent force may be needed. However, I agree with Robb that it is far past time that we did this re-envisioning of what a safe, healthy community could look like without the constant threat of a violent response hanging ( albeit disproportionately) over all our heads.

  2. Alan Miller

    Those causing the harms listen, understand the impact of their actions, and take responsibility for making the wrongs right.

    How do sociopaths fit into such a system?

    a restorative system is not afraid to ask . . .

    I don’t understand how or why a ‘system’ gets humanized when it’s time for “it” to ask a question.

     . . . why they exist, where they come from, and whether or not they are beyond “redemption.”

    It would be interesting for “a restorative system” to apply these three ‘why/where/whether’ questions to Donald Trump, especially if Mr. Restorative System was a Progressive.

    Because it seeks to restore victims AND offenders to the community . . .

    Hopefully not murder victims, that would smell awful.

    restorative justice is a genuinely public health approach to criminality–seeking the underlying causes of actions that cause harm

    Understanding underlying causes) is important in attempting to deter the causes of future crime – not so much for crimes already committed.

    What restorative justice does offer to victims is an opportunity to describe their needs.

    What if their need is to see the perp dead?

    Evidence shows that victims often have fundamental questions that revolve first around needing to regain a sense of personal safety.

    If the perp is not incarcerated in this scenario, this need for personal safety may be resolved with a shotgun.

  3. Robb Davis

    Those causing the harms listen, understand the impact of their actions, and take responsibility for making the wrongs right.

    How do sociopaths fit into such a system?
    RWD: I think I mentioned pretty clearly that there are dangerous people who need to be removed from others.  I guess sociopaths are part of that group.

    a restorative system is not afraid to ask . . .

    I don’t understand how or why a ‘system’ gets humanized when it’s time for “it” to ask a question.
    RWD: My apologies for my anthropomorphism.  How about “people within this system are not afraid…”

     . . . why they exist, where they come from, and whether or not they are beyond “redemption.”

    It would be interesting for “a restorative system” to apply these three ‘why/where/whether’ questions to Donald Trump, especially if Mr. Restorative System was a Progressive.
    RWD: Sorry, not sure what you are driving at here.

    Because it seeks to restore victims AND offenders to the community . . .

    Hopefully not murder victims, that would smell awful.
    RWD: In capital cases in which RJ has been used (yes, it has), victims were family, friends, and community members.  This brings up the important point that there are direct and indirect victims who have needs.

    restorative justice is a genuinely public health approach to criminality–seeking the underlying causes of actions that cause harm

    Understanding underlying causes) is important in attempting to deter the causes of future crime – not so much for crimes already committed.
    RWD: Right, you cannot deter what is temporally past, but public health approaches gather evidence and apply it to help prevent in the future.  My sincere apologies for the temporal gaff.

    What restorative justice does offer to victims is an opportunity to describe their needs.

    What if their need is to see the perp dead?
    RWD: If you have evidence that that is what meets the needs of most victims… bring it on. That is a caricature from DAs and cinema.

    Evidence shows that victims often have fundamental questions that revolve first around needing to regain a sense of personal safety.

    If the perp is not incarcerated in this scenario, this may be esaily resolved with a shotgun.
    RWD: I will put you down as favoring more punitive approaches versus restorative one.  Got it.

    Thanks for the useful and meaningful feedback.  I certainly benefitted from the analysis and will seek greater clarity in my writing in the future.

    1. Bill Marshall

      Yeah, get your drift Robb (and philosophically support, to a degree)… but can’t envision RJ for D’Angelo, Puente, Juan Corona, Jim Jones, Charles Manson… they are ‘outliers’ to be sure… but we know that they have, in some cases do, exist… the socio-paths are ‘different’, and until we can figure out how to re-wire the human brain (scary thought in itself!), we need to deal with them, and just can’t get to RJ as a remedy…

    2. Alan Miller

      RD, thank you for answering my questions seriously, even when they were not all seemingly presented in a serious tone.  Those were actually some really good answers, and I learned some things about restorative justice.  I am not against restorative justice as an alternative within the system, though I don’t believe flipping systems and philosophies of justice completely is doable nor desirable.  I do understand there are situations where both victim and perpetrator may benefit from restorative justice, especially in cases of youth or first-time offenses.  My biggest concern with restorative justice is the degradation of the deterrent factor, with a potential perp possibly deciding that the consequences are worth the risk, if the greatest punishment for the crime may be having to play the system, pretend one is sorry and feign tears.

    3. Tia Will

      This brings up the important point that there are direct and indirect victims who have needs.”

      Our society seems to understand the needs of the families of the victim, but we fall woefully short of appreciating, let alone doing anything at all to help the innocent family of the perpetrator. When I asked one of our BOS whether we have assistance available for these individuals who may also be traumatized, his answer was “Only if they know what public assistance is available.” I took that as a “No”.

      1. Keith Olsen

         When I asked one of our BOS whether we have assistance available for these individuals who may also be traumatized, his answer was “Only if they know what public assistance is available.” I took that as a “No”.

        Actually, that’s a big fat “Yes”.

        1. Tia Will

          Keith

          I do not understand your response. I was told flat out that there are no special programs for family members of those incarcerated, whether awaiting trial, or imprisoned. How do you see that as a “yes”?

    4. Alan Miller

      RWD:  . . . why they exist, where they come from, and whether or not they are beyond “redemption.”

      ACM:  It would be interesting for “a restorative system” to apply these three ‘why/where/whether’ questions to Donald Trump, especially if Mr. Restorative System was a Progressive.

      RWD: Sorry, not sure what you are driving at here.

      I swear I responded to this, but maybe I forgot to hit ‘send’.  I am making the comparison of the sort of introspection being asked for with perpetrators “why they exist, where they come from, and whether or not they are beyond “redemption.””, and asking if those on the progressive side of politics, who also tend to favor restorative justice, would also be willing to look at someone they have demonized such as the current president, and ask:  why does he exist? where does he come from?; and whether or not he is beyond “redemption”?

  4. Ron Oertel

    RWD: If you have evidence that that is what meets the needs of most victims… bring it on. That is a caricature from DAs and cinema.

    Not sure about that, but I think that what most people “need” is to not be victimized in the first place.

    How to prevent that may be open to debate, but I don’t think that publishing the daily account of Covid victims in prison is going to have much influence beyond a limited group. Nor will pointing out that any particular skin color (or gender) may be over-represented within a prison system.

    And unfortunately, those who advocate for restorative justice seemed to be primarily focused on the latter issues, rather than the former. (Just my impression.)

  5. Eric Gelber

    I don’t by any  means consider myself an expert in restorative justice. I do find it makes sense conceptually, however. I also believe the police have been assigned functions that would be better performed by professionals other than “law enforcement” personnel.

    It seems to me, however, that talk of re-prioritizing health and safety resources over-emphasizes the redirection of police funding rather than of other components of the criminal justice system. The issues around abuses by police are significant and must be addressed as a top priority; but eliminating or reducing police funding seems somewhat counterintuitive to achieving those needed reforms.

    The greater obstacle to overall criminal justice reform, including implementation of restorative justice principles, are prosecutors. Without a change in mindset and buy-in by district attorneys’ offices, it’s difficult to see how these reforms will come about. It’s prosecutors who, from the outset, have the discretion to determine the direction a case will take. To achieve meaningful reform of the criminal justice system, that would seem to be where the discussion of redirection and refocusing of resources should primarily (albeit not solely) lie, rather than with the police, who are merely the gateway to a system badly in need of reprioritization and reform.

  6. Robb Davis

    I agree with you Eric re: DAs.  They are the gatekeepers (while police are the gateway).  I hope that the new wave of progressive DAs will move towards a restorative theory of justice.

    What I am reading on “defunding” is about shifting resources within departments.  I was trying to enlarge that discussion to include how we fund and conceptualize the broader legal system.

    Ron you say:

    And unfortunately, those who advocate for restorative justice seemed to be primarily focused on the latter issues, rather than the former. (Just my impression)

    Please tell me, as specifically as you can, what you have read about restorative justice that give you that impression.  I have read widely about RJ and have not seen this.  Your impression comes from what?

  7. Robb Davis

    Bill – the extent which RJ is genuinely concerned about the needs of victims, rather than just using them as props in a system, which I believe is too often the case, it is applicable to the awful cases.

    Just to give one case: a woman is raped by her own brother who ends up in prison.  After many years and a careful RJ process she finally meets him.  She has questions.  She needs answers.  I can’t think of a more horrific crime. No one compelled her to do that but she wanted it to move on with her life.  Do all or most victims want that?  I don’t know, we don’t seem to ask them.  What we do know is that victims’ sense of safety often comes down to very basic questions about “why”.  I think we need a system that offers them the option to seek answers and define what they think can be done to make the harms as right as possible.

    RJ is not neat and clean, but neither is our penal system.

    1. Bill Marshall

      RJ is not neat and clean, but neither is our penal system.

      Agreed… on both points… it is ‘rocket science’… to simplify it too much, either way, is to ignore reality…

  8. Ron Oertel

    Please tell me, as specifically as you can, what you have read about restorative justice that give you that impression.  I have read widely about RJ and have not seen this.  Your impression comes from what?

    It’s my impression of the people who generally advocate for it.  The same people who are very concerned about the other issues I outlined (e.g., Covid in prison, over-representation of particular skin colors, gender, age of prisoners, etc.).  My impression is that types of issues are their primary concerns/focus. I’m pretty sure that I’m not the only one who has this impression.

    This reminds me of earlier decades, in which there seemed to be an impression that (some) within our society were becoming “overly-concerned” about the rights of perpetrators, vs. the impact on victims.  (And then we saw a backlash against that, when crime seemed to be rising.)

    Sometimes, politicians will take advantage of this, as well.  Remember Willie Horton?

    On a related note, I just happened across the article, below.

    https://www.msn.com/en-us/news/crime/released-from-jail-at-height-of-pandemic-virginia-rape-suspect-allegedly-killed-his-accuser/ar-BB17FcCg?li=BBorjTa

    I don’t claim to have a solution, but I’m pretty sure that folks put a great deal of value on not becoming a victim in the first place. And, that society will react, if prisoners are released and then commit more crimes. Even if it’s not that widespread.

     

    1. Robb Davis

      It might interest you to know Ron that some of the most avid supporters of RJ across the country are former DAs who experienced first hand the failure of the punitive system.  Also, RJ has deep roots, not in the US, but in Maori and other indigenous populations around the world.  So, they are not even connected to the US justice system and have practiced RJ time out of mind.

      1. Ron Oertel

         are former DAs who experienced first hand the failure of the punitive system.

        Seems to me that it depends upon how one defines “failure”. Might also depend upon exactly what the goal is, of those former (or future) DAs.

        Locking-up large numbers of people might be one way to describe failure.  Then again, failing to lock up those who represent a danger to others might be another type of failure.

        Maori and other indigenous populations around the world.  So, they are not even connected to the US justice system and have practiced RJ time out of mind.

        You’re apparently referring to entirely different cultures.  Are there any “Western” cultures that have successfully used this model to reduce crime AND reduce prison populations?

        I do have some interest in the topic, but stand by my comment that those who express the most interest in it (in this country, at least) are the same people whose primary focus is on the issues I described earlier. Which, for better-or-worse, causes me to view this effort with at least some skepticism, based upon what’s occurred in the past.

      2. Ron Oertel

        the same people whose primary focus is on the issues I described earlier. 

        Oh – and wrongful convictions.

        My “opinion” is that the majority of those who end up in a place like San Quentin (or other, similar prisons) are there as a result of their own actions.

        So, other than a wrongful conviction, I’m not sure what the systemic “failure” is, regarding that result.

         

  9. Edgar Wai

    How do people reply to posts in DV? Are you notified when someone replies, or do you just keep checking?

    Is there any up coming bill or new legislature related to restorative justice?

    Or is restorative justice already functional, but since it is voluntarily, it all depends on people spreading the words and voluntarily choosing that option (when they are the victim).

  10. Robb Davis

    I check when I write a story and respond if I think it is helpful to do so.

    No bill is pending.

    Victims can ask for certain things in certain cases but there is no restorative process as part of the current system.  The current actors: DAs especially, public defenders (and others), and judges have the ability to institute these practices.

  11. Alan Miller

    I check when I write a story and respond if I think it is helpful to do so.

    I usually respond if it’s not helpful to do so.  Difference between us.

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