Utter Failure; It's Time to Rethink the Prison System

Editor's Note: This article is based on the author's new book, Beyond Vengeance, Beyond Duality, published by Hampton Roads.

Our criminal justice system is based on a curious set of rules and a double moral standard. The state’s burden of proving guilt is pitted against the accused’s right to thwart such proof. The state claims to be the victim because its law has been broken, but if the accused lacks the resources of O. J. Simpson or Paris Hilton to defend himself, he feels victimized by the state, and too often is.

What about repairing the harm done to the other victim, the person who was robbed or raped? The prosecutor’s job is to win the case and punish the accused, not make the victim whole. This means the victim’s role is reduced to that of a mere witness for the state in its battle to win by making the accused lose. For the accused to win, defense counsel must try to make the victim appear as untruthful as possible. Caught in the middle of the attorneys’ battle to win and make their adversary lose, the victim often feels revictimized. If a plea agreement makes a trial unnecessary, this victim becomes irrelevant.

Is this a good system for getting at the truth? About 130 death sentences have been commuted since 1973 because evidence later proved these people were innocent. Is the prosecutor’s win more important than the truth about the guilt of the defendant? In many of these 130 cases, the answer was yes. Sam Millsap, a former Texas prosecutor, now speaks openly of having sent an innocent man to death by presenting weak evidence that later proved to be false. Does this deserve to be called justice?

There is a better way, a form of justice that delivers fairness, mends broken relationships, and helps us get at the root causes of crime. There is, in fact, justice beyond vengeance.

Becoming Our Own Jailers

“Get tough on crime” has been a common mantra in the U.S. since the 1970’s and, indeed, we have. We now have over 2.3 million people locked up on any given day, approximately the same number as China and Russia combined. More than one in every one hundred adults in America is presently in jail or prison. Nationally, our prison industrial complex is a $60 billion-a-year industry.

This incarceration binge is destroying the fabric of our communities, some more than others. One in every 15 African American men lives in a prison or jail cell. If you are an African American male between the ages of 20 and 34, the ratio is one in nine. Hispanics are disproportionately affected as well. As of 2006, one in 36 Hispanic adults was behind bars.

Over the last 30 years more acts have been classified as crimes, many prison sentences have become mandatory, as well as longer, and early release for good conduct has been all but eliminated. Some defense attorneys advise their clients to plead guilty to crimes they didn’t commit, reasoning that a short sentence for a lesser crime is better than risking decades behind bars that would be mandated if convicted of a more serious offense.

Few stop to think that, when the costs are added up, every year an inmate spends in jail or prison costs us about the equivalent of one teacher’s salary. This choice between hiring teachers and locking people up hits our young people hard. Our tax dollars pay to incarcerate one in every 53 of Americans in their twenties. As more tax dollars are used for incarceration instead of supporting colleges and universities, tuition is rising so fast, fewer and fewer young people can afford to attend. Some officials even demand zero tolerance to deal with behavioral problems in our grade schools and high schools, giving our children an early taste of how readily our culture uses punishment to secure compliance.

As life sentences and sentences that span decades are now common, the elderly experience it, as well. Although criminal activity generally decreases dramatically with age, between 1992 and 2001, the number of state and federal inmates aged fifty or older almost doubled. The cost of keeping an older prisoner locked up is around $70,000 a year or more—not one, but two, teacher’s salaries.

Before ever being judged guilty, many people held in jail (not prison) are awaiting trial. Those who can afford to post bail are generally released pending trial. Those who can’t post bail remain locked up in what amounts to a modern debtor’s prison. In 2006, more than 60 percent of those who spent time in jail were not convicted, a number that continues to grow.

In this punitive world, prisons have taken up the slack for the state and county hospitals that released millions of mental patients between the 1950s and 1980s. Because the majority of people behind bars in the United States have some type of mental illness, our prisons and jails are our “new asylums.”

Not everyone in the system is locked up for a long time. When you add up all the people who go in and out, about ten million cycle through our jails and prisons every year. They bring the lessons they’ve learned, the diseases they’ve contracted, and the trauma they’ve experienced back to our communities. We have become a nation of jailers, not only of petty offenders and serious criminals, but also of ourselves.

The increasing incarceration rate far exceeds increases in the rate of crime. During an interview with Kentucky Governor Steve Beshear in 2008, he stated that in the last thirty years, his state’s crime rate had increased about 3 percent, but its inmate population had increased by 600 percent.

It’s true, there are periods of escalating crime, and assuring the safety of our communities requires that some offenders—murderers, serial killers, psychopaths—be kept behind bars for long periods of time and perhaps for life. We have lost sight of the fact that these types of offenders are the exception.

Two Models of Justice

When we declare, “We want justice!” it is often coded language for a forceful attack, getting even, in which two wrongs are needed to make things right. It’s a demand for vengeance and retribution.

But remember in October 2006, when an Amish community in Pennsylvania captured our attention after a man murdered five of their young school girls and then killed himself? They didn’t call for vengeance. Instead, they rushed to comfort the murderer’s family and asked those of us outside their community to be forgiving. The power embodied in their compassion stunned the nation. Their defenselessness touched our hearts and brought honor upon their community. This is an example of another type of justice.

When a breach in a relationship or the violation of community norms occurs, we often fail to recognize that we react in one of two distinct ways. On the one hand, our goal can be to punish the guilty. This punitive type of justice inflicts punishment and seeks the imposition of control to enforce compliance; its answer to harm is more harm.

The other system of justice works according to an internal design that matches accountability with the harm or conflict being addressed. All participants treat one another with dignity and respect. All interested parties get to hear and be heard so all points of view are considered, enhancing the possibility of resolution and goodwill in their future relations. When forgiveness is achieved it is mutually beneficial, creating a future free of anyone’s bondage. Compassion and loving kindness are at the heart of this form of justice, and the outcome is a benefit to all. I call this unitive justice.

Ancient tradition and modern cultural norms have sanctioned both the punitive and the unitive approach to justice, giving us contradictory and confusing moral guidance. In one instance, we are told justice is found in proportional revenge: the old law of an eye for an eye, a tooth for a tooth. In the other, it is aligned with the ancient teaching we often call the Golden Rule: do unto others as you would have them do unto you, a moral compass found in some form in every major religion and culture. These conflicting moral codes reflect the two distinct forms of justice. We may not realize that they are mutually exclusive, but when you choose one, the other is not possible.

Punitive Justice

Because punitive justice is most often the norm in modern culture, we are inclined to accept this response without asking whether it produces a value-added product or not. This eye-for-an-eye model takes retribution, revenge, and vindication for granted because it is grounded in the belief that our safety lies in controlling or defeating those whom we fear. It considers none of punishment’s collateral damage that occurs within the larger community. Punitive justice fails to address how the infliction of further harm or the deprivation of liberty translates into taking responsibility or how it rights the wrong it seeks to address, beyond getting even.

Punitive justice relies on a double moral standard that permits us to project blame for our killing (in the case of capital punishment, for example), on those whom we kill. We say they are responsible for our harm, not us, because they are evil and deserve to die. We unburden ourselves of moral accountability by saying, “They make us do it.” Thus, our killing is deemed moral, while we contend theirs is not.

As is often the case, when both sides view the other as wrong-doers or evil, the killing becomes endless, while all claim self-righteous innocence. We fail to note that having two standards of morality—one for us and one for them—provides a flawed moral compass, even when matters of simple justice are at stake.

The so-called justice in the punitive approach is seen to lie in its requirement that the harm we do be proportional to the harm done to us, i.e., the gouged eyes and teeth knocked out by our side must be approximately equal in measure to the gouged eyes and teeth knocked out by those deemed guilty. The scales of justice are an appropriate symbol for this system of proportional revenge. While this punitive form of justice requires a degree of restraint that definitely makes it superior to barbarism, we can do better.

Unitive Justice

Unitive justice is not an idealistic fantasy. As the old punitive system is imploding, unitive justice is taking root and growing. It is appearing in our institutions in the form of restorative justice in the criminal law system, in some social model programs designed for jails and prisons, in collaborative law now being used in the civil law system, in transformative mediation, in schools using restorative processes as the disciplinary policy, and in various circle processes being used in many settings, public and private.

The defining characteristic of unitive justice is its inclusiveness. Its goals are healing, restoration, and reconciliation, an approach aimed at producing relationships that are harmonious, equitable, and peaceful. This is not a new approach. Among aboriginal people on the continents of North America, Australia, and Africa, there were some who long ago found ways to hold an offender accountable in ways that do not involve the harm, humiliation or deprivation that characterize punitive justice.

When used in a specially designed system of conflict resolution that is guided by a trained facilitator, experience shows that unitive justice can achieve meaningful accountability to the victim and the community, and sometimes to forgiveness of the offender as well. We saw heartfelt examples of this during the Truth and Reconciliation Trials in South Africa after the abolition of apartheid.

Being inclusive, unitive justice involves the participation of all who are affected in assessing the harm done and forging both a remedy and preventive measures, thus avoiding the separation that the us-versus-them system causes. Those harmed may include not only the primary victim, but also members of the victim’s family, members of the offender’s family, and the community at large. At the appropriate time and in a safe setting, the offender hears the victim and these other voices describe the harm from their perspectives. This furthers the offender’s understanding and results in the moral learning that can motivate a desire to repair the harm and to be restored to the community.

Unitive justice approaches the victim, the offender and the community as parts of a whole and no one is forced to lose. The victim feels heard and valued, as the offender is held accountable in ways that are meaningful and aid the victim’s healing. The community is seen for what it is, the basic building block of a safe and secure nation.

An example of a unitive justice approach in a jail setting is The Community Model in Corrections program in Emporia, Virginia. Following a well-planned set of activities that are consistent with unitive justice principles, such as respect, accountability, honesty, and integrity, the inmates in the program are largely responsible for helping one another recognize patterns in their lives and figuring out how to change them.

The objectives of the community model program are achieved at a fraction of the cost of traditional clinical treatment. Most of the on-site supervision occurs during the launch of the model. This stands in stark contrast to how traditional programs are run, some of which may have a couple of full-time licensed professionals serving as few as a dozen inmates at each institution. On the average, a community model program costs approximately one-fourth the cost of a traditional treatment program or therapeutic community.

A study of recidivism among those who complete community model programs shows that their recidivism rate in the three years after release is less than 10 percent.17 The track record for prisoners in traditional programs is dismal in comparison. A fifteen-state study found that, in only three years after release, more than two-thirds were rearrested.18 A recidivism rate of over 60 percent is the punitive justice norm.

Unitive justice does not condone or ignore wrongdoing. It is not a world of relative values or slack morals where anything goes. On the contrary, unitive justice reduces or eliminates wrongdoing by creating and maintaining a culture in which wrongdoing by anyone is not accepted behavior. One moral standard applies to all.

For example, in a prison in Virginia, when a guard ransacked an inmate’s cell during an inspection, the guard was reprimanded. In the culture the warden established and carefully tended, the cells of inmates were seen as the inmates’ homes and were to be treated accordingly. Inspections were to achieve their legitimate goal, not to violate the inmates’ sense of security and self-respect that the warden was trying to instill. Misconduct among inmates in this particular prison were a rare occurrence.

Being held to a common moral standard that applies to and benefits everyone motivates members of the community to measure up, accepting the standards of the environment they are living in as their new norm. When shared community values do not sanction hurting one another, and this standard is applied to everyone, the need to use punishment to deter violence, to maintain order and control, quickly diminishes.

As confidence grows in the capacity of the community to provide for the safety of its citizens through peaceful means, trust develops. This facilitates reflection upon the whole system, including how the crime or breach arose and what can be done to avoid such breakdown in the future. Thus, only unitive justice has the power to restore balance and harmony among the victim, offender and local community, and at the same time, enable the root causes to surface and be dealt with.

The punishment-and-revenge approach does not restore harmony and balance within the community, and the control needed to constantly enforce compliance wastes resources. In contrast, unitive justice supports fundamental, enduring change and costs relatively little. As the accused is not pitted against the might of the state, due process is simple. Rich or poor, unitive justice provides a level playing field. Liberty and justice for all may actually be within reach when justice beyond vengeance—unitive justice—becomes the norm.


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