Repairing Justice: An Alternative to Prison
Bob Garfield: This is On the Media. I'm Bob Garfield.
Bob Garfield: Last week on the show, we examined the power of the prosecutor in our justice system-
Danielle Sered The DA is even more powerful than judges, criminal defense attorneys, probation, the governor, the mayor, anyone,
Bob Garfield: -and how voters are electing a new wave of so-called progressive prosecutors to try to in the tide on mass incarceration. If you haven't heard it yet, be sure to check it out. It was part one of a three-part series we're calling repairing justice. This is part two.
We've talked about how the law and order approach doesn't work and that we don't want to keep locking people in jail for every infraction, but that raises the question what then do we do to address injustice when it appears? Rather than the isolation and violence that prison breeds, some advocates propose there should be a new approach.
One based not on punishment, but on truth and reconciliation. It's called restorative justice. Danielle Sered is the executive director of Common Justice, an organization based in New York City that has pioneered the practice of restorative justice with violent offenders at a local level. Danielle, welcome to On the Media.
Danielle Sered: Thank you so much for having me.
Bob Garfield: Let's start with assumptions. Someone does something violent and the best thing to do is lock them up for as long as possible, which doesn't on the face of it sound like a foolish proposition, rapist, murders, people who kick old ladies in the face on subway cars, they need to be dealt with. What's wrong with that assumption?
Danielle Sered: The fact that people who cause serious harm need to be dealt with is entirely right. The question comes when we start to answer how, and it depends on what our aspiration is. If our aspiration is to perform punitiveness, then we should lock them up for a really long time. If our aspiration is to produce safety or to heal victims or to help people become people who will never cause that harm ever again, then prison has very little to offer for us.
I'm in the business of ending violence. We know in that business know that the core drivers of violence are shame, isolation, exposure to violence, and inability to meet one's economic needs. The four core features of prison are shame, isolation, exposure to violence, and an inability to meet one's economic needs. We've baked into our central response to violence exactly the things that generate it.
That's not what a society that wants to be safe does. The other assumption that animates our appetite for punishment is the assumption that that's what crime victims want. The truth is in our public discourse, we have heard from a tiny fraction of crime victims and largely from a non-represented fraction. We've heard mostly from white women like me, even though a young man of color is 10 and a half times more likely than I am to be robbed or assaulted and even likelier than that to be killed.
Our picture of who crime victims are and what crime victims want is artificially monolithic and distorted in a way that means that we are enacting things in their names without ever having actually asked them what it is they want.
Bob Garfield: You mentioned safety, you mentioned punitiveness. There's also the question of deterrence and rehabilitation. As you say, justice for victims, can you give me just a shortlist of why those goals aren't being met?
Danielle Sered: Prison is antithetical to accountability, which is confusing because we often use the terms punishment and accountability interchangeably. In fact, I think they couldn't be more different. Punishment is passive. Punishment is something someone does to me, all I have to do to be punished is not escape it. Accountability is different. Accountability means that I acknowledge what I've done. I acknowledge its impact. I express genuine remorse.
I make things as right as possible, ideally in a way defined by those I hurt. I do the enormous labor of becoming someone who will never cause that harm ever again. That is some of the hardest work any of us will ever do. Prisons aren't built for it. Prisons separate people from those to whom they owe a debt, they preclude discussion and conversation. They create barriers to victims getting answers to their questions.
How dare you and why? Was that a real gun? What if I had fought back or what if I hadn't fought back or what were you going to do? Why did you choose me? All of those things. They constrained someone's ability to actually make home repair, whether that's paying restitution to the people from whom they stole property or who've accrued medical debt because of the injuries they caused to them and other forms of repair like paying it forward in the neighborhood by helping younger people not cause comparable harm?
Bob Garfield: Deterrence is a justification for the status quo is manifestly a failure because we have millions of people in prison for violent crimes. They clearly have not been deterred.
Danielle Sered: When it comes to deterrence. If prisons work to produce safety, we'd be the safest country in all of human history. No nation has ever locked up more of its own people than we have. Deterrence depends on a few things.
It depends on a level of civic education and it depends on people knowing what the law is and what the consequences are for breaking that law which is totally not present for us. It depends on consistency. Meaning if I do X, Y will happen every time. That could not be less true.
The biggest predictor of outcomes in the criminal justice process is sadly not your guilt or innocence but your race and that is not something that someone can be deterred out of being. Finally, deterrence depends on hope. It depends on the prospect that if you are law-abiding, if you keep your part of the social contract, if you do all of those things that you will get the basic entitlements of a just society. That includes an ability to meet your basic economic needs.
Some basic level of safety ,some decent education. When none of those as things are promised, absent, a real structural basis for hope, deterrence falls short.
Bob Garfield: Then there's rehabilitation, restorative justice. Tell me how it's different.
Danielle Sered: Restorative justice is a process where the people most directly impacted by a given harm come together and reach agreements about how to repair that harm as best as possible. After extensive preparation, we bring together the people who caused harm, the people who they hurt, and their loved ones. We acknowledge what happened. We acknowledge its impact and we reach agreements about how the person responsible can make things as right as possible.
Those include things you'd expect like restitution, community service, getting a job, finishing school, things you might not expect. One man said to the young man who held him a gunpoint one night, "I want you to meet the children whose father you almost took from them that night with your gun." I believe today in the father you can be to your baby girl and I want to say that her face.
Another two young man one who had shot at the other, did a speaking tour in their neighborhood with younger people talking about how they let the conflict between them escalate to such a high level of violence and what they could have done differently. Those agreements have wide range of possibilities that are tied to the actual human needs of the people who have been hurt.
Bob Garfield: How do you get the standing to do this? Do you get carve-outs from local and state government so that the district attorney is willing to surrender the adjudication of a particular case? How do you get your mandate to put people in a circle, instead of sending them in for the usual plea bargain?
Danielle Sered: The district attorney is the most critical partner in it. If the district attorney wouldn't agree to dismiss the charges at the end if someone were successful, then a judge would be bound to sentence that person under a mandatory minimum and we couldn't operate as a replacement for prison in these cases. The district attorneys who work with us in Brooklyn and the Bronx, that's DA Gonzalez in Brooklyn and DA Clark in the Bronx understand that they have an obligation to the victims of crime and their jurisdiction and that that obligation means that so long as they're not jeopardizing anyone else's safety, they want to present options to victims that might actually help them heal and feel safe, but they also have a bottom line obligation to safety.
Bob Garfield: Apart from two boroughs of New York, where else is it being practiced?
Danielle Sered: We're the only project operating in the adult courts as a diversion from prison., but there's restorative justice everywhere. There's extraordinary work happening in the juvenile justice system. There are projects working with less serious cases in the adult system. There are projects working with people who are in prison or coming home from prison. These processes are also happening informal only in neighborhoods and communities around the country. These processes have been in practice for literally thousands of years. The criminal justice system as we know it is a new and truly failing experiment compared to longevity of processes where people come together, they leverage a collective moral authority to bind those agreements and that person rises to them.
Bob Garfield: There's a circle, there's a talking stick. What is a talking stick?
Danielle Sered: A talking stick can be anything. It can be an object that's of sacred meaning to people in the room, or it could be a pen. Basically, you talk when you have it, you don't when you don't. When I say. these are old processes and relatively simple ones. I really do mean it.
Bob Garfield: Tell me about results. In your book, you have many heartwarming examples. Anecdotally, this is an easy sell. You use some percentages of outcomes but the sample size as we've discussed is quite tiny. Do we have any reason to think that this scales, that you can build a criminal justice infrastructure around healing circles?
Danielle Sered: No and yes. The no is that restorative justice will not wholesale replace incarceration. Nothing will. Part of the problem with incarceration is it treats 1,000 different problems with one single tool and that's never going to produce meaningful results. The best results will always come from a variety of interventions that are actually appropriate to the harm someone is causing to change. On the other hand, the part where I say yes, is that we spend $80 billion on our correction system.
In cases where we're spending say 100 grand and locking someone up for a decade, we're spending a million dollars on an intervention that is unlikely to actually produce positive results. However, small our operations are, however intensive our services. It would take us a lot to get to a million-dollar cost per case. I think all of us can understand that if we have those kinds of resources to invest in a single person, that at much, much smaller levels, we can invest in results that actually transform.
The other thing that's true too is if you start to do things in response to violence that actually reduce it, then the volume and the criminal justice system will diminish and you won't have to do as much. The correction system has an amazing business model where their intervention and response to violence generates violence, which brings them more work to do. A different model would have interventions that responded to violence that reduced violence and thereby reduced the overall workload. It's in that efficacy that there's truly a path to scale.
Bob Garfield: What you're describing also seems to be not merely theoretical, but the actual system in, let's say Northern Europe. If what we have is medieval, what they have seems more enlightened, how are Denmark and Norway doing?
Danielle Sered: They're doing much better than us and it's partly because they understand that even when isolation or separation may be called for in a case, that doesn't require the diminishment of human dignity. They understand that degradation in any society is never going to produce positive outcomes for anyone.
Bob Garfield: Your book has a number of examples of felons who were involved in the program and not only did not get back into the system but have gone on to lead productive lives at no expense to the society. There's also a lot of focus on the victims who we commonly think of as seeking harsh justice and maybe even revenge, but that's not your experience
Danielle Sered: As survivors, there are two things we can't abide. The idea of going through what we went through again, and we can abide the idea of someone else going through it. If we're offered a choice between something that we think will work to meet those needs, that we won't be heard and others won't and something that we know won't work will pick the former.
At common justice, we only take cases into the project if the victim of crime agree, 90% of people given that choice choose common justice over prison for the people who hurt them. They're asking the question, what is likely to produce safety for me and others? They're choosing that even when that's intention with their revenge. Early in our work, there is a young 14-year-old boy who is robbed and assaulted because he was so young his mom got to make the decision about whether the young man who hurt him would go to prison or not.
That young man was facing three years in prison after long negotiations, he'd originally been looking at closer to a decade. I met with her to talk about this option and she said, three years from now my nine-year-old boy will be 12, and he'll be coming tuned from school and tuned from the corner store and tuned from his aunt's house alone. On one of those days, he'll walk by this young man.
I have to ask myself on that day, do I want that young man to have been upstate in prison, or do I want him to have been with y'all? She said, now if that young man were before me today and I had my machete, I would chop him to bits and bury him under my house and sleep soundly for the first time, since he dare lay hands on my baby. The truth is I'd rather him be with y'all.
That decision wasn't about mercy. It wasn't about compassion. It wasn't about seeing this young man as someone who could be her son, it was about prioritizing her child safety over her emotions. I don't actually know if it's a mother's job to prioritize pragmatism over revenge but I believe very strongly that it is our criminal justice system's responsibility to do exactly that.
Bob Garfield: I hope you won't think this is a trivial comparison but I've had the experience online of people being extremely hostile and aggressive with me and then when I just really reached out without being defensive or aggressive myself, turns out, I encountered an entirely different person who was reasonable and even a bit embarrassed about their behavior. Is this true of violent criminals as well. What happens when they are in a circle encountering their victims?
Danielle Sered: I think there are a few things harder than facing the people we've harmed and within that, especially few things harder than facing the people we harmed, who are meeting us with any respect and dignity, because it brings us face to face with what we've done and how we've behaved and the wrongfulness of that. In the same case, with a mother, we sat in that room, and this young man had to face that mother, had to face the young boy whose life he had changed, had to answer for what he did, had to rise to their challenges to him to be different and do better, and fulfill all of these agreements to make things right.
After that circle, the young man who committed the crime said, "You know, for everything that I've done, and everything that's been done to me, I don't know that I've ever actually heard a real apology before. How do you think I did," and because it was true, I said to him, "I think you did great." He said, part of my language, but that's the scariest shit I've ever done.
There's something about the difficulty of actually coming face to face with what we've done that transforms us. There's no better insulation from that than a court process that is inhumane and mechanical, and bureaucratic. Then a prison that literally puts you farther and farther away at every step from the people you hurt.
Bob Garfield: I do detect at least one structural problem with restorative justice in the context of the American version of rule of law and that is our criminal justice system is not based on the victim versus the accused, it's based on the state versus the accused, the society versus the accused. When victims are explicitly part of the remediation for a crime, does that square with the constitution?
Danielle Sered: There is nothing in us understanding something as a crime against the state that requires that the state's response is to put people in cages. What it requires is that the state leverage its power in the interest of collective safety and collective well-being. If the judgment is that the best way to produce that collective safety and well-being is through an intervention that is proven to work, rather than through an invention that is repeatedly proven to fail. I think that's not only within the purview of the constitution but actually within the scope of obligations of state's responsibility to its citizenry.
The other thing that's true is that fewer than half of victims call the police in the first place. While we enact all of this punishment and victims' names, we are doing something that the majority of victims find somewhere on the spectrum between useless and harmful. I also think there's an obligation on the part of the state to exercise its authority to produce safety in a way that actually includes most of its citizens.
Bob Garfield: I asked you before about how something like this could scale. I want to ask the same question but not just about dealing with violent felons, but dealing with other aspects of transgressive behavior in society, whether it be in political, rhetoric online behavior, and so forth. Is this not just an approach to the criminal justice system, but an approach to conflict resolution of all kinds?
Danielle Sered: That's applicable in all sorts of contexts. Restorative justice is fiercely proportional, it means it brings you face to face with the impact of the harm. When that impact is small, you see a small harm clearly, when it's great, you see a great harm clearly. It's my belief that it is most applicable in the most serious case because it's powered by the severity of that harm but the basic idea scales everywhere from how we think about an attempted murder to how we parent our young children.
I would do with my godsend when he was young, a practice where if he did something bad, he'd have to say what he did and say he understood the impact and ask how he could fix it and say he was sorry. He was capable of doing that for throwing a cheerio at my face. He would have to say, "I threw the cheerio and it made you sad because you asked me not and so it was mean of me to do it and I'm sorry, and what can I do?" I'd say, "You can kiss me on my forehead" and he would kiss me on my forehead where the cheerio hit and then he would say, "I'm sorry, I'll probably never do it again."
Bob Garfield: I noticed in the book that the term you use to describe all men of violent crime is arm and you talk about person responsible, which is wholly different from saying "murderer," from saying "aggravated assault," from saying "brutal beating," which suggests a euphemistic approach or lighting over the raw cruelty of this kind of violence. Why that choice?
Danielle Sered: I will consistently say in the book, things like brutal beating or aggravated assault or shooting or attempted murder, you're right though that I won't say things like offender or perpetrator or assailant, that's because people who commit all sorts of harm, all sorts of violence remain more than just that and the obligation they owe for having committed violence doesn't arise out of their innate evil character. It arises out of a choice they made to hurt somebody and that obligation will persist until they engage in the work of repairing that hurt.
Bob Garfield: It's not that a felony? You're saying, but he's also something else and that's something else can be a father. It can be breadwinner. It could be colleague. It could be Paul. It could be someone you depend on when you're in the gym.
Danielle Sered: It could be a pain in this mother's behind and it could be an unreliable boyfriend. It doesn't have to also only be positive things.
Bob Garfield: One thing that you make clear in the book is that when we think about the cycle of violence, it's not just that people who physically harm were themselves often physically harmed. It's that when they're taken out of the system, the community and their families may or may not be protected, but there is also a great loss, and that loss of those functions that this person was also fulfilling, creates a cycle of unhappiness unto itself.
Danielle Sered: Virtually, everyone who is incarcerated is loved by somebody and virtually everyone who is incarcerated is a caretaker of some kind for somebody, so when that person is removed from those people, the people they love, the people who depends on them suffer an enormous loss that ripples through their lives. People will try to continue to be the best parents they can be from prison and they'll provide guidance and provide love and provide support but they cannot be there in the middle of the night when their children awaken with nightmares and they can't be there at their children's high school graduations or school plays or dentist appointments or any other parts of their day to day lives.
That disruption is deeply painful for the people they love and there's another dimension to this that's problematic too, which is that safety is produced in relationship. When we each think about the times and places we feel safest. Usually, we think about our parents' home. We think about the sound of our grandmothers cooking down the hall. We think of the neighbors who took us in when our own homes weren't safe.
If relationship produces safety and prison is made of separation, then prison is never going to produce safety. Every time someone's removed from the community, there's a tear in that social fabric and the more tears there are, the weaker it becomes and the more difficult it is for communities that have had many people taken from them to cohere and to hold each other and to protect each other in the ways they otherwise could.
Bob Garfield: I don't know how acute your hearing is, but if you listen carefully, you'll hear tens of thousands of eyes rolling, dialogue, circles, talking sticks. It all sounds kumbaya and bleeding hard in exactly the way conservatives ridicule the left about. What's the answer to the eye-rolling?
Danielle Sered: I actually don't find that this is a liberal-conservative divide in ways many other things are, conservatives often understand debt. They understand that if someone hurt you, you want to ask them how dare they hurt you. You want some power in the process, to decide what should happen to them and what they should have to do. Libertarians understand that when someone commits violence, it's not the state that was hurt like the DA is fine, the judge is fine.
The victim is the one who is struggling and so there's an obligation that's between people, the debt that's owed to them that instead gets paid to the state in a super unproductive form. The thing too, is that putting somebody away, people don't have to do fix things. People don't have to repair the damage they've done, that repair falls on the society, even though they, themselves are the ones responsible for causing that harm.
It means that we spend our taxpayer dollars, housing and feeding people who've caused harm. At the same time, we spent a couple of our taxpayer dollars trying to attend to the people they hurt, and we let them off the hook for doing that repair.
Bob Garfield: Small footprints so far pilot project in two boroughs of New York, great data based on tiny sample size. What are the prospects for restorative justice for it getting traction for being more widely embraced, for it being an arrow in the quiver of a thousand DAs instead of just two?
Danielle Sered: Our current system it's as though there's a hamburger stand in the middle of the desert that serves really nasty burgers, and there's a long line, because there's nothing for 200 miles. If you looked at that hamburger-stand and you surmised that those were the best burgers in this country, you'd be making a mistake. If you surmise that everyone's favorite food was burgers, you'd be making a different mistake.
What I know is that if there were also a taco-spot and a pizza-spot and a veggie-spot, the line at the hamburger-stand would get shorter and shorter as people avail themselves of options that actually might nourish them. The reason that I'm hopeful about the expansion of restorative justice, is think that it is in line with what most victims actually want. It's just not in line with what our public narrative has been about victims.
We've lifted up a handful of stories. We've given the megaphone only to the most vengeful, and we've done that at great expense to victims. If changing everyone's minds were required for this expansion, I'd be a skeptic like most everyone else. What I understand is that the story we've been told about who people are and what they want, is largely a lie, and so all we have to do is act on the thing that is true instead of acting on the lie that we've been told and will find vast demand for this across the country.
Bob Garfield: At the heart of this conversation and really the premise of this entire episode of OTM, is the assumption that antisocial behaviour of various sorts is just a given that it was ever thus, first of all, is it true to begin with and if so, is it something that you believe can be moderated on a grand scale?
Danielle Sered: I'm sure some degree of anti-social behaviour is part of any community, any society, and always will be. The question for me is one, what is the scale of that behaviour and what happens after it? Does it continue indefinitely or not? The scale of antisocial behavior in a society is determined largely by features of that society, by things like the presence of poverty and even worse than poverty, inequity, meaning poverty adjacent to wealth.
It means substandard education, substandard mental health, and healthcare. It means an infrastructure that doesn't support people traveling from where they live to where opportunities are. It means unaddressed, unacknowledged, unrepaired racism on the part of social institutions that all of those things are productive of violence, productive of anti-social behaviour.
How we build a society determines how much violence, how much harm we are going to see. But then the other question is that once someone does something wrong, what do we do? Do we do something that reduces the chances of them doing something wrong again, or something that increases it or something that leaves it entirely alone? I believe in a healthy society and a society that aspires to be safe and just, that when someone does something wrong, it's our job to intervene in that in a way that reduces the likelihood that harm or that poor behavior will happen again. Society that is safe, just and decent for people to live in is produced I think by a combination of structures that act in the interest of safety and equity and responses to Anti-social behavior that act in the interest of safety and equity.
Bob Garfield: Danielle, thank you very much.
Danielle Sered: Thank you.
Bob Garfield: Danielle Sered is the executive director of common justice and author of the new book Until We Reckon Violence: Mass Incarceration, and a Road To Repair. That's it for this week's OTM podcast, extra part two in our three-part series, repairing justice, stay tuned for part three later this week. I'm Bob Garfield.
[00:31:12] [END OF AUDIO]
New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.