Transformative Justice: Reimagining the Future of Our Justice System
an article by Chris Fong Chew
Dear Asian Youth,
Over the past few months, the United States has been forced to look closely at the reality of our justice system and how it continually fails to protect the communities that need it most. Time and time again, our justice system disproportionately restricts members of the BIPOC community, unfairly punishes and jails people from historically marginalized backgrounds. Meanwhile, the enforcers (police) continue to intimidate, brutalize, and even murder BIPOC.
Looking at the statistics from the ACLU (American Civil Liberties Union), we find that while the United States only makes up 5% of the world’s total population, but 25% of the world's incarcerated population. Since 1970, our prison population has increased by 700% to a total of 2.3 million people. To put this in perspective, if the entire incarcerated population was a city, it would be the 4th most populous city in the country — only slightly smaller than the city of Chicago.
Broken down statically by race, 1 in 3 Black men are expected to be incarcerated at some point in their lives, followed by 1 in 6 Latinos. White men, on the other hand, have a significantly smaller statistic at 1 in 17.
Women also make up the fastest — growing prison population in the U.S. at approximately 219,000 inmates. This makes up 33% of the female prison population worldwide. The female prison population has grown significantly from 12,300 inmates in 1980 to 182, 270 in 2002. From 1995 to 2005 the female prison population grew by about 4.6% each year.
On top of this, about 60% (twice the number of people in the entire federal prison system) of people sitting in state and local jails have not been convicted of a crime and are awaiting trial; most of whom come from low-income backgrounds that cannot afford bail.
To make matters even more complicated, every year, approximately 650,000 men and women re-enter society from prison. But as they get their first taste of freedom, they face nearly 50,000 federal, state, and local laws that restrict their ability to comfortably reintegrate into society. Many states have laws that require those that have committed certain crimes to declare their criminal history on job and housing applications before being interviewed, often reducing their chances of being accepted.
Statistics from the Bureau Of Justice revealed in a study that of released prisoners in 2005, 83% was once again arrested in the following 9 years. 60% of the rearrests occurred four or more years after being released. Ticket and Prison quotas further exacerbate many of these issues. The quotas often incentivize prisons to find even the smallest reason to extend sentences to maintain funding. While ticketing and arrest quotas incentivize cops to “search” for trouble to meet certain “productivity requirements” leading to many arbitrary arrests.
Still, the high rate of recidivism is largely connected to the ridiculous amount of laws that limit a person's ability to reintegrate into society. When a person is released from prison, it is expected that they should have paid for their crimes while incarcerated. We expect them to be able to live a normal life after, yet certain laws make it harder to find jobs, housing, and acquire basic necessities, and pushing those without a support system back into a cycle of poverty and crime.
In an interview with Darris Young, for Pacific Standard, a former inmate released in 2015 following an Obama era prison reform bill. Young served 17 of a 20-year sentence for a non-violent drug charge and was asked about reintegration programs to which he responded, “.
..We're letting 6,000 people out of prison, which is great and I advocate for that, but letting them out of prison without any resources guaranteed to them is akin to, after the Emancipation Proclamation was signed when we kicked all the slaves out of the plantations and said, "You're free," and yet they had nowhere to go and no way to make a living... there needs to be something attached to that, to make sure these 6,000 people will return to housing; to make sure these 6,000 people will be able to get employment; to make sure these 6,000 people will be able to get their basic needs met, so that whoever it is will have a chance to integrate into society.”
It's clear from these statistics and testimonies that our justice system isn’t necessarily delivering justice nor keeping our communities safe. When we look at the disproportionate number of people in prison that are not convicted of a crime, most identify as BIPOC or are from low-income neighborhoods. With this evidence, it’s obvious that the justice system targets and jails certain groups more than others.
Our justice system is not a system of justice. The American justice system has become a system of oppression, a system of locking up people from majority disadvantaged communities and stripping them of their rights. But how did it get this way?
The US justice system exemplifies what is called punitive justice: the philosophy that a person who causes harm or suffering (by breaking or violating a law), should be punished and equally suffer in return for their wrongdoings. However, there are many problems with this philosophy. One is the assumption that breaking laws causes harm. However, not all laws are moral and are written with the intent of protecting the general public. Instead, some laws solely protect the interest of the few while oppressing a certain group (e.g. Jim Crow laws).
Another issue with punitive justice is that it focuses on making a person suffer for their wrongdoings rather than addressing the actual, underlying issue. We somehow expect that by locking people up, putting them through the brutal prison environment, and dehumanizing them, that they will somehow realize their wrongs and fix them. Unfortunately, this is hardly the case as we look at high rates of recidivism. When a person perpetrates harm, punitive justice sees that person removed and ousted from the community where that harm was caused. However, it doesn’t take the necessary steps to integrate them back into the community after their sentence is over.
In countries such as Sweden according to The Guardian which passed sweeping prison reform years ago, found from 2004 to 2014 prison populations fall from 5,700 to 4,500 people in a country with a population of 9.5 million. The country now has a 40% rate of recidivism which is significantly lower than countries. They managed to achieve this by focusing on rehabilitating prisoners and forming long term solutions rather than short term punitive punishments.
However, in many countries, we are conditioned from a young age to believe that punitive justice is the answer. In school, when we break a rule, we are punished. We are given detention, suspended, or even expelled. We are removed from the community in which we “caused harm” and often “canceled” and ridiculed. This doesn’t necessarily mean we understand what we did wrong or why something is wrong. The culture that surrounds punitive justice is perpetrated through all aspects of our society and hugely reflects our attitude towards policing and the justice system.
In recent months, as calls have been increasingly made for greater reform of the police, and the overall justice system, many advocates have called for the implementation of Restorative Justice. Restorative justice is based on the principle of restoring everything back to what it was before any harm was done. However, when we look more carefully at the issues within the US, it becomes apparent that it isn’t enough to simply restore things to the original state. Instead, we can and must implement transformative justice — a survivor-centered approach to justice.
Restorative justice has been practiced in some communities in the U.S. working alongside the current justice system to find a less punitive approach for non-violent crimes. Organizations such as Restorative Response Baltimore or Restorative Justice For Oakland Youth (RJOY) seek to implement a better system of justice.
However, many argue that the system of justice is already broken beyond repair. We can’t just restore, we have to transform. Transformative justice calls for systemic change within our communities and our justice system into safer and more equitable spaces. Transformative justice addresses how the current justice system not only harms perpetrators but also survivors. From the unjust enforcement of laws, surveillance, and even physical assault from police and others, the current justice system of justice does more harm than good.
When a survivor comes forward about the harm that has been committed, they play a pivotal role in how everything is handled. They have complete control of any supportive measures they receive from medical help, mental or physical rehabilitation, to assistance to heal from the harm. They also have complete control of how they want to have the perpetrator of that harm held accountable within the resources available. Trained facilitators would support the survivor and obtain consent from the survivor to move forward with any action to help the survivor or hold the perpetrator accountable.
This could look like securing necessities from food to housing, or counseling, medical aid, and includes the development of a safety plan to ensure the survivor is protected. When the survivor is ready, a plan would be made to correct the damage that occurred. This can be done in the form of sharing their story, receiving financial support from the perpetrator, receiving an apology, or inducing consequences for the person who committed the harm.
Transformative justice also acknowledges the community’s role in causing harm, which comes from the well-known phrase ”it takes a village to raise a child”. Community attitude and culture often play a role in causing harm or perpetuating harmful actions. When a survivor comes forward, the community must listen to the survivor, and in turn, address the community's role in leaving someone susceptible to perpetrate or be a victim of harm. This can result in redistributing power, examining communal values, and educating the community on preventative measures in order to prevent the harm from reoccurring.
Focusing on accountability and rehabilitation of the perpetrator rather than brute, senseless punishment, transformative justice focuses on understanding both the perpetrator and the victim. This is why the term survivor is used. Understanding that survivors can be both perpetrators and victims of harm. While the survivor that has come forward has complete control over how the perpetrator is held accountable, violent methods of accountability will not be supported. While we may understand a person's want for retaliation in a violent manner and through the support we can validate those feelings; transformative justice understands that violence is not the answer. We cannot fix harm by causing more harm in return.
Violence is an inherently oppressive tactic — it’s the exertion of force on another person, which includes arrest, prosecution, incarceration, fines, surveillance, invasions of privacy, or any type of state-sanctioned violence that we have currently. Transformative justice addresses that this is not the way to right wrongdoings. It understands that people often perpetrated harm not out of evil but through a lack of education, unaddressed trauma, or them being survivors of unaddressed harm themselves. That being said, perpetrators will be provided with rehabilitative services, educational services, and help to understand 1. the harm they have caused 2. the reason why they cause that harm and 3. a plan in which they will be held accountable for that harm and “make things right again”.
Notice how in the practice of transformative justice, there is no mention of arrest, no mention of police, no mention of a judge, a jury, nor a complex legal system of prosecutors or defenders. Once again, that’s because transformative justice comes from the community. It strives to use non-violent tactics to address and educate others about the harm that has been caused. It strives to identify the root causes of that harm and remedy that through education, understanding, and support.
While police and the justice system may still exist (for the purposes of mitigating some of the most extreme cases of violent harm), the need for them would be hugely reduced. This would mean less policing, less incarceration. The millions of dollars allocated into the militarization of police forces and the maintenance of giant prisons can be reinvested in schools for higher quality educational programs, better social services, and improved community spaces and organization.
Communities would be better educated, safer, and more tightly knit as they are forced to solve problems and address their own issues. Acknowledging a community’s attitude and roles in causing harm, as well as working on improving their community’s culture.
As we reimagine our justice system and transform our nation and communities, we need to address the root causes of harm and the role our current justice system plays in perpetuating violence in the communities they claim to protect. Most governments and organizations are trying to reform the police system in light of recent events, but we don’t want to just do that. We want to transform our justice system.
- Chris Fong Chew
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