Defective Justice
In Elizabeth Spelman’s Repair: The Impulse to Restore in a Fragile World she introduces the idea of restorative justice and retributive justice systems, she explains how each is or could be used in real life. She also, explains each of their benefits and their weaknesses. Spelman focuses hard on how a restorative system would be the better system and that a retributive justice system is less productive in helping every person involved
Restorative justice isn’t only about fixing the flaws and making up for the imperfections in existing legal institutions; it’s about putting the repair of the victims, offenders, and the communities of which they are part at the center of justice (Spelman pg. 52)
Although we agree with Spelman that the current system, retributive justice, is not effective or healthy for those involved, we believe that switching to a restorative system is not an actual solution, as it would cause many more problems that are caused by mental disorders, blocks and the fact that crimes against people are much more personal and much harder to recover from. Switching from our current system to this new system would be a useless effort as it would not solve all the current problems and it would create new problems.
Spelman brings up the point that restorative justice is a way to repair all people involved in a crime. She says
Assessments of the success of the repairs will be based on how the victim feels, yet at the same time on how much the defendant has fundamentally changed: she gets asked if she is in a better state, but he is checked out to see whether he has become a better person. She’ll be asked if her body and soul have been mended; he’ll be examined to see if his person has been fixed, been corrected. (Spelman pg. 73)
I once had a mentor, Dr. Harrison, whom got into an accident about a decade ago. Him and his wife were hit by a young man that lost control while street racing. Dr. Harrison was badly injured and can no longer sit for long periods of time; to be comfortable he must keep his spine and legs relatively straight. What happened to him was terrible, but what happened to his wife was worse: Mrs. Harrison was in a coma for almost a year, underwent around 65 surgeries to put her back together, her steps cannot exceed a foot in length because her body simply won’t allow it, her body was emerged into a fiery pain that she will never, in her life, escape. The picture above shows Mrs. Harrison shortly after the accident. Her body force her into a coma at this time where she was in for almost a year as she healed.The story takes an interesting turn when the legal aspects come in. When the police asked how the Harrisons would like to proceed they decided not to prosecute. The young man received punishment for reckless driving, and reckless endangerment , however he was not punished for the damage he caused to the Harrisons. He, of course, was eternally grateful, but many of those who knew the Harrisons questioned their decisions. The Harrison’s focused on the repair of the young man that hit them; they wanted him to have a better future and learn from his mistakes. Seeing his repair helped them overcome their hardship. However, many people thought they should take action to teach the boy a lesson. Even more called it a very noble act, but admitted they would never be able to do the same and not carry anger after so much suffering. Spelman does not point out that most people are not excessively kind hearted; this is not to say that all people are vindictive and evil, but that most people that have experienced hardship and misfortune cannot just accept a sorry and overcome the tragedy. Most people would worry about the repair of their own feeling and lifestyle over that of the offender and this could cause unrest in the community. This is just one flaw, out of many, in the restorative justice system.
One can see how the restorative justice system could go terribly wrong from just watching the show Law and Order: SVU, many of the victims on this show are victims of rape and this is extremely scarring for them, some even commit suicide due to the damage caused by the offender. In many cases the women or men do not want to testify in court because they do not want to see the face of the defendant because it would be too hard for them to do. Then,for some, if they actually decide to testify it does give closure, but for others it can make the situation much worse and cause even more psychological damage. Now, apply the same situation in the restorative justice system and force the victim and offender to talk to one another one on one, imagine how possibly scarring that could be. Not, only do the victims have to deal with the offender, but, under the restorative system the community has to be involved. A rape is a very personal crime that can leave the victim feeling very vulnerable; bringing the community into the healing process can leave the victim feeling self conscience and violated.
I have witnessed how trying to make a victim become reunited with an offender can cause serious psychological damage in the case of my aunt whom was a victim of sexual assault. They wanted to try something new like having her sit down with the offender and try to achieve closure. This did the exact opposite of what was intended. She should have never been asked to attempt the restorative justice system. There were tell-tale signs even during the trial such as my aunt having a serious psychological break down and being hospitalized for almost a week. Yet, they asked her to try and confront her offender and convinced her by saying it was for her benefit and it would help her achieve closure. My aunt stressed for weeks on end waiting for the day she would have to visit him again, it was so bad that she was pulling out hair, biting her fingernails until her fingers bled, and even having regular panic attacks due to the thought of seeing her attacker again. She also was suffering from serious PTSD and depression, which sometimes caused her to go blank, almost like she would check out and be in a state of emptiness. When it was finally the day of the visit she refused to leave the house and she had many mini panic attacks, but eventually she was able to attempt the visit. Once, we were there she started to become calm, but as soon as she saw his face she went into a full blown panic attack and began to have a seizure, he was taken away immediately and she was shipped to a hospital where she stayed for two months. To this day, she still suffers from seizures and panic attacks regularly and is unable to hold a job or even drive a car. This shows how the restorative justice system can cause more damage by forcing the victim to confront their offender.
Restorative system is based on the fact that the community wishes to repair itself. The offender can be non-remorseful about their acts and dubious in any apology they are asked to give. These lies could be for many reasons. Humans can be very vindictive and the offender could have purposely inflicted pain on the victim and have no remorse for doing such. He/she also could be experiencing any number of disorders that prevent him/her from the ability to feel remorse for their actions at the time, such as the disorders depicted above; two main disorders would include narcissism and antisocial personality disorder. When a person has antisocial personality disorder they disregard society’s laws, violate the physical or emotional rights of others, lack stability in a job and home life, lack remorse, possess superficial wit and charm, act recklessly, and impulsively. Having this disorder could cause an offender to not feel the need to apologize and truly not care about the feelings of the victim and community causing the restorative justice system to be ineffective. Likewise, narcissistic personality disorder has a lot of symptoms: having an exaggerated sense of self-importance, believing that they are superior and can only be understood by or associated with equally special people, having a sense of entitlement, expecting special favors and unquestioning compliance with your expectations, taking advantage of others to get what you want, having an inability or unwillingness to recognize the needs and feelings of others, behaving in an arrogant or haughty manner. In the case of trying the restorative justice system with a narcissist they would feel as though they entitled and above the law therefore they would not properly participate, they could also try to manipulate the victim into not wanting to participate either, while a defendant with antisocial personality disorder could not feel the remorse or empathy required to give a genuine apology.
When using a restorative system the community relies on everyone’s cooperation and honesty. However this ignores the fact that a victim can refuse an apology due to biases against the particular person based on their race, ethnicity, sexual orientation, income, etc. In the current judicial system there is a certain protocol to avoid this. Jury members have to complete a survey to ensure they are not prejudice and a judge that is obviously racist will not be the first choice for a case involving the race he/she distrust. There are so many possible judges and jury members in the current American court system where prejudice is more easily avoided. However, in the restorative system the point is to restore the community and therefore it involves the community. An offender cannot simply request to restore the damage from his crime with another community or without the victim therefore any prejudice cannot be avoided. This can cause problems because the victim may put their personal thoughts over the good of the community and make it more difficult to repair the community. Also if the majority of the community is prejudiced against the offender, it could make the community unwilling to repair. Situations such as these would require the community to overcome a prejudice before repairing the damage done, which is a very difficult task to accomplish.
In the same way, the victim could impede the restorative system with the need for vengeance. For example, some people become very angry when they are victims of violent crimes and if they do not view restorative justice as enough they can “take matters into their own hands” and commit crimes against the original offender. This is seen in a case in Arkansas in which a
man, Greg Brewer, jumps over the partition to attack Karl Roberts, the rapist and killer of his daughter, at a competency hearing fifteen years after he was convicted. After this attempted attack the judge order that family members not be present in the courtroom for the rest of the hearing. In a restorative system this would not work (Bergan). The community cannot simply ask the family of the victim to leave after attempted violence because the repair of the situation hinges on the acceptance of the crime by the victim and/or his/her family. This also brings up the point that Greg Brewer harbored this anger for fifteen years and if Karl Roberts had not been in jail he could have reacted even harsher. Many people seem to have the mentality that those who make others suffer must also suffer and the restorative system seems to give these aggravated victims a stage for their retaliation crimes.
The victims, their families, and the offenders are not the only ones involved in repairing the harm done by crime. The community also has an important role in this repair. If the community is enraged by the act they might refuse to provide the opportunity for the offender to rectify the wrong they did. For example, the Casey Anthony case was a well-known case in America which involved a mother put on trial for the supposed murder of her daughter. Five years after the fact it was still in the minds of many mothers and Floridians. One day, Casey Anthony was at a bowling alley and was verbally attacked by some other bowlers. One woman even claimed she “heard five moms saying, ‘I would love to hit that baby killer’” (Williams)This shows how resentful people can be of others’ wrongdoings. In this case there wasn’t even enough evidence to prove that Casey Anthony was at fault and the public still resented her. If these mothers were put in charge of mending Casey Anthony’s relationship with the community they would surely make it difficult if not impossible. This reluctance to accept is in everybody in some way and can severely impair repair.
These faults provide examples as to why the restorative justice system would not be the appropriate “fix” to the retributive justice system. Although we acknowledge that the current system is flawed and there are cases in which restorative justice can work, generally in cases involving crimes against people the offender’s, community, and victims are more reluctant to accept the restorative approach to justice and repair. These faults also make the effort and work it would take to enact such a system useless as it would only fix a handful of the problems plaguing the current system as well as introduce a new set of issues.
Works Cited
Bergan, Shain. “Man Tries To Attack Daughter’s Killer In Polk County Courtroom.” Fort Smith Fayetteville News 5 news online KFSM 5NEWS. N.p., 30 Dec. 2014. Web. 10 Oct. 2016.
Staff, By Mayo Clinic. “Narcissistic Personality Disorder.” Symptoms. N.p., 18 Nov. 2014. Web.
10 Oct. 2016. Spelman, Elizabeth V. Repair: The Impulse to Restore in a Fragile World. Boston:
Beacon, 2002. Print.
Williams, Janice. “People Still Don’t Like Casey Anthony.” International Business Times. N.p., 29 Aug.
2016. Web. 10 Oct. 2016.
“Effects of Sexual Assault and Rape.” Joyful Heart Foundation. Joyful Heart Foundation, n.d. Web. 10
Oct. 2016.
Law & Order: Special Victims Unit. N.d.
“Psychology Today.” Antisocial Personality Disorder. Psychology Today/ HealthProfs.com, 27 Dec.
2015. Web. 10 Oct. 2016.
