The American legal system, in theory, delivers "equal justice under law." But equality implies an inclusiveness that does not exist in this punitive justice structure. It is more like a caste system, in which the benefits are unequally distributed to the privileged, while the lower castes get what's left. Unequal justice is being exacerbated by the current economic downturn.
In the 1963 Supreme Court decision, Gideon v. Wainwright, the high court ruled that poor people accused of serious crimes who cannot afford an attorney must be provided legal representation paid for by the government. What happens when public funds to pay for their defense simply do not exist, as is now the case in a growing number of states?
In the face of cutbacks, public defenders in Missouri are so overworked and underfinanced that they have begun trying to reject new cases. Their workloads are already far beyond capacity. (NYTimes.com: Budget Woes) When this happens, who will stand with the accused against the might of the state?
This question brings us to the real problem: our punitive system of justice pits the accused against the state. This system began in England in the twelfth and thirteenth centuries when authorizations or writs issued by the king became widely used to restrict the jurisdiction of the local authorities. The writs eventually led to the establishment of the common law--law that was common to all of England, and justice became the domain of the king.
It was at this time that a decision of enormous consequence was made, solidifying the punitive approach to justice. The king in essence declared that, when a crime was committed, the king would symbolically serve as the victim of the crime. Crime became framed as the breaking of the king's law against murder, for example, not as the actual killing of a person; or as violating the law against larceny, not as the loss to the person whose property was taken. In this way, the duty to seek vengeance and impose punishment fell to the king, and now, in more recent times, to the state.
This system that began centuries ago remains largely intact. This is why, in criminal courts today, cases are styled as "The Commonwealth of Virginia versus John Doe" or "The People of the State of Colorado versus Jane Doe" (i.e., the state acting as the people's agent).
Making the king (now the state) the victim gave rise to many questions about fairness, so there were lots of rules designed to right the imbalance--or at least to preserve the appearance of fairness for the accused, even when substance was lacking.
Our rules relating to fairness between the state and the accused generally fall within what we call due process. These are legal rules designed to protect the individual against abuses by the state and include such protections as the right against unreasonable search and seizure, the right to a trial by a jury of one's peers, the right to be confronted by one's accusers, and the right to legal counsel.
It is because we base the criminal law system on the king symbolically serving as the victim that there is a significant imbalance of resources for the accuser (the state) and the accused (the individual citizen). Being confronted by the might of the state, if the accused lacks the financial resources of O. J. Simpson or Paris Hilton, too often a little due process is all that we provide, and sometimes, not even that.
What we end up with are people like Alan Crotzer who spent 24 years in prison for a crime he did not commit. "I was poor and indigent," said Crotzer. "I didn't have no political connections, but I was innocent. And because of that fault in me, I spent more than half of my life in prison." (NPR: Flaws In Public Defender System) It was DNA evidence that many years later proved his innocence.
At no point does the punitive system use or teach the skills needed to create a harmonious civil society. That's not the goal. Moreover, local wisdom about community conditions that promote crime and how to involve families, schools, and neighborhoods in crime prevention is too often lost when the state assumes control.
In contrast, restorative justice does not favor some more than others. This particular model of unitive justice recognizes three key parties to crime: offender, victim, and community. To serve the needs of all three, this model is dedicated to restoration, healing, responsibility, and prevention. The trust and respect that this can engender permits voices of forgiveness and remorse that underpin unitive justice to be expressed. The healthy communities that this model creates is the real path to a safe and healthy nation, for a nation is the composite of its communities.
In this time of budget shortfalls, restorative justice should be a priority. The recidivism rate for the punitive system that is helping to break the bank is dismal. A fifteen-state study found that, in only three years, more than two-thirds of those released were rearrested.(Bureau of Statistics) In contrast, it is not unusual for the recidivism rate for participants in restorative justice programs to be around 10 percent in the three years after release. That's a lot of money saved.
When all is said and done, the retribution and revenge of the punitive system is not a good investment, in good times or in bad.
Posted on GenuiineJustice.com on 9-14-10.
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