The Final Retribution for Retributive Justice

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Issue 9, Volume 110

By Aaron Visser 

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Americans have long celebrated our history as a story of increasing freedom for all—a story of progress. But our current 2.2 million incarcerated citizens prove that the story is more complicated. In recent decades, despite the increasing liberties our nation has granted, our prison population has grown larger, and our justice system has grown less just.

Mass incarceration hasn’t always been the norm in America. Before the 1970s, crime was seen as an economic problem that could be solved through concrete action. Accordingly, the government sought to help rehabilitate criminals and better integrate them back into society. For instance, it encouraged job training for inmates and sought to ease psychological problems. President Lyndon B. Johnson’s War on Poverty poured money into reducing crime through education and job creation programs. But white panic over the ghettoization of “inner cities” and race riots soon swept the compassionate Great Society program away and brought forth law and order conservatism.

To our nation’s detriment, “tough-on-crime” policies replaced its old rehabilitative philosophy. Richard Nixon declared a War on Drugs; Ronald Regan created the first set of mandatory minimum sentencing laws, and Bill Clinton passed the 1994 Crime Bill, which instituted a three-strikes policy that could sentence nonviolent offenders to life—and, by extension, death—in prison. And, as a result of these prolonged sentencing laws, America’s prison population has skyrocketed. Politicians have defended the human and financial cost of imprisoning by contending that it is the only means to reduce crime.

But America’s justice system isn’t designed to protect society. By 2030, a third of our prison population will be above 55 years old, even though a National Research Council study says, “Recidivism declines markedly with age,” making “lengthy prison sentences an inefficient approach to preventing crime by incapacitation.” It isn’t designed to deter crime—experts have proven that long sentences don’t dissuade potential criminals. Even criminals generally believe they’ll get away with a crime, even if they’ve already been imprisoned. And it certainly isn’t designed to rehabilitate prisoners—most ex-convicts face the same circumstances that they had before their incarceration, and the majority return to jail. Our justice system, then, is primarily designed for one thing only: to force prisoners to provide retribution for their crimes.

Retributive justice is wrong and deserves no part in our criminal justice system. It originates in the basic human intuition that wrongful acts should be punished, even if it doing so serves no other purpose. Like all human intuitions, blindly following this instinct can lead to deeply flawed outcomes, and our retributive justice system is evidence. It views each action in a vacuum, disregarding the personal lives and problems of prisoners, many of whom grow up in destitute families with absent fathers, possibly taken by the same justice system. No one can take full credit for their circumstances, but we punish prisoners as if they alone bear culpability for their actions. The system also fails to consider that many such prisoners commit their crimes with impaired judgment; according to the Department of Justice, 20 percent of inmates have serious mental illnesses. Our retributive justice system thus fails to see the humanity in each of us, routinely stripping lifelong freedoms over singular heinous acts. We are all worth more than the worst thing we’ve ever done, and our criminal justice system should treat us as such.

And our cruel retributive justice system is not just inhumane—it is also ineffective. Despite our drastic rate of incarceration, we have yet to see any corresponding decrease in crime. In fact, many countries that are much less “tough on crime” do a much better job at preventing it. Norway imprisons just 10 percent per capita as much as we do, but only 20 percent of their ex-convicts are rearrested in the five years following their release, compared to the 76.6 percent recidivism rate in the U.S. Norway’s system utilizes restorative justice; instead of punishing prisoners, it rehabilitates them. The system focuses on providing life skills to the inmates, who are able to move freely through their facilities. With this privilege, they take classes, pursue hobbies, and enjoy recreational activities. Many other countries have embraced these lenient restorative justice methods and have consequently seen similar decreases in recidivism rates. Thus, beyond treating offenders with the dignity and compassion that any human deserves, rehabilitative programs also more effectively reduce crime.

The U.S. already has successful restorative justice pilot programs. The Bard Prison Initiative has given prisoners the opportunity to receive a college education, with considerable success. Eighty-five percent of inmates who have gone through the program found employment within the first two months, and less than three percent have returned to prison. Restorative Justice for Oakland Youth works to prevent juveniles from ending up in prison in the first place by working within schools and juvenile detention centers to provide education and technical assistants. In schools where the program was implemented, suspensions fell to 87 percent and expulsions fell to zero. But, despite these encouraging results, the federal government has restricted pell grant funding to all programs like the BPI because most people are reluctant to spend taxpayer money on prisoners. However, the cost of restorative justice programs is far less than that of our current prolonged sentence policies.

Thus, the consequences of retributive justice, as well as the benefits of rehabilitative justice, necessitate immediate action. America must fully extract the unjust principle of retribution from the foundation of our justice system and replace it with a compassionate system that works for people, not punishments. To that end, the government should reinstitute and expand education in prison, alongside employment programs, counseling programs, and other forms of rehabilitation that allow for increased ease of reentry into society. The burden of doing so shouldn’t fall onto nonprofits, who lack the scale to tackle this enormous problem.

America must consider the rights of criminals when developing the solution to mass incarceration. We should reverse the retributive, tough-on-crime policies that have deprived hundreds of thousands of their freedoms and create a justice system that protects society by rehabilitating prisoners. Because if universal human rights don’t apply to the worst among us, they aren’t universal at all.