Below is a good piece on models of transformative justice, with a list of resources at the end; a little something we can learn from.
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Easy Nofemela and Ntobeko Peni are two of the four young South African men who were convicted of the brutal stoning/stabbing death of Fulbright scholar Amy Biehl, white, 26 years old, who had come to that country to study the role of women in transitional regimes. She was attempting to drive several black friends to their home in the black township of Guguletu in Cape Town, South Africa. As she slowly made her way through the area, an angry crowd formed, shouting anti-white epithets and slogans; she was dragged from the car and murdered.
The year: 1993. While Nelson Mandela had been released from prison, the government remained in white hands. Apartheid-as–policy was dying, but it continued to exact a horrific and often lethal toll from black South Africans and their communities. Not surprisingly, volatile forms of resistance also continued.
In a tragically ironic twist to the story, Biehl wholeheartedly supported an end to apartheid. She had developed friendly relationships with leaders in the African National Congress (ANC) and the Women’s League. Though not a member of either group, she devoted significant time and effort to activities that supported the building of a free and democratic South Africa. She was learning the Xhosa language in order to avoid demanding that black South Africans speak to her in English.
The four young men convicted of killing Biehl were sentenced to prison. Some time later, they requested amnesty from the Truth & Reconciliation Commission, established in 1995 to help address the impacts of massive violence and human rights abuses on individuals and society as a whole. Biehl’s parents supported their petition.
The four young men apologized directly to Linda and Peter Biehl for killing their daughter; they were granted amnesty and released in 1998. We do not know the details of the lives of two of these men, or how – or even if – they dealt with the aftereffects of these events in their own lives in the ensuing years.
But Peni and Nofemala and Amy Biehl’s parents came to know each other very well. It was not possible, of course, to bring Amy Biehl back to life. Even so, these four people, whose lives collided in the most painful imaginable circumstances, somehow managed to recognize one another as worthy human beings, all touched in terrible and different – but interrelated – ways by the unrelenting white supremacist violence at the center of the bleak heart of apartheid.
Together, they began to do what they felt they could to build a new path to a better future for the children in the impoverished townships of Cape Town, including Guguletu.
Today, Peni serves as an administrator and Nofemala helps coordinate sports programs for the Amy Biehl Foundation, a nonprofit organization founded by Biehl’s parents to help equip children in the area with positive education and opportunities crucial to envisioning and creating better futures for themselves.
But a change in administrations, however welcome, never automatically ushers in a sea change in a culture of violence. It will take generations and relentlessly persistent political will and community organizing to change the structural violence and poverty that remain in the post-apartheid era.
In the meantime, the Amy Biehl Foundation offers programs in a variety of sports and music; HIV/AIDS peer education; greening and environment; drama, dance, pottery, beading, and other creative arts; computer literacy; and youth reading role models literacy.
How on earth is violence transformed into such hope, and advocacy for deeper, more comprehensive personal and societal change?
Shifting the Lens Through Which We Envision Justice
As this story illustrates, the possibility exists that even terrible wrongs have the potential to be addressed in constructive ways that help reclaim and redeem many different lives touched in varying ways by violence and other forms of harm and wrongdoing.
Without reliance - or at least over-reliance – on intensified policing and harsher punishments, the possibility exists that some constructive action may be taken to atone for, and perhaps even to repair, at least some of the harm done to others.
Moreover, justice need not be reduced to a zero-sum game, in which the needs/interests of the direct victims of violence are framed as antithetical to those of the people who commit violent actions.
And at the same time, we need not overlook the massive violence, dehumanization, and human rights abuses that characterize so many criminal legal systems – including the U.S. criminal legal system.
But to do so, we must shift from an ethos of vengeance and retribution to one that promotes positive, constructive transformation for all those who are harmed by or complicit in violence and wrongdoing. It must promote healing and liberation not only from violence and wrongdoing, but also from a culture/society that promotes and profits from violence, exclusion, and injustice.
A Widening Spiral of Interest in Restorative/Transformative Justice Visions
These are not “new” possibilities. Many Native American and other indigenous peoples throughout the world traditionally addressed fractures in “right relationship” through cultural and spiritual practices that focus not on retribution and punishment, but on healing for all affected by the harm, including the wider community. But colonial conquest of this continent - racist, violent, and genocidal in nature – shattered for generations the ability of Native peoples to live according to their own traditions.
The criminal legal system that developed in this country was, and remains, rooted in the violence of conquest and the imposition of the institution of chattel slavery. Its evolution over centuries has resulted in the creation of an incarceration society, mass incarceration of people of color, continuing forms of punishment for many once their terms of imprisonment have ended, and the creation of a profit-producing prison-industrial complex, a network of public and private officials and entities who tangibly benefit from more policing, prosecution, and punishment.
But recently – that is to say, over the past 35 or so years – an ever-expanding range of initiatives have emerged that seek to supplement or replace retributive justice practices alternatives intended to be helpful, constructive, and transformative for both victims of violence and those who do harm to others.
These justice initiatives are called by many names: restorative, reparative, transformational, healing, community-centered. Where violence and mass abuses of human rights in entire societies are both encouraged and perpetrated by the state, and the society must both come to terms with this violence and shift to a better future in which the state actively protects human rights, these initiatives often go by the name of "transitional justice.”
Characteristics of Restorative/Transformational Justice Approaches
There is no monolithic approach to restorative/transformational justice initiatives.
Some initiatives emphasize community involvement and are intended to eventually replace the harsh punishment/expanded policing orientation of the criminal legal system, while others are designed to work wholly within that system, as a more recent feature of it. There are many "blended" approaches that involve the criminal legal system, but also have components that operate independently.
Some initiatives look beyond individuals to examine and seek to address the social conditions in which violence regularly occurs, while many others do not.
Even so, some values/commitments are largely shared – but to varying degrees and in different ways.
• Greater focus on harm/wrongdoing/fracture in positive relationships among individuals and in the community and on impacts of same; less emphasis on lawbreaking as an abstract concept.
• Focus on repairing harm caused by violence and wrongdoing, to the extent possible.
• Commitment to short- and long-term safety, healing, and constructive support for survivors
• Focus on accountability/acceptance of responsibility and positive transformation for people who harm others; less emphasis on “punishment.”
• Not restricted to courtrooms; survivors and those responsible for harm may voluntarily choose to meet face to face in a mediated/facilitated non-courtroom setting. Other relevant community members may also have a role in processes.
• Active rather than passive involvement of all parties in the processes wherever possible; encouraging a sense of agency in ordinary people.
• Outcome focus on mitigation of harm and prevention of harm, and on positive outcomes for survivors and those who have engaged in wrongdoing.
The earliest and some of the strongest proponents of these non-retributive justice visions have been aboriginal/indigenous peoples reclaiming and adapting traditional practices to contemporary needs as well as religious justice advocates from diverse spiritual traditions, including the historical “peace churches” (Mennonites, Brethren, and Quakers), Buddhists, Catholics, and Jews. Today, even some right-leaning evangelical Christian groups have created restorative justice initiatives.
Some of the most innovative and exciting work today is being done by activists and advocates working to support new and hopeful community responses to juvenile justice issues and trying to halt the school-to-prison pipeline, and by those organizing new community responses to interpersonal violence (battering, rape, and sexual abuse) and child sexual abuse.
Advocates include many fighting against repressive regimes and massive state-sponsored violence in Latin America, Africa, and elsewhere, though today, “truth and reconciliation commission” processes have also taken place in or are being considered for select U.S. communities, such as Greensboro, North Carolina, where massive racial and economic injustices, often supported by law enforcement and other “respectable” public and private systems, are seen as instrumental in promoting outbreaks of violence.
Colleges and universities in Minnesota, California, Pennsylvania, and elsewhere now sponsor academic programs, conduct research, and provide technical assistance and support in the general field of restorative justice. Associations/websites focused on particular practices often utilized in restorative justice programs, such as victim-offender reconciliation or victim-offender mediation, have been created.
International programs exist.
It is a hopeful and necessary new terrain of justice.
What Are These Programs Like, and Do They Work?
Even the language used to describe these initiatives is imprecise, since many groups combine elements of restorative/transformational justice in an almost limitless variety of ways. So keep that in mind as you read.
Restorative Justice programs often include some or all of these approaches: victim-offender mediation/reconciliation processes with trained facilitators; family/community group conferencing that brings a larger group of affected people together to decide how to address harm done and its aftermath; and peace/sentencing circles designed to develop broader ownership of the justice process in ways that meet the needs of all affected parties.
Both conferencing and circle processes are adapted from aboriginal/indigenous practices.
Restorative justice initiatives depend on acceptance of responsibility for and acknowledgment of harm done by the relevant parties and is expected to end with agreements on how the person who hurt others or
engaged in wrongdoing will make amends for/work to repair the harm done to the extent possible.
Transformational Justice initiatives may utilize some versions of these practices, but there often also are components that emphasize community action, healing, and accountability for harm/violence done to people or even entire communities as well as directly challenging the limitations and structural injustices/violence often embedded in state criminal legal system responses. An explicit goal may be to challenge and transform systems of oppression that are seen to encourage harm. They also seek to involve survivors and those who do harm, as well as communities, in processes that emphasize healing, accountability, and agency.
Communities themselves, not law enforcement agencies, are given skills and tools to help them build/sustain the capacity to assume increasing responsibility for attending to public safety, the well-being of community members, and protection of human and civil rights. This is not a vigilante model, but a community-led education/organizing model that explicitly challenges over-reliance on policing, prosecution, and punishment to address trauma, violence, and other harms.
Programs vary greatly, and so do mechanisms for evaluation, so the data available are useful, but not comprehensive. There is more data for restorative justice programs that also have direct involvement with the criminal legal system than for those that do not – or for transformational justice programs.
In 2006, the Center for Restorative Justice & Peacemaking reported on a limited assessment of data (Restorative Justice Dialogue: Evidence-Based Practice; scroll down page for link) from “restorative justice dialogues,” which included victim-offender mediation, group conferencing, circles, and “other” practices that involve survivors and those who did harm direct (usually face-to-face) interaction with the help of a facilitator or mediator. In victim-offender mediation, 8 or 9 out of 10 participants typically report satisfaction with the process/outcomes, though the satisfaction rate is slightly lower for those who do interact with one another, but not directly, face-to-face.
Satisfaction rates for group conferencing are typically in the range of 73% to over 90%. Over 90% of survivors and those who did harm would recommend conferencing to others.
Because circles often involve a larger number of community participants, there are fewer studies. But again, the satisfaction of those who participate, particularly survivors, is relatively high. But lingering concerns also were reported, ranging from religious conflict to embarrassment, lack of professionalism on the part of facilitators, etc.
With regard to restitution and repair of harm, agreement rates in these processes are generally high. The agreements almost always include apologies, and perhaps direct compensation to the survivor, community service work for the person who did the harm, and other forms of support to the survivor. In general. the restorative dialogue processes produce stronger results for survivors and those who did harm are more likely to fulfill their commitments – including financial compensation – than those in cases processed in traditional justice systems.
With regard to recidivism, results are mixed, though hopeful. Some studies report a greater reduction of recidivism for youth in restorative programs than for youth in traditional programs, for example. Where there are new offenses, these tend to be less severe for youth who went through restorative programs. But a number of other variables affect this outcome assessment factor, making further study essential.
For more information, go here
Challenges, Potential Problems, & Pitfalls.
In 2001, in a publication for the American Friends Service Committee, I wrote not only about the promises of a healing/transformative vision of justice, but why we should evaluate initiatives carefully, on a case by case basis.
"In too many cases, restorative justice concepts. . .have been grafted onto federal and state criminal justice systems essentially as an embellishment, while failing to alter the system’s foundation of violence, coercion, and retribution. In such cases – and they are not infrequent – victim–offender mediation programs may open the door to new types of humiliation and psychic battering. Restitution programs are often added onto long periods of incarceration as an additional form of punishment and may leave offenders with a crushing burden of debt. ‘Alternatives to incarceration’ may become a backdoor approach to penalty enhancements when criminal justice authorities utilize them as an add-on rather than a true alternative…
“Many of the most prominent advocates. . .are economically secure, largely white reformers. Usually, poor communities and communities of color are not full partners. . .in defining the meaning of restorative justice or in framing attempts to put this vision into practice. . .In the world of social advocacy, privileges, including economic privilege and white skin privilege, are very real barriers that limit the vision and distort the discussion of any initiative that does not fully reflect the experience, the felt needs, the voice, and the leadership of those who must live with the results. When professional advocates substitute for the affected constituency, the vision of reform they work toward is most often overtaken by the inexorable logic of injustice, exclusion, and retribution. . .
“Without the active ownership of a much broader constituency, [a healing justice vision] is reduced to an empty husk, a new garment to cloak the intact structures of injustice.”
––excerpt from In a Time of Broken Bones: A Call to Dialogue on Hate Violence & the Limitations of Hate Crimes Legislation (pdf download), American Friends Service Committee, 2001.
Generation FIVE repeatedly stresses the need to create intervention/prevention strategies that have sufficient community capacity and can be sustained over time. But it is a critical step in creating initiatives that is overlooked because it requires community organizing strategies. Many would simply prefer to lodge a little restorative change in the current criminal legal system and let someone else worry about how to sustain it.
Many advocates of restorative/transformational justice ask how we can ensure that we are not so insular in our vision that we neglect working to challenge/transform social and economic conditions that contribute to violence, harm, and wrongdoing.
Many are concerned that without vigilance, the philosophy of restorative/transformative justice will simply be co-opted by others who do not share the values and justice commitments that distinguish these practices from the criminal legal system. What happens when that system itself is a contributing factor to community violence?
Some programs pay no attention at all to cultural, religious, and status differences present in the communities with whom they work, and this can severely limit the credibility of those programs as well as their effectiveness. How do we address this?
Countless other questions arise, but they are beyond the scope of this discussion.
What matters most is seeing the possibilities in these alternative justice visions and then working like hell to translate them into community practice in sound, just, culturally sensitive, sustainable ways.
LEARN MORE! INITIATIVES & RESOURCES
CIK cannot vouch for all that you will find on these sites or in documents available through them. As always, we encourage you to read carefully and critically
Native American/Indigenous/First Nations Resources available through RealJustice, a program of the International Institute for Restorative Practices
Project NIA (Chicago): working to "dramatically decrease the number of children and youth in Chicago who are arrested, detained, and incarcerated; emphasis on development of community support networks and creation of community-focused responses to violence and crime. See also Project NIA's See also Project Nia's Rogers Park Transformative Justice Center Initaitive
Restorative Justice for Oakland Youth - This unique program works to interrupt the school-too-prison pipeline for youth of color who are disproportionately impacted by punitive school discipline and juvenile justice policies. People of color predominate in terms of staff and board membership.
Addressing Child Sexual Abuse & Interpersonal Violence (battering, rape, etc.)
Generation FIVE – working to end child sexual abuse within five generations. Be sure to read (and you can download it from this page) GenFive's remarkable Toward Transformative Justice: A Liberatory Approach to Child Sexual Abuse and Other Forms of Intimate and Community Violence.
Creative Interventions - providing information, tools, and links for those working to develop and sustain collective/community responses to interpersonal violence.
Howard Zehr’s Blog (Zehr is often referred to as "the grandfather" of restorative justice programs outside of indigenous/aboriginal work.)
Caution: The most prominent restorative justice website, Restorative Justice Online, is operated by Prison Fellowship International and Centre for Justice and Reconciliation, founded by Chuck Colson, former counsel to President Nixon who was convicted of Watergate-related offenses.