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Justice & Punishment

L'aura Joy  ○  Sun, November 1, 2015

I think the main difference here between punitive and restorative justice is the approach.

Published on Auronet.

In response to John's question:

I'm missing a reference to the deterring effect of punishments. An important reason to go for punitive justice is deterrence, how is that in restorative systems?

I love this question. It really invites for reflection...

I think the main difference here between punitive and restorative justice is the approach. I think both forms of justice acknowledge that some of our human behaviour can disrupt the harmonious functioning of society, and as a result, both forms of justice attempt to put structures and processes in place that will hopefully support to create and maintain a just, harmonious, and safe society.

The punitive system’s approach (or one of its approaches) is to use punishment as a deterring factor – hoping that the threat or fear of being punished will dissuade people from committing crime, thus creating a more harmonious society.

I think restorative justice takes on a totally different approach. Instead of focusing on the need to control/dissuade people from acting badly, restorative justice aims at restoring – restoring what has been broken, not only as a result of the painful act, but also at the foundation of our systems, which causes people to feel like “acting badly” is the only way they can be heard or have a sense of power in their world.

I think restorative justice also acknowledges that it’s safer, in the long run, to face the fact that we live and function in community, and that in reality we can’t exclude “the bad ones” – or if we attempt such a thing, it easily invites retaliation, and likely in more harmful ways. So instead, it focuses on restoring and rebuilding what’s lacking at the core – our trust in one another, our sense of being heard, mattering and belonging, and our oneness as a community. A lot of this is achieved through honest and open dialogue, where each person has a chance to express themselves and be heard, and from this space, coming to a mutual agreement for how to move forward, how to take responsibility for our actions, and how to re-integrate into the community those who have caused harm.

So the deterring factor in restorative justice isn’t actually about deterrence – instead, it’s an invitation to act with responsibility, a reminder that we all share the same core human values, a felt-sense that when we know we belong and matter, we naturally want to contribute to the well-being of the whole, and an understanding that when we don’t honour these values and hurt others, we end up hurting ourselves as well.

I think punitive justice is based on power structures, and those in power decide what the punishments should be. Restorative justice invites shared power, where agreements and consequences are decided upon together and in response to the unique elements of each case.

I’d like to give a very simplified example: I find out that my son has stolen money. I’m sure he knows he’ll be in trouble if/when I find out - like I might not allow him to go out over the weekend, I might limit his internet access, I might make him apologise and return the money, or I might beat him. But apparently this hasn’t stopped him from stealing the money. Hmm… why not? It seems here fear of punishment hasn’t worked as a deterrent. (And in general, I think if this strategy worked, we wouldn’t have as much crime in the world as we have. We seem to have a lot of punishment and threat of punishment, but it doesn’t seem to have stopped people from committing crime!)

With a restorative approach, I might very well be angry and shocked and embarrassed, but I also want to check in with my son and understand what was going on for him. Was he wanting to buy a new phone for his girlfriend’s birthday (so wanting to express care and be seen as someone special)? Was he just bored and looking for a thrill (need for excitement, or power in his world)? Or was he coerced into doing this by his peers as a way of “proving himself” (need for safety and belonging)? Or...? So it’s just so complex… And how does he feel about it now? Is he embarrassed, does he have regret, is he in denial or in rage, is he wanting to act out even worse, is he thinking about how to get smarter so that next time he doesn’t get caught…? I think understanding and acknowledging all of these elements is much more likely to bring about constructive change in my son than the simple hope that fear of punishment will be a deterrence.

At the ARA meeting last week, Jaya shared a statistic that I liked very much. I hope I understood it correctly - that 3% of our human population doesn’t abide by "acceptable" social conduct, 12% can cause minor disturbances, and the rest of us are just going about life doing the best we can to live in peace and harmony. So rules and punishments are created as a fire-fighting response to the behaviour of the 3% (but applied to everyone), as an attempt to regain control and reestablish perceived social normalcy. But for me the question is: Does it work? Does it actually deter the 3% from acting out in painful ways? I don’t think so, as we still have so much crime. Maybe it works on the rest of us (ie. the other 97% of us don’t commit crime because we’re afraid of punishment), or we just have a sense of belonging and co-responbility in creating a harmonious society. This, in my opinion, is the deterrence – we’ve developed an inner consciousness and choose to act in alignment with our values. So, for me, the focus should be on how we can re-ignite this inner consciousness in the hearts and souls of the 3% (for whom punishment doesn’t seem to work anyway).

Let’s begin to look at what it takes to restore what’s broken, and from here (re-)create the society we’re all longing for – one of trust, safety, belonging, togetherness, integrity, and higher aspiration…

John responds again, and I clarify my point.

Thanks for your response, John.

I regret if I gave the impression that we need to do away with the punitive system or that it has no value in society. This was not my intention.

I commented to my mom that I could actually write a book in response to your question, so then the challenge comes in how to be concise and yet still thorough :-). Impossible on a subject like this, especially since I'm passionate about it...

I think I can be quite critical of the punitive system, yes, because for me it has so many holes in it. And I guess what I'm actually pointing to are the holes (not necessarily the system), and behind that, the longing to find something which is more genuine, more true to our ideals in Auroville, and also connected to our basic human values (which I believe we all have, even the so-called "bad" people).

And John, when you point out our present situation in Auroville and its disfunctionality, I fully agree... And I'm guessing you would love to see us figure it out for once and for all, and come up with a construtive wholesome way of responding to conflict, ya...? Am I getting you? Me too, I'd love this...!

I agree that the two systems can run in parallel (as in Janet's example in Brazil), but the challenge is that at present we have neither in Auroville – or at least not functioning in full capacity.

And this is our paradox.

So if we had punishment in Auroville (or "improved" our present punishments), what would it look like? How would we punish people (what exactly would be the punishment)? How would we decide, and who would decide, who should be punished and how? And would this punishment be enforceable? How? And would it give us the desired results? A community with more harmony, integrity, trust, safety...?

Personally, I'm not convinced. I'd prefer to take a different approach altogether – to find a way of going deeper and looking at what separated us in the first place, where we started to lose trust in each other, and how we can start to rebuild this trust. I believe this is a more sustainable approach, something that will invite more long-lasting, genuine change – but of course it's very likely a much slower process and may not bring about any immediate "visible" results of "law and order." (But what would...?)

For me, punishment is a band-aid, and it's a band-aid that doesn't always work – ie. restore a sense of balance and harmony in society and among individuals. Instead, I think what might work better would be to look at the wound itself and look at ways to restore what has been broken. Why is this person acting this way? Was he harmed in any way prior to his "wrongful act"? What is he desperately trying to say and be heard for? Isn't he, in his limited and desperate way, also trying to restore balance (even if his choices are obviously poor ones)? Let's look at his plea, his plight and respond to that, instead of simply trying to deal with the external manifestation (crime to society) of his present inner human complexity.

This, for me, is the deterring power (maybe not with 100% success, but so far, what is?) of restorative justice. When we shift our focus instead to our shared humanity, we are touched and want to change (all of us, not just the “bad" ones). In the long term, I think knowing that we belong, that we matter, that we’re loved, that we trust each other as a community, is much more of an incentive to living in harmony (or a “deterrent” to “bad behaviour”) than simply creating rules and attempting to enforce punishments. What practices can we put into place that reconnect us with our biggest human need, that is, to contribute to the well-being of one another? And from here, with all this in consideration, to come up with an action plan – that, by the way, might be just as “harsh” as a punishment, but the intention and method for coming to this place is totally different. An action plan might be that someone needs to leave the community for one year – but the difference is that this decision comes from a larger group process, including the "wrong-doer" and their best intentions, and the intention is to restore trust, community, safety – not to punish.

So here I go again... Sharing a lot, and with a lot of energy. I'm sorry if it comes across as too one-sided... I'm actually just longing to find a REAL way forward in Auroville, one that works and that we can apply and that gets us where we want to go... I imagine you want this too...?

And this is not to say that I think we should take a laissez-faire attitude. Let's really get down to figuring this out and having real, serious dialogue about these issues in Auroville – that we desperately lack a justice system.