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Punishment-What's in it for the Victim?

A Restorative Justice Discussion for Crime Victims and their Advocates

by Marty Price, J.D.

Published in Kaleidoscope of Justice, Vol. 5, No. 1, March/April 1997 (Maine)

In our society's criminal justice system, justice equals punishment. You do the crime, you do the time. You do the time, you've paid your debt to society and justice has been done. But justice for whom? Certainly not the victim. Some background about the author and about victim-offender mediation will be helpful before proceeding with a discussion about crime victims and punishment.

About the author...

I am one of the small minority of victim-offender mediators who work with cases of severe violence, including homicides. I also provide training and consulting for victim-offender mediation programs. My qualifications for this work include training and experience as a social worker and as a lawyer, over fifteen years as a mediator and trainer, founding and directing a Juvenile Court-based Victim-Offender Mediation Program, training in victims' assistance and last, but not least, my own victimization.

About victim-offender mediation...

The vast majority of victim-offender mediation programs do their work only with juvenile offenders and only with non-violent offenses. The mediation of severely violent crimes is not commonplace. Such offenses are usually mediated upon the initiation of the victim, and only after many months (sometimes even years) of work with a specially trained and qualified mediator, collaborating with the victim's therapist and/or other helping professionals. Participation must be completely voluntary, for both victim and offender. Every aspect of the mediation process has the safety of the victim as its foremost concern. Only offenders who admit their guilt and express remorse and a desire to make amends are candidates for mediation.

A growing number of victims of severely violent crimes are finding that confronting their offender in a safe and controlled setting, with the assistance of a mediator, returns their stolen sense of safety and control in their lives. Victims (who are largely ignored by the traditional criminal justice system) have the opportunity to speak their minds and their feelings to the one who most ought to hear them, contributing to the process of healing and closure for the victim. Victims get answers to the often haunting questions that only the offender can answer. (The most common questions are, "why did you do this to me?" and, "was this my fault or could I have prevented this?") With their questions answered, victims commonly report a new peace of mind, even when the answers to their questions were even worse than they had feared or imagined.

In mediation, crime is personalized as offenders learn the real human consequences of their actions. Offenders are held meaningfully and personally accountable to their victims. Most mediation sessions result in a restitution agreement to, in some way, make amends or restore the victim's losses. Obviously, there is no way to restore the lost life of a loved one. Restitution may be monetary or symbolic; it may consist of work for the victim, community service or anything else that creates a sense of justice between the victim and the offender. Sincere apologies are often made and words of forgiveness are sometimes spoken. Forgiveness is not a focus of the mediation process, but the process provides an "open space" in which forgiveness may occur, for victims who wish to consider it at that time. Forgiveness is a process, not a goal and it must occur according to the victim's own timing, if at all. For some victims, forgiveness may never be appropriate.

In cases of severely violent crime, victim-offender mediation seldom if ever is a substitute for punishment and sentences are not typically reduced as a result of victim-offender mediation.

About the need for punishment...

I am not talking about the need to incapacitate the most violent of felons-those who seem to be intractably hazardous to our health and safety. Incapacitation, unfortunately, must continue until we can learn how to generate change in such individuals. However, the need for incapacitation must be understood as separate and distinct from the need for punishment. When we focus on punishment and incarcerate offenders who are not dangerous, including those who have committed victimless crimes, we consume precious correctional system resources which should be reserved for those offenders who must be incapacitated for our protection.

I am not talking about punishment as a deterrent to crime. The punitive approach to justice has resulted in the United States becoming the largest jailer (per capita) in the industrialized world, with a violent crime rate that is also second to no other industrialized nation. (Until just a few years ago, the U. S. was the number three jailer in the world, falling behind the former Soviet Union and the Union of South Africa.) If punishment deters crime, we should be the safest nation in the world. If punishment deters crime, then the answer to our out-of-control crime problem must be that we need to lock up more people still. How far should we go with this approach?

(Prisons have become one of our fastest growing industries and some states now have a punishment budget that is larger than their education budget. Unless this monumental outflow of human services money is stemmed, it is unlikely that there will ever be stable and adequate funding for victims' services programs, which typically operate on shoestring budgets, from grant to grant.)

I'm not talking about punishment for the purpose of rehabilitation. That theory for punishment was abandoned by our criminal justice system in the 1970's and 1980's. Relatively few offenders are rehabilitated in prison. The vast majority pass through the "revolving doors" again and again. Offenders are "warehoused" in institutions where violence, meanness, deceit, manipulation and denial are rewarded by the culture within. In most cases, offenders return to the community as individuals who are then even more antisocial than before they were incarcerated.

Then why punishment?

If punishment is not really about incapacitation, deterrence or rehabilitation, then what is it about? Punishment is primarily for revenge (or retribution.) Victims of heinous crimes commonly demand revenge. It seems like a natural response. Some may argue that the desire for revenge in response to victimization is "hard-wired" into the human animal. History suggests this may be true.

Our criminal justice system is a system of retributive justice. Our policy of inflicting pain (i.e., punishment or retribution) upon those who harm others commonly leaves offenders feeling like they are victims, then those "victims" may seek their own revenge. Unless they are executed or put away for life without possibility of parole, they will eventually come back to us, often with their need for revenge screaming for satisfaction.

So punishment does not work as deterrence or as rehabilitation and it often exacerbates the circumstances we are trying to fix. Still the public (sometimes) and the politicians (more often) cry out for more punishment and more prisons. (A well-known anthropologist once said that human beings are the only species on earth that recognizes what isn't working and then does more of the same.)

If not punishment, then what?

As I stated above, I think the desire for revenge may be a natural reaction to victimization. But, should we act on all of our natural impulses? I submit that when our criminal justice system begins to take the healing needs of victims seriously and does a good job of meeting those needs, meaningfully addressing the victims' losses and injuries, at that time, victims may no longer be so concerned with how severely an offender is punished. Currently, victims receive little else. Our society tells us that justice equals punishment. But justice for whom? Certainly not the victim.

I have asked many victim advocates, "How many victims/families of victims do you know who have felt satisfied, justified and healed when the offender was put to death or put away for a life sentence without possibility of parole?" The typical answer is that it helped a little. They felt like they got something. But overall, they still felt like they had been re-victimized by the workings of a criminal justice system that didn't give a damn about them. They needed much more than this kind of justice. The system told them they should feel satisfied, even lucky, if they got this much.

I'm thinking about a victim advocate (I shall call him John) whose parents were murdered in his presence when he was a teen-ager. John and his sister were shot and left for dead. Some years later, after witnessing the execution of one of the murderers, John experienced no relief from the hate and bitterness which had been burning inside him for so many years. This disappointment led him to seek a mediated confrontation with the other murderer (I shall call him Ralph), who was serving two consecutive life sentences.

After months of preparation with the mediator, John came face-to-face with Ralph, behind prison walls. In a three hour mediation session, Ralph learned from the lips of his victim of the terrible devastation he had brought upon a family. He told John of his daily shame and pain, and his wish that he could have been executed along with the other murderer. John learned of the brutal victimizations Ralph had suffered throughout his childhood and teen-age years. They cried together. John reported that the mediation and the months he spent preparing for it changed his life, bringing him release from the thoughts and feelings which had seemed inescapable and freeing him to move on in his life.

Punishment is not for the benefit of victims. Our society exacts punishment in response to the notion that crime is a violation against the state and it creates a debt to the state. "The People of the State of California vs. John Doe." The prosecutor represents the state, not the victim. The system is offender-focused. Its attention is upon punishing the offender, while protecting the rights of the offender. The victim is typically nowhere to be found in the equation. Crime Victims' Bills of Rights, now law in most states, seem to affect the balance only slightly.

What is restorative justice?

If our system of retributive justice is not working and not meeting our needs, then what is more effective? Victim-offender mediation is but one of many approaches to restorative justice. Restorative justice sees crime as a violation of human relationships rather than the breaking of laws. Crimes are committed against victims and communities, rather than against a governmental entity.

Our offender-focused system of retributive justice is designed to answer the questions of, "what laws were broken, who broke them and how should the law-breaker be punished?" Focusing on obtaining the answers to these questions has not produced satisfying results in our society. Instead, restorative justice asks, "who has been harmed, what losses did they suffer, and how can they be made whole again?" Restorative justice recognizes that, to heal the effects of crime, we must attend to the needs of the individual victims and communities that have been harmed. In addition, offenders must be given the opportunity to become meaningfully accountable to their victims and must become responsible for repairing the harms they have caused. Merely receiving punishment is a passive act and does not require offenders to take responsibility.

The traditional criminal justice system treats offenders as "throwaway people." Restorative justice recognizes that offenders must be given opportunities to right their wrongs and to redeem themselves, in their own eyes and in the eyes of the community. If we do not provide those opportunities, the offenders, their next victims and the community will all pay the price.

Restorative justice is not just victim-offender mediation. It is not any one program or process. It is a different paradigm or frame of reference for our understanding of crime and justice. Some other restorative justice responses to crime include family group conferencing, community sentencing circles, neighborhood accountability boards, reparative probation, restitution programs and community service programs.

About victim advocacy and victim-offender mediation...

Over the years, there has sometimes been an uneasy relationship between victim advocates and the growing restorative justice/victim-offender mediation movement. Victim advocates objected loudly (and rightly so!) when early victim-offender programs were overly persuasive or even coercive, in their well-meaning but misguided efforts to enlist the participation of victims. Victims' assistance programs are now co-training with victim-offender mediation programs, teaching mediators how to work more sensitively and respectfully with victims.

Victim advocates have sometimes viewed mediation as "soft on crime" and therefore, not in the best interests of victims. Those victim advocates who have observed mediation sessions, taking note of the trepidation of offenders as they face their victims, know that mediation is not soft on crime.

The recognition of common ground between victim advocates and restorative justice advocates has led to alliances and partnerships. For example.

About the movement for longer jail terms and mandatory minimum sentences...

Understandably feeling deprived of justice in so many ways, crime victims and their advocates have often sparked and championed the recent flood of legislation and ballot initiatives for longer prison terms and increased mandatory minimum sentences. I support some re-thinking of these values.

Social research is suggesting that for many crimes, sentences of from one to two years are the most likely to be effective, while longer sentences may be counter-productive to rehabilitating offenders. Such relatively moderate sentences serve the dual purposes of denouncing the crime and punishing the offender, while reducing the likelihood that the offender's bonds with family and community support systems will be permanently destroyed and replaced with allegiances to other criminals. The fracturing of family and community bonds and the long-term imprinting of prison culture and values are the two factors which are the most predictive of an offender's prompt return to crime after being released from prison.

A call to action for criminal justice reform...

I suggest to victims and victim advocates that you stop letting the criminal justice system sell you its party line; stop letting it sell you punishment as the cure for what ails you. In our mainstream criminal justice system, punishment is the "bone" that the system throws to victims, while offering little else. Victims and their advocates would do better to let go of their demands for more prisons and more punishment. Those demands are not serving the needs of victims or society. They are instead helping to perpetuate a system of retributive justice that is failing all of us. Let us work together to implement restorative approaches to justice that focus the attention of offenders upon the victims of their crimes, instead of upon the law and the legal system. A restorative justice approach concerned with righting the wrongs to victims and making amends, repairing the harm done (in whatever ways possible, including victim compensation) and restoring the lives affected by crime, offers us a much more hopeful vision for the future.

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Marty Price, J.D., an attorney and social worker turned to mediator, is the founder and director of the Victim-Offender Reconciliation Program (VORP) Information and Resource Center, in Asheville, North Carolina. He is the founder and former director of the VORP of Clackamas County, Oregon. He is a former Board Member and former Co-Chair of the Victim-Offender Mediation Association (VOMA), a non-profit, international, educational and advocacy organization that promotes restorative justice and supports victim-offender mediation and reconciliation programs.

The Center provides information, training, public education, technical assistance, consulting and victim-offender mediation and reconciliation services. We serve non-profit organizations, governmental agencies and individuals. The Center specializes in juvenile justice and the mediation of drunk driving fatality cases and other crimes of severe violence.

Our mission is to bring restorative justice reform to our criminal justice system, to empower victims, offenders and communities to heal the effects of crime, to curb recidivism, and to offer our society a more effective and humanistic alternative to the growing outcry for more prisons and more punishment.

Victim-Offender Reconciliation Program (VORP)
Information and Resource Center
2826 Azalea Hills Dr. Charlotte, NC 28262

Please contact by email only. While in India, available for consultation, speaking, training, etc., only in India and surrounding countries.

E-mail: martyprice@vorp.com
World Wide Web: http://www.vorp.com

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