A 17-year-old black girl pleads guilty to involuntary manslaughter in her boyfriend's death—even though the boyfriend was actually killed by a police officer. A judge is recalled by voters after handing down what's perceived as a shockingly light sentence to a college athlete convicted of sexual assault.
These are two stories from America's “punishment factory,” the term Trump-appointed federal judge Stephanos Bibas coined in his 2012 work of legal philosophy for laymen, The Machinery of Criminal Justice. Bibas's central thesis is framed in terms familiar to Trump-era politics: “insiders,” meaning legal professionals, have captured the justice system, shutting out “outsiders” from victims to defendants to Joe Q. Public. Insiders use all the tools at their disposal (trading guilty pleas for reduced charges, as in the Saunders case, is only the most flamboyant) to clear staggering caseloads; under pressure to hit production quotas, they sacrifice the goal of anything like justice. America often punishes too much, Bibas argues, and less often underpunishes, because punishment has become unhooked from its purpose of restoring broken communities.
Bibas offers a sheaf of practical proposals, some of which are terrible (forced prison labor) but many of which are either excellent (community sentencing juries to prevent abusive plea bargaining) or fairly easy to tweak (he suggests reality TV to give a window into the cellblock, when a less creepy suggestion might have been prison journalism). He marshals a host of unlikely allies, from feminists to victims' rights advocates. His central contention is that the restorative justice movement is correct to focus not on deterrence or rehabilitation, but on restoration of community. All his proposals, from ending “collateral consequences” (the housing restrictions and other punishments that follow people even after they've served their time) to the more outré possibility of recruiting prisoners into the military, are intended to restore the dignity of both victim and, wherever possible, wrongdoer. But Bibas makes sure to argue that this restoration rarely takes place in the absence of punishment.
Restorative justice typically involves a meeting in which a mediator guides a wrongdoer, people the wrongdoer trusts, the victim, and people the victim trusts to discuss the crime and its consequences. The goal is for the wrongdoer to understand the full weight of the harm done, to repent, apologize, and pledge to make amends; and for the victim, through this process, to have his dignity restored, offer forgiveness, and figure out what the offender can do to repair the harm done. By this means, the community, the wrongdoer, and the victim emerge stronger than before the crime.
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