More Thoughts on 'Whores'

The concept is the crime

Editor’s note: This is from one of our most prolific—and wise—Commenters, who goes by the online moniker “Ollie Parks.” This was appended to Pam Fitzsimmons’s piece, “A Hearing Room Full of Whores.” We’re reprinting it because Substack, for all its virtues, kinda buries longer comments. And many who read a post early often miss later reponses. And because we really like Ollie’s way of parsing what we’ve written.

Restorative justice shares a fatal flaw with those notorious utopian leftist projects of the 20th century, namely the belief that people are better than they are, that is, a belief in the perfectibility of humankind. As my late mother used to say: "You can't breed the son-of-a-bitch out of the human race." That bit of old Kansas wisdom would be anathema to the by-now massive restorative-justice industrial complex.

To find instances where the restorative justice movement has elevated hope over experience it is only necessary to examine one element of the National Association of Community and Restorative Justice's "Policy Statement on Community and Restorative Justice in Criminal and Juvenile Legal Systems.":

"Restorative justice processes should provide a pathway for people who are responsible for harm to take accountability for past and future actions in a non-punitive, strength-based process. Elements of accountability include: accepting responsibility for one's actions, acknowledging the impact of those actions, expressing remorse for the harms, repairing the harm and making amends guided where possible by the needs and wishes of the person harmed and taking steps to ensure one does not repeat the harm." https://nacrj.org/policy-statements/policy-position-statements

Really? Raise your hands if you think more than a few criminal justice-involved individuals might be less than fully sincere when it comes to taking accountability for their crimes under this exacting rubric. (Come to think of it, will recidivists who have already benefited from one restorative justice session be allowed to have another?)

Turning to Senate Bill 586, before I could begin to assess the bill's significance, I had to learn which part of the restorative justice elephant I was touching. While the Internet contains vast amounts of information about restorative justice, I found very few items that positioned restorative justice within the larger context of the Oregon criminal justice system.

Is there an enabling statute that authorizes the use of restorative justice in Oregon as an alternative to prosecution? Are there perhaps Oregon administrative rules that set out an implementation timeline, establish the criteria for eligibility, provide for exceptions, and indicate whether victims are obligated to participate? If such documents exist, my search failed to locate them. Given what I found instead, I truly hope it was my research methods that were wanting and not the state of Oregon's overall legislative governance process.

What I did find was 2021's House Bill 2204, which directed "the Oregon Criminal Justice Commission [to] establish a program to award grants to public and private entities for restorative justice programs." https://olis.oregonlegislature.gov/liz/2021R1/Measures/Overview/HB2204

So, it is not yet clear when the restorative justice process will be inaugurated within the Oregon criminal justice system. We do not yet know a host of other practical details such as who will be eligible; whether restorative justice is only for the racially downtrodden (can white criminals seek it too?) or whether the victim can prevent the accused from availing themselves of restorative justice. Despite that, the legislature has moved at warp speed to provide for the funding of the private and public bureaucracy - if you will, the eponymous whores—who will be paid to run the pie-in-the-sky parallel criminal justice process.

House Bill 2204 also authorized the Oregon Criminal Justice Commission to adopt rules that would, among other things, define "restorative justice." And so they did. Oregon Administrative Rule 213-040-0030 (8) states:

" 'Restorative justice' means a community-based alternative to the criminal and juvenile legal systems that aims to center the needs of the harmed party and foster accountability within the responsible party without resorting to incarceration or criminal conviction." https://secure.sos.state.or.us/oard/displayDivisionRules.action?selectedDivision=6800

There is plenty to object to in this definition. "Community," as it is used in social justice circles, is a political fiction and an undemocratic one at that since the activists tend to appoint themselves as the face of the community. Therefore what, apart from the race or ethnicity of the administrators and their political outlooks, would make restorative justice "community based"? Can we look forward to community-based dentistry?

That flaw pales in comparison with the bombshell that awaits readers at the end of the sentence, where they learn that opting for restorative justice lets the accused avoid the adjudication of criminal culpability (i.e. a trial), permanently taking imprisonment off the table as a means of making the wrongdoer accountable to society.

Because restorative justice replaces the trial process, it has the potential to severely undermine the role of the state as the sole arbiter of the law and the primary source of justice in criminal matters. The reason we have courts and prosecutors is precisely so an agent of the state can bring a case in open court in the name of the people of Oregon. What restorative justice appears to do is make a crime an offense against the victim only and not an assault against society and law and order, though crime is also that. Restorative justice rewards the criminal by making him accountable only to the victim and not to the society laws are intended to protect. In what way is that compatible with criminal justice reformers’ professed concern for the welfare of the community?

Others with a deeper understanding of criminal justice than I possess have taken the time to level other criticisms against restorative justice. Since the local media are unlikely to write about them, here they are:

Criticisms

Restorative justice has been criticized for eroding the legal rights and remedies of both victims and offenders; for trivializing crime, particularly violence against women; for failing to truly “restore” victims and offenders; for leading to vigilantism; and for failing to result in what has traditionally been thought of as “justice” in North America.

However, the most frequently cited criticism of restorative justice processes arises from skepticism about an apology to the victim as a way of dealing with serious criminal matters. The perception sometimes exists that it can simply be a way to “get away with murder.”

There are limits to what restorative justice can accomplish. One major example lies in the case of violent crimes. This is an area where facts and emotions can become complicated very quickly, depending on the circumstances. In the case of in-person meetings, even if they’re closely monitored, there’s a possibility that communications will break down and cause the victim additional emotional or mental trauma. Poorly trained or inexperienced facilitators may cause victim-offender mediation or family-group conferences to fail. Poor facilitation may thus lead to parties abusing each other.

In the case of a violent crime in which the victim and offender knew each other—such as in domestic abuse cases—victims may fear further contact with the offender. In cases of repeated violence, attempts at preserving a toxic victim-offender relationship may be more dangerous than potentially helpful.

Restorative justice is also criticized for assuming that the offender is remorseful and willing to make amends—which is not always true. Even if the offender is truly remorseful, there is no guarantee that the victim will be open to an apology. Instead, the victim or victims may question the offender in a way that becomes counterproductive.

In instances of minor crimes, such as property crimes, attempts at restorative justice may sometimes lead to a criminal receiving a lighter sentence or avoiding a criminal record altogether. Whether or not this is “justice” can vary on a case-by-case basis.

Finally, restorative justice is criticized for treating every person as being a morally responsible individual when this is not always the case. Some people are simply not morally responsible, remorseful, or capable of feeling (or willing to feel) empathy, and the restorative process may fail to account for that.

https://www.thoughtco.com/restorative-justice-5271360

In closing, I could not resist sharing the hilarious just-so story about the origins of restorative justice put out by the National Center for Mental Health Promotion and Youth Violence Prevention:

"Restorative justice is a centuries-old practice of repairing harm and restoring well-being when an offense has been committed. Originating from American Indian and Alaskan Native (AI/AN) cultures and indigenous cultures in Canada, Australia, and New Zealand, restorative justice practices are being used today in schools in Australia, New Zealand, Europe, and the United States." http://crisisresponse.promoteprevent.org/publications/prevention-briefs/restorative-justice-implementation-guidelines

If you liked that one, allow me to tell you about two-spirited people . . .