Punishment-What's in it for the Victim?

A Restorative Justice Discussion for Crime Victims and their Advocates

by Marty Price, J.D.

 

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. My qualifications for this

work include training and experience as a social worker and as a lawyer,

fifteen years as a mediator, trainer and program consultant, founding and

directing a Juvenile Court-based Victim-Offender Mediation Program,

training in work with trauma victims and last, but not least, my own

victimization.

 

About victim-offender mediation....

 

The vast majority of victim-offender mediation programs 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 returns their

stolen sense of safety and control in their life. 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 imagined or

feared.

 

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

"prompted," in recognition that forgiveness is a process that must occur

spontaneously and 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 world, with a violent crime rate that is also

second to no other country in the industrialized world. (Until just a few

years ago, the United States was the number three jailer in the world,

falling behind the former Soviet Union and the Union of South Africa.)

Prisons have become one of our fastest growing industries and some states

now have a punishment budget that is larger than their education budget.

If punishment deters crime, then the answer to an out-of-control crime

problem must be that we need to lock up more people still. How far should

we go with this approach?

 

I'm not talking about punishment for the purpose of rehabilitation. That

theory was abandoned by our criminal justice system in the 1980's.

Relatively few offenders are rehabilitated in prison. 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, and

restitution 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

sensitively and respectfully with victims.

 

Victim advocates have sometimes seen 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:

 

*In 1995, the National Organization for Victim Assistance (NOVA) published

a monograph entitled, Restorative Community Justice: A Call to Action

 

*In 1996, NOVA and the Center for Restorative Justice and Mediation jointly

published a thorough, comprehensible and extremely accessible educational

document called, "Restorative Justice for Victims, Communities and

Offenders." It is without a doubt the best restorative justice educational

document I have seen.

 

*In 1995 and 1996, NOVA collaborated with the Center for Restorative

Justice and Mediation at the University of Minnesota, to produce

nationally-focused, advanced training programs for the mediation of

seriously violent crimes.

 

*In 1996, NOVA, along with the U.S. Department of Justice Office for

Victims of Crime convened a Restorative Justice Summit Conference in

Washington, D.C., gathering leaders of the field to develop national

restorative justice policy.

 

*In the fall of 1996, Mothers Against Drunk Driving (MADD) published in its

quarterly, The MADDvocate, an article by restorative justice experts, Mark

Umbreit and Gordon Bazemore (of the Balanced and Restorative Justice

Project). The Winter 1996 MADDvocate published an article by a victim, who

along with her family, chose to mediate with the drunk-driving offender who

killed her sister.

 

*MADD's National Director of Victims' Services, Janice Harris Lord, a

recognized authority who has written numerous books on working with

victims, spoke at the 1996 Conference of the Victim Offender Mediation

Association (VOMA) and presented workshops on working sensitively with

crime victims. She also co-presented (with me) a workshop on the mediation

of drunk-driving fatality cases.

 

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. A

restorative approach that focuses on righting the wrongs, repairing the

damage and restoring the lives affected by crime has much more hope to

offer us.

 

 

 

Marty Price, J.D., a "recovering attorney" and social worker turned to

mediator, is the founder and former director of the Victim Offender

Reconciliation Program of Clackamas County (Oregon) and is currently the

Co-Chair of the international Victim-Offender Mediation Association (VOMA).

He provides victim-offender mediation, consultation and training to courts,

mediation programs and individuals, specializing in the mediation of drunk

driving fatality cases and other crimes of severe violence. He may be

contacted at:

 

2315 NE Mason, Portland, OR 97211, (503) 281-5085.

 

Return to Main Menu