How to Cure Injustice of the Brain

Mental health activists have promoted treatment over jail since Dorothea Dix promoted humane treatment in asylums in the 1840s. Judges, prison officials, prosecutors, even jailers are getting this message. Unfortunately, our partially effective and under-resourced mental health treatment system is still failing to keep people out of jails.

We need to take another look at changing justice. 

The central focus of the American criminal justice system is offenders getting what they deserve. Public dollars drive the system. The institutions of our justice system have a certain level of effectiveness for the people that participate in it. The system has its strengths, its limits, its own economy, and a variety of collateral effects. Certainly it has flaws. The system is not very precise. Punishment (imprisonment) affects family members, not just the person who committed the crime. Criminal convictions shut people out of housing and employment long after the sentence ends. The interests of crime victims are seldom adequately addressed. And the whole process does not help people with mental illness at all. But whatever its problems, the institutions embedded in our criminal justice system won’t be going away. Our society is heavily invested in the existing system.

Justice system reforms mostly adjust the output, the punishment part of the system. The current trend is to move punishment for lower-risk inmates to smaller facilities. This does not move the system very far.  If we want major change, we need new insights from a different perspective. We need a new mental model for justice.

A relevant model exists right now. It is called restorative justice.

Restorative justice is a well-defined, but different, viewpoint on justice, used in the United States and throughout the world, a viewpoint embedded in hundreds of effective programs that address crime and disorder. The core of restorative justice arises around three principles:

1. Crime is a violation of people and of interpersonal relationships.
2. Violations create obligations.
3. Justice involves victims, offenders and community members in an effort to put things right.

I propose that we consider restorative justice as a potential solution for people with mental illness. We can embed restorative justice programs in respite centers, homeless shelters, and medical offices at very low cost. 

Restorative justice can become the intake filter that keeps vulnerable people with mental illness from becoming stuck in the formal criminal justice system, but still addresses the needs of victims. Restorative justice processes are always voluntary. And because they are voluntary, we don’t have to dismantle our institutions to use them effectively.

Restorative justice programs put offenders in touch with persons harmed and with community members, for the purpose of finding ways to move forward. These encounters are emotionally powerful. They are designed to build empathy, support accountability, and change thinking. Programs are implemented in ways that protect people harmed from further victimization.

Restorative justice programs, properly implemented, work as well or better at preventing crime as our formal justice system. A 2010 European Union study of restorative justice programs in the US and across the world generated these key findings:

• Many communities and the public at large would benefit from its implementation without risk for public safety or feelings of safety.
• Most restorative justice cases seem to have a beneficial effect on the likelihood of reconviction.
• Restorative justice interventions appear to be more effective with low-risk offenders.
• For high-risk offenders (those at highest risk of re-offending) restorative justice in itself may not be sufficient enough to decrease recidivism.
• Restorative justice works better with serious crimes. The strong emotional basis is seen as the reason for this. The emotions of anger, shame, guilt and regret form a complex cocktail of feelings associated with crime and justice.
• No significant effect of any demographic variables (age, ethnicity, gender).
• Where offenders have decided to try to stop offending, a conference can increase motivation to desist (because of what victims and offender supporters said) and provide the support offenders may need to help tackle problems relating to their offending.
• No differences on recidivism rates among programs that operate along different criminal justice system entry points.
• Crime victims benefit. Research indicates that victims in general show high levels of fairness and satisfaction resolving from the restorative justice experience, and a decrease in victim’s fear of re-victimization.
• Factors that increase the effectiveness of restorative practices for youth offenders:

• Seeming fair to the parents and involving young people in the process and the decisions.
• Avoiding leaving parents and young people feeling bad about themselves.
• Achieving a process that increases the chance that the young person will feel truly sorry for what they have done, show their remorse to the victim and make amends from what happened.
• Helping the young person acquire skills or remedy deficiencies such as psychological problems, drug and alcohol abuse and learning deficits.

The 2010 European Union study supports the idea of using restorative justice programs as the baseline response to disorder in communities. Deterrence strategies come next, with incarceration reserved for the most difficult offenders. This approach seems to say that everyone needs opportunities to learn and practice accountability.  It’s actually pretty close to a public health view of crime prevention. Prevention theory tries to match the right technique to the appropriate risk level in the target population. If an important objective is to reduce the burden of criminalization (the destruction of family life and the capacity to maintain employment after conviction), restorative justice programs could stand alongside and connect with the criminal justice system much the same way that mental health and addictions treatment programs do today.

For that to work, we must create the capacity to deliver restorative justice programs at multiple points within schools, in community settings, and within criminal justice institutions. This approach matches the “sequential intercept” model used to divert persons with mental illness from the criminal justice system. Remember that the later in the path diversion takes place, the more collateral damage a person and his family suffers.

The biggest benefit of diversion comes if the person is never formally charged with a crime.

• After arrest, the person is in the public system, where many participants (judges, prosecutors, defense attorneys, investigators) are completely focused on their justice system role. Making room for discretion becomes more difficult, more of a technical issue.
• Many situations seem well-suited for a restorative justice intervention. If jails are at capacity, lower risk offenders simply don’t get in. Low-end offenders, public order violators are hardly even interrupted when arrested, brought to jail, and are immediately let go with a court date that will likely be ignored. 
• First responders need a way to connect with restorative justice as diversion. The program must connect promptly, be safe, and actually resolve the situation the officer is encountering. Officers need to be authorized to make these referrals. Diversion choices must match the expectations of the officer’s supervisors and built into department procedures.
• Another place for restorative justice programs is post-conviction, as part of re-entry programs. There is relatively wide discretion around types of programming that might be beneficial for people returning to society.

Restorative justice programs set people up for powerful engagements. These can be “whole-body experiences” of conflict. The encounters between offender, person harmed and community representatives encourage thinking through the justice of the situation and figuring out remedies. It’s what people who design anti-poverty programs try to achieve. Certain “restorative questions” are used to process challenging behavior.

• What happened?
• What were you thinking about at the time?
• What have your thoughts been since?
• Who has been affected by what you did?
• In what way have they been affected?
• What do you think you need to do to make things right?

Restorative justice is meaningful to participants because it is founded on respect. Howard Zehr, an important figure in the development of restorative justice in the US, writes:

If I had to put restorative justice into one word, I would choose respect: respect for all, even those who seem to be our enemies.

Creating meaningful capacity to deliver restorative justice programming is possible if we are willing to take on the task. Restorative justice work is often performed by volunteers. The training is experiential. Nearly anyone can learn to do the work. It sounds like a great match for peer specialists.

Who is ready to start?

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