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.
This is a necessarily oversimplified account: many supporters of restorative justice (unlike Bibas) are uncomfortable with making forgiveness a goal. Bibas notes that restorative justice “appears to work as promised,” outstripping “traditional criminal justice” in many outcomes, including victims’ satisfaction. But he provides some sharp and much-needed correction to its theorists, and may even be able to address recent setbacks that the movement has experienced.
Restorative justice theory (like contemporary parenting advice) is riddled with euphemisms, drawing incoherent distinctions between “consequences” or “accountability” (good) and “punishment” (bad). But one description of restorative “family group conferences” for juveniles in New Zealand found, “Almost invariably, it is the offender, and sometimes the offender’s family, who call for the tougher penalties at this stage. They feel that the right to be reaccepted has to be earned. Offenders propose substantial amounts of community work or some other form of tariff that will demonstrate their willingness to atone for the damage they have caused.” At these conferences, the victims ended up arguing for lighter punishments. Moreover, participants typically rely on “multiple justice principles”—including the principle that wrongdoing deserves punishment.
Bibas offers arguments for punishment that are compelling and often poignant: “By threatening and inflicting proportionate punishment, the law proclaims the badness of the crime and vindicates the victim’s worth.” Just, proportionate punishment demonstrates to the community that the state understands and responds to their moral norms. Without this assurance, victims and the general public feel helpless and humiliated, and support harshly punitive measures to regain control and reassert the worthiness of their norms. Punishment offers “a secular version of atonement,” and accepting it can shatter defendants’ denial of the harm they did, thus preparing them for repentance, healing, and restoration.
The most striking case for punishment is the one Bibas repeats several times: “The wrongdoer has often exalted himself at the expense of the humiliated, disempowered victim. To turn the tables, criminal justice should empower the victim and lay the wrongdoer low, at least temporarily, before restoring him.”
This phrasing echoes Mary’s Magnificat: the song of praise of an impoverished pregnant teen from an oppressed minority. The Magnificat declares that God’s justice requires not solely succoring those who have suffered from an unjust order, but punishing those who have benefited from it. The idea that theft, murder, and assault all cast someone down, and punishment is needed to cast down the wrongdoer and restore the balance, seems like a valid extension of the Magnificat’s vision. But is this what we see in courts? Is it what we plausibly could see?
There are two major lacunae in Bibas’s case for punishment. One is his unwillingness to grapple seriously with the possibility that systems of criminal punishment always and inevitably strengthen the powerful, and deepen the oppression of the relatively powerless. Bibas basically says we’ve got to hope that’s not true. But much of American criminal justice is and has been about punishing people who have already suffered.
The prison abolitionist Mariame Kaba edited the anthology “No Selves to Defend,” chronicling the pattern in which courts reject self-defense claims from women, especially women of color. These punished survivors are only the most crystallized examples of an overall pattern in which the penal system punishes primarily those who have already suffered injustice or violence. (One of Kaba’s maxims, adapted from Danielle Sered, is “No one enters violence for the first time by committing it.”) Bibas’s vision of courts as means to restore humanity to victims, and Kaba’s vision of the penal system as means of criminalizing victims, could not be further apart—and Kaba’s vision explains at least as much of what we actually see. Bibas can argue, rightly, that the fact that you’ve suffered doesn’t give you the right to harm others. But he barely addresses the possibility that the “punishment factory” is built to churn out not solely efficient but oppressive sentences. To take only the most glaring example, Bibas sees racism as a serious but not inherent problem: it could be detached from the American penal system and leave that system substantially intact. This seems more optimistic than justified.
And Bibas’s account restricts punishment to the minority who are convicted of crimes—people who were usually not powerful before their conviction and are certainly more helpless afterward. Thus we create two classes of people, the unpunished and the punished; and, as in all meritocracies, encourage contempt by proclaiming that the two classes have earned their respective statuses.
A Christian case for punishment might note that punishment is good because it offers us a chance to enter into Jesus’s redeeming work on the Cross, to share in one of the most harrowing aspects of Christ’s own life; it offers priceless intimacy with Him. Those who do penance most publicly include both criminals and vowed religious: on the Cross, the least and most honored members of society become one. Knowing ourselves all criminals, we accept punishment and offer others the mercy and forgiveness we also need.
Bibas praises colonial courts because, in spite of their flagrant injustices, they were far more concerned with justice and penetrable by mercy than American courts today. Pre-20th-century America was also far more likely to proclaim universal guilt. What is now the National Day of Prayer was dedicated in previous eras to fasting and humiliation. In 1863, Abraham Lincoln, ratifying a proclamation of Congress, called for the country “to own their dependence upon the overruling power of God, to confess their sins and transgressions,” and to accept that the Civil War might be punishment for a nation that in its prosperity forgot God.
Many of the practices Bibas promotes—restorative justice conferences, sentencing juries, encouraging both victims and defendants to speak in court—can rebuke and change the community as well as individual wrongdoers. Nothing excuses cruelty to others, the dehumanization many robbers and violent criminals project onto their victims. Nothing, also, excuses the community that fails a person starting in childhood and only notices him when he commits a crime. How can the rich man enter Heaven? How can the judge find mercy? Only in embracing the good of punishment—for himself.
The willing acceptance of punishment by one wrongdoer can help restore both offender and victim. But to restore a community—to exalt the humiliated and humble the exalted—the rich and powerful must be brought to a painful reckoning with our own wrongs, and seek humiliation.
Eve Tushnet is the author of Gay and Catholic: Accepting My Sexuality, Finding Community, Living My Faith and Amends: A Novel. She is a freelance writer and speaker in Washington, DC, and blogs at Patheos.