I remember joking with former Wisconsin Supreme Court Justice and leader of the Restorative Justice program at Marquette that I was taking her class on RJ because my wife made me. Liz wanted to know more about RJ, even if it was through me. I took the course begrudgingly, and to my surprise it quickly became a passion of mine here at Marquette.
Restorative Justice has a lot of appeal. Incredible outcomes for prisoners and victim participants that will renew your faith in the criminal justice system and in humanity. I, on the other hand, was drawn in because I am libertarian, and so is Restorative Justice.
RJ is for everyone, but it has a certain place among libertarians. The reason is very simple: when a crime is prosecuted, it is done so as a crime against the state, and the individual is, unless their testimony is helpful, essentially locked out of the process. Prosecutors are often times required by law to pay attention to the victims and take their feelings into account, and victim’s comments are usually sought out at sentencing or parole hearings, but little else is afforded the victim of the crime or the community, which also suffers.
When a crime is committed, the victim is invariably and usually indelibly harmed; nothing in the world will make their lives go back to the way before they were victimized by a robbery, a sexual assault, or the murder of a friend or family member. Yet, the state affords them almost no redress! When my wallet is stolen, it is unlikely police will do anything more than make a report, and if the thief is caught, and even if I get my money back, do I feel any better? Do I feel less victimized? Vulnerable? Worse, is there anything the state can do to change those realities? Restorative Justice refocuses the criminal justice process to focus not only on the harm to the state, but also the harm to the individual and the community. Giving victims (we like to call them “survivors”) a seat at the table not only recognizes the harm that was caused, but also recognizes their natural rights.
Giving individuals avenues for redress is essential to maintaining liberty; RJ gives individuals the means to combat their fears and changes, and in doing so, elevates the individual as an equal party and thereby elevates their rights. One way it does this is through victim-offender dialogues, where victims of crimes and the corresponding offender come together for myriad reasons. Victims and offenders are prepared for their meeting and get to have a face-to-face discussion with a only a facilitator who remains largely silent. People know best-let them do what they want.
These concepts appeal to the libertarian in me, and that’s why I have pursued every RJ opportunity here at Marquette. Libertarians care about individuals but also believe the individual is in the best position to make decisions for themselves. The state is often not receptive to the concept of a victim-offender dialogue, believing it could be harmful to the victim. This reeks of paternalism. If the victim wants to meet her offender, who is the government to say no?
The ability for victims to have a stake in the criminal justice process is a liberty issue. Victims should have a seat at the table when they want one. They should be able to confront their offenders when they want to. They should be able to involve themselves as much as they care to without infringing on the rights of others. The libertarian party website states the libertarian way is “a caring, people-centered approach to politics.” If we want to bring a people-centered approach to criminal justice, RJ fits the bill.
Additionally, we libertarians tend to have admiration for things that disrupt the status quo. The concept that crimes are committed against the state is centuries old; prosecutors have little expressed interest in helping individual victims, and defense attorneys would gasp at the idea of putting a victim and a client in a room together (pre-trial, at least). Giving victims the means to seek out their offenders to get answers, closure, or to express grief, anger, or forgiveness is a very novel concept. It’s disruptive, and disruptive in the finest sense when you witness the progress that can be achieved during these sessions.
Another aspect of RJ, circle processes, are often performed in prisons and emphasize equality above all else. Everyone sits in a circle and has an equal turn to speak (or remain silent). There is no head of the table or leader of the discussion, only a facilitator or “keeper” who maintains the rules of the circle, which are usually designed by participants. This is supremely disruptive in the prison context. Inmates are not equals with guards, teachers, or visitors-they are under an extremely stringent set of rules and subject to the command of guards whose authority, exercised outside the prison walls, would be profoundly unconstitutional. But in the circle process, all prisoners and participants are equals. Not only disruptive, but we can see another aspect of libertarianism seeping through: equality with a focus on the individual.
Though I did indeed add Restorative Justice to my class list because my wife made me, I stayed for other reasons. As a libertarian, I have a fondness for things like RJ because they put people at the forefront to solve problems or create solutions. RJ brings new(er) ideas to classrooms, prisons, and kitchen tables of victims and their families to solve important societal problems. The state does not ignore victims after a crime is committed, but there is not enough emphasis placed on the well-being of the victims, their families, or their communities. I am proud to help pick up the slack in that regard.