What Replaces Prisons?

Nearly two decades ago, the activist and scholar Angela Davis observed that prison abolitionists were “dismissed as utopians and idealists whose ideas are at best unrealistic and impracticable, and, at worst, mystifying and foolish.” Today this is no longer the case—the prison abolition movement has gone mainstream. The recent killings by police officers of George Floyd, Breonna Taylor, and Tony McDade—among many others—have sparked a national reckoning about the entire US justice system that has reached news outlets, city governments, and boardrooms. In Minneapolis, where Floyd was killed, the school district has terminated its contract with the police department. A majority of the city council, which controls the budget, voted in June to abolish the department outright and replace it with a new system.

For Black Lives Matter activists, whose platform calls for “an end to all jails, prisons, immigration detention, youth detention and civil commitment facilities as we know them,” the movements for police and prison abolition are one and the same.¹ Current efforts to defund police forces are part of a larger push to dismantle an entire criminal legal system that Americans increasingly recognize is biased against people of color. Police arrest minorities at higher rates than whites. Prosecutors charge them. Prisons trap them. These interlocking mechanisms have made the criminal legal system so unjust that some activists and scholars have abandoned the phrase “justice system” altogether. Mariame Kaba, a police and prison abolitionist, emphasizes that a society without such institutions is not so far-fetched: affluent communities—where police do not patrol school halls, where misbehavior in school results in counseling rather than jail, where people do not worry for their safety, and where addiction and mental illness are treated rather than criminalized—are “living abolition right now,” she has said.

That would indeed be the desired goal for all communities, even if there’s disagreement as to how to get there. The political scientist Michael Javen Fortner observed in a recent essay in City Journal that some Black citizens want more police rather than fewer, to protect them from crime. He cites a June 2020 Yahoo News/YouGov survey following Floyd’s death suggesting that opinion is split: 50 percent of Black respondents wanted “more cops on the street,” but 49 percent said they felt personally “less secure” when they saw a cop.

Regardless of this division in opinion, the Black Lives Matter movement has helped to expose the profound gap of lived experience between communities that endure police violence and those that barely register the existence of police. What began as a hashtag in 2013, after George Zimmerman was acquitted in the fatal shooting of Trayvon Martin, has grown into a movement supported by many millions that has also helped fuel public outrage at the racial disparities in mass incarceration. The statistics are well known by now but remain deeply disturbing: African-Americans are incarcerated at more than five times the rate of whites. Black women are imprisoned at twice the rate of white women, and studies show that 44 percent of Black women today have a family member in prison. If current numbers hold, one out of three Black men born today will end up in the correctional system at some point in his life.

And prison itself is a horror: a chaotic and degrading environment where the threat of violence is constant. Overextended and corrupt guards allow assaults, or assault inmates themselves. In Alabama, inmate mortality has more than doubled since 2010. Since 2014, Texas and Florida, which respectively have the highest and third-highest prison populations in the US, have seen record inmate mortality rates. Investigative reports depict inadequate or nonexistent mental health care, overcrowding, and poor sanitation. During the first month of the coronavirus pandemic, Rikers Island had one toilet for every twenty-nine people. In Mississippi, where sixteen inmates died in a single month in 2018, prisoners live in “squalid conditions with standing sewage in freezing temperatures,” according to the Southern Poverty Law Center. The practice of solitary confinement—sometimes for infractions as minor as speaking disrespectfully to a guard—is linked to nearly half of prison suicides. In Texas, the average time prisoners spend in solitary is four years.

For all this, sociologists tend to agree that the threat of harsh prison conditions or lengthy sentences doesn’t act as a deterrent to crime. Studies are particularly decisive on the issue of juvenile crime, showing that prisons effectively serve as “schools” in which young people become criminals. In many states, up to 80 percent will be rearrested within three years of getting out of jail.

What would a world with a vastly reduced reliance on prisons and police look like? As astronomical police budgets come under scrutiny—the NYPD’s budget alone, $6 billion, is larger than the GDP of fifty different countries—cities are weighing where they ought to divert some of those funds. Along with solutions including violence prevention, mental health support, employment, and better housing and education, the Black Lives Matter movement’s policy platform has called for a reallocation of funds from policing and incarceration to restorative justice. In this approach, the perpetrator, if willing to admit to his or her crime, can undertake a series of dialogues with the victim or victims to reach a consensus about making amends. Depending on where and how it is applied—in the US, so far it has primarily been used with crimes committed by juveniles—restorative justice may result in the offender receiving a reduced sentence, making other forms of reparation, or not being charged at all.

In 1989 New Zealand passed a groundbreaking law undergirded by the principles of restorative justice: for any case in which a juvenile pleaded guilty, with the exception of murder or manslaughter, a family group conference would be convened, including the offender and his or her family, the victim or his or her representative, and a police officer, social worker, or other state mediator. The legislation represented a victory for community organizers who had decried the overrepresentation of the indigenous Maori in New Zealand’s jails and agitated for a means to resolve conflicts in a way that reflected their traditions and practices. The resulting process has received high satisfaction marks from offenders and victims. Since the 1990s, Australia has also broadly incorporated restorative justice into its juvenile justice system. And in South Africa, in the 1990s, perpetrators of the apartheid regime publicly confessed to their crimes in exchange for amnesty, as part of the country’s Truth and Reconciliation Commission.

In the US, mediation between victims and juvenile offenders is not new. Like many “diversionary” programs, as they’re known, for juvenile crime, it has been used primarily in rich communities with the funding and political will to keep their teenagers out of jail. In the past ten years, though, community organizations in St. Paul, Baltimore, Fresno, Chicago, Oakland, San Francisco, and Los Angeles, as well as more longstanding programs in Colorado and Vermont, have worked with city and state officials to offer restorative justice alternatives to young people in detention. In 2016 in Washington, D.C., the attorney general Karl Racine was the first in the country to hire a small team of in-house restorative justice specialists to offer prison alternatives in juvenile cases involving assault, robbery, and other violent crimes. More generally, state legislatures have begun to embrace restorative justice as a way to stop the so-called school-to-prison pipeline, on the rationale that students learn more from dialogue and solution-making than they do from punishment.

Restorative justice for crimes committed by adults, however, remains a fringe idea in the US. A program created by a Boston federal judge in 2015, documented by the attorney and scholar Lara Bazelon, was designed for indigent adults charged with offenses arising from drug addiction, such as drug trafficking or assault.² Sentencing hearings are postponed for twelve months, and sentences may be reduced or cleared if offenders meet with people who have lost loved ones to addiction. There are also a number of restorative justice initiatives in the prison system itself, such as the Insight Prison Project at San Quentin in California, a yearlong program designed to “help offenders fully understand and take responsibility for the impact of their actions.” (It is not explicitly tied to sentencing, though participation might be a factor in parole decisions.)

Violent crime is a fraught issue: Republicans seize on it as a justification for harsh sentences, while centrist politicians (and those further to the left) often avoid discussing it. Most Democrats argue for clemency only in the case of nonviolent crimes, as Barack Obama did when he was president. Indeed, as the legal scholar John Pfaff points out, many states have ensured political support for relaxed punishment of crimes such as drug possession by lengthening sentences for crimes like assault and murder. (It is a common misconception that mass incarceration in the US could be ended solely by revising drug laws: in fact, drug convictions account for only 15 percent of the people in state prisons, while convictions for violent offenses account for 53 percent. If we released all the nonviolent drug offenders in the country, as the legal scholar James Forman Jr. has noted, we would still have the highest incarceration rate in the world.) Meanwhile, few solutions are ever considered for how to give those who commit violent crimes a real chance at reintegrating themselves into society and leading productive lives.

The only restorative justice program in the US that addresses acts of violence committed by adults, albeit young adults, is the Brooklyn-based nonprofit organization Common Justice. Founded in 2008 by the activist Danielle Sered, Common Justice works in partnership with district attorneys in Brooklyn and the Bronx on a particular subset of violent crimes: robberies, shootings, and assaults committed by sixteen- to twenty-six-year-olds. In her recent book, Until We Reckon, Sered describes how the program works and issues a plea for the criminal justice system to adopt restorative justice more broadly. The book provides little detail on how she negotiates with prosecutors and why she takes some cases and not others—crimes of murder, rape, domestic violence, and sexual assault are excluded from her program, for example—but Sered makes a persuasive case for the potential of restorative justice to truly restore what has been taken from the victim and the community when a crime occurs.

Participation in the Common Justice program must be voluntarily agreed to by both victims and defendants. After a prosecutor approves, victims and offenders meet regularly with a mediator over the next fifteen months. (If victims do not want to participate in face-to-face meetings, they can designate representatives, often family members or loved ones.) The victim decides what he or she believes the offender should do—this can include education, therapy, community service at a site meaningful to the victim, formal apologies to those affected, and so on—as long as it is lawful and does not involve incarceration. If the offender agrees and completes those steps, the prosecutor clears the charges.

Crime victims, Sered explains, often choose restorative justice over prison, though not necessarily out of a sense of forgiveness. Some victims feel vengeful: one mother Sered worked with said she wanted her fourteen-year-old son’s attacker, who robbed and brutally beat him, to “drown in a river of fire.” But they also, she writes, desire something more: safety, for themselves and others. Victims may fear retaliation when the offender comes home from prison, or from the offender’s friends in ongoing conflicts. They doubt that imprisonment will make offenders less violent—on the contrary, many expect it to make them more so—and worry that offenders will hurt someone else. Some surviving victims just need answers: Why me? Why did you do it? Do you know what you have done?

The stories Sered tells in Until We Reckon expose flaws in our criminal justice system that familiar critiques often don’t take into account. Consider the mother who said she wanted her son’s attacker to suffer. She has other young children; the offender lived in their neighborhood and was facing three years in prison. Explaining her decision to work with Common Justice, she imagined her family in three years:

When my nine-year-old is twelve, he is going to be coming to and from his aunt’s house, to and from school…. And one day he’s going to walk by that young man. And I have to ask myself: when that day comes, do I want that young man to have been upstate or do I want him to have been with y’all?

Sered uses the mother’s question to highlight the lack of options the system offers poor communities: “justice” comes down to a choice between nothing and prison. She cites a national poll, conducted by the Alliance for Safety and Justice in 2016, which found that 52 percent of crime victims “believe that time in prison makes people more likely to commit another crime rather than less likely,” and that 69 percent would rather hold offenders accountable through other means.

Or consider Annie, an elderly woman living in Atlanta, who was violently assaulted and robbed by a young man. By traditional measures, the legal process worked well: the case went to trial, and the offender received the maximum sentence. Several years later, when Sered asked her whether she felt relieved when the sentence was announced, Annie said of course she did. But she added that on the way home,

I was still afraid. And I got to my apartment, and I was still poor. And when I crawled into bed that night, I still couldn’t sleep, and when exhaustion finally took me and I fell asleep, I still had those same nightmares. And when I woke up that next morning, the only difference was that I could not shake the image of that boy’s mother’s face in court when those guards took her baby from her for good.

A prison sentence, Until We Reckon shows repeatedly, provides no guarantee of resolution, the trial no guarantee of closure. Restorative justice, Sered argues, is particularly attuned to the nature of crime victims’ trauma, giving them a sense of control when the emotional aftermath of violent crime—hypervigilance, depression, distressing memories—involves powerlessness. One man who worked with Common Justice felt overcome with fear every day when he passed the place where he’d been stabbed. Guided by Sered, the victim and offender came up with a solution: the offender went to the place multiple times, greeted the victim respectfully, and shook his hand, overwriting the traumatic memory with a new experience. Eventually, the victim’s fear subsided. Sered observes that this outcome would be inconceivable under the traditional criminal justice system, where power rarely belongs to victims. Prosecutors decide whether to pursue a case; lawyers decide whether the victim testifies; judges approve the sentence, and corrections officers enforce it. But throughout Until We Reckon, we see people—mostly poor people of color—meeting each other, holding each other accountable, making promises, attempting together to repair their lives.

Restorative justice advocates believe this process benefits both victims and defendants. For offenders, discussion nudges them toward a self-respect that their own actions may have undermined. For victims, hearing the defendant explicitly admit fault can help them overcome feelings of fear; the process is based on the admission of guilt as a shared premise. This is not possible in court, where the defendant is instructed by his lawyer to minimize or explicitly deny his crime. Sered notes that 90 percent of victims invited to participate in her program choose to do so, and less than 6 percent of defendants have left the program due to new convictions for a crime. A 2007 study analyzing thirty-six studies from Australia, New Zealand, Canada, the UK, and the US found that restorative justice approaches significantly reduced post-traumatic stress symptoms and desire for revenge in victims; it also found that such programs reduced recidivism among both adult and youth offenders.

Who should have access to restorative justice? Sered does not give precise criteria. Those who have suffered trauma deserve to heal, she argues, particularly those whose trauma has been underrecognized—namely African-Americans in poor communities. Studies on racial perceptions of crime show that the media overrepresents white people as victims of crime, even though Black men are the most likely to be victims of violent crimes. In 2015, Black boys and men aged ten to thirty-four were thirteen times more likely to be murdered than white men in the same age range. Sered observes that in New York City in the first half 2012, 96 percent of shooting victims were Black or Latino. Accordingly, 70 percent of the victims participating in the Common Justice program are men of color.

Yet Sered, who helped run a program to reintegrate formerly incarcerated youth, recalls speaking to ten young men of color coming home from Rikers Island:

When I asked…“How many of you have been victims of crime?” no hands went up. Not one. When I asked, “How many of you have had something taken from you by force?” eight hands went up. “How many of you have had something stolen from your home?” Ten hands. “How many of you have ever lost a fight and been hurt or been jumped?” Nine of the ten young men raised their hands. Yet none had been the “victim of a crime.”

Studies show that those who do not think of themselves as victims may be less likely to seek help and more likely to disregard their own trauma. “There is no bright line between victims and offenders,” writes sociologist Bruce Western, who found, in a survey of people released from prison in Boston, that “40 percent…had witnessed someone being killed, nearly half were beaten by their parents,…16 percent reported being sexually abused,” and half said they had been “seriously injured…growing up.” Sered puts it plainly: “Almost no one’s entry point into violence is committing it.”³

The title of Sered’s book refers in part to her belief that Americans must reckon with the historical trauma of slavery and Jim Crow laws, which have profoundly shaped our criminal legal system—but she stops short of specifying what part restorative justice could have in this bigger picture. Should everybody have the chance to avoid prison? Should the CEOs of companies that dump environmental waste in poor neighborhoods be afforded the option of this kind of reconciliation? Do the murderers of Trayvon Martin, an unarmed seventeen-year-old, or of Ahmaud Arbery, an unarmed twenty-five-year-old jogger, deserve the option? Must we imagine that even police officers who kill unarmed civilians do?

It may strike many as offensive and even unspeakable not to pursue the harshest possible punishment for police officers who brutalize and kill. But arguably police violence would be suited to the explicit and far-reaching discussion encouraged by restorative justice. The reliability with which prosecutors decline to prosecute and juries to acquit officers—the killers of Philando Castile, Alton Sterling, Tamir Rice, Freddie Gray, Eric Garner, and, less well known, Eleanor Bumpurs, Aiyana Stanley-Jones, Tanisha Anderson, and Aura Rosser all never went to prison—is a sign that our “justice system” cannot deliver what it promises. Whether the restorative justice process would or should result in any reduction of sentence here is a divisive question. Still, if victims’ families were open to the process, it might result in police officers agreeing voluntarily to serve prison time in exchange for a significantly reduced sentence, public confession, and other amends decided by those families. Officers would for the first time decline to hide behind technical legal defenses and instead answer personally to the grief and anger of their victims’ families.

There is no direct model for this, but work by Mariame Kaba and a coalition of groups on police violence in Chicago points to what a new structure of justice might look like: one striking aspect of that work, the legal scholar Amna Akbar has written, is the coalition’s decision not to demand criminal prosecution for officers who routinely tortured Black people in the 1970s and 1980s, but to push for a reparations ordinance that included financial compensation such as free tuition, for victims and their families, at junior colleges in Chicago, job training, counseling, and a public school curriculum that teaches the history of police violence.⁴ “When I talk about abolition, it’s not mainly a project of dismantling,” Kaba has said. “It’s actually a project of building. It’s a positive project that is intended to show what we believe justice really looks like.”

At its core, restorative justice views crime as an encounter between people. For offenders, Sered has said, “facing the people whose lives they’ve changed” can be a more demanding ordeal than prison. They may be condemned personally by their victims and experience guilt; they must accept responsibility for their actions no matter how desperate the circumstances they were in. They may have to do hundreds of hours of community service, or take on extra jobs to pay for a victim’s therapy. They must expiate their wrongdoing by making and fulfilling promises.

But what if they cannot keep those promises? Imagine an offender who, for reasons mostly outside his control, cannot get his life together: due to his record he cannot get a job; due to a collapsed welfare state he cannot access food stamps. Expelled from civic life and under the sway of his vow to the victim that he will become a productive citizen, he may become destitute and self-punishing, or return to crime. Restorative justice depends on an idea of individual morality, but without support from social infrastructure, it may fail to create lasting change. (For this reason, activists such as Kaba prefer the phrase “transformative justice” to “restorative justice,” which captures their vision for broader structural change.) “Reconciliation may be a moral imperative,” the anthropologist and political scientist Mahmood Mamdani observed of the South Africa Truth and Reconciliation Commission, in 1997, “but it will not happen unless it is also nurtured as a political possibility.”

Indeed, while Common Justice offers support services, connecting offenders to mental health resources, education, and job placement, it also—as many good community organizations do—fills a vacuum where the state ought to be. The failures of state-funded reentry programs in the past two decades are an instructive example: as the political scientist Marie Gottschalk has argued, for men and women getting out of prison, such programs—which often focus on abilities related to employability, like social skills and anger management—obscure the structural reality of a deindustrialized labor market in which few jobs provide a living wage.

More than many people may realize, the battle to end mass incarceration hinges on reining in prosecutors’ astonishing power. Just as police violence goes largely unpunished, so too does the rampant and well-documented misconduct of prosecutors. In one case, a Louisiana prosecutor hid blood analysis that would have exonerated a man who went on to spend fourteen years on death row. He was never reprimanded.⁵ A 2006 study by the American Bar Association of almost 1,300 accusations of malpractice across the US showed that none resulted in professional discipline. As Emily Bazelon (sister of Lara Bazelon) writes in Charged: The New Movement to Transform American Prosecution and End Mass Incarceration (2019), the post hoc exonerations of 1,800 people through DNA evidence reflect a culture of prosecutors “breaking the rules to nail down a conviction.” About 95 percent of cases pursued by prosecutors end with the defendants giving up their right to trial and pleading guilty—even when they are innocent. When a prosecutor can charge someone anywhere between two years and a life sentence for some crimes, a defendant often feels pressure to plead guilty to a lesser sentence to play it safe. Contrary to the totemic image of the courtroom trial, with its dramatic cross-examinations and tearful admission of the truth, many defendants merely sign a piece of paper professing their guilt.

Paradoxically, such a system can call into question the choice to participate in a program like Common Justice: How voluntary is it really when the only other option is Rikers Island? It might add one more tool to the prosecutor’s already large arsenal—they are the ones, after all, who decide which cases are eligible for restorative justice. Still, I share the more optimistic view of Seema Gajwani, a prosecutor in the Washington, D.C., restorative justice program, who writes in the New York Law School Law Review, along with Max Lesser, that the practice “allows prosecutors to hear a more complex accounting of the crime than what appears on the pages of a police affidavit.”

Gajwani invited prosecutors, who tend to be skeptical of restorative justice, to observe the process. They heard, for instance, a Black teenager describe what it felt like to be harassed by police officers; they heard a person who broke into a car talk about how he was homeless and had not eaten for two days. In the latter case, the offender offered to pay restitution, but the victim, an African immigrant, declined, wanting him to provide proof that he had gotten a job instead. One prosecutor, writes Gajwani, was struck by how the victim appeared “empowered by the ability to show grace.” She adds, “This experience stuck with [the prosecutor], and months later, she said that ever since, she viewed restitution differently, and routinely questioned her assumptions about what would make a victim whole.”

One hope is that prosecutors will come around to observing the distinction drawn by the mother of a murder victim in Florida in 2010, who went through the restorative justice process with the killer, her daughter’s boyfriend. She supported a term of five to fifteen years rather than a life sentence, provided that he commit to educating others on domestic violence and other issues that were important to her daughter. The prosecutor, who wanted a life sentence, ultimately charged the boyfriend with twenty years, along with the conditions that her family had advocated. The mother explained, “We didn’t push for a lighter sentence. We wanted to push for a more meaningful sentence.”

Ten years ago, a former student of mine pled guilty to manslaughter and was sentenced to three to ten years in an Arkansas state prison. Patrick was eighteen and had no prior criminal record. Typically, he stayed away from fights, but in this instance he had stabbed and killed Marcus, an older man, in an effort to protect his sister. In prison, Patrick wrote letters to Marcus’s mother, apologizing; he told me he prayed for her as much as he did for his own mother. It was only fair, he said, if the victim’s family wanted him dead. Overwhelmingly, people like Patrick, and others I have met teaching in prisons, reject any explanations that might seem to make excuses for what they have done, preferring to embrace their remorse.

Since reading Until We Reckon, I have thought more deeply about Marcus’s family. One memory that comes back to me is that his mother wanted to meet Patrick: she wanted to tell him that she stopped believing in God after her son died. She wanted Patrick to know that she had persuaded her other son not to kill him. She did not forgive Patrick, but she did not want him to die. She wanted him to get on with his life.

Those like Patrick who have committed violent offenses and wish to make amends need many forms of support to help them return to productive lives, including employment, friendship, transportation, and education. Restorative justice does not guarantee success. But it can provide an essential kind of relief, a reprieve from the self-punishing guilt that remains even after offenders have served their time. What is it to keep living knowing the loved ones of those you hurt wish you were dead? What is it to feel the weight of their doubt—doubt that your remorse is genuine, that you can do and be better? How would it change you to meet your victim’s mother? What would it mean for her to see you, speak to you, and urge you to live your life?