It’s not very often the concept of restorative justice gets much play outside scholarly publications or reformist criminal justice circles, so first, some credit for Max Fisher at The Atlantic for giving it an earnest look last week. In seeking to explain Norway’s seemingly measly twenty-one-year sentence for remorseless, mass-murdering white supremacist Anders Breivik—a sentence that is certain to be extended to last the rest of his life—Fisher casts a critical eye on the underlying philosophy that animates that country’s sentencing practices, finding it to be “radically different” from what we’re used to in the United States. When it comes to criminal sentencing, he notes, the United States favors a retributive model—in which an offender must be duly punished for his crimes—over a restorative model that “emphasizes healing: for the victims, for the society, and, yes, for the criminal him or herself.”
“I don’t have an answer for which is better,” he says at the outset, acknowledging that his own sense of outrage over Breivik’s sentence—like that of many Americans—“hints at not just how different the two systems are, but how deeply we may have come to internalize our understanding of justice, which, whatever its merits, doesn’t seem to be as universally applied as we might think.”
This is true, and a promising place to start. The United States is uniquely punitive when it comes to sentencing compared to much of the rest of the world, whether the crime is murder or drug possession. Putting aside the death penalty, which lands us in dubious international company, in countries with life sentences on the books, prisoners are often eligible for release after a few decades. “Mexico will not extradite defendants who face sentences of life without parole,” the New York Times’s Adam Liptak noted in 2005 (Most of Latin America has no such sentence). “And when Mehmet Ali Agca, the Turkish gunman who tried to kill Pope John Paul II in 1981, was pardoned in 2000, an Italian judge remarked, ‘No one stays 20 years in prison.’ ”
The same article quoted Yale law professor James Q. Whitman, author of a book comparing US sentencing with Europe. “Western Europeans regard 10 or 12 years as an extremely long term, even for offenders sentenced in theory to life,” he said. Today, there are more than 41,000 people serving life without parole in the United States compared to fifty-nine in Australia, forty-one in England and thirty-seven in the Netherlands. That’s according to a study released this spring, which found that we are “in the minority of countries using several sentencing practices, such as life without parole, consecutive sentences, juvenile life without parole, juvenile transfer to adult courts, and successive prosecution of the same defendant by the state and federal government.” In the United States, prison sentences have gotten longer and longer—a sea change that Americans have come to accept relatively quickly (largely because the targets have been people of color). Just a few decades ago in high-incarceration states like Louisiana, lifers were eligible for release in ten and a half years. Today in Louisiana, there is no longer parole for lifers, and thus virtually no hope of release, ever. And when it comes to crimes prosecuted under the War on Drugs, three-strikes sentencing and mandatory minimums have not only sent people away for life for minor drug offenses—an anomaly compared to the rest of the world—they have led to a current reality in which the vast majority of people arrested on nonviolent drug charges plead guilty—whether they are or not—in order to avoid such draconian prison sentences, a decision that can have lifelong implications.
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To be fair, Fisher is not talking about US-style drug sentencing—or sentencing as it exists on the ground here at all. But he should have, because the fact that there are nonviolent drug offenders serving the same amount of time as convicted murderers in the United States is rooted in a Frankenstein version of the very retributive model he is writing about. The War on Drugs was ostensibly designed to harshly punish those responsible for massive harm to our communities (while in practice, ensnaring low-level offenders who harm no one, except possibly themselves). Mandatory sentencing statutes, supposedly devised to fulfill a retributive ideal, have instead tied the hands of judges when it comes to imposing fair, proportionate sentences, leading to systemic perversions of justice. It is the reason New York has had to roll back its notorious Rockefeller Drug Laws. It is the reason the Supreme Court recently struck down mandatory sentences of life without parole for juvenile offenders. And it is the reason our prison system is so disproportionately comprised of African-American men, who are perceived to be the most dangerous criminals in our society, and the most deserving of harsh punishments.
But in a brief paragraph defining retributive justice in theory without addressing how it works in reality, Fisher doesn’t acknowledge any of this. “At its foundation,” he writes, “…retributive justice is about enforcing both rule of law and more abstract ideas of fairness and morality. Crimes are measured by their damage to society, and it’s society that, working through the court system, metes out in-turn punishment…. In a retributive system, the punishment fits the crime, and 21 years in a three-room cell doesn’t come close to fitting Breivik’s 77 premeditated murders.”
Even if you agree that Breivik’s twenty-one-year-sentence in a “three-room cell” with a TV, etc., is a grossly inadequate way of dealing with his barbaric actions, the notion that a retribution-based system hands out sentences that “fit the crime” is wildly and tragically false if the United States is your guide. In the United States, grandmothers are sentenced to life for first-time drug offenses. Mothers who fire a “warning shot” in self-defense at an abusive husband get twenty years in prison. Teenagers who kill their abusive pimp get sentenced to life without parole. Kids who commit crimes at 14 have been condemned to die in prison—getting raped along the way—with no consideration for their age, mental health or abusive upbringing. People land on death row for failing to anticipate that an accomplice in a crime might kill someone—and people are executed for killings committed by others who then go free. The American model—which Supreme Court Justice Antonin Scalia recently summed up by musing, “I thought that modern penology has abandoned that rehabilitation thing”—is a system rife with injustice.
But Fisher is less interested in confronting the problems of our criminal justice system than he is in getting to a harder, more abstract truth about Norway’s “gentler system,” which, he acknowledges, manages to “reduce crime, reduce the cost of imprisoning criminals, and reduce recidivism”—three whopping accomplishments we might learn from. But “even if we accept all of the data suggesting that society as a whole is better off under a Norwegian-style restorative model,” he says, “those numbers don’t account for the more abstract, difficult-to-define sense of justice as its own inherent good.” There is, he says, “a basic human need for justice and fairness,” as evidenced by one study on the “moral outrage felt by those who witness transgressions” and another showing that “people who believe they’ve witnessed injustice become less happy.” With Breivik in mind, he concludes, “Norwegian-style restorative justice subverts those human desires for justice and fairness.”
Norwegians, of course, including survivors and their family members, seem to have widely accepted Breivik’s sentence, suggesting that the system has actually fulfilled their desire for justice and fairness (a fact Fisher acknowledges and finds “jarring”). “That’s how it should work,” one survivor of the massacre said of the sentence. “That’s staying true to our principles and the best evidence that he hasn’t changed society.” Like victims’ family members who oppose the death penalty in the face of a system that seeks to convince them that executions are for their own good, these voices should be amplified, not dismissed.
There is little within the US system that fulfills this human desire for justice and fairness. It is a system dramatically out of step with the rest of the world, one that overwhelmingly and disproportionately punishes the most vulnerable for some of the most innocuous crimes. Theory aside, the American prison system is staggering proof of just how pathetically we have failed at defining—and delivering—“justice” using a retributive model.
Fisher does grant that “the retributive approach absolutely has its pitfalls,” citing articles about solitary confinement and the plight of mentally ill prisoners in the United States, but, he maintains, “at least it’s meant to be just.” Whether you think our system as it stands was ever about good intentions—a notion facing considerable backlash right now—this is bewildering if you care about how it works in practice. (Or about crime rates compared to, say, Norway, for that matter.) To imply that restorative justice falls short because it fails to satisfy an abstract yearning to punish the worst among us is to be driven by the same emotional response that drive real-life counterproductive prison policies. Ultimately, the problem with using monstrous examples like Anders Breivik as a lens through which to examine models of criminal justice is that, as the American death penalty system has repeatedly shown, the most punitive punishments are not reserved for the most horrendous offenders. Breivik, in the scheme of things, is the exception, not the rule. The same cannot be said for harsh punishment in the United States.