Usually the first response I get when talking about radically re-envisioning our criminal legal system away from mass incarceration is: “But what are we going to do about the violent criminals who are a danger to us?”
Putting aside the fact that only a slice of incarcerated people are in jails and prisons due to violent crime, the argument assumes that there is a separate category of “us” and “them,” and that you can somehow lock away the “problem” people and not have it create a destructive ripple effect for the individual, their families and all of our communities.
Our existing system of criminalization and mass incarceration is not working, by any measure.
We have the world’s largest number and percentage of incarcerated people, and 77% of people released from state prisons are rearrested within five years. As the Prison Policy Initiative says, poverty is not only a predictor of incarceration, it’s also frequently the outcome, as a criminal record and time spent in prison “destroys wealth, creates debt and decimates job opportunities.”
These poor outcomes are leading more and more people to look at community-based alternatives to the legal system and incarceration, such as restorative and transformative justice.
Restorative and transformative justice practices are not new. Indigenous cultures around the world have practiced some form of restorative justice for millennia, rooted in the belief that no matter what a person may have done, none are disposable. More recently, efforts to extract ourselves from our current failed system of punishment and retribution have led to more interest in how those principles could be more widely implemented.
In a nutshell, restorative justice looks at incidents and harm between people. It asks who was harmed and how to address and rectify the harm and requires participants to take accountability. Transformative justice seeks accountability but also looks at underlying conditions and social structures that created the conditions for harmful behavior and works to change or transform them to prevent future harm.
How could transformative justice work in practice? Seattle’s Creative Justice program provides an example.
Creative Justice started in 2015 as an arts-based approach to end youth incarceration and the dramatic racial disproportionality in youth detention. Co-directed by attorney and community organizer Nikkita Oliver and lead engagement artist Aaron Counts, the program uses art as an alternative to incarceration.
Why? Because incarceration doesn’t help young people, Counts said, nor does it make communities safer.
Similar to programs like Choose 180 and Community Passageways, an agreement with the King County prosecutor’s office allows time spent in the program to mitigate any court case a young person might be facing. But it’s not just a kinder alternative to incarceration. It’s a “community centered healing space that uses arts and creativity as the method for healing,” Counts said — and that’s key to its success. Today, about 25% of Creative Justice participants are referred by the courts, the rest are referred to the program through the community.
Young people in Creative Justice are not just participants, they guide the program’s development and decision-making by serving as members of its youth leadership board. Most recently, Creative Justice added two program assistant positions for participants who want to grow their leadership even further. Youth in the program receive mentoring from artists and other community leaders and then use their own skills and knowledge to create programming relevant to them, such as a youth-led candidate forum last year.
Creative Justice helps young people expand their understanding of who they’re in community with, and how many people care about their lives.
“Creating a space where folks are cared for and respected and loved and understood is our approach,” Counts said. “More so than any lesson that we teach or piece of art that we create, it’s the community that we build in a room together with the young people. That is the strength of what we do.”
I know some of you are saying right now: “But what about the victims? How does this help them?” The truth is that many victims of crime do not think locking people up serves their needs either. In a 2016 survey of crime victims by the Alliance for Safety and Justice, by a ratio of 3 to 1, victims prefer holding people accountable through options beyond prison, such as rehabilitation, mental health treatment, drug treatment and community service. Six in 10 victims preferred shorter prison sentences and more spending on prevention.
Wide-ranging statistics can be hard to come by, but one 2016 Midwest study found that fewer juveniles who participated in restorative justice programs reoffended.
“We talk about public safety and we forget that those young people that maybe folks would like to be locked up are part of the community as well. And they deserve to be safe as well,” Counts said. “And so it’s really [about] widening the ideas about who is the ‘public’ and what is ‘safe.’ We all want to live in healthy, safe, thriving communities.”
With a majority of the city council now pledging to support defunding the Seattle police by 50%, we have an opportunity to invest in different solutions. We can take a transformative approach and tackle some of the root causes of crime, such as generational poverty, housing instability and unequal education, as we overhaul the legal system at the same time. In fact we must, because there is no “them,” there is only “us.”