Prosecutors are the most powerful actors in the criminal justice system. For decades, they have relied on their immense discretion to impose harsher sentences that have disproportionately targeted low-income communities of color and significantly increased the prison population. For far too long, prisons, jails, and correctional facilities have acted as the solutions to obtaining “justice.” This is despite the fact that incarceration has been found to be very costly and ineffective at reducing crime or “correcting” bad behavior. However, some prosecutors have begun to recognize their myopic focus on punitive justice over rehabilitation and correction, and as a result, have shifted to “progressive prosecution,” which focuses on ending mass incarceration while maintaining integrity in the legal system.
Though progressive prosecution has its merits, even its supporters feel that it has too many shortcomings. For example, Rachel Barkow, a leading expert on criminal law and policy, argues that ending mass incarceration requires limiting progressive prosecutors’ discretionary powers and increasing the involvement of other actors in the criminal justice system. Given flaws like these, it is crucial to introduce an alternative way for prosecutors to work within the criminal justice system as agents of change. Restorative justice is one such paradigm that can help a prosecutor emphasize healing, reconciliation, and the rehabilitation of victims, the community, and the offenders in the process of addressing criminal behavior. More importantly, restorative justice paves the path for the much-needed abolition of the current criminal justice system.
Restorative justice works by bringing together all willing stakeholders to address criminal behavior in a way that makes amends, transforms the relationship between all parties, and begins the process of reintegration for the offender back into the community. Progressive prosecutors are in a unique position to promote such initiatives because their goals align with those of restorative justice –– namely, to find alternatives to accountability for crime that do not require the continual promotion of punitive systems. By prioritizing restorative justice initiatives in their agenda, progressive prosecutors can maximize their impact in the effort to end mass incarceration.
The implementation of radical tools such as restorative justice initiatives is not new in the criminal justice system, but it will have the greatest impact on incarceration. While some may reject the idea of restorative justice asa drastically new way of thinking about accountability and “punishment,” some progressive prosecutors have long been looking for programs and initiatives that substitute the need to try cases in court, unfairly negotiate plea bargains, and needlessly incarcerate individuals. Some of these initiatives have already been carried out, so the introduction of restorative justice would be an extension to these alternatives of incarceration.
In “Charged: The New Movement to Transform American Prosecution and End Mass Incarceration,” journalist Emily Bazelon outlines diversion as one of the most influential initiatives that prosecutors can implement to avoid incarcerating people. Diversion programs are designed to divert people from jail or prison by allowing them to participate in rehabilitation programs in order to avoid a criminal conviction and record. Bazelon writes that diversion ”can conserve resources, reduce reoffending, and diminish the collateral harm of criminal prosecution.” But while diversion is considered “the hallmark of progressive prosecution,” it is not widely available to all those who want to participate. Since diversion relies on the discretion of prosecutors, it allows room for errors in judgment when deciding who should or should not be allowed to participate. Yet, the implementation of restorative justice can work as an expansion of diversion programs to have the greatest impact on incarceration.
Restorative justice avoids such bias because it does not rely on the discretion of attorneys or the justice system to decide whether or not someone can participate. Furthermore, what makes restorative justice special is that it is a fully voluntary process in which all parties involved are not forced into participation. By implementing restorative justice, prosecutors can expand upon existing diversion programs by making them widely accessible and less biased. While Bazelon believes that the promotion of restorative justice has value in reducing incarceration, she only acknowledges the process in passing and does not recognize how restorative justice can be promoted as the main focus of progressive prosecutors. Rather than using restorative justice in their arsenal of tools, prosecutors’ jobs should shift to prioritize restorative justice initiatives as front and center in their agenda.
The promotion of restorative justice by prosecutors within the criminal justice system has the potential to make it an alternative to incarceration. This would require prosecutors to demand legislation to be enacted or to simply establish policies in their office to adopt restorative justice. But to begin using restorative justice immediately would require prosecutors to partner with restorative justice organizations that are more knowledgeable and understanding in facilitating “conversations about subjects related to crime and justice.” Such collaborations are crucial but should not be the only goal of restorative justice. Progressive prosecutors can fully implement restorative justice divisions and departments within their offices. It’s important to note that this does not mean “expanding” prosecutorial offices, but rather, shifting resources around to accommodate such programs. Prosecutors can make this happen by tapping into their access and power as the most powerful people in the criminal justice system.
The focus on restorative justice has the power to shape the future of the justice system and forever shift the way that prosecutors do their jobs. The goal of prosecution would no longer be obtaining the most punitive charge or sentence for the defendant, but making sure that the victim has the chance to heal and that the offender has the chance to grow and learn.
While such a “non-reformist” reform of the system is imperative, it is not the ultimate goal of the progressive prosecution movement. Criminal punishment, as it operates in the United States, puts a large burden on Black and Brown communities. While we can limit and transform how prosecutors go about doing their job, the inherently racist system under which prosecutors work will still be present. Current and future progressive prosecutors, activists, academics, and politicians should advocate for limitations to prosecutorial powers until they have no more. Abolition of the current system of criminal punishment should be the ultimate goal, and the implementation of restorative justice in the prosecution system is the first and most crucial step to get us there.
Image by Tingey Injury Law Firm licensed under the Unsplash License.
