Paper by John Gorczyk presented at the "Building Strong Partnerships for Restorative Practices" Conference, August 5-7, 1999, Burlington, Vermont.
In a democracy, people obey the laws because they agree with them. In a fascist state, people obey the laws because they are afraid of the government.
Let me give you some perspective. A story. A man was walking along the river when he heard a call for help. He saw someone waving frantically from the water, and without hesitation, took off his coat and shoes and dived in, swam out to the drowning person, and towed her to shore. He had no sooner gotten his breath back when another call for help came from the water, and he dived back in, swam out, and rescued the next person. Again, no sooner had he gotten back to shore, when there was another call. He dove in, and while he was swimming out, some other folks came along and gave the rescued people assistance. He got back with the third victim, and looked out, and sure enough, there was another one calling for help. He sat down on the bank, put his shoes on, stood up and put his coat on. One of the newcomers said "What are you doing - theres somebody drowning out there!" He said, "You go rescue him - Im going back upstream to find out whos throwing everyone into the river!"
Let me go back upstream.
Last year there were 32 million crimes reported in the USA. The two million dumbest criminals got caught and are in jail. The next four million dumbest got caught and are on probation or parole. That leaves 26 million crimes unaccounted for. If thats true then either a lot of people do not agree with the laws or nobody is afraid of the government.
It is interesting that when we in our democracy convict a felon of a crime, we place him in a fascist institution, a prison, where he loses his freedom of speech, his freedom of movement, his freedom of choice, his freedom of association, his freedom of reproduction, and his freedom to define happiness for himself and then to pursue it. He is given a new set of laws (called rules), telling him when to get up in the morning, how to spend his time, and the explicit rewards for doing so (reduction in sentence, extra "privileges" like television time, more visits, less restriction) and the explicit consequences for not doing so (parole deferral, loss of television, fewer visits, segregation).
We also give him a new set of activities. We provide yard time instead of street corner time, where the offender can hang out with a somewhat different set of criminal thinkers than in the home hood, and learn a whole set of new skills. These skills may or may not prepare him for reentry. He also gets to be physically fit, pumping iron for self protection, and reasonably healthy (at state expense) and well disciplined (at least to the right gang leaders.)
To offset for this, and to try to undo the rest of his earlier life, we provide treatment time, instead of crime time, where (best case) the offender learns the cognitive skills to help him avoid repeating the precursors to his criminal patterns or (worst case) learns another shuck and jive with a correctional treatment program to say when he hits the parole board. We provide education time instead of truancy time, to give him another shot of what already didnt take the first couple of times and this time it might work. And we provide him with three hots and a cot, at no charge (except $25,000 to the taxpayers) to teach him the incentives for hard work and honesty.
From this, we expect the felon to learn what it takes to function well in a democracy. What is mind-boggling is that we know it wont work, in the vast majority of cases. We know that the one point six plus million men and the one hundred sixty thousand women in jail and prison (Darrell K. Gilliard, Prison and Jail Inmates at Midyear 1998, Bureau of Justice Statistics, Washington, DC: March, 1999) are nearly all coming home someday soon, not many of them feeling a lot of gratitude for the folks who put them there, and we have reason to be concerned.
Now, why dont people respect the laws, or, why dont they fear government?
Let me take those one at a time. First, the laws.
People do what is in their self interest. Whether that self-interest is enlightened or not, it is still fundamentally self interest. Like all of Natures creatures, self interest in the short term has an awful lot to do with survival. Those species who were not self-interested (if there ever were any) are not here any more. Those of us who are here are the descendents of parents who were self interested enough to have survived at least to reproductive age. Self-interest is not a learned skill. Newborns do not have to be taught how to eat. Adolescents do not have to be taught to try to fit in to a peer group. Adults do not have to be taught to make and have babies. Those skills are built in. Hard wired.
Enlightened self interest may be a learned skill. Enlightened self interest is what makes humans human. What is in fact in ones long-term self interest is clearly a function of the culture and the society in which one finds oneself, but one thing is sure - we are designed as creatures who develop and respond to culture, and who can learn from one another. The strategy for living that works best is not readily apparent to the selfish ape, but it is the same one discovered by all of the worlds great religions - do unto others as you would be done by. This does not always work, but it works best in the long run.
It works best because of reciprocity. Reciprocity is the glue that holds all human groups, communities, and societies together. Reciprocity is doing favors for one another. You do something for me, I owe you. You can expect that some time in the future, I will repay the debt. If tonight, after the conference, we meet in the bar and you buy me a drink, you can be pretty sure that the next round isnt on you. I owe you a drink. And if I repay you with a drink, the next conference six months from now, it is likely that you will remember me, and vice versa. And if we exchange other favors, like information on where to go for dinner, or where the trout are biting on the Battenkill, or what new correctional treatment programs hold promise, then we just might become friends.
If the favor is bigger that a drink or two, but something that is really significant to us, then the reciprocity gets bigger, too. If you do me a favor that means a lot to me, but doesnt cost you much, youre more likely to do it. Say I fall off a cliff, and you throw me a rope, and haul me up. You didnt risk much, but I still owe you a lot. Or if you do me a favor that costs you a lot, and is worth a lot to me, then I owe you big time. Say my five-year-old daughter darts out in front of a runaway steamroller, and you dash out in front of it, dive and grab her and roll out of the way, just in time, I am going to be really grateful to you, probably for the rest of both of our lives. You can count on me if you are in trouble. If you need a loan, call me.
It works the other way around, too. There is negative reciprocity, if we fail to reciprocate. If tonight in the bar when it comes time for the next round I dont offer to pick up the tab I can be pretty sure that the third round wont include me. I can also be sure that six months from now, if I need something from you, it wont be happening.
And that memory is long. I am going to have to go some to make up for that transgression of social decorum. I am going to have to go out of my way to do something for you before you will offer to do something for me again. I am going to have to do you a pretty big favor, without being asked. And whether that happens depends on circumstances, and luck, because you are not going to go out of your way to create opportunities for me to do you a favor. You probably are going to go out of your way to avoid me. But if we encounter one another and I get a chance to do something for you that involves a little effort, and I get to acknowledge my social blunder of a while ago, then the relationship has a chance. If we run into each other, and I say, "Can I buy you a drink? I owe you. Last time you bought - I was broke, and too embarrassed to say so. I really want to apologize. Let me make it up to you." The debt is paid. In fact, you are a little chagrined that you held onto that grudge for so long. If only you had known....
We are designed to remember the ledger of social obligations. We know who owes us, and whom we owe, especially in our own families and social networks. That is why we have family feuds, and family secrets - we remember social gaffes for a long time. We hold grudges for a long time, especially when we do not have the opportunity to apologize. As we become more separated from one another, in more anonymous groups, we do not have the opportunity for the frequent exchanges of favors that build community.
But all this only used to matter in small villages, among extended families, and among primitive rural peoples (like Vermont), right? It doesnt have any effect now that we live in cities and our families are scattered all over the country, living in anonymous places with people we dont know and will never see again. The problem is, it still matters. We are biologically designed to live in villages and small groups, and we still act as if we did, even when now we do not live in villages any more. Even those of us who do live in rural Vermont can go to Disney World during February school vacation and be back in time for Town Meeting. This has become a complicated social network we live in.
Because we are strangers to one another, we do not have as many of the opportunities for even the small openings that encourage the dialogue that builds to doing favors. We dont greet one another on the street with "How are you?" which is code for "I recognize you as someone with whom I have a relationship, and for whom I have done favors or who has done me favors. I still care about you because I value the future potential for favors that you represent. I also value you because I am aware of the repercussions on me if you do not do favors for me, and I am identified as a cheater." In Vermont and in other small town states around the country, my reputation still is important to me. I want to be known as a good guy, especially once I have a family and my children need me to be around.
But if you and I dont know each other, and the chances of our running into each other are slim, then I dont owe you anything, and my reputation with you is not relevant (unless I am on the sex offender registry). In fact, if I live with people who are similarly disconnected, or who share my unwillingness or inability to foresee future positive interactions with those whom I dont know, then I am more likely to see all others as strangers, who not only do not offer me much, but from whom I can take with impunity, and without debt. And if I think that I can get away with it, in the very short run, and it is in my immediate interest, I will take what I want. If we live in an isolated ninth century Welsh village, that calculus is probably pretty short - you know me, and my family. The odds are that if I do steal from you, I will be outlawed, and driven from the village. My family will be disgraced (interesting word, dis-graced) and will have to pay the victim for his losses, and more, to make up for the offence. So I wont steal from you.
Now, what does all this have to do with justice in America?
The rule of law is a record what has been decided is wrong, and what has worked to respond , at least in our Anglo-Saxon culture that is nearly a thousand years old. It is our collective memory of negative reciprocities - defining the behaviors that dont work, and trying to create a response to each one that will deter others from doing the same thing. By and large, our definition of the behaviors that dont work hasnt changed much, theft is still theft, even though you do it on the internet, and murder is still murder. What we have spent the last thousand years doing is experimenting with punishments. We keep trying to find one that works.
During the Dark Ages, after the fall of Rome, when the barbarians ruled Europe - now if that doesnt set the tone - darkness after the fall, with barbarians, the rule of law was called the Danelaw. This was the northern European/Scandinavian model of criminal behavior, which focused on the families of the accused and victim. Crime was seen as harm to the victim, and her family was entitled to compensation (the wergeld) for the loss. The compensation came from the family of the offender. Thus, the criminal disgraced his own family because his offense cost them. So, if I steal a sheep from you, the penalty is to give it back, with a lamb for your trouble. If I eat that sheep, I owe you a sheep, and another one on top, because the sheep I stole was a prize winner. Or whatever the elders of the village decided. The point is that it was focused on the victim and the harm done.
The Norman Conquest changed all that. William was an invader and a conqueror, and like all colonial powers, he was not interested in enhancing the wealth and safety of the Anglo-Saxons. He was interested in paying off the vassals who had come with him on the invasion, and then he was interested in shipping as much wealth back home as he could (keeping some for his own use). He was also in debt. He had rented all the boats on the coast of Normandy to carry his army across the channel, and he had to pay them off.
He could pay off the vassals with land and booty, but for the shipowners, and for his own treasury, he needed cash, in a hurry. So he implemented the Norman Rule of Law. This was the southern European form of law that was based on Roman law. Under this feudal system, a crime against a vassal of the king was a crime against the crown itself, and thus any penalty was owed to the kings treasury. The restitution to the victims family was irrelevant.
It took William about six years to completely replace the justice system of England with a system of circuit judges and Shire-reives (as in, plunder the Shire), and it was his son, Henry I who made it work.
For the past 933 years we have been trying to undo the damage. The Magna Carta, the Glorious Revolution, and the breadth of English political history has been the story of the attempt by the people to take back their justice system and all of their other "rights" from the King. When we came to America, and built a constitution, we spent a lot of time protecting the individual from the power of the State, and protecting the sovereignty of the states from the power of the Federal Government. But the Founding Fathers missed one. They protected the accused from the power of the State, but they forgot the victim. They forgot the family. They forgot the village. They forgot the community. The issue was to protect the offender from the overweening power of the State, not to recreate community justice.
Like the recently de-colonialized African states, who emulated their English former English masters, we have attempted to do a better job at punishment than they did. The Chief Justice of the Supreme Court of Tanzania told us that when they took over from the English, they attempted to impose an even tougher regime of punishment than their predecessors. Longer sentences, more inhumane prisons, designed to deter and punish.
Then they noticed that, at least in the rural areas, when the offender got back home after serving the sentence, that he wasnt readmitted to the village until he had undergone village or tribal justice. It didnt matter what the "system" had done to the offender. The system and its needs were totally foreign to the needs of the village.
The problem is, that what we are doing is based on a fundamentally wrong premise.
We have thought we were playing by the rules. They are just not the most accurate rules.
Human beings are the same, everywhere. We celebrate and at times magnify, and very often distort and exaggerate our differences, but when it comes to the big things, we are all basically alike:
We all fear strangers;
We all remember our social obligations, and feel stress when we owe others;
We all strive for competence and control of our environs;
We are designed to work and create in small groups;
We interact in social networks;
We invest the unknown with reality and purpose.
We categorize our experiences in binary fashion;
We are most secure with things that are connected, and perceived similarities;
We give boundaries intense meaning;
And we seek to restore equilibrium.
We need to recognize that we all have the same rules of behaving built in. There is a range of behavior we can do, within which there are cultural limits of acceptability. While this varies from situation to situation, the essences of how we feel and how we behave are hard-wired. This does not excuse responsibility, because within the range of possibilities, we get to choose.
Now, why dont people fear the government? In fact, not only do they not fear the government, they also dont respect the government. The question is better phrased, why do they hate the government?
The answer is a bitter pill to swallow.
WHAT WE ARE DOING ISNT WORKING.
Back to reciprocity.
About sixty years ago (we can quibble about the time period) we moved from a governmental structure that shifted responsibility for what had been village and community functions upwards, to state and federal levels. Increasingly, the government benefits or programs were delivered via a categorical pipeline, direct to the individuals toward whom the money or benefit was intended. In doing so, government bypassed the system that has kept human cultures together for a couple of million years - the family, and the village.
The way government is supposed to work is in a three-way triangle of exchange. This creates a reciprocity link.
Government takes taxes from the people, redistributes them to the clients or the functions decided to perform. In return for their taxes, the people get the outcomes intended. The outcomes are the feedback mechanism that tells us we are getting what we paid for. We pay taxes that go to the military, which provides us with safety from strangers. Every once in a while we see what we are paying for, in the form of a veterans day parade, or a police action in Kosovo, or a war. With human services, we pay taxes because we want poor people taken care of. Government redistributes the wealth, and we expect the results. Except with an increasingly anonymous society, we dont get to see the results, except in the form of statistics (which most humans are not very good at) which portray attempts to generalize or in anecdotes (which the media are very good at) which use extreme variance from the norm.
Increasingly over the past two decades the philosophy which drives the methodology for holding the offender accountable has been described as "Just Deserts." The amount of punishment should be equivalent in value (emotional, material, and quality of life) to the loss experienced by the victim and community in which the crime occurred. The result is described as having balanced or equalized the relationship and that "Justice" has somehow been achieved.
Heres how it works with crime and corrections. The crime occurs, and the victim suffers a loss. To compensate for that loss, we punish the offender. That is, we inflict a loss on the offender. Lets see. The victim loses, then the offender loses. Were even, right? Lose, Lose. The economics do not add up. Two negative numbers do not add up to a positive number.
In real economic terms on a case basis, its even worse:
We have a 19-year-old kid whacked out on crack cocaine who steals a $500 television set. He sells it for $25 to get high, gets caught, and because he doesnt have anybody to roll over on, gets a year and a half in prison. So, heres the math - a $500 television gets a $25,000 a year jail bed.
That might be marginally acceptable if it worked. That is, if putting him in jail made him somehow less likely to reoffend than to do so. What is mind-boggling is that not only does it not work, it makes him worse!! He is more likely to reoffend than if we left him alone! But maybe it is okay if the victim feels better, with just desert.
So, heres the reciprocity from the victims perspective. The victim gets to have her taxes go up to pay for building the prison so the kid can lay in a bunk and watch TV. Her TV. She doesnt get her TV back! And when she tries to find out what happened, she learns that the kid is has been paroled to a half-way treatment facility because the prisons are overcrowded!
No wonder we dont respect the government.
It gets worse.
We take a guy who commits a crime and put him on probation. When that doesnt work, we put him on probation again. What that doesnt work, we put him on probation, again. When that doesnt work, we put him in jail for a while to teach him a lesson, and then put him back on probation. When that doesnt work, we put him in jail for a little bit longer, so he really learns his lesson, and we make it nasty, with a chain gang or a boot camp with pushups, so hell remember better. Then when that doesnt work, we put him in prison, for a good long time. But, since its his first time in prison, and were crowded, and compared to the rest of the guys in prison he is a pussycat, we let him go early. Then, when that doesnt work we put him in prison again, for a good long time. Then we let him out. Not before his time. Then, when that doesnt work, three strikes, and hes out.
Only in America when something obviously does not work do we do more of it.
Then, to top off the equation, we look at it from the perspective of the relationship between the offender and the community and his family. We take him away from his home, destroy his relationship with his parents, or his girl friend, or his own kids. We wreck his ability to get a job, try to teach him skills for a low-end job, and do so in a coercive environment where he learns to survive by dealing with violence.
If we taught school like we do crime, wed take a kid on the first day of Kindergarten and say, go ahead, Johnny, read to the class. Then if he stumbled over the text, wed say "all right, well give you one more chance," and give him a book that taught him how to read. Then wed give him a dictionary to look up the words he couldnt read. Then when he couldnt do it again, wed put him in the dark coat closet for a couple of days and when he came out and still couldnt read, wed throw the dictionary at him.
If we did medicine the way we do crime, wed give everyone who came into the doctors office a box of sugar pills, and tell them to go away and when they came back with a hacking pneumonia wed yell at them for not taking the pills, give them more pills, and then when they got really sick wed put them in a closed tuberculosis ward with lots of self-administered drugs and used IV needles, and then when they got really sick, theyd be interesting.
The lessons learned by the offender, and the lessons learned by the victims, and the lessons learned by the public are the exact opposite of what we want from justice. Heres how the negative reciprocity machine works with the current system of justice.
When you make a mess, leave the scene. If you get caught, deny it. Dont say anything, but get a lawyer. When they show you the proof that you did it, your lawyer will make the best deal she can. That allows you to minimize the consequences to yourself. Oh, and the mess? Forget it. Let somebody else clean it up.
So, what to do about it?
Lets go back to basics. To Kindergarten. To the community and the village. Lets go back to the social contract. To positive reciprocity.
Vision - justice in the 21st century Signing the Social Contract
We know what works - small group, female nurturing model, cognitive self-change in heterogeneous grouping, face-to-face problem-solving, acknowledgment of responsibility, making amends, repairing the damage, reconciliation and forgiveness. The village model.
We are designed to forgive and reconcile, when it is in our interest. We forgive those whom we judge to be of value to us, when the compensation is sufficient to offset the loss. Who we judge to be of value to us are those who recognize us as valuable to them, and those who do us favors. Especially if we are in some kind of social relation to them, and from whom we expect some future interaction.
What seems important is that we develop mechanisms that allow our natural tendencies to manifest. We need to develop mechanisms in criminal justice that provide opportunities for reciprocity. We need to understand that those mechanisms must take the positive aspects of human nature into account.
If we are going to do so, we in government must understand that it is government that people do not trust. We also need to understand that we have to make the first move. We need to trust the people. This is not an expert model. Restorative justice may be an old idea, but it is new to us in the justice business.
We have a very good view of what does not work. We are beginning to understand that restorative approaches that place the victim at the center and that embrace the principles of focusing on understanding the harm done, on repairing the damage to the relationships with community and victim, on adding value, on acknowledging responsibility, making amends, and on being sorry, are more likely to work than what we are doing now.
We are only on the edge of learning how to apply these principles in practice. Circles, conferences, boards, mediations, and reconciliations are methods that seem to fit with these principles. Confronted with increasing complexity and anonymity in a society that has lost touch with the social networks and small neighborhoods in which the species developed, we need to experiment with new models that create opportunities for reciprocity.
The models that seem to offer the most promise are those which put the people involved with the dispute (and crime, fundamentally, is the nether end of dispute resolution) together face-to-face. Those involved are: the victim, the offender, their families, and their community. Combine these players with a process that allows them to get at:
1. the harm done
3. means for making amends
4. assurance of future safety
It seems to me that the intensity of the process varies with the severity of the offense.
This view of the justice system may appear radical. It is. For a long time we have increasingly centralized the administration of justice, focusing the increasingly limited resources on only the most serious offenses. The result has been that the quality of life disputes have been ignored, the confidence of the public in the justice system has eroded to abysmal levels, and the anger at the failure of government to deliver the outcomes has resulted in increased retribution to the only scapegoats we have. Changing this model is a big job. It requires citizens to take a far more active role in providing safety and justice in their own neighborhoods and villages than we have done in decades. It also requires the current system to let go of old ways, and devolve power, authority, and responsibility to the community.
I believe we can do it. We have to convince the public that they can do it, that it will work, and that we will let them do it. We have to convince the justice system of the same things. And we have to do it in restorative ways. We have to repair the damage.
So, if we are going to be serious about public safety, we need to get serious about community. We all need to criminal justice cannot do it alone.
This conference is an opportunity for reciprocity. I hope I have done you a favor. Ive told you what I think. Ive told you some of my stories. In return, please tell me your stories, and what you think. We will establish a relationship, that may lead to a social contract. Then we can go up the river together, and do something about whatever keeps throwing all those people into it.