Is Bail Reform Restorative Justice?

The National Institute of Justice states, “Restorative justice is repairing harm to victims, rather than retribution for those who offended, focusing on inclusion, accountability, and the community.” (NIOJ,n.d)

Retribution is the oldest form of justification for punishment based on theories offered by Kant and Hegel (Brooks, 2001). The fact that the individual has committed a wrongful act justifies punishment, which should be proportional to the wrong committed.

While restorative justice focuses on crime, it centers around the damage caused to individuals and the community, ensuring a fair and just process that reassures and instills confidence in our criminal justice system. The principle of restorative justice is offender accountability, which means that offenders take responsibility for restitution for their actions and work to make amends to the victim(s) and the community. This community involvement is a crucial aspect of restorative justice, as it reinforces the idea that justice is a collective responsibility.

At the heart of restorative justice is a transformative process, in which the offender actively works to repair the damage caused by their criminal behavior. This proactive role, rather than simply being punished, is a key aspect of restorative justice. It aims to create safer communities by addressing the underlying causes of crime and offering alternatives for a better future.

Restorative justice offers numerous benefits. A key aspect is the empowerment of victims, where they play an active role in the justice process, expressing their feelings and needs. This can help them achieve closure and healing, and it’s a process that we, as legal professionals and policymakers, should fully support. Offender Accountability is another important element, where offenders take responsibility for their actions and understand the impact on the victims and the community. The process also fosters healing and reconciliation, helping to repair relationships and reintegrate offenders into the community. Reduced recidivism is a hopeful outcome, as offenders who understand the impact of their actions are less likely to re-offend. These benefits underscore the value of restorative justice and its potential to reform our criminal justice system. (benefits of restorative justice, n.d.)

The process also strengthens community bonds and support systems, with community participation and involvement in the resolution process. This involvement makes the community feel more responsible and connected. Importantly, restorative justice is cost-effective and often less expensive than traditional criminal justice processes, such as lengthy trials and incarceration. This practicality should reassure and instill confidence in our criminal justice system. It’s flexible, adaptable to various offenses, and used alongside conventional justice systems.

While restorative justice offers potential benefits, it also carries significant risks. One risk is coercion, where offenders might feel pressured to participate or apologize insincerely to avoid harsher penalties. This potential insincerity of apologies underscores the need to monitor and manage the process carefully.

Restorative justice is also resource-intensive as these programs require trained personnel, time, funding, and other resources that might not be readily available in all communities. However, it is crucial to note that many in the criminal justice profession, including victims and offenders, lack the necessary awareness and understanding of how restorative justice works. Not being aware or understanding also leads to inconsistent or inaccurate application. (Hutchinson, 2023)

In 2020, New York’s bail reform act aimed to reduce pretrial detention by eliminating cash bail for many misdemeanors and nonviolent felonies. Was this law a product of the misapplication of restorative justice?

While both aim to improve the criminal justice system, they operate on fundamentally different principles. Bail reform is about changing the system before trial, while restorative justice addresses the aftermath of criminal behavior. While bail reform and restorative justice are distinct concepts, there are potential areas of overlap and concern.

The other objective question is whether we need restorative justice if someone is never a victim in the first place. It is crucial to understand that the relationship between bail reform and crime rates is complex, and other factors, such as economic conditions and policing strategies, also play a role. However, does bail reform accomplish the overall objective?

According to the New York City Police Department’s citywide crime statistics, seven-major-offenses, that include murder, rape, robbery, assault, burglary, grand larceny, and grand larceny auto.

Comparing and contrasting the data from 2020, when the Bail Reform Act was first implemented through 2023, crime rates in four (4) out of the seven (7) major index crimes have increased.

The data reported on felony assaults in 2020 were (20572) through 2023, which ended with (27876), a 35.5% increase. Robberies in 2020 were (13106) through 2023, which ended with (16910), a 29% increase, that are serious violent crimes against the public and community as a whole. Lastly, comparing the data for misdemeanor assault during the same time-period (2020-2023) has shown an increase of 32.2%.

Some people believe that bail reform and restorative justice have undermined public confidence due to a significant increase in crime victims and a lack of response to rising crime, particularly in communities that are more likely to be victims of crime. They argue that restorative justice or bail reform may not be appropriate for all types of crimes, especially those involving severe violence or a significant power imbalance between the victim and the offender.

The public is concerned that our leadership has not recognized and reassessed this concept, and bail reform may not be as effective and efficient as designed. It may be time to revisit this legislation and make adequate changes.

References.

Brooks, T. (2001). Corlett on Kant, Hegel, and Retribution. Philosophy, 76(298), 561–580. http://www.jstor.org/stable/3751906 (Accessed: 19 August 2024).

Hutchinson, M. (2023). Critiques and Challenges of Restorative Justice. Longdom. https://www.longdom.org/open-access/critiques-and-challenges-of-restorative-justice-101989.html#:~:text=Imbalance%20of%20power%3A%20Critics%20argue,and%20legitimacy%20of%20the%20outcomes. (Accessed: 16 August 2024).

Misdemeanor-offenses-2000-2023 (n.d). Available at: https://www.nyc.gov/assets/nypd/downloads/pdf/analysis_and_planning/historical-crime-data/misdemeanor-offenses-2000-2023.pdf (Accessed: 15 August 2024).

Restorative justice (n.d.) Restorative justice | National Institute of Justice. (NIOJ) Available at: https://nij.ojp.gov/taxonomy/term/restorative-justice (Accessed: 17 August 2024).

Seven major felony offenses 2000-2023. (n.d.) Available at: https://www.nyc.gov/assets/nypd/downloads/pdf/analysis_and_planning/historical-crime-data/seven-major-felony-offenses-by-precinct-2000-2023.pdf  (Accessed: 16 August 2024).

What are the eight benefits of restorative justice? (n.d.) RJP Maine. Available at: https://rjpmaine.org/news/what-are-the-8-benefits-of-restorative-justice/   (Accessed: 20 August 2024).

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