Jonathan Estrella

Dr. Henderson
SOCY 698
31 July 2015
Restorative Justice: Learning to Punish the Crime, Not the Criminal
Imagine getting pulled over for a routine traffic stop at least that is what the cop tells
you. After running your information, he comes back to tell you he noticed a funny smell, so he is
going to bring a dog to sniff your car. It would not be problem if you had not just bought some
weed to help you relax. As you are in one of the polices interview rooms, you try to console
yourself this is something relatively minor; perhaps they will ask for a fine, some community
service, maybe even probation. But this is a first time offense for you. It is not so bad, right?
However, according to the law, you had enough weed for distribution, so now you are serving a
felony sentence, in prison with violent criminals. Does this sound like justice? Yet, this is the
experience of tens of thousands of people a year, particularly African-American men. Our
culture of retributive justice and punishing criminals may have been useful for our society in the
past; however, its inherent flaws are becoming larger problems for our modern society creating
more violent criminals and contributing to greater recidivism. This problem is compounded
particularly for African American men, who are unjustly disproportionate in state and federal
prisons. The good news, however, is that a potential solution in the ideology of restorative
justice could reduce recidivism and turn criminals into citizens.

The Problem with Retributive Justice

Retributive justice is no justice at all. It is a belief that punishment is justified
intrinsically, so there is no adherence to the good or ill it does to society; rather, punishment is
a morally required response to wrong-doing.1 The problem is that strict adherence to
retributive justice means the solution is fixed, and that punishment, defined as hard treatment
imposed in response to wrongdoing, is the only true justice capable of upholding the law.2 What
if there are laws, and enforcement of laws, that are unjust? It is not justice to punish a person for
a crime deemed unjust by society or to unfairly enforce the laws so that they marginalize a group
of people. The greatest misconceptions of retributive justice, therefore, are that it punishes
wrongdoing, a variable adjustable to the customs and beliefs of a society, and that it enforces the
law fairly.

Racial Discrimination in the Justice System

One of the most glaring problems in our society is that of unequal enforcement of the
law. By focusing on race and sex, we discover that black men are particularly disproportionately
represented in the criminal justice system. According to the FBIs Uniform Crime Reports, in
2013, an estimated 2,924,724 blacks were arrested, compared to 7,270,214 whites.3 According
to the U.S. Census Bureau, whites were 77.7% of the total 2013 U.S. population, while blacks
1 Lucy Allais, Social Justice and Retributive Justice, Social Dynamics: A Journal of African
Studies 34, no. 2 (August 2008). 129.
2 Ibid., 129.
3 Federal Bureau of Investigations, Table 43, FBI Uniform Crime Reports - Estimated Number
of Arrests, 2013, https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2013/crime-in-the-u.s.2013/tables/table-43.

composed of just 13.2% of the U.S. population total of 316,128,839.4 So even though more
whites were arrested in total numbers, as a percentage of population, blacks were 2.5 times more
likely to be arrested. It might be said that blacks are more likely to disobey the law, and so, they
are more likely to be arrested. However, there is no evidence to prove this; on the contrary, by
examining drug arrests, we find that discrimination is real. According to national survey data
from the U.S. Department of Health and Human Services on illicit drug use and health, they
found that the rate of illicit drug use was 9.5 percent among whites [and] 10.5 percent among
blacks.5 The only outlier was the 17.4 percent of illicit drug uses among people identifying as
two races or more, possibly tainting the results of people who are mixed black/ white, but who
society would still identify as black. However, this could also include those who are mixed
Asian/ white, Native American/ white, and Hispanic/ white and could pass/ be identified as
white. Furthermore, the number of those people dependent or abusing substances was reported
as 7.4 percent among blacks [and] 8.4 percent among whites.6 Despite these statistics, blacks
are 2.5 times more likely to be arrested for illegal drug use than whites, as percentages of
population.7 It would seem that blacks are just as likely as whites to break the law; yet, they are
still more likely to be arrested.

4 U.S. Census Bureau, Population Estimates, July 1, 2014, U.S. Census Bureau QuickFacts,
accessed July 31, 2015, http://www.census.gov/quickfacts/.
5 Results from the 2013 National Survey on Drug Use and Health: Summary of National
Findings (U.S. Department of Health and Human Services, 2013), 26.
6 Ibid, 88.
7 Federal Bureau of Investigations, Table 43; U.S. Census Bureau, Population Estimates, July
1, 2014.

Discrimination for blacks does not end at being profiled/ arrested; it extends into
incarceration as well. When comparing numbers arrested to numbers receiving probation, blacks
actually have a better chance of receiving probation (1 in 3.6, as compared to 1 in 4.8 for whites).
However, when comparing numbers arrested to numbers incarcerated, blacks fare far worse; 1 in
12.6 blacks arrested are sent to prison; however, only 1 in 32.7 whites arrested are sent to prison.
That means even after being arrested, blacks are 2.5 times as likely to end up incarcerated. As a
percentage of population, they are 6.1 times as likely to be newly admitted to prison.8 Moreover,
blacks are more likely to be arrested for violent crimes, and thus, serve longer sentences. In SC,
for example, blacks make up 65% of the prison population, even though they only make up
27.9% of the total SC population.9 For those incarcerated, 66% of blacks are under the age of
40, and 52.2% are serving for 10 years or longer; 54% of white inmates are under the age of 40,
and 46.5% are serving for 10 years or longer.10 Blacks also tend to be charged for more violent
crimes; 67.1% of black males are charged for violent crimes like dangerous drugs, homicide,
assault, robbery, and sexual assault, while 54.3% of white males serve for the same crimes. And
for similar types of crimes, black males are more likely to be charged with the more violent
crime; 16.8% are charged for robbery, as compared to 8.1% of whites, but 13.9% of blacks are

8 Christopher Hartney and Linh Vuong, Created Equal: Racial and Ethnic Disparities in the US
Criminal Justice System (Oakland, CA: National Council on Crime and Delinquency, March
2009).
9 Profile of Inmates in Institutional Count (South Carolina Department of Corrections, June
30, 2014); U.S. Census Bureau, Population Estimates, July 1, 2014.
10 Age Distribution (South Carolina Department of Corrections, June 30, 2014); Sentence
Length Distribution (South Carolina Department of Corrections, June 30, 2014).

charged with burglary, as compared to 20% of whites.11 Whats the big difference between
robbery and burglary, then? There are two the first is that robbery usually involves taking
something from a person, whereas burglary involves entering a structure to steal goods. The
second, and more important difference, is force. According to Mark Theoharis, robbery is
taking something from a person and using force, or the threat of force, to do it.12 Burglary on
the other hand, does not require force. As Theoharis points out, some people mistakenly believe
that you have to use force or violence to enter a structure in order to commit a burglary, but that
isnt the case.13 So blacks are more likely to be incarcerated for a crime that must involve using
force or the threat of force, whereas whites are more likely to serve time for a crime that does not
necessarily include force, though it can. This kind of discrimination only furthers the dangerous
black male stereotype that leads to the kind of false generalizations like black people just
commit more crimes, which, when seeped into society, only increases the discrimination blacks
already receive. Whether intentional or not, it seems the criminal justice system, at the very
least, treats people of color harsher even after they have been profiled and arrested. And life
after incarceration is all but impossible to obtain. As Wakefield and Uggen point out, the

11 Most Serious Offense Distribution (South Carolina Department of Corrections, June 30,
2014).
12 Mark Theoharis, Burglary vs. Robbery vs. Theft: Whats the Difference? | Criminal Law,
CriminalDefenseLawyer.com, accessed August 1, 2015,
http://www.criminaldefenselawyer.com/resources/criminal-defense/criminal-offense/differencesbetween-theft-burglary-robbery.
13 Ibid.

combined effects of racial discrimination and discrimination on the basis of a criminal record can
all but disqualify African American men with criminal records from employment.14

Restorative Justice
How then, do we solve the issues that arise from crime, if we do not value retributive
justice? One solution comes in the form of restorative justice. Major principles of restorative
justice include participation, reparation, and reintegration.15 It focuses on involving the people
and community harmed and punishing the crime, not the offender; thus, by separating the
behavior from the offender, the process becomes less antagonistic and adversarial, thereby
allowing offenders to recognize the consequences of their behavior without a sense of being
attacked by the system.16 The goal is that once the offender recognizes the wrongs of their
actions, and that those actions do not define them, they can work towards reconciliation and
reparation with those they harmed and become reintegrated into society. Rather than focusing on
punishment for the sake of justice, restorative justice focuses on the people the offender, the
victims, and the community.
What does restorative justice actually look like? SC has a few examples. Youth Courts
were developed throughout the nation as a preventative measure against crime for juveniles.
Instead of traditional family courts, Youth Courts are designed so that young people are
14 Sara Wakefield and Christopher Uggen, Incarceration and Stratification, Annual Review of
Sociology, 36 (2010): 395.
15 Holly Elizabeth Ventura, Restorative Justice and Youth Courts: An Examination of
Implemntation Intensity, Recidivism, and Accountability (Dissertation, University of South
Carolina, 2006), 3.
16 Ibid., 14.

sentenced by their peers, typically in either a school or courthouse setting, with the cooperation
of state agencies such as departments of education and juvenile justice.17 Have they been
effective? According to a study conducted by Holly Ventura of three different Youth Court
programs in SC, training is the most significant predictor of both deliberative accountability and
program integrity.18 In other words, in the case of Youth Courts, programs based on restorative
justice have the potential to do well if they are properly enacted. Another example comes in
SCs Youthful Offender Act (YOA). Instead of focusing on juveniles, this act focuses on young
adults aged 17-25. If accepted into the program, the offenders are judged and guided by a
Youthful Offender Division, which will determine treatment and correction on an individual
basis. Generally, however, the goal of the act is to keep youthful offenders out of prison, on
probation, and into programs that allow reintegration into society, including community service
and vocational rehabilitation.19 As with many other programs, it is hard to determine the
effectiveness of these type of programs, but recidivism rates have been dropping in SC, at least
since 2006.20 More research is needed to determine if the YOA is a primary cause.

The Limitations of Restorative Justice

Although restorative justice seems like a promising alternative, there may be a few
unintended consequences, particularly with its implementation. So far, the process has been
17 Ibid., 2.
18 Ibid., 124.
19 South Carolina Legislature, Correction and Treatment of Youthful Offenders, Title 24 Chapter 19, 2011.
20 Recidivism Rates for Inmates Released from FY 2006-2011 (South Carolina Department of
Corrections, June 30, 2014).

focused on those who commit non-violent crimes. Although this could have an enormous impact
on children and young adults who get convicted of minor drug-related crimes, people who
normally tend to be black, it could also work against them. As noted, black males are especially
susceptible to being convicted of violent crimes; thus, how will they benefit from restorative
justice? Furthermore, restorative justice, as it has been implemented so far, neglects those who
have committed violent crimes, thus will it ever become a process that can be used to help
violent offenders? Finally, it seems there is little long-term data to recognize the long-term
effects of restorative justice and if it actually works. Despite these limitations, restorative justice
looks to have a promising future in truly rehabilitating criminals and bringing true justice to
victims, communities, and offenders.

Bibliography
Age Distribution. South Carolina Department of Corrections, June 30, 2014.
Allais, Lucy. Social Justice and Retributive Justice. Social Dynamics: A Journal of African
Studies 34, no. 2 (August 2008): 12839.
Christopher Hartney, and Linh Vuong. Created Equal: Racial and Ethnic Disparities in the US
Criminal Justice System. Oakland, CA: National Council on Crime and Delinquency,
March 2009.
Federal Bureau of Investigations. Table 43. FBI Uniform Crime Reports - Estimated Number
of Arrests, 2013. https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2013/crime-inthe-u.s.-2013/tables/table-43.
Holly Elizabeth Ventura. Restorative Justice and Youth Courts: An Examination of
Implemntation Intensity, Recidivism, and Accountability. Dissertation, University of
South Carolina, 2006.
Most Serious Offense Distribution. South Carolina Department of Corrections, June 30, 2014.
Profile of Inmates in Institutional Count. South Carolina Department of Corrections, June 30,
2014.
Recidivism Rates for Inmates Released from FY 2006-2011. South Carolina Department of
Corrections, June 30, 2014.
Results from the 2013 National Survey on Drug Use and Health: Summary of National
Findings. U.S. Department of Health and Human Services, 2013.
Sentence Length Distribution. South Carolina Department of Corrections, June 30, 2014.
South Carolina Legislature. Correction and Treatment of Youthful Offenders. Title 24 - Chapter
19, 2011.

Theoharis, Mark. Burglary vs. Robbery vs. Theft: Whats the Difference? | Criminal Law.
CriminalDefenseLawyer.com.
http://www.criminaldefenselawyer.com/resources/criminal-defense/criminaloffense/differences-between-theft-burglary-robbery.
U.S. Census Bureau. Population Estimates, July 1, 2014. U.S. Census Bureau QuickFacts.
http://www.census.gov/quickfacts/.
Wakefield, Sara, and Christopher Uggen. Incarceration and Stratification. Annual Review of
Sociology 36 (2010): 387406.
doi:http://dx.doi.org.pallas2.tcl.sc.edu/10.1146/annurev.soc.012809.102551.