Restorative justice
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Can Restorative Justice transform Structural and Cultural Violence?
Jolyon Mitchell, forthcoming in The Blackwell Handbook of Religion and Peace, eds, Jolyon
Mitchell, Lesley Orr, Martyn Percy, and Francesca Po (Wiley-Blackwell, 2021)
This chapter examines restorative justice in the context of religion and peacebuilding. I
first provide an exposition of restorative justice ethics, briefly explaining how and why its
relational constitution enables it to comprise a theory of justice. I then describe how that
relational constitution permits it to overlap, and work in tandem, with a wide range of religious
and philosophical traditions.
Numerous writings in religion and peacebuilding explore the roles that restorative justice
has played in transitional justice contexts (Tutu 2000, Abu-Nimer 2001, de Gruchy 2002, Biggar
2003, Walker 2004, Villa-Vicencio 2009). Less examined are cases in which restorative justice
aims to provide a sustainable alternative to destructive forms of retributive justice. In such
contexts, justice institutions and systems generate substantial systemic injustices—what peace
studies scholars describe as the inter-lacing of structural, cultural, and direct forms of violence
(Springs 2015).
In part two of this chapter, then, I make the case that intervening in, and countering,
structural and cultural violence, and systemic injustices, is conceptually intrinsic to restorative
justice. Moreover, this opens possibilities for restorative justice to present sustainable
alternatives to—and work to transform— structural violence occurring in retributive systems.
Restorative justice can uniquely intervene in these ways, I argue, because of the form of moral
and spiritual association its relational constitution engenders. As a test case, I briefly examine its
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capacity to intervene in the justice system that perhaps leads the world in the levels of structural
and cultural violence—the United States.
Restorative Justice in Transitional Contexts
Restorative justice is, at once, an ethical framework, a theory of justice, and a range of
community-based and victim-centered justice, healing, and peacebuilding practices (e.g.
peacemaking circles, victim-offender mediation, victim impact panels, and conferencing models
of various sorts). This combination of theory and practice has informed a wide range of instances
of “transitional justice.” These frequently take forms of truth and reconciliation initiatives in the
wake of violent conflict and human rights violations (e.g. truth and reconciliation commissions
in South Africa, Chile, Argentina, among numerous others) (Hayner 2001; Llewellyn and
Philpott 2014). Such justice is “transitional” in that, for a designated period of time, it serves
purposes of recovering from a period of stark political upheaval, or to pass through a period of
reconstruction and reform after a period of violence.
South Africa’s Truth and Reconciliation Commission (1995-2000), for example,
employed restorative justice in a transitional mode (Truth and Reconciliation Commission 1998,
Vol. 1, Chap 5., para. 80; Llewellyn 2006). Transition was necessary after the cessation of
violence and human rights abuses after the deposing of the National Party’s apartheid regime of
racial segregation, repression, and violence against people of color (1948- 94). The TRC sought
to facilitate nationally visible investigations, public acknowledgement of politically motivated
violence and killing, and accountability for those harms.
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Positioning restorative justice at the heart of South Africa’s TRC aimed to avoid a
situation in which the victorious side in the conflict simply vanquished its defeated opposition. It
centered and amplified voices of victims, while holding responsible parties accountable, with the
aim of reintegrating (rather than banishing) them from that new socio-political formation (Tutu,
47). The hope was to bring South African society to a point of recovery from which healing and
reconciliation, civil rights, democratic practices, and even civic friendship might be cultivated
and normalized.
Restorative justice values and practices infused South Africa’s TRC. Where there was
silence, the TRC investigated, made public, and dramatized the wrongs committed. Where there
was denial, it required truth telling and information sharing. When possible, it facilitated
confession and apology. Where there was persistent resentment and desire for retribution, the
TRC enacted public rituals that might cathartically process rage and desire for revenge. In effect,
it staged shared moments of remembrance, mourning, and solidarity (Goodman 2006). It sought
thereby to open possibilities for political reconciliation. It promoted healing from harms suffered,
accountability for harms committed, and possibilities for reparations.
Many concede that South Africa’s TRC played a valuable role in promoting forms of
accountability, reconciliation, and societal healing. However, in actually delivering tailored
restitution to harmed parties, the TRC’s results are mixed. Moreover, its success in altering
forms of structural violence inscribed and normalized during the apartheid regime and in deep
colonial legacies (e.g. socio-economic inequalities and marginalization, defacto forms of racial
segregation inscribed in geographic separation, and so forth) have been faint, at best, and at
worst, outright failures (Omar 2020, Villa-Vicencio 2014). Its limited success in this raises a
question for the restorative justice ethics at the heart of South Africa’s implementation of
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transitional justice: Is it possible for restorative justice to redress and transform systemic
injustice and structural and cultural violence?1 Answering this question requires understanding
precisely how restorative justice constitutes a theory of justice.
The Ethics of Ubuntu
Restorative justice ethics and practices derive from global indigenous and aboriginal
justice practices, as well as from historic religious traditions (Hadley 2001; Ross 2009; Van Ness
and Strong 2010, 33-38). For example, restorative justice norms and practices at the heart of
South Africa’s TRC derived from a conception of “relational personhood” at the heart of an
indigenous African understanding of personhood, community, and jurisprudence. Those local
terms invoked “Ubuntu”— a word from the Nguni, South African language group translating,
roughly, “I am because we are.” As South African Anglican Archbishop, and Chairperson of the
TRC, Desmond Tutu, glossed its meaning, “my humanity is caught up, is inextricably bound up,
in yours” (Tutu 2000, 31-32; Louw 2008).
As an ethical framework, restorative justice derives from the basic insight that Ubuntu
conveys, namely, that individual personhood is intrinsically and irreducibly (though not
1 Johan Galtung defined structural violence as the ways that “[i]ndividuals may do enormous amounts of harm to
other people without ever intending to do so, just performing their regular duties, as a job defined in the structure…
Structural violence was then seen as unintended harm done to human beings …as a process, working slowly in the
way misery in general, and hunger in particular, erode and finally kill human beings.” For example, “in a society
where life expectancy is twice as high in the upper class as in the lower classes, violence is exercised even if there
are not concrete actors one can point to directly attacking others, as when one person kills another” (Galtung, 1969,
171). Cultural violence occurs in “those aspects of culture, the symbolic sphere of our existence—exemplified by
religion and ideology, language and art, empirical science and formal science, that can be used to justify or
legitimize direct or structural violence” (Galtung, 1990, 291). “Cultural violence makes direct and structural
violence look, even feel, right—or at least not wrong….legitimates violence and the use of violence” (Galtung,196).
For comprehensive exposition of how these analytical concepts inter-relate with religion and peacebuilding, see
Springs 2015.
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exhaustively) relational. On this understanding, individual persons—in all their distinctiveness,
and the particularities of individual agency— are, nonetheless, persons in and through their
relationships with other persons. From the necessary relationships of absolute dependence and
constant care of infancy and childhood, through the irreducible sociality of shared culture and
language, to the physiological and psychological necessities of meaningful social interaction for
basic mental health and well-being in individual adults,2 relationality is essential to human
personhood.3
Humans always have been, and are, in relationships. The question is whether that
constitutive relationality will be recognized as such, and whether those relationships will be
healthy, meet basic needs, and cultivate human flourishing? Or, will that constitutive
relationality be denied, passively neglected, or engaged destructively? Restorative justice is born
of the insight that just human relationality empowers and facilitates human flourishing. Harm,
destructive conflict, violence (in all its forms), violate and damage the relationality in and
through which human persons flourish. They tear the broader relational webs that constitute
people’s common life together.
Intrinsically relational personhood entails important normative implications. Relational
personhood occurs in mutual recognition of each by the other as one like unto oneself, and thus,
someone deserving of respect and care. From such an inter-relational vantage point, each is an
agent to whom the other is accountable, and thus, someone who ought never be treated
2 Social psychological studies demonstrate that prolonged isolation of individual persons in the form of solitary
confinement drastically increases rates of mental illness, self-harm, and even suicide (Haney 2003). 3 Indeed, as my Notre Dame colleague, Susan Sharpe, states the point, “persons become the persons they do because
of their experiences in relation to other persons and communities.” I am grateful for this, and numerous other
insights, provided by Susan, from her career-long expertise in restorative justice. Our conversations greatly
improved this chapter, as did the rounds of meticulous critical feedback she offered on earlier versions of this essay.
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arbitrarily. Each is— and thus, ought to be treated— as a “Thou” who is constitutively
interrelated with myself as an “I”, rather than an “It” or an object (Buber). The normative
implications of relational personhood prohibit circumstances in which one is (or some are) in a
position to be unaccountable to, and arbitrarily exert power over—to dominate—others. Such
arbitrary relational forms occur, of course. However, as such, they are degenerate and unjust
versions of true human relationality. Mutual recognition of each by the other as a basic form of
personhood means, further, that one’s “other” (one’s ‘Thou’) is a relational partner upon whom
one’s own well-being is inter-dependent (Springs 2020, 173-176). Thus, as Archbishop Tutu
stated in explicating Ubuntu—whether we recognize and honor it or not, “whatever dehumanizes
you, dehumanizes me.”
Mutual recognition, reciprocal accountability, inclusive non-domination, and humanizing
and respectful relations are all normative features of the account of relational personhood from
which restorative justice derives. They will be constituent features of restorative justice practices
to the degree that those practices are conceptualized and implemented in ways consistent with,
and which embody, this normative constitution. In the wake of harm, destructive conflict, and
violence, the justice practices of restorative justice work to repair and heal damaged relationships
and torn relational webs. Beyond such a responsive conceptualization, at their best, restorative
justice practices proactively cultivate, and sustain, forms of community and broader societal
institutions and practices that promote the forms of holistic flourishing that all persons are due.
What puts the ‘Justice’ in Restorative Justice?
A theory of justice is an account of what persons owe to each other (what each is due),
and thus, how persons ought to—and ought not— be treated. Such a theory accounts for why and
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how people ought to recognize each other as persons and citizens, demonstrate respect for each
other, hold each other accountable for the claims and actions each undertakes. The relational
account of personhood from which restorative justice derives entails that social harmony,
compassion, generosity in community is what persons owe to each other as persons. For these
are the ways that people treat each other with mutual respect, compassion, and care. These forms
of treatment cultivate relationships that promote the kinds of holistic human flourishing that all
people are due (the ethical substance of restorative justice).
There is nothing abstract about such a conception of justice. It has a deep history,
numerous expositors, and examples of implementation. As Martin Luther King, Jr, argued in the
late days of the U.S. civil rights movement, such an encompassing concept of justice “is as
concrete as having a good job, a good education, a decent house and a share of power” (King
1968, 95). Moreover, such a vision of justice entails ennobling and enabling respect and
humanizing relations that people are due emotionally, psychologically, and spiritually, all of
which are necessary for their flourishing (King 1968, 115-120). Indeed, this holistic conception
of what persons owe to each other (justice)—and conversely, how persons ought never be
treated— both promotes, and inextricably participates in, a shared or “common” summum
bonum (highest good), an intrinsically social and shared good (Hollenbach 2008, Chap. 7;
Thomas Aquinas, Summa Theologiae II-II, q. 58, art. 6).
To say that the “highest good” toward which restorative justice aims is intrinsically
shared and “irreducibly social” (or a “common good”) is to say that it is actualized only in
proportion to how broadly it is cultivated and made equally available to all. The more broadly a
common good is manifest between people, the more its constituent elements increase. In other
words, the just relationality of mutual recognition, mutual respect, reciprocal accountability, and
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treatment that promotes holistic flourishing—all constituent features of the common good around
which restorative justice is organized—is not a “zero sum game.” It is not the case that
acquisition of those goods by one person entails less (or none) for others. In fact, the opposite is
the case.
Retributive theories of justice, by contrast, typically present a zero-sum equation of
justice. Retribution sees harm or wrongdoing as creating a deficit or debt on one side. The deficit
must be paid back in a common or similar currency in order to right the balance. Conceptions of
justice as “payback in kind” pervade human cultures and run deep in world history. One
frequently cited example dates back to the early 2nd millennium BCE in the ancient
Mesopotamian Code of Hammurabi (1754, BCE), with its injunction to repay “an eye for an
eye.” On such an account, the loss incurred by the harmed party is extracted in similar or
identical currency from the one whose wrongdoing created the deficit. Retributivists typically
conceptualize retribution through practices of punishment. One person caused pain and harm,
and thus must suffer pain and harm (Kant 1996).4
Modern liberal societies concerned to protect basic rights prohibit the exact transposition
of bodily harm for purposes of retributive punishment (e.g. eye = eye). Instead, one convicted of
causing harm pays back through punishment in the form of separation and isolation through
confinement, erasure of one’s freedom, and constriction of one’s basic status as citizen (e.g.
relinquishing certain citizen rights). Such forms of punishment are nonetheless painful, and
4 Immanuel Kant provides particularly famous and influential modern philosophical case for a retributive theory of
punishment in The Metaphysics of Morals (Kant, 104-113). In contrast to Kant’s account, Molly Farneth has offered
a “post-Kantian” reading of Hegel’s social ethics (following in the vein of Hegel scholars such as Robert Pippin,
Terry Pinkard, and Robert Brandom) that demonstrates how the ethical implications of Hegel’s Phenomenology of
Spirit point toward restorative justice values and practices, especially as articulated by Margaret Urban Walker
(Farneth 2017, Chap 7; Walker 2006).
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typically administered in humiliating ways. Frequently, they are destructive of the persons, lives,
families, and communities subject to them.
Punitive societies often accentuate retributive justice through harsh punishment. Harsh
punishment seeks to deter future wrongdoing, and/or to promote the general security of the
society by demonstrating that vindication of the laws of the state is serious and exacting (less
frequently, for rehabilitation). Nonetheless, within such a framing, meting out harsh punishment
entails a minimization and diminishment for the one punished. This equation is “zero-sum” in
that repayment to one entails deduction and transfer from the other.
The intrinsically relational and shared character of the goods that constitute restorative
justice, by contrast, promotes the opposite of a zero-sum equation. This means that addressing
the needs of a party who has been harmed, and putting right the harm to the extent possible,
simultaneously entails respect and restorative engagement of the responsible party (rather than an
extraction and transfer of value in the currency of the incurred deficit). It does this, moreover,
with reference to the context of community, and the societal context more broadly. This requires
encouraging and facilitating the responsible party’s acceptance of responsibility. It requires
opportunities for the person who caused harm to fulfill the reparative obligations of
accountability. It requires opportunities for putting right the wrong that was done as much as
possible (e.g. forms of repair of harms that are proportional and tailored specifically to the
circumstances, the nature of the harm, and the needs of the harmed party, the community, and
wrongdoer, which build up the flourishing and respect the personhood of all involved).
Restorative justice does not seek to “restore” (i.e. recreate) status quo ante conditions.
Rather, it views destructive conflict, harm, and violence as tears in webs of relationships that
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take forms of both direct interpersonal connections, and broader relational networks. It “restores”
in seeking to mend relationality that has been harmed or damaged by meeting basic needs,
restoring accountability through truth-telling, repairing and healing harms, and up-building and
sustaining healthy and nurturing relationships.
Accountability
Critics contend that certain forms of restorative justice promote impunity toward laws. In
displacing the norm of retributive punishment it risks “letting wrongdoers off the hook.”5 In
fact, restorative justice takes accountability and responsibility very seriously. For a wrongdoer to
participate in restorative justice processes, he or she must make him or herself accountable, and
accept responsibility for the harm he or she has caused (Johnstone 2013). Moreover, some argue
that restorative justice practices and values are not intrinsically at odds with certain forms of
punishment (e.g. restorative punishment) (Brunk 2001; Duff 2002).
By contrast, justice systems that center upon retributive punishment often incentivize the
denial of responsibility by those accused of causing harm or wrongdoing. In some cases, it may
also incentivize false confession in the form of plea-bargaining, a practice in which a defendant
pleads guilty to a lesser charge in exchange for a reduced punishment from the prosecutor. The
retributive legal frame positions a defendant as an opponent to a prosecutor. This creates an
adversarial orientation that motivates the diminishment of accountability. For a defendant to
deny culpability, and maintain innocence, is strategically advantageous. Maintaining one’s
5 The South African TRC was especially prone to this criticism. It granted amnesty from punishment for offenders
who underwent the TRC process. Those desiring to participate had to apply and have their cases vetted and
accepted. The harms they had caused had to be identifiably political in motivation and character. The applicant had
to agree to tell the entire truth when testifying before the commission in a public (nationally broadcast) venue.
Otherwise, they would be subject to standard criminal indictment.
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innocence at least forces a prosecutor to prove (i.e. win) their case. As a result, the goal of a
criminal trial often has very little to do with establishing an accurate account of what occurred
(e.g. through information sharing and truth-telling), much less attending to the needs of the
victim. In a trial, the primary goal is to win. The return for winning is either ascription of guilt
and punishment of the accused, or their being declared “not guilty.”
A prosecutor may or may not represent the needs and concerns of the harmed party, as a
central purpose of criminal prosecution is vindication of the laws of the state and reinforcing the
security of the society. Paradoxically, then, denial of responsibility and refusal of accountability
end up promoted by retributive punishment within an adversarial legal framework. This
constitutes a kind of impunity. It discourages, or dis-incentivizes, intentional efforts at truth
telling and information sharing, making oneself accountable and accepting responsibility,
listening and responding to the needs of those one has harmed, and putting right the wrongs that
were caused with the victim’s needs, and specific community needs, in view.6
Forgiveness
Its relational conception of personhood, and holistic account of human flourishing,
imbues restorative justice with an ethical, but also a spiritual dimension. These dimensions
enable its practices to work within contexts of, and in tandem with, a wide range of religious
traditions, and their conceptions of justice, mercy, and peace (Hadley 2001). As an ethical
framework and spiritual ethos, it marks out an area in which particular religious traditions and
philosophical conceptions of personhood can achieve considerable degrees of overlapping
consensus (Philpott 2012). Restorative justice, itself, is not necessarily religious, however. Many
6 For a powerful exposition of the pivotal role that accountability plays in restorative justice, see Sered, 79-106.
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thinkers and practitioners who do not identify with a particular religious tradition can find entrée
through humanistic and philosophical paths into the relational conceptions of personhood from
which restorative justice ethics derive (Nedelsky 2011; Llewellyn 2012; Sharpe 2013).
Because restorative justice often emerges from (or finds reinforcement in) particular
religious traditions, some such versions may espouse forgiveness from religious and spiritual
tradition-specific reasoning and orientation. Critics protest that restorative justice promotes
forgiveness, and thus pressures victims to embrace a practice and value that is specific to a
religious tradition that they may not espouse. On this account, in as far as restorative justice
espouses reconciliation, or the victim’s forgiving the offender, it exemplifies the hazard of
imposing religion-specific values upon practices of law and public justice. This is not necessarily
the case.
For example, working explicitly within a Mennonite Christian “peace church” tradition,
Howard Zehr invokes the New Testament teachings and story of Jesus as a basis for forgiveness,
facilitated by lament and prayer. He argues that, in restorative justice, forgiveness empowers the
victim by releasing him or her from the hold of the wrongful act and the wrongdoer (Zehr 2005,
45-50). On this Christian understanding, forgiving can aid the reduction of, and gradually
process and cleanse, persistent anger, fear, shame, and desire for revenge. It can enable the
victim to move forward in ways that are not oriented by, or tethered to, an experience of harm
and the actions of a wrongdoer. As such, forgiveness is a process of self-empowerment.
“Forgiveness is letting go of the power the offense and the offender have over a person. It means
no longer letting that offense and offender dominate. Without this experience of forgiveness,
without this closure, the wound festers, the violation takes over our consciousness, our lives. It,
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and the offender, are in control. Real forgiveness, then, is an act of empowerment and healing. It
allows one to move from victim to survivor” (Zehr 2005, 47).
At the same time, Zehr argues that religious tradition-specific notions of forgiveness are
not essential to restorative justice. Restorative justice practices may provide contexts within
which forgiveness and interpersonal reconciliation can organically emerge. However, by no
means is forgiveness a prescribed telos or goal at which all versions of restorative justice must
aim. People find different ways of “letting go” of pain and anger, of healing from harms they
have experienced, and moving from victim to survivor. In the general understanding of
restorative justice, then, following a particular religious or ethical prescription to “forgive” or to
reconcile with a wrongdoer is a decision left to the participant. “There should be no pressure to
choose to forgive or to seek reconciliation,” Zehr writes elsewhere (Zehr 2002, 8).
Consistent with this, restorative justice researchers, Marilyn Armour and Mark Umbreit,
conducted a broad study of the effectiveness of restorative justice initiatives. They looked at the
self-reported impact upon participants in reducing anger, anxiety, feelings of shame, and fear, as
well as reported increase of sympathy for the responsible party. They discovered what they
describe as a paradox of forgiveness in restorative justice practice. Namely, the more that
initiatives prescribed forgiveness as a goal of a restorative justice, the more likely were
participants to report feeling pressured or “preached at” regarding the goal of the process that
they should embrace (i.e. forgiveness and reconciliation). They reported these as truncating their
experience of healing and recovery in the process. This sometimes compromised the safety of
the space in which they practiced restorative justice. By contrast, when initiatives did not
foreground forgiveness as a specific objective or prescription, participants self-reported
comparatively higher experiences of safety and healing, reduction of anger and anxiety, an
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increased sense of agency, the ability to experience empathy, compassion, and a changed attitude
toward persons who had harmed them—features that some consider characteristic of forgiveness.
In other words, the more forcefully forgiveness was explicitly prescribed, the less it tended to
actually manifest. The less forgiveness was explicitly proposed, the more elements often
considered constitutive of forgiveness tended to emerge oganically (Armour and Umbreit 2005).
Whether in the context of a religious tradition or not, forgiveness and/or reconciliation should be
central in restorative justice in so far as the harmed person finds them helpful or necessary for
meeting their needs, assisting in their healing and recovery, and resulting organically from their
informed, freely chosen decision, and/or personal commitments.
The forgoing thumbnail sketch of the ethical framework, the intrinsically relational
account of justice, and spiritual resonances of restorative justice portray its uses in response to
direct violence, and in mainly transitional circumstances. In the remainder of this chapter, I
examine the extent to which community-based restorative justice initiatives may (or may not)
address structural and cultural violence, focusing on the racialized dimensions of U.S. mass
incarceration.
Restorative Justice, Structural Violence, and the New Jim Crow
At the outset of this chapter I claimed that the necessity of attending to structural and
cultural forms of violence, and systemic injustice, is conceptually intrinsic to the accounts of
relationality from which restorative justice derives. In the paragraphs that follow, I make my case
for this claim with reference to the context of the U.S. prison-industrial complex, and more
specifically, a form of structural and cultural violence there identified as the new Jim Crow. I
argue that restorative justice ought not merely concern itself with healing and repair. Rather, it
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can and must simultaneously strive to illuminate structural and cultural forms of violence, and
facilitate change.
Human relationships never occur in a vacuum. They are embedded in particular social
locations. Those locations have histories reflected in the socio-economic, political, and cultural
dimensions of the contexts in question. Thus, in order to fully address the justness of relationality
in a given context, restorative justice cannot limit itself to attending to particular interpersonal
relationships, or even the broader relational webs there. Rather, it must simultaneously attend to
the structural and cultural constitution of the relational contexts, and the relational patterns, in
and through which particular relationships occur, and broader relational webs unfold, within that
context.
In as far as it promotes the genuinely holistic just relationality exposited above,
restorative justice must illuminate and work to counter structural and cultural violence through
(rather than in contrast, or somehow secondary, to) cultivating inter-personal, communal,
societal relational forms that promote human flourishing. It must illuminate and resist those that
do not. In other words, at its best, restorative justice can and must attend to the structural causes
and conditions of harm, as well as cultural conditions that may appear to justify (or camouflage)
that harm. Conversely, at their best, restorative justice practices and initiatives can and will
proactively promote just structures and cultures, even as they cultivate just relationships among
persons and communities. How might this occur? I briefly examine structural and cultural
violence in U.S. mass incarceration as a test case.
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The United States incarcerates more of its citizens than any other country in the world.7
Though long recognized for excessively incarcerating poor people, recent decades have exposed
savage disproportionalities in the rates by which the U.S. imprisons its Black and brown
citizens.8 Scholars now describe the U.S. prison-industrial complex as a caste system that
discriminates by race and ethnicity—what legal scholar, Michelle Alexander, famously termed
the “new Jim Crow” (Alexander 2012). The new Jim Crow presents pervasive forms of structural
and cultural violence, and thus, a formidable challenge to restorative justice.
“Jim Crow” refers to the pre-Civil Rights movement era in the United States. It was
characterized by legalized forms of discrimination, segregation, and terrorism of Black and Brown
people under the “separate but equal” (read “apartheid”) doctrine established by the U.S. Supreme
Court case, Plessy vs. Ferguson (1896; reversed in 1954), as well as countless state laws and local
ordinances. The Jim Crow era imposed social controls through “colored only” laws (e.g. segregated
bathrooms, buses and trains, water fountains, pools, seating, and so forth), voting restrictions and
prohibitions for African Americans, “vagrancy laws” and “black codes” allowing police to arrest
Black citizens and detain them indefinitely for hard labor, as well as countless other forms of
exclusion and marginalization. The “Jim Crow” period between 1877 and 1950 witnessed 4,384
racial terror lynchings, a primary instrument of enforcement for local Jim Crow laws and norms. 9
7 Though it contains only 5% of the world population, the United States accounts for 20% of the world’s
incarcerated population. As of 2017, the U.S. population of incarcerated persons reached roughly 2.2 million
(representing an 11-fold increase in the U.S. prison population since the late 1960s). The criminal justice system
population (including parole and probation) stands at roughly 7 million. 8 African Americans constitute 13% of the general U.S. population, but make up 40% of the incarcerated population
(Wagner and Sawyer 2018; on the impact of poverty see Reiman and Leighton 2016). 9 Equal Justice Initiative, “Lynching in America: confronting the legacy of Racial Terror,”
https://lynchinginamerica.eji.org/report/ (accessed October 22, 2019).
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The “new Jim Crow” is an apt term to describe a racialized caste system manifest by the
broader “prison industrial complex” that has emerged in the U.S. since the end of the Jim Crow era
(the late 1960s). The contemporary U.S. mass incarceration system, in effect, replicates many of the
forms of social control through discrimination and marginalization of minority populations that were
prevalent during the original Jim Crow era. The new Jim Crow segregates and marginalizes through
apparently legal, structural, and cultural forms of violence. “Tough on crime” and “War on Drugs”
legislation, policing, and jurisprudence disproportionately target minority populations, especially
Black and Brown.10 Moreover, to have a criminal record is to become “locked out of mainstream
society.” For example, people convicted of a felony, or people charged with a felony who plead
guilty in a plea bargain, are often denied the right to vote (“felon disenfranchisement”), become
ineligible for public housing and federal nutrition assistance programs, ineligible for federally-
funded health and welfare benefits, and ineligible for federal student loans (Mauer and Chesney-Lind
2002). The highly racialized disproportions of the results produce, in effect, a racial caste system
which permanently marginalizes certain racial and ethnic groups. Can restorative justice address the
structural and cultural forms of violence perpetrated in the new Jim Crow?
Restorative justice recognizes that the retributive conception of justice in the U.S.
ultimately promotes the very state of affairs that it purports to combat (Reiman and Leighton).
10 In the U.S. “more than 60% of the people in prison today are people of color. Black men are nearly six times as
likely to be incarcerated as white men and Hispanic men are 2.3 times as likely. For black men in their thirties, 1 in
every 10 is in prison or jail on any given day” (Carson 2015). The War on Drugs launched by the Richard Nixon and
Ronald Reagan Presidential administrations (1971/1982) included exceptionally punitive sentences for drug-related
offenses. Designations such as “intent to sell” allowed misdemeanor offenses to be re-classified as felonies. Other
examples include arrest disparity between white and black users of marijuana. Though white and black U.S. citizens
use marijuana at the same rates, black citizens are four time more likely to be arrested for marijuana use. Another
example is the sentencing disparity between crack cocaine and powder cocaine. In the 1980s, crack was a form of
cocaine common to predominantly African American, urban neighborhoods. Powder cocaine was more common in
upper class, predominantly white social circles. Though the controlled substance involved are chemically identical,
the sentencing disparity between crack and powder cocaine was 100:1, with a 5 year minimum sentence for first
time possession of crack (5 grams) (Baum 2016; United States Sentencing Commission 2002; Edwards, Bunting,
Garcia 2013).
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Retributive punishment punishes by isolating and incapacitating persons. It thus further damages the
very relational forms that must be cultivated—where necessary, repaired and/or altered— to achieve
the just relationality that promotes the flourishing of persons, communities, and societies more
broadly. The U.S. retributive system ignores the concrete needs of victims, the humanity of
offenders, the destructive impacts of crime upon communities, and the structural causes and
conditions that precipitate and perpetuate the criminalization of people and groups. Restorative
justice can contest the cultural and conceptual presuppositions that make the punitive features of the
new Jim Crow seem or feel “right,” or “at least not wrong,” by conceptually challenging, and in
practice, displacing, retributive punishment practices as the necessary form of justice (or supposed
“true” meaning of justice).
Of course, if we take seriously Alexander’s historical and socio-political account of the
new Jim Crow, then restorative justice cannot simply seek to counter the savage disproportionality of
retributive punishment that fuels mass incarceration with greater proportionality. Nor can it merely
respond to putative wrongdoing in merely “kinder, gentler” forms of correction. Rather, it must
recognize mass incarceration in the U.S. as a racialized caste system. This requires not just
responding differently to crime, but calling into question what gets classified and categorized as
crime in the first place, and why. It requires interrogating which people or groups come to be
profiled for, and ascribed, these violations, how those patterns and profiling trends came to be, and
what holds them in place. It requires thinking in terms of de-criminalization (especially of draconian
“war on drugs” laws, but countless others as well) as a means of decarceration. It must illuminate the
historical racism that drives U.S. mass incarceration, and promote anti-racist policies and practices as
a result. Can restorative justice respond in these ways?
19
Recall, as a theory of justice, restorative justice intrinsically works to dislodge the victim,
offender, and community relational webs from being oriented by, and locked into, a state-centric,
retributive-punishment conception of justice. This can challenge, and facilitate practical
alternatives to, the structural formation of the contemporary U.S. criminal justice system in
several ways.
Restorative justice practices can effect a “taking back of power” from a state-centric
system that renders participants passive and persistently disempowers them. It can do this, in
part, by empowering all parties to the restorative justice practice as direct participants, with
agency and voice, rather than as passive patients of the system. For example, members of
peacemaking circles that respond to harm and wrongdoing will often generate “repair of harm”
agreements in which the emergent consensus of the restorative justice practice is binding, rather
than imposed from outside by a prosecutor and/or judge. Such justice is restorative in so far as
the circle practices of relationship building cultivate an inclusive “non-dominated consensus”—
consensus in which all participants have meaningful input and voice, are accountable to each
other, attended to and respected and treated fairly in the process (Braithwaite and Petit, 155).11
This practice of justice wrests power back from a system structured in a way in which
prosecutors, judges, administrators or other representatives of the system operate without (or
with little) accountability to persons accused of wrongdoing, and even without substantial
11 Again, I owe thanks to Susan Sharpe for pushing me to be increasingly precise in articulating this. I need also
note that I delineate reciprocal accountability as a feature of constitutive relationality. Each is accountable to the
other in virtue of the basic form of relationality in which persons, as persons, are caught up together. Reciprocal
accountability does not entail parity of accountability between partners to specific interpersonal relationships vis-a-
vis circumstances of harm. For example, a victim of harm by no means shares parity of accountability with the
responsible party regarding the harms done to them. They are not accountable at all for that. However, reciprocal
accountability still inheres in the basic form of relalionality in such a circumstances. For an example of reciprocal
accountability that illuminates the non-parity between a victim and a responsible party in circumstances of harm, see
Sered, 115-118. Again, my gratitude to Susan Sharpe for pointing out the need to clarify this.
20
accountability to the victim, or the community impacted by the harm. In this, restorative justice
has the capacity to challenge and overturn a form of cultural violence that Johan Galtung
identified as marginalization, a dynamic that keeps those subjugated on the outside
(disconnected from decision-making processes that directly affect them, and without even
information about how such decision processes are made and implemented) (Galtung 1990: 294).
Restorative justice practices, by contrast, contribute to genuine relational justice in so far
as they afford active agency to all participants in the substantive practice of justice (understood,
in such cases, in terms of relational repair of harms). They enact mutual accountability, each to
the other, through speaking truthfully, attuned listening, and tailored response, decision-making,
and action for purposes of repair. The justice of restorative justice is enacted, in part, by
illuminating and amplifying the ways that each participant is a somebody, not a nobody
(Braithwaite and Petit, 152). Each member in the circle commands respect through finding,
formulating, and conveying their story in their own voice. This takes power back from the state’s
top-down implementation of laws that target and categorize communities of color in the U.S.
Consider a further example. The U.S. war on drugs culturally manifests in ways that
stigmatize people and communities of color. The neighborhoods in which they live become
portrayed as ganglands and ghettoes (Alexander, Chap. 3). The broadly shared perceptions of the
people groups who are putatively most likely to engage in crime, and the spaces most likely to be
criminalized, is a manifestation of cultural violence that has long stigmatized these groups of
people and the places where they live.12 This is a stigma projected onto the people and
12 This notion was disseminated in perhaps it’s most influential form in Moynihan 1965. For historical account of
the emergence and development of such cultural perceptions, see Taylor 2016: 21-50. Alexander counters, “The
absence of black fathers from families across America is not simply a function of laziness, immaturity, or too much
time watching Sports Center. Thousands of black men have disappeared into prisons and jails, locked away for drug
21
communities in question. It is promoted (sometimes passively accepted and naively
unquestioned) by people who benefit from these groups’ stigmatization. At the same time, such
stigmas also risk being internalized by many members of the stigmatized group. This reflects a
two-fold dynamic of cultural violence that Galtung called fragmentation and penetration.
Fragmentation refers to a dynamic by which structural violence internally divides
marginalized groups, and incapacitates their pursuit of solidary resistance by keeping them
separated, and divided against, one another (Galtung 1990, 294). It is one way that the new Jim
Crow differs most profoundly from Jim Crow. Racialized stigma during the earlier Jim Crow era
(legalized inequalities and terrorism of black communities) actually generated community
solidarity, and motivated collective resistance among the oppressed group. “[R]acial stigma
during Jim Crow contained the seeds of revolt” (Alexander 196). The stigma of “criminality,” by
contrast, has “…destroyed networks of mutual support, and creat[ed] repressive silence about the
new caste system among many of the people most affected by it.” Fragmentation suppresses
possibilities for the very forms of collective action necessary to challenge and dismantle the mass
incarceration system. Indeed, the system is all the more insidious in that it induces some people
in those communities to appeal for further and harsher “tough on crime” policies in their own
communities. Thus, the very social and communal bonds upon which community organizing
(and any broader social movement) depends are shamed and stigmatized in ways that result in
silencing and repression—and even an insidious inversion— of the mutual support and relational
agency through which a bottom-up response for constructive change could coalesce.
crimes that are largely ignored when committed by whites” (Alexander 175; see also Wolfers, Leionhardt, and
Quely 2015).
22
Penetration is another form of cultural violence that Galtung names, and which
especially targets people of color in a society infused by white supremacist structural and cultural
features. In this dynamic, the perceptions of value, meaning, the conceptions of beauty and self-
esteem that characterize the regime of oppression come to be “implanted within” the oppressed
(Galtung, 1990: 299). A frequent result is that what the oppressed comes to desire, value,
consider beautiful, aspire to become, are absorbed from (or oriented by) the regime of
oppression. This can be an especially powerful form of racialized cultural violence. Martin
King identified this as a dynamic needing to be overcome by African Americans in order to
successfully pursue true justice, and their own liberation. King described it as “cultural
homicide.” It occurs in many forms of psychological and spiritual captivity to the valuations of a
society saturated by white supremacist values, resulting in self-abnegation and a pervasive sense
of “nobodiness” (King, 1968: 90-95). It is a manifestation of penetration.
Of course, penetration afflicts the beneficiaries of the white supremacist dynamics of the
new Jim Crow as well. As King diagnosed it, the valuations of a white supremacist society
creates a false sense of “normalcy” and “privilege” in white people. It is a false normalcy and
illusory esteem because it is predicated upon social formations that treat unjustly and subjugate
African Americans (and non-whites, more generally). It is not true relationality, and thus cannot
be the basis for true relational justice. The white supremacist structures and cultures that
dehumanize people of color, thus, also dehumanize and distort the personalities of white people
(reflecting a central implication of Ubuntu from above—“whatever dehumanizes you,
dehumanizes me”). While its destructiveness for white and Black people are never simply
equivalent, nonetheless, white supremacy penetrates the hearts, minds, and souls of white people
in ways that dehumanize them (Mikulich, Cassidy, Pfeil 2013: Chap 2).
23
At this point the relational ethic and ensuing spiritual ethos of restorative justice can
make multiple interventions. I will examine two. As a practice of restorative justice, the slow,
trust-building through listening, truth-telling, and deliberation in peacemaking circles can
illuminate, interrogate, and combat dynamics of penetration. As such, restorative justice can
function as a form of critical praxis (Freire 2016, 51-55). Where intentionally undertaken, it can
afford means by which, as James Baldwin put it, “that we, with love, shall force our [white]
brothers to see themselves as they are, to cease fleeing from reality and begin to change it”
(Baldwin 1963, 22-23). In these ways the relational nature of the justice which constitutes
restorative practices—in so far as it is genuinely actualized— combats the cultural violence of
penetration in its multiple directions.
Second, restorative justice has the capacity to counter the stigmatization (or humiliation)
through which fragmentation occurs for all stakeholders affected by wrongdoing (and
criminalized wrongdoing, especially)— acids that denude the prospects for solidary action and
organizing. For example, it can challenge the imposition of the “criminal” label by the state and
broader societal perceptions by affording space to, and centering the voices of, the individuals
and community members caught up in harm, wrongdoing, destructive conflict, and violence in
all its forms. Community-led peacemaking circle initiatives can problematize, and challenge,
top-down labeling and categories imposed by the criminal justice system. At the same time,
peacemaking circle practices can facilitate the cultivation of local relationships oriented by trust
building and truth telling that can counter the community fragmenting acids of stigmatization
through criminalization. At their best, restorative justice resists fragmentation through practices
of genuine care, compassion, concern, and love. As a form of bottom-up community building,
sustained over time and scaled outward, this can combat the violence of fragmentation.
24
The dynamics of penetration, stigmatization, fragmentation, and marginalization13 of
communities that are criminalized within the U.S. prison-industrial complex drives what the
public philosopher and religious thinker and activist, Cornel West, identifies as a form of
“nihilism.” On West’s account, nihilism is an existential, lived condition, characterized by the
absence of shared concern, interpersonal compassion, care, and social hope. As West has it,
nihilism is “the lived experience of coping with a life of horrifying meaninglessness,
hopelessness, and (most importantly) lovelessness. . . . Nihilism is a disease of the soul.” He
explains, “Nihilism is not overcome by arguments or analyses; it is tamed by love and care. Any
disease of the soul must be conquered by a turning of one’s soul. This turning is done through
one’s own affirmation of one’s worth and interwoven with one’s concern of others. A love ethic
must be at the center of a politics of conversion” (West 2017, 14-15, 18-19).
Here the spiritual ethos of restorative justice becomes especially pertinent for the
practices of religion and peacebuilding in contexts beset by forms of structural and cultural
violence described above. When implemented consistently with the normative implications of its
relational constitution, practices and initiatives of restorative justice will not merely divert people
from, or moderate, disproportional punishment, nor even merely heal and repair particular harms.
Rather, they will cultivate and build human relationships that reflect holistic relational justice,
and thus, manifest compassion, care, love, offer hope, meaning, and empower agency for
resistance to subjugation, and further constructive action for change. In this, restorative justice
concepts and practices can illuminate and directly counter structural and cultural forms of
violence that impact consciousness formation, the effects of which tend to write themselves upon
13 This is not an exhaustive list of the forms of structural and cultural violence, nor the ways that restorative justice
practices and initiatives resist those dynamics. I focus my treatment on these to due to limitations of space.
25
the mind, heart, human spirit, and which fragment communities—all of which are exerted by
contemporary legal and social structures in the U.S. Restorative justice is able to counter
criminalization and stigmatization by re-positioning (centering) people and communities
enmeshed in the criminal-justice system as participatory, resistant agents, and stakeholders in
practices of holistic, relational justice, rather than passive patients. They participate through
practices that repair the harms affected by destructive conflict by centering and meeting the
needs of the victim, and others affected. They hold accountable through ennobling, reparative,
tailored participation by responsible parties, and other parties as well. They reposition the
community as a central participant in investigating and altering the causes and conditions that
precipitated the harm. This can reclaim communal agency and identities from a system-led,
prison-industrial complex to which all parties are beholden as passive recipients (Davis 2003). It
can illuminate and challenge the histories and processes by which certain actions, people, and
communities become criminalized—and, thus, stigmatized— in the first place. As a restorative
justice practice can cultivate non-dominated consensus that is binding and final for “repair of
harm” agreements, so can it also determine that a particular action ought not be categorized as
“criminal” in the first place, and respond accordingly. Local neighborhood and community
initiatives can—and have—scaled outward to form collaborative networks of restorative justice
initiatives that provide parallel, alternate, or critically cooperative arrangements with
contemporary systems (Johnson).
As an ethical framework, an account of justice, and set of peacebuilding practices—
which can facilitate the building of community-, city-, or society-wide networks of initiatives—
restorative justice can offer means for building a “durable, interracial, bottom-up coalition for
social and economic justice” to illuminate and combat the new Jim Crow (Alexander 243). It can
26
also guard against such a caste system being, in effect, preserved or re-instantiated through what
appear to be vital reforms, and corrections to, that system (Alexander 2018). Thus, restorative
justice presents theory and practice that interweaves with the broader field of religion and
peacebuilding. In principle, it can intervene in and counter structural and cultural violence. To
determine the extent to which it successfully does so requires concretely examining the
initiatives and contexts in which it is implemented.14
14 I find these claims vindicated in extensive fieldwork across the south and west sides of Chicago conducted for my
forthcoming book Resurrection in Back of the Yards: Restorative Justice, Lived Religion, and the New Jim Crow on
Chicago’s South and West Sides.
27
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