1

HOW PATTERNS OF THINKING CAN

OBSTRUCT JUSTICE

Key Concepts

• Patterns of thinking—their strengths and limitations

• An ancient pattern of thinking about justice: Justice is relational

• Historical shifts in thinking about crime

• Current pattern of thinking: Justice is impersonal

• Restorative Justice: An alternative pattern

PATTERNS OF THINKING

T
he young woman watched intently as the man who raped her was sentenced to prison. But as the
person convicted of rape was escorted from the courtroom, it was clear to Justice John Kelly that
she was no less distraught than she had been throughout the court proceedings. So, before the
next case was called, Justice Kelly asked the woman to approach the bench. He spoke with her briefy
and quietly about what had just happened, and he concluded with these words: “You understand that
what I have just done here demonstrates conclusively that what happened was not your fault.” At that,
the young woman began to weep and fed from the courtroom. When Justice Kelly called her family
several days later, he learned that his words had been words of vindication for the woman; they marked
the beginning of her psychological recovery. Her tears had been tears of healing.
Copyright © 2022. Taylor & Francis Group. All rights reserved.

A short time later, this Australian judge spoke at an international conference on criminal law
reform held in London. Speaking to 200 judges, legal scholars, and law reformers from common law
countries, he laid aside his prepared comments and spoke with great feeling about the need for crim-
inal law practitioners to view themselves as healers. A purpose of criminal law, he said, should be to
heal the wounds caused by crime—wounds such as those of the woman who had been raped. For
her, even the conviction and sentencing of the man who had done this to her had not been enough.
The rehabilitation model of criminal justice has been the most infuential school of thought in
criminology in the past 200 years. Although the model fell into disrepute among criminal justice
policymakers in the latter decades of the twentieth century, opinion surveys suggest that the desire
to rehabilitate people who have harmed others through crime remains strong among members of
the general public and even many people who have been harmed.1 At a fundamental level, we rec-
ognize that criminal justice should consider not only whether those accused of committing crimes
have violated the law but also why they have done so. However, even when rehabilitation programs
DOI: 10.4324/9781003159773-2

Van, N. D. W., Heetderks, S. K., Derby, J., & Parker, L. L. (2022). Restoring justice : An introduction to restorative justice. Taylor & Francis Group.
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 4 Part 1 The Concept of Restorative Justice

are helpful in addressing the underlying problems that led to the decision to commit a crime, those
programs fail to address all the harm surrounding the crime. Crime is not simply lawbreaking; it
also harms others. In fact, that is often why those activities have been criminalized—to prevent those
injuries from happening.

Crime is not simply lawbreaking; it also harms others. That is: the reason for criminal laws to prevent
those injuries from happening.

As we will see, these injuries exist on several levels and are experienced by those who were dir-
ectly harmed, by their communities, and even by the persons who caused the harm. However, the
current policies and practice of criminal justice focus almost entirely on the lawbreaker, fltering out
virtually all aspects of crime except questions of legal guilt and punishment. This is because a set
of assumptions, or a pattern of thinking, structures our perception of crime and, consequently, our
sense of what a proper response should be. Howard Zehr’s description of paradigms is pertinent here:
“They provide the lens through which we understand phenomena. They shape what we ‘know’ to
be possible and impossible. [They] form our common sense, and things which fall outside … seem
absurd.”2
Patterns of thinking are necessary because they give meaning to the myriad bits of data we must
deal with in life. Edward de Bono uses the example of a person crossing a busy road:

If, as you stood waiting to cross the road, your brain had to try out all the incoming information in
different combinations in order to recognize the traffc conditions, it would take you at least a month
to cross the road. In fact, the changing conditions would make it impossible for you ever to cross.3

To avoid this problem, the brain uses “active information systems” to organize data into patterns of
thinking that allow us to quickly make sense out of the chaos of information that would otherwise
overwhelm us. A pattern of thinking is like the collection of streams, rivulets, and rivers formed over
time in a particular place by the rainfall; once the pattern of water runoff is established, rainwater will
always fow there, and nowhere else.

A fundamental weakness of patterns of thinking is that they limit what we perceive; we see only what
makes sense in the pattern.
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However, the reason for their usefulness is also a fundamental weakness of patterns. They limit the
data we perceive. We see only what makes sense in the pattern; we simply do not recognize “absurd”
information. Therefore, one sign that a pattern of thinking has become defcient is that we increas-
ingly encounter troublesome data that do not ft. We are then forced to make a choice either to dis-
regard that evidence or to seek a new pattern. For example, at one time, scientists believed that the
Earth was fat, and that the universe revolved around it. However, as astronomers recorded the actual
movement of heavenly bodies, this model became increasingly less satisfactory. When Copernicus
proposed that the Earth revolves around the sun—not the other way around—his model offered a
much more satisfactory explanation of observable data.
It is normal to think that the way we understand or do something is not only the right way but also
the only way, until we encounter other approaches and recognize that they present alternatives. We may
not adopt those alternatives, but the beneft to having encountered them is that we realize we have
choices. The idea of neuroplasticity has emerged from a recent change in scientifc understanding of

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 1 Patterns of Thinking Can Obstruct Justice 5

how the brain works. It is not, as was thought for 400 years, a machine whose parts have pre-assigned,
specifc functions. Rather, the brain not only shapes mental activity, but it is shaped by mental activity.
Patterns of thought need not be static, but can change.4 When people travel abroad, read, watch tele-
vision programs, go to museums, listen to podcasts or music, they discover that other people in other
times and places have made different choices, and that those choices have had consequences. And
even as they experience differences, they also notice things they have in common and may come to a
changed understanding of what it means to be human.

Exposure to other ways of doing things helps us recognize patterns of thinking, allows us to refect
on alternative approaches, and offers us the opportunity to make choices.

In other words, exposure to other ways of doing things helps us recognize patterns of thinking,
allows us to refect on alternative approaches, and offers us the opportunity to make choices.
Consider criminal justice. When we hear about a crime, we “know” that someone has been
charged with breaking a law. That law may be justifed on the grounds that it protects individuals
(like laws about burglary), the community (like laws about drug dealing), or the government
(like laws about paying taxes). We also “know” that there are laws to protect those who have
been harmed, and that the person responsible for the crime should be caught and held account-
able for breaking those laws. We “know” that criminal cases involve government prosecution of
people accused of causing criminal harm to determine whether they did in fact break the law.
We also “know” that those who are guilty are sent to prison as punishment or may be “given a
break” and placed on probation. We may have opinions about whether the person was actually
guilty, or about whether the sentence was just, but we seldom, if ever, question the underlying
assumptions of the process. Crime is lawbreaking; the focus after crime should be on the person
we believe did it, and once found guilty they should be punished, such as by having their liberty
taken away or curtailed in some way.
Yet, nagging questions surface from time to time, prompted by events or intuitions that do
not ft neatly within the pattern. Perhaps the most profound and obvious ones have to do with
the people who were harmed. Why are some so dissatisfed with how the criminal justice system
treats them? Is it wrong when they want to have a say in how the police conduct the investigation,
or how the prosecutor presents the case, or what sentence the judge gives the person convicted of
harming them?
If the criminal justice system is fair, why are people of color and other marginalized groups so dis-
proportionately impacted when compared to their representation in the population? Imprisonment
has a long-lasting negative relationship to the ability of those who have been locked up to reestablish
Copyright © 2022. Taylor & Francis Group. All rights reserved.

themselves when they return to society. Instead of reducing crime, imprisonment results in high rates
of repeat offending among those who did time before. Yet, US incarceration rates increased fvefold
between the early 1970s, when it was less than 100 people per 100,000, until it peaked in 2007 at 762
people per 100,000. Only then did policymakers take notice of the fnancial impact of this practice,
and incarceration rates began a slight decline. As we will see, the institutions of criminal justice were
developed in large part to achieve rehabilitation. For two centuries, Americans and Europeans have
experimented with a succession of programs to accomplish this purpose. Every attempt has ended in
disappointment. Is there anything we could do differently that might get better results?
We suggest in this book that the way we think about crime is inadequate. By defning crime as
lawbreaking and then concentrating on the adversarial relationship between the government and the
defendant, we fail to address—or even recognize—certain fundamental reasons for, and results of,
criminal behavior. Moreover, we fail to recognize the fruits, or outcomes, our justice systems produce.
Adding new programs to an inadequate pattern of thinking is not enough if what is needed is a
different pattern. That is what this book proposes.

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 6 Part 1 The Concept of Restorative Justice

Adding new programs to an inadequate pattern of thinking is not enough if what is needed is a
different pattern.

It is not as though our current approach to criminal justice is the only one. There have been times
and places when crime was viewed far more comprehensively—as an offense against the people
harmed, their families, the community, and society. The goal of justice was to satisfy the parties, and
the way to do that included making things right by repairing the damage to those parties, whether the
damage was physical, fnancial, or relational. This is different from an approach that defnes crime
solely as an offense against the government, and whose goal is crime prevention through rehabilita-
tion, incapacitation, and deterrence.
Let us explore these patterns more closely.

AN ANCIENT PATTERN: JUSTICE IS RELATIONAL

The legal systems that form the foundation of Western law did not view crime solely as a wrong to
society. Although crime breached the common welfare so that the community had an interest in—
and responsibility for—addressing the wrong and punishing the person who caused these harms,
the offense was not considered a crime against the state, as it is today. Instead, it was also an offense
against the persons harmed and their families. Consequently, those who caused harm and their fam-
ilies were required to settle accounts with the persons harmed and their families in order to avoid
cycles of revenge and violence. This was true in small non-state societies, with their kin-based ties,
but attention to the interests of people harmed by crime continued after the advent of states with
formalized legal codes. The Code of Hammurabi (ca. 1700 BCE) prescribed restitution for prop-
erty offenses, as did the Code of Lipit-Ishtar (1875 BCE). Other Middle Eastern codes, such as the
Sumerian Code of Ur-Nammu (ca. 2050 BCE) and the Code of Eshnunna (ca. 1700 BCE), provided
for restitution even in the case of violent offenses. The Roman Law of the Twelve Tables (449 BCE)
required people convicted of theft to pay double restitution unless the property was found in their
houses, in which case they paid triple damages; for resisting the search of their houses, they paid
quadruple restitution. The Lex Salica (ca. 496 CE), the earliest existing collection of Germanic tribal
laws, included restitution for crimes ranging from theft to homicide. The Laws of Ethelbert (ca. 600
CE), promulgated by the ruler of Kent, contained detailed restitution schedules that went so far as to
distinguish the value, for example, of each fnger and that of its nail. Each of these diverse cultures
retained an expectation that those who cause harm, and their families, should make amends to the
people who were harmed and their families—not simply to ensure that injured persons received
restitution, but also to restore community peace. Peace was important in small kin-based societies
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because every family living in it was important to the defense of the community from outside threats.
While an individualistic, retributive voice of justice dominates Western criminal justice approaches,
a more communal, reparative voice calling for justice that heals (to which Justice Kelly alluded) exists
in many other cultures and religious traditions.

While an individualistic, retributive voice of justice dominates Western criminal justice approaches, a
more communal, reparative voice exists in many other cultures and religious traditions.

In the Judeo-Christian tradition, the word shalom describes the ideal state in which the commu-
nity should function. It means much more than the absence of confict; it signifes completeness,
fulfllment, and wholeness—the existence of right relationships among individuals, the community,
creation, and God. It was a condition in which, as Ron Claassen says, no one is afraid.5

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 1 Patterns of Thinking Can Obstruct Justice 7

Fundamental to the concept of shalom is that individuals are interconnected in a web of

relationships. When crime occurs, it ruptures right relationships and creates harmful ones. It tears
apart shalom. Justice, then, restores shalom. It heals individuals and reconciles broken relationships
and communities that have been harmed by crime.
Although restitution formed an essential part of these ancient justice processes, it was not under-
stood to be an end in itself. The Hebrew word for restitution, shillum, derives from the same root as
shalom, implying that it was related to the reestablishment of community peace. Along with restitu-
tion came the notion of vindication of the person who was harmed and the law itself. This concept
was embodied in another word, also derived from the same root as shalom and shillum—shillem.
Shillem can be translated as “retribution” or “recompense,” not in the sense of revenge (that word
derives from an entirely different root), but in the sense of satisfaction or vindication. In short, a
purpose (but by no means the only purpose) of the justice process was, through vindication and rep-
aration, to restore a community that had been eroded by crime.
Similarly, in Islam the word salaam signifes peace, health, and well-being. It forms part of the
common greeting “Assalamu Alaikum” and conveys a desire for peace and wholeness to the one being
greeted.6 Islamic law shares some values with restorative justice, including respect for the other’s
dignity based on the interconnectedness of the entire community.7 Although the Qur’an does not
consider it appropriate to handle all crimes this way, it permits restorative approaches in qisas crimes
(involving intentional and unintentional murder and intentional and unintentional physical harm)
and taʼzir crimes (embezzlement, perjury, sodomy, usury, breach of trust, abuse, and bribery).8
The Qur’an also places a high value on forgiveness in those two categories of crime. This forgive-
ness is defned as “an abdication of someone’s right to punishment without resentment and with
contentment.”9 The sulh process of conciliation provided a way of repairing the ruptures that would
come between members of the community from time to time.10
The African concept of ubuntu recognizes that humanity is intertwined so that what impacts one
impacts all. Ubuntu is the essence of being human. When the brutal apartheid era in South Africa
ended in April 1994, Nelson Mandela and Archbishop Desmond Tutu pushed for a Truth and
Reconciliation Commission to unify and heal the country, in part because it was consistent with
ubuntu. They recognized that persons who had harmed others and those who had been harmed
alike would continue living together in post-apartheid South Africa, and that ongoing criminal trials
would further divide the nation. In No Future Without Forgiveness, Desmond Tutu explains:

The humanity of the perpetrator of apartheid’s atrocities was caught up and bound up in that of the
victim whether he liked it or not. In the process of dehumanizing another, in afficting untold harm
and suffering, inexorably the perpetrator was being dehumanized as well.11

The traditions of indigenous populations in North America, New Zealand, Australia, and elsewhere
also view crime as impacting others in the community. The Lakota Sioux tradition views others within
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the community as relatives. They exist to care for and to live in right relationship with one another
and with the earth so that the community may fourish.12 Likewise, the Navajo Nation considers all
within the clan to be their relatives. The term k’e signifes a strong sense of belonging to a clan. When
one person hurts, others within the clan hurt too because they are relatives. In his important law
review article, Life Comes From It: Navajo Justice Concepts, Robert Yazzie, Chief Justice Emeritus of the
Navajo Nation, explains this sense of connectedness within the community.

If I see a hungry person, it does not matter whether I am responsible for the hunger. If someone is
injured, it is irrelevant that I did not hurt that person. I have a responsibility, as a Navajo, to treat
everyone as if he or she were my relative and therefore to help that hungry person. I am responsible
for all my relatives.13

In traditional Navajo tort law, restitution is required so “there will be no hard feelings” within the commu-
nity and persons who have been harmed can be made whole again. However, the compensation amount

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 8 Part 1 The Concept of Restorative Justice

is based on the feelings and intuitions of the person harmed and the abilities of the person who caused
the harm to pay rather than a transactional calculation based on summing up actual losses.

A BRIEF HISTORY LESSON

For all its traditions, this approach to criminal justice is unfamiliar to most of us today. When we
think about criminal justice, we tend to focus on prosecutors, police, and prisons. Cases are called
The People of a State v. Defendant. Juries are supposedly the made up of defendant’s “peers,” but most
often know jurors nothing about the people who were harmed, the people who caused the harm, or
the communities from which they come. How did this transformation take place?

The People Who Are Harmed

As tribal societies in Europe were consolidated into kingdoms under feudal lords, rulers took an
increased interest in reducing sources of confict. The interests of people harmed during those conficts
began to be replaced by the interests of the rulers in their resolutions. For common law jurisdictions,
the Norman invasion of Britain marked the turning point in this changing understanding of crime.
William the Conqueror and his successors found the legal process an effective tool for establishing
the preeminence of the king over the Church in secular matters and in replacing local systems of dis-
pute resolution. The Leges Henrici Primi, written early in the twelfth century, asserted royal jurisdiction
over offenses such as theft punishable by death, counterfeiting, arson, premeditated assault, robbery,
rape, abduction, and “breach of the king’s peace given by his hand or writ.”14 Breach of the king’s
peace gave the royal house an extensive claim to jurisdiction:

[N]owadays we do not easily conceive how the peace which lawful men ought to keep can be any
other than the Queen’s or the Commonwealth’s. But the King’s justice … was at frst not ordinary
but exceptional, and his power was called to aid only when other means had failed.… Gradually
the privileges of the King’s house were extended to the precincts of his court, to the army, to the
regular meetings of the shire and hundred, and to the great roads. Also, the King might grant special
personal protection to his offcers and followers; and these two kinds of privilege spread until they
coalesced and covered the whole ground.15

Thus, the king became the paramount person harmed when offenses occurred, sustaining legally
acknowledged (although symbolic) injuries. The actual person harmed was gradually removed from
any meaningful place in the justice process. One important way we see this is that reparation for the
person harmed (restitution) was replaced with reparation for the king (fnes).
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Reparation for the person harmed (restitution) was replaced with reparation for the king (fnes).

Private and Public Prosecution

Even after Henry I succeeded in redefning crime as an offense against the king instead of the person
who was harmed, that person (and to a certain extent, the community) retained a voice in the crim-
inal process through the mechanism of private prosecution. Private prosecution had its roots in
medieval England, preceding the Norman Conquest. A private prosecutor managed the entire case
(from apprehension through trial) as though it were a civil matter. Although the private citizen (usu-
ally the person harmed) was required to bear the fnancial costs of the prosecution, there were also
fnancial incentives for the successful private prosecutor such as threefold restitution. England, and

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 1 Patterns of Thinking Can Obstruct Justice 9

some other common law countries, still allow private prosecutions by any persons (including any
business or non-governmental organization), regardless of whether they were directly affected by the
crime. This is viewed as “a valuable constitutional safeguard against inertia or partiality on the part
of authority.”16
However, during the nineteenth century, British reform advocates such as Jeremy Bentham and
Sir Robert Peel began campaigning for the establishment of a public prosecutor. They did not argue
for the abolition of private prosecution; in fact, Bentham argued for a system with both public and
private prosecution. But private prosecution alone, he believed, was inadequate for crimes that were
essentially public in nature. At the same time, he opposed giving the state a monopoly on prosecu-
tion because this put too much power in the hands of the government.
There were other complaints about private prosecution as well. At times of high crime, when so
much depended on the deterrent ability of the legal system, it was unwise to rely on the willingness
of people who had been harmed to prosecute. Private prosecution might be ineptly conducted and
result in unnecessary acquittals. It might be motivated by revenge or greed.
This debate in England culminated in the passage of the Prosecution of Offenses Act in 1879,
which established the offce of the public prosecutor, charged with supervising prosecutions of a
limited range of offenses in which the ordinary form of prosecution was seen as insuffcient. The
remainder of the cases was left to private prosecutors, and the overwhelming number of those
prosecutions (some report 80%) was initiated by police offcers.17
For a long time, historians equated adoption of public prosecution with the elimination of pri-
vate prosecution. Therefore, they concluded that private actions fell into disuse in the United States
shortly after the Revolution. It was historian Allen Steinberg’s research into the magistrate’s courts
in Philadelphia that shed new light on the operation of a hybrid public–private prosecution pro-
cess lasting until late in the nineteenth century. In his book The Transformation of Criminal Justice:
Philadelphia, 1800–1880,18 Steinberg makes a convincing case for the dominance of private prosecu-
tion until the 1880s (at least in dealing with the largest numbers of prosecutions—those for relatively
minor offenses). The reason for this dominance was the popularity of the magistrate courts, operated
in Philadelphia by elected offcials known as aldermen who conducted administrative as well as judi-
cial functions.
Although these courts were highly informal in operation, the aldermen/justices had the power
to hold defendants in jail pending trial by a court of record, to dispose of certain minor cases, and
to require the posting of a peace bond. The aldermen were for the most part unschooled in the law,
and they would create new offenses on the spot if it seemed necessary. Poor people, in particular, fre-
quently resorted to aldermen for justice.
It is the popularity of the magistrate’s courts that Steinberg fnds intriguing, particularly in light
of what appear to twenty-frst-century lawyers to be signifcant faws in how these courts operated.
They were crowded, unruly, and undignifed. The aldermen created new offenses and made them
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effective retroactively. Because the aldermen’s fees came from the litigants, there was little incentive
for them to refuse a prosecution and ample opportunity for corruption. Steinberg concludes that
these courts were a form of popular, local, and informal justice. They offered a forum in which
disputes could be readily resolved because the disputants controlled what happened. Although
there were regular outcries against the courts’ abuses, these were raised by reformers, not by those
who used the courts.
Eventually, the development of the public police force (combined with the longstanding complaints
about abuses of informality) led to a reorganization of the magistrate courts, which effectively ended
private prosecution. Philadelphia did not have a police department until 1854. Prior to that time,
it relied on a night watch system with only limited police coverage during the day, and the patrol
was much more passive than it was proactive. With the advent of the police force, a new possibility
emerged for initiating criminal cases, one that could bring greater effciency to crime fghting, namely,
requiring all cases to be initiated by the police or by a public prosecutor based on investigative work

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 10 Part 1 The Concept of Restorative Justice

performed by the police. This was viewed as an antidote to the unruliness of the magistrates’ courts,
as Steinberg described them.

The central point is that, at bottom, the criminal court was dominated by the very people the criminal law
was supposed to control…. The ordinary people of Philadelphia extensively used a system that could also
be so oppressive to them because its oppressive features were balanced by the peoples’ ability to control
much of the course of the criminal justice process. Popular initiation and discretion were the distinctive
features of private prosecution, rooted in the offces of the minor judiciary where it began, and remained
the most important aspect of the process even in the courts of record. Whether it be to intimidate a friend
or neighbor, resolve a private dispute, extort money or other favors, prevent a prosecution against oneself,
express feelings of outrage and revenge, protect oneself from another, or simply to pursue and attain a
measure of legal justice, an enormous number of nineteenth-century Philadelphians used the criminal
courts.19

Prisons
In the late 1800s, progressive thinkers in England, such as Henry Fielding, John Howard, and Jeremy
Bentham, began calling for segregation of people in prison from their criminogenic environments,
much as doctors would quarantine persons with a contagious disease. They proposed a treatment
plan for those people that would focus on “correction of the mind.”20 In the United States, like-
minded reformers convinced policymakers to implement this rehabilitative model of sentencing.
With that model emerged an institution that, although novel at that time, has since become a symbol
of the criminal justice system itself—the prison.

Prior to 1790, prisons were used almost exclusively to hold persons who had been accused of crimes
until they were tried or sentenced, or to enforce labor orders.

Prior to 1790, prisons were used almost exclusively to hold persons who had been accused of
crimes until they were tried or sentenced or to enforce labor orders while the person worked off
debts.21 Reformers in Philadelphia, aghast at the cruelty of the available punishments and miser-
able jail conditions, and believing that criminals were the products of bad moral environments,
persuaded local offcials to turn the Walnut Street Jail into what they optimistically called a “peniten-
tiary,” or place of penitence.
How did they arrive at the idea of imprisonment as the vehicle for reform? It appears they drew
from the use of confnement in monasteries, which began as early as the fourth century. Initially, con-
fnement was to the monk’s room, but over time, special rooms were built to hold those who it was
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believed needed time for refection and change.22

The 1787 preamble to the constitution of the Philadelphia Society for Alleviating the Miseries of
Public Prisons clearly stated that their intention was not only to save people who were in prison from
dehumanizing punishment but also to rehabilitate them:

When we consider that the obligations of benevolence, which are founded on the precepts of the
example of the author of Christianity, are not canceled by the follies or crimes of our fellow creatures
… it becomes us to extend our compassion to that part of mankind, who are the subjects of these
miseries. By the aids of humanity, their undue and illegal sufferings may be prevented … and such
degrees and modes of punishment may be discovered and suggested, as may, instead of continuing
habits of vice, become the means of restoring our fellow creatures to virtue and happiness.23

People sent to this penitentiary were isolated in individual cells, away from the infuence of immoral
parts of society. They were given a Bible and time to contemplate it and regular visits from the warden

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 1 Patterns of Thinking Can Obstruct Justice 11

of the prison. Yet, by the early 1800s, prisons were already being denounced as ineffective. “Our
state prisons as presently constituted are grand demoralizers of our people,” concluded a New York
lawyer.24 This, however, did not discourage prison advocates; if isolation did not achieve the goals of
repentance and rehabilitation, then perhaps other measures would work. Succeeding generations of
reformers moved from theories of repentance to those of hard work, then of discipline and training,
and eventually of medical and psychological causes of crime. Each generation was disappointed as
most people in prison proved to be unchanged by their particular model of rehabilitation.

Reformers moved from theories of repentance to hard work, discipline and training, and fnally med-
ical and psychological treatment. Each generation was disappointed.

Michael Tonry identifed four periods of policy changes in recent criminal sentencing in the
United States between 1950 and 2013. During the period from the 1950s to 1975, which he calls the
Indeterminate Sentencing period, the predominant sentencing value was rehabilitation. This period had
features that may sound strange to a contemporary reader. Judges did not set determinate sentences
when they sent someone to prison (which itself happened far less often than today). Instead, the
judge would set a range of years the person convicted of causing harm might serve for the offense.
For example, the judge could announce a prison sentence of “four to twenty-fve years.” This meant
that the person had to be imprisoned for at least the minimum sentence (four years in our example).
They could be awarded “good time” by prison offcials to reward good behavior and progress toward
rehabilitation, which effectively reduced both their maximum and minimum sentences. The person
being held had to be released by the time they had served the maximum sentence (in our example,
25 years, minus good time). Additionally, on a regular basis, a parole board considered whether or
not the person in prison had become rehabilitated.25 During this period, the US imprisonment rate
(prisoners per 100,000 population) remained relatively stable at 150–160 per 100,000.26
The Sentencing Reform period ran from 1975 to 1986. These reforms limited the discretion of
judges in several ways: By giving them guidelines to use when imposing sentences, requiring them to
give a determinate sentence within those guidelines, and giving guidelines to parole boards to limit
their discretion in making release decisions. The key sentencing value of this time was that justice
must be fair to all regardless of race, economic status, gender, or other status. During this time, the
imprisonment rate began to go up rapidly reaching 313 per 100,000 by 1986. Three factors explain
this development: More cases going to court, more sentences of imprisonment rather than non-
prison sanctions, and longer sentences.27
The Tough on Crime period was a time of increased mandatory minimum sentences for certain people
Copyright © 2022. Taylor & Francis Group. All rights reserved.

who seemed to pose a high risk of reoffending, “three strikes laws,” life without the possibility of parole,
and sexual predator legislation were adopted. There were also expanded opportunities to transfer juvenile
offenders to more punitive adult courts. The primary sentencing value driving these changes was the idea
that a subset of Americans were incorrigible outlaws who had to be excluded from society. Unsurprisingly,
the percentage of people in prison continued to rise to 615 per 100,000 in 2007.28
The fnal period, which Tonry called the Equilibrium period, went from 1996 to 2013 (when he wrote his
article). He said that while there were many sentencing changes made, it was hard to determine common
values in them. Nevertheless, the imprisonment rate continued to rise to a high of 762 in 2007, after
which it began to fall.29 Over the last decade, the incarceration rate has steadily decreased to 551 people
per 100,000 by mid-2020 as COVID-19 spread throughout prisons.30 Even with these decreases, the US
incarceration rate far exceeds those of other developed countries.31 And, the prison system touches many
more people’s lives than simply those who are currently incarcerated. In 2020, nearly 4.5 million people
were under correctional supervision (parole and probation). Nearly 5 million people were formerly
incarcerated in state or federal prisons and experienced ongoing “invisible punishment” as discussed

Van, N. D. W., Heetderks, S. K., Derby, J., & Parker, L. L. (2022). Restoring justice : An introduction to restorative justice. Taylor & Francis Group.
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 12 Part 1 The Concept of Restorative Justice

below. Seventy-seven million people had a criminal record, and 113 million adults had immediate family
members who have been to prison or jail.32

The US incarceration rate far exceeds those of other developed countries, and the prison system
touches many more people’s lives than simply those who currently are incarcerated.

It is worth noting, then, that the development of restorative justice came during a time of increasing
concern about the human and fnancial costs of high rates of imprisonment. It also emerged during a time
of increased awareness of both the needs of the people harmed and of systemic issues of injustice that
affected minority communities in particular. We will return to this later.

Juries
Governmental authority can be increased by drawing together respected community leaders to determine
both the applicable customs, norms, and culture concerning a confict and what a just resolution of the
particular confict might look like. That was one of the reasons for the development in common law coun-
tries of the jury as a means of resolving disputes in a community. But the jury was signifcantly different
in the thirteenth century than it is today. Eight hundred years ago, the ideal juror was not someone who
was ignorant of the facts or a stranger to the parties. They were selected because they knew the parties and
knew of the dispute and could therefore decide which party the judgment should favor. Judges, appointed
by the king, traveled throughout the country presiding over local cases applying the king’s law. Because
these circuit judges were outsiders, they summoned respected local people to apply the king’s law to the
facts so juries reached verdicts that would be accepted. While it was important that jurors not be (and not
be viewed as) partial to either party, it was equally important that they be neighbors to the parties. During
selection of the members of the jury, either party could object on the grounds that an individual juror
was biased against the party or that they did not have suffcient local knowledge. In fact, at one time jurors
were expected to acquaint themselves with the facts if they had no frst-hand knowledge themselves. They
sometimes met with the parties so that they could be briefed before the hearing.

Eight hundred years ago, the ideal juror was not someone who was ignorant of the facts or a stranger
to the parties. They were selected because they knew the parties and knew of the dispute.

By the ffteenth century, in England, the courts had begun to distinguish between jurors and witnesses.
By the eighteenth century, the ideal juror was one who was ignorant of the facts and of the parties. However,
it was still assumed that the jury would embody the values, norms, and sense of justice that was held by its
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community. The community was not presumed to have the same values as the king.
For example, as the United States developed its own legal system, Patrick Henry criticized the
drafters of the Constitution for failing to insist that juries should not only be impartial but also
should be drawn from the neighborhoods of the parties where the crime had taken place. This was
known as “vicinage,” meaning that members of a jury should live in the vicinity of the parties. That
was because the power of a jury to interpret that law gave it the power to ignore it altogether if the law
offended the conscience of the jury. Henry argued that without this protection, English prosecutors
could try Americans using juries from England that favored the King and were hostile to American
rebels. The Sixth Amendment eventually included this provision:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an
impartial jury of the state and district wherein the crime shall have been committed, which district
shall have been previously ascertained by law….

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 1 Patterns of Thinking Can Obstruct Justice 13

Jury nullifcation is the term used when, although a jury knows what the law is, it chooses to ignore
the law because they do not like the result. It is generally understood that juries do sometimes decide
to ignore an unpopular law. A jury’s verdict is inscrutable in that it is made after secret deliberations,
so it may not be obvious how it came to the verdict.33 But if juries have the power to nullify, should
judges tell them they have the right to do so? If they use the power without the right, can they be
punished?34 Up to the Civil War, juries were instructed that they were the “judges of both the law and
the facts,” meaning that they could ignore laws they didn’t like.35
The populist appeal of nullifcation was not limited to ancient history or to juries. Prosecutors
have on occasion declined to fle charges when the circumstances led them to decide it would
be unjust to proceed. When this happens, it may be perceived as a denial of justice to some
in the community, while others may view it as upholding larger demands of justice. Because
these decisions are generally made privately and out of public view, whether or not they are
accepted by members of the community depends on their trust in the prosecutor. Recently, some
candidates for local prosecutor have campaigned on explicit nullifcation grounds that if elected,
they would no longer prosecute certain classes of offenses such as prostitution or possession of
small amounts of drugs. Neither would they sanction certain crimes differently than other similar
crimes (e.g., crack and powdered cocaine). The purpose is to remedy what those candidates
view as an inequity based on class or racial status.36 W. Kerrell Murray argues that when such
candidates are elected, they should be able to treat their election as public support for such nul-
lifcation, provided certain conditions have been met.37

CURRENT PATTERN OF THINKING: JUSTICE IS IMPARTIAL AND

IMPERSONAL
The idea of a “criminal justice system” got its start in 1967 in the United States Commission on
Law Enforcement and Administration of Justice’s fnal report, “The Challenge of Crime in a Free
Society.”38 Calling it a system suggests that we should be able to follow a single input (a particular
crime, in this instance) and watch a series of coordinated interventions from policing to courts to pro-
bation, prisons, and parole. We may then observe the contributions of each to the resulting output,
which could be an acquitted defendant or a rehabilitated person, or even a person found guilty who
completes a long prison term. The report not only used systems terminology but also provided a
fowchart which sought to diagram all the parts of the criminal justice system and how they relate to
each other.39

The idea of a “criminal justice system” got its start in 1967, leading to a view of crime and justice that
Copyright © 2022. Taylor & Francis Group. All rights reserved.

values impartiality and impersonality above all else.

But these developments have led to a view of crime and justice that values impartiality and imper-
sonality above all else. Most of the important elements of the ancient, relational understanding of
justice have been exchanged for processes defended on the basis of impartiality. Persons who have
been harmed fnd themselves reduced to witnesses at most, while prosecutors defend their manage-
ment of criminal cases based on objectives of effciency and fairness to people who caused the harm.
Meanwhile, their protections are viewed as obstacles to getting a conviction, providing them with
incentives to deny the accusations. The community is not welcomed into the criminal justice system
in any signifcant way and is generally uninvolved, unless something causes outrage which is outside
the criminal justice system.

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 14 Part 1 The Concept of Restorative Justice

Mass Incarceration
In the current pattern of thinking, incarceration in jail or prison is the normative approach to
punishing people convicted of crimes. The government’s reliance on a criminal justice policy based
on incarceration is relatively recent, and it has had enormous consequences.
As we noted earlier, the prison population began its steady increase in 1974, but events during the
mid-1960s pointed toward the punitive criminal justice policies to come. It was during the height of the
civil rights movement. Crime began to increase in big cities and anger simmered within Black urban com-
munities. Tensions boiled over and riots erupted in Watts (August 1965), Newark (July 1967), Detroit
(July 1967), Chicago (April 1968, following Martin Luther King Jr.’s assassination), and in other US cities.
Excessive police force often sparked the riots, and households across America watched scenes of violence
and destruction unfold on their televisions. America seemed at war with itself.
In 1968, President Lyndon B. Johnson formed what became known as the Kerner Commission to
uncover the reasons behind the urban strife. While the Commission recognized the problem’s com-
plexity, its fnal report stated that “certain fundamental matters are clear…. [w]hite racism is essen-
tially responsible for the explosive mixture which has been accumulating in our cities since the end
of World War II.”40
The Commission recommended that the government invest in Black communities so they might
have better opportunities in education, employment, and housing. It emphasized that “the need is
not so much to design new programs as it is for the Nation to generate new will.” The Commission
urged communities to come together and carry out this positive vision. “Private enterprise, labor
unions, the churches, the foundations, the universities—all our urban institutions—must deepen
their involvement in the life of the city and their commitment to its revival and welfare.”41
A few weeks before President Johnson formed the Kerner Commission, he had signed legislation
that strengthened law enforcement in hopes to ease the tension within urban communities. That law,
rather than the Commission’s recommendations, set the tone for the government’s response to urban
unrest, and from that point on, criminal justice policy became increasingly punitive. Then, in 1974,
the consensus that prisons could become places of rehabilitation began to crumble as well, with the
title of an article by Robert Martinson summing up the new perspective: “Nothing Works.”42 Although
he later retracted that categorical denunciation of the possibility of rehabilitation, the message had
gone out: Incarceration is for punishment and for society’s protection.

War on Drugs and Its Consequences

The incarceration rate exploded in the 1980s and 1990s and coincided with the “War on Drugs.” In
fact, drug offense convictions were a key driver for the dramatic increase in the prison population.43
The “crack” cocaine trade and gang activity overtook public spaces in poor urban communities and
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kept people inside their homes. People and businesses that could afford it moved away from these city
centers. Violent crime increased and police ratcheted up control in these communities. Nationally,
drug policies started favoring punishment over treatment. Police concentrated on controlling crime,
especially drug crimes, within inner cities, and the problem was linked to one demographic group,
namely young Black men. In 1980, approximately 41,000 people were in prison for drug offenses. In
the mid-2000s, that number reached nearly a half-million people.44 In 2020, the number had reduced
to 330,000, but still represented an increase of 700% from 1980.45
Law enforcement and the rhetoric around it became increasingly militarized. Police appeared to
be more like occupying forces than peace offcers in poor urban communities. In the late 1980s,
state and local law enforcement agencies received federal funding, military equipment, and special
training. Special Weapons and Tactics (SWAT) teams were formed in cities across the country. Para-
military-style narcotic operations increased from a few hundred in the early 1970s to 40,000 in 2001,
as police units raided homes, apartment buildings, public housing projects, and even high schools.46

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 1 Patterns of Thinking Can Obstruct Justice 15

This punitive, battle-like response to crime disempowers poor urban communities and contributes
toward their deterioration. High concentrations of policing and incarceration have had a negative
ripple effect that touches nearly every family within these communities. It impacts the children whose
parents are incarcerated and whole families. The effect spreads outward and impacts the quality of life
and safety across the entire community.

The punitive, battle-like response to crime disempowers poor urban communities and contributes
toward their deterioration.

In The New Jim Crow: Mass Incarceration in an Age of Colorblindness, Michelle Alexander discusses
the long-term consequences of imprisonment.47 People who have been released from prison
experience ongoing, invisible punishment as they return to their communities. Legal restrictions
make it diffcult for them to re-integrate. They are barred by law from public housing, and pri-
vate landlords discriminate against them. Often, they are required to inform potential employers
they have a criminal record, and laws deny them opportunities to obtain professional licenses.
They are often ineligible for food stamps and other public benefts and may be denied their
right to vote or sit on juries.48 Alexander says that the growing amount of research simply refects
common sense:

[B]y locking up millions of people out of the mainstream legal economy, by making it diffcult or
impossible for people to fnd housing or feed themselves, and by destroying familial bonds by ware-
housing millions for minor crimes, we make crime more—not less—likely in the most vulnerable
communities.49

Alexander’s voice echoes a common theme among voices across the political spectrum, albeit for
different reasons: The criminal justice policies that led to mass incarceration are widely regarded as
failures, due for change.
In his essay, The Effects of High Imprisonment Rates on Communities, criminologist Todd Clear iden-
tifes four main points refected in literature about high incarceration rates within communities.50

• Incarceration is concentrated in disadvantaged communities, especially communities of color. Incarceration

is a dominant characteristic in a small number of impoverished urban communities.
• High incarceration rates within impoverished communities tend to negatively affect people who are
incarcerated and the community as a whole. It impacts social relationships, social networks, mental
Copyright © 2022. Taylor & Francis Group. All rights reserved.

and emotional health, and the ability to obtain or keep employment.

• The negative effects of high incarceration rates within communities probably decrease public safety. As
the negative side effects of incarceration expand, evidence suggests that it leads to more crime
within communities.
• No proven strategy exists for combatting these negative effects on communities. Solutions need to
come from changes in penal philosophy and sentencing laws.

Clear also examined research that studies the effects of incarceration on families, and while not
straightforward, he states that on balance it is a net negative.

Most of the men who ended up behind bars engaged in behavior that created strains on the
family. When they were arrested and ended up cycling through prison or jail, some of that strain
was lessened. But, at the same time, a new set of strains came along. Families struggled fnan-
cially to deal with court costs and later the need to provide support for people who were locked

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 16 Part 1 The Concept of Restorative Justice

up. Parenting with someone behind bars is an emotional and practical strain. A host of destabil-
izing consequences—housing changes, school maladaptations, welfare problems, and strains on
relationships—follow the person’s trip to the prison.51

CONSIDER AN ALTERNATIVE
Our purpose here is not to suggest that criminal justice in the past was primarily good, and
in the present, it is primarily bad. Some commentators have suggested that restorative justice
proponents use history selectively, offering a partial and misleading account of the past in an
effort to legitimize restorative justice.52 This is certainly not our intention. The systems that
included restitution, that gave an important status to the needs of people who have been harmed,
and that sought to repair broken relationships within communities, also had other elements
that were nothing like restorative justice. For example, powerful members of indigenous soci-
eties often received different treatment when compared to those who were poor and power-
less. The human rights of women and children were not respected in ways that would meet the
expectations of contemporary cultures.
Nevertheless, we have provided this short historical review to show that the values and
processes with which we are familiar in contemporary criminal justice are not absolutes. Just
because they are familiar to us now does not mean that they have always been embraced. We
believe that it is possible to unknowingly operate within a pattern of thinking that prevents con-
sideration of alternatives. The following chapters offer the opportunity to consider a new pattern of
thinking.
We’ve presented a historical look at potentially restorative approaches in the past in an appeal
to the reader to suspend any immediate judgment that this book presents strange, untested, and
never-before-conceived ideas. Introduction of those values and processes into contemporary criminal
justice requires care and perseverance; it will not be easy. In the fnal section, we suggest some ways
this might be done. But, in this chapter, we’re simply asking the reader not to discount the ideas and
processes of restorative justice because they seem unfamiliar or impractical.

CONCLUSION
Our impersonal, antiseptic understanding of justice and crime has very little similarity to the ancient,
deeply relational, pattern of thinking found in concepts like ubuntu, shalom, and k’e.53 These held
that a community’s response to crime should be to help people harmed recover and to reestablish
constructive relationships within the community. The ancient pattern assumed that families and
communities were responsible for the behavior of their members who had harmed others, or had
been harmed, by wrong behavior. As they were denied places in the justice process, power and
Copyright © 2022. Taylor & Francis Group. All rights reserved.

control shifted almost entirely into the government’s hands. Government interests now take pri-
ority over all other interests.
The results of this transition from a relational view of justice to an impersonal one, from
informal justice processes for persons harmed, persons who caused harm, and their communi-
ties, to the government relying increasingly on apprehension and punishment, has neither solved
the crime problem nor returned people to the community who are better prepared to be law-
abiding.54 People serving time in prison are released from overcrowded and expensive prisons
with their human dignity deeply violated and are subjected to continual shame each time their
past is revealed.55 And communities live in fear because of the threat of crime.56 We propose that
restorative justice is a preferable alternative to the status quo. In the next chapter, we discuss how
restorative justice has developed.

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 1 Patterns of Thinking Can Obstruct Justice 17

REVIEW QUESTIONS
1. Why are patterns of thinking relevant to the discussion of criminal justice?
2. The ancient pattern of thinking assumed that persons who harmed others and their families
should help restore community peace by making amends. What does the contemporary crim-
inal justice pattern assume?
3. What changes did the shift from the ancient to the contemporary approach bring about for
persons who are harmed? For persons who cause harm? For communities?

NOTES
1. Peter C. Hart Research Associates, Inc., Changing Public Attitudes Toward the Criminal Justice
System (Open Society Institute, February 2002), http://www.opensocietyfoundations.org/
reports/changing-public-attitudes-toward-criminal-justice-system. A more in-depth resource
on the attitudes of people who have been harmed is Mark S. Umbreit, Robert B. Coates, and
Boris Kalanj, Victim Meets Offender: The Impact of Restorative Justice and Mediation (Monsey, NY:
Criminal Justice Press, 1994).
2. Howard Zehr, Changing Lenses: Restorative Justice for Our Times (Harrisonburg, VA: Herald Press,
(2015), 87–101.
3. Edward de Bono, Conficts: A Better Way to Resolve Them (New York: Penguin, 1991).
4. For a helpful introduction to how neuroplasticity has infuenced medical care, see Norman
Doidge, The Brain That Changes Itself: Stories of Personal Triumph from the Frontiers of Brain Science
(New York: Viking, 2007) and Norman Doidge, The Brain’s Way of Healing: Remarkable Discoveries
and Recoveries from the Frontiers of Neuroplasticity (New York: Penguin Books, 2015).
5. Ron and Roxanne Claassen, Discipline that Restores: Strategies to Create Respect, Cooperation and
Responsibility in the Classroom (North Charleston, SC: BookSurge Publishing, 2008), 12.
6. Katherine Evans, and Dorothy Vaandering. The Little Book of Restorative Justice in Education:
Fostering Responsibility, Healing, and Hope in Schools (New York: Good Books, 2016), 594.
7. Ramizah Wan Muhammad, “Forgiveness and Restorative Justice in Islam and the West: A
Comparative Analysis,” Islam and Civilisational Renewal 7, no. 2 (December 2020): 281.
8. Wan Muhammad, “Forgiveness and Restorative Justice in Islam and the West,” 284.
9. Wan Muhammad, “Forgiveness and Restorative Justice in Islam and the West,” 284.
10. Wan Muhammad, “Forgiveness and Restorative Justice in Islam and the West,” 285.
11. Desmond Tutu, No Future without Forgiveness (New York: Doubleday, 2000), 103.
12. Fania E. Davis, The Little Book of Race and Restorative Justice: Black Lives, Healing, and US Social
Transformation (New York: Good Books, 2019), 24.
13. Robert Yazzie. “Life Comes from It: Navajo Justice Concepts.” New Mexico Law Review 24, no. 2
(1994): 175,185.
14. L.J. Downer, ed. and trans., Leges Henrici Primi (Oxford: Oxford University Press, 1972), 109.
Copyright © 2022. Taylor & Francis Group. All rights reserved.

15. Frederick Pollock, “English Law before the Norman Conquest,” The Law Quarterly Review 14
(1898): 291, 301.
16. Lord Wilberforce, Gouriet v. Union of Post Offce Workers [1978] A.C. 435 cited in Matthew C.
Stephenson, “Standing Doctrine and Anticorruption Litigation: A Survey,” in Open Society
Justice Initiative, Legal Remedies for Grand Corruption: The Role of Civil Society (New York: Open
Society Foundations, 2020), 49.
17. Douglas Hay and Francis Snyder, eds., “Using the Criminal Law, 1750–1850: Policing, Private
Prosecution, and the State,” in Policing and Prosecution in Britain 1750–1850 (Oxford: Clarendon
Press, 1989), 3.
18. Allen Steinberg, The Transformation of Criminal Justice: Philadelphia, 1800–1880 (Chapel Hill:
University of North Carolina Press, 1989).
19. Steinberg, The Transformation of Criminal Justice, 78.

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 18 Part 1 The Concept of Restorative Justice

20. Vivien Stern, A Sin Against the Future: Imprisonment in the World (London: Penguin, 1998), 16–17.
21. Norval Morris and David Rothman, eds., The Oxford History of the Prison: The Practice of Punishment
in Western Society (New York: Oxford University Press, 1995).
22. Andrew Skotnicki, Criminal Justice and the Catholic Church (Lanham, MD: Sheed & Ward, 2008),
73–103.
23. Quoted in Blake McKelvey, American Prisons: A History of Good Intentions (Montclair, NJ: Patterson
Smith, 1977), 7.
24. Morris and Rothman, Oxford History of the Prison, 115.
25. Michael Tonry, “Sentencing in America, 1975–2025,” Crime and Justice 42, no. 1 (August 2013):
141–198.
26. Tonry, “Sentencing in America,” 9.
27. Tonry, “Sentencing in America,” 9–10.
28. Tonry, “Sentencing in America,” 10–11.
29. Tonry, “Sentencing in America,” 11.
30. Jacob Kang-Brown, Chase Montagnet, and Jasmine Heiss, “People in Jail and Prison in 2020,”
The Vera Institute of Justice (January 2021), https://www.vera.org/downloads/publications/people-
in-jail-and-prison-in-2020.pdf.
31. Rates of incarceration per 100,000 population may be found at “Highest to Lowest Prison
Population Rate,” World Prison Brief, Institute for Crime & Justice Policy Research, University of
London, https://www.prisonstudies.org/highest-to-lowest/prison_population_rate.
32. Wendy Sawyer and Peter Wagner, “Mass Incarceration: The Whole Pie 2020,” Prison Policy Initiative
(March 24, 2020), https://www.prisonpolicy.org/reports/pie2020.html.
33. Sonali Chakravarti, “Radical Enfranchisement in the Jury Room and Public Life,” in Agatha A.
Slupek, Contemporary Political Theory (Chicago: University of Chicago Press, 2020), https://doi.
org/10.1057/s41296-020-00452-y.
34. Mark DeWolfe Howe, “Juries as Judges of Criminal Law,” Harvard Law Review 52, no. 4 (Feb.
1939): 583.
35. W. Kerrel Murray, “Populist Prosecutorial Nullifcation,” New York University Law Review 96, no. 1
(April 2021), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3542575.
36. Murray, “Populist Prosecutorial Nullifcation,” 192–193.
37. Murray, “Populist Prosecutorial Nullifcation,” 209–207.
38. Nicholas Katzenbach, The Challenge of Crime in a Free Society: A Report by the President’s Commission
on Law Enforcement and the Administration of Justice (Washington, DC: United States Government
Printing Offce, 1967), https://www.ojp.gov/sites/g/fles/xyckuh241/fles/archives/ncjrs/42.pdf.
39. Katzenbach, The Challenge of Crime in a Free Society, 8–9.
40. Report of the National Advisory Commission on Civil Disorders (Washington, DC: US Government
Printing Offce, 1968), 91. Often referred to simply as the Kerner Commission Report.
41. Report of the National Advisory Commission on Civil Disorders, 230.
42. Robert Martinson, “What Works?—Questions and Answers about Prison Reform,” The Public
Interest 35 (Spring 1974): 22–54, https://www.nationalaffairs.com/storage/app/uploads/
Copyright © 2022. Taylor & Francis Group. All rights reserved.

public/58e/1a4/ba7/58e1a4ba7354b822028275.pdf.
43. Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, 10th anni-
versary ed. (New York: The New Press, 2020), 76–77.
44. Marc Mauer and Ryan King, A 25-Year Quagmire: The “War on Drugs” and Its Impact on American
Society (Washington, DC: Sentencing Project, 2007), 2.
45. In the mid-1990s, while punitive criminal justice drug policies eased and began to include
alternatives like drug courts and sentencing policies that diverted people who caused harm
to drug treatment programs, the net effect failed to signifcantly offset the number of people
incarcerated for drug offenses.
46. Alexander, The New Jim Crow, 94.
47. Alexander, The New Jim Crow, 175–220.
48. Alexander, The New Jim Crow, 238–241.
49. Alexander, The New Jim Crow, 294–295.

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 1 Patterns of Thinking Can Obstruct Justice 19

50. Todd Clear, “The Effects of High Imprisonment Rates on Communities,” Crime and Justice 37, no.
1 (2008): 100–102.
51. Clear, “The Effects of High Imprisonment Rates on Communities,” 105.
52. See, for example, Douglas J. Sylvester, “Myth in Restorative Justice History,” Utah Law Review
(2003): 1445–1496.
53. In fact, there is now discussion of how to use artifcial intelligence to manage algorithms that
use the risk of reoffending and the needs of the person convicted of causing harm in deter-
mining sentences. See, for example, John Villasenor and Virginia Foggo, “Artifcial Intelligence,
Due Process, and Criminal Sentencing,” Michigan State Law Review (2020): 295–354.
54. Alan N. Young, The Role of the Victim in the Criminal Process: A Literature Review – 1989 to 1999,
Report prepared for the Department of Justice Canada, August 2001, https://www.justice.gc.ca/
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Van, N. D. W., Heetderks, S. K., Derby, J., & Parker, L. L. (2022). Restoring justice : An introduction to restorative justice. Taylor & Francis Group.
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