Equality is not justice

0 Comment Duane Ruth-Heff...
March 14, 2012

The American legal system is based on equality before the law—but does legal equality mean identical treatment? Duane Ruth-Heffelbower, J.D., M.Div., associate professor of peacemaking and conflict studies at Fresno Pacific University and director of the Center for Peacemaking and Conflict Studies, has an alternate view that is being successful in the Valley and beyond.

One of the big arguments against restorative justice is that individual agreements between victims and offenders result in different consequences for similarly situated people. Fairness, many think, equals equality. This is not how we operate in our own lives. We know that different people have different needs, and that to treat everyone the same is actually unfair.

I have two granddaughters nearly three years apart in age. The fifth grader thinks that fairness means equality, and that she should have the same rights, privileges and things the eighth grader enjoys. The eighth grader thinks fairness means her younger sister having the same rules, restrictions and things she had at that age.

What we want in criminal sentencing, as in the rest of life, is equity. My reasonable needs are met, and so are yours. Our needs will vary depending on our circumstances. Restorative justice seeks to make victims as whole as possible, and to identify the needs that caused the offense in the first place. It has both a reparative and a preventative agenda.

Our criminal justice system does not, nor has it ever, treated people equally. Human behavior is too complex to reduce to a formula. Judges and prosecutors are always working with too little information. What sentence is appropriate given everything about the offender, the crime and the mores of society? Actions considered heinous crimes in one era become more acceptable in another. The California Penal Code used to have an offense called "the infamous crime against nature." Now the perpetrators of this crime are being given the right to marry.

Prejudice affects sentencing in many ways. Crack and powder cocaine sentencing disparities are notorious and efforts are being made to bring them into line with each other. Any time one person has the power to make another person do something, that act is fraught with the possibility that prejudice will have too much to do with the outcome.

Restorative justice is less likely to be abused in this way since the outcomes are collaborations of the affected parties. If the offender doesn't agree there is no agreement; same with the victim. This fact alone pushes the process more towards equity. That this good result is accompanied by the risk of disparity does not bother me, since disparity is a straw man trotted out when convenient rather than something that guides daily practice. It is time to get serious about restoring equity to our criminal justice process so that victims can be made whole, and the community can be protected by identifying and meeting the needs that led to the offense in the first place.

Prison realignment in California moves more prisoners from state institutions to local jails. One opportunity that comes along with this change is that prisoners can receive treatment services closer to home, and there can be continuity of care as they are released and re-enter the community. The state system has provided no significant rehabilitation services to the vast majority of prisoners, and what services were provided ended abruptly upon release.

Another advantage to realignment is that community safety can be enhanced through assisted reintegration of prisoners upon their release. Unfortunately, local jails and probation departments need to gear up to receive an influx of prisoners, and that has absorbed all the money made available for the transition.

It is not too late to take advantage of the chances we have. Successful reintegration of prisoners into the community is the single best way to enhance our safety. We have proven over the last decades that we cannot arrest our way to safety. What we can do is make sure that offenders have a way to create a productive life for themselves after their release. We can also use the same restorative mindset to close the school-to-prison pipeline by offering students with difficulties the services they need to be successful.

We have proven that mass incarceration does not work. It is time to try something that does. Restorative justice offers that possibility.

About the author

Duane Ruth-Heffelbower, J.D. teaches criminal evidence and advanced criminal law in the criminology and restorative justice studies program of Fresno Pacific University. He also directs the graduate academic programs in peacemaking and conflict studies.

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