Dan Van Ness: Restorative justice and the problem of minority over-representation
Feb 28, 2009
Over-representation of minorities in the criminal justice system is a problem around the world. It raises questions about the fairness of the justice system itself and of how larger social justice problems influence the justice system.
It has also challenged proponents of restorative justice. Is it better or worse at reducing over-representation? Is it (potentially) any better at incorporating awareness of broader social injustices in resolving specific cases? If not, how can it call itself restorative justice if it continues to reflect structural injustice?
A Working Group charged with addressing over-representation in a local jurisdiction adopted the following operating principles to guide its work:
1. The concept of “over-representation” must be clearly defined and understood…. The fact of over-representation alone does not establish its cause. But its existence necessitates further investigation.
2. The Working Group… should focus on identifying areas of over-representation and addressing areas of unfair over-representation that are within their control…. The [working group] should focus on those where [justice system] agencies do have control.
3. Both the perception and the reality of inequities in our criminal justice system are important. The effectiveness of any justice system depends upon the community’s shared perception that it operates fairly and equitably.
4. There are no immediate, short-term solutions to the public perceptions and realities of over-representation. The causes of over-representation are many and complex. Opinions and viewpoints about these causes are diverse and strongly held…. Action must begin now, as the Working Group is proposing.
5. Some data relevant to over-representation are not readily available or reliable…. In order to address over-representation on a permanent basis, a comprehensive, automated data collection process must be established that collects and reconciles data from all of the criminal justice agencies….
6. Many public policies, within and outside of the criminal justice system, affect the extent of minority over-representation. Policies such as federal enforcement of immigration and narcotics laws or the local enforcement of street crime, may contribute to over-representation. Each must be examined.
7. Any action plan adopted… needs additional community input in order to be credible and effective…. A community outreach process must be established that ensures a dialogue with citizens and communities across the County about all of the causes of over-representation and about the possible remedies.
Are these useful operating principles to guide restorative exploration of the problem? Which would you change, add, replace or drop?
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I recently completed a project, at the prison Reform Trust, in which we consulted Black and Minority Ethnic prisoners about how they were affected by racism in prison; and worked with them to develop better responses. An important phenomenon that emerged was 'informal partiality', treatment by prison staff that unintentionally discriminated against minorities. One solution proposed was mediation. The conventional response to an allegation of racism focuses on finding evidence of professional misconduct and then punishing staff. The interests and needs of the person harmed are ignored. I'm happy to send my full report on the study as a contribution to this working group.