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1 Reduction in Recidivism Through Restorative Justice Alex Taylor Walden University FPSY 6912: Mental Health Law Dr. Matthew Geyer February 11, 2023

2 Reduction in Recidivism Through Restorative Justice Retributive justice, the idea that when someone commits a crime they should be punished accordingly. There is an ominous question as to whether retributive justice is still an effective form of punishment as recidivism rates rise. According to the Department of Justice the number of state offenders who will reoffend within the first ten years post incarceration is 82% (Antenangali & Durose, 2021). The staggering number of people who end up going back to federal and state prison has many questions if retributive justice is a fitting solution to crimes committed. The cost of housing and feeding prisoners is growing each year, and the burden of the cost is falling on the taxpayers (Meehan, 2022). Recent years have shown that taxpayers favor finding more cost-effective solutions to crime and a piece of that is reducing how often prisoners go back to prison (Alper et al., 2018) The less people reoffend, the less of a cost on the taxpayers. As the public is becoming more aware of the failures of retributive justice, restorative justice is starting to make its appearance in justice alternatives. By reviewing the current trends of retribution justice, restorative justice and recidivism, there is a compelling case for restorative justice to be implemented more concretely into the justice system to reduce recidivism. Finding solutions to reducing recidivism means also examining at why retributive justice is failing. Currently, retributive justice is the bread and butter of the justice system; when someone commits a crime, they repay their debt to society through a form of punishment. For most offenders this would be time in jail or prison to incapaciate them to the point of not wanting to commit a crime again. The United States has the highest rate of incarceration and the highest

3 rate of recidivism, concluding that there is something that is not working within the justice system (Petrich et al. , 2021). The failure within the justice system through the high incarceration and the recidivism rate have the public, lawmakers and researchers looking for sensible smart solutions to punishment and justice and one of those solutions is restorative justice. Restorative justice allows the offender to mend their wrongdoing with victims and/or society. By allowing the victim to be involved in the process, the offender can face the crime they have committed and take accountability. When implemented in appropriate situations restorative justice, is humanized, and is taught how their actions and the decisions were harmful and by being seen as a human rather than stigmatized, this ignites a better response from the offender, therefore the probability of them reoffending decreases. Retributive Justice and Recidivism The History of Retributive Justice and Incarceration Retribution philophises of justice can be traced back to precept lex talionis or the law of retaltiation (LeMaster & Mapes, 2020). Most people when thinking about crime and punishment are thinking about retributive justice. The common saying, ‘lock them up and throw away the key,’ is rooted in retributive justice and incarceration. When people think of current punitive punishment, most are also thinking of retributive justice. Retributive justice involves evaluating the offense and determining if the offense deserves a punishment and what type of punishment. Society wants to retaliate against someone who violated a social norm.

4 This type of justice is formulated in the idea that an offender committed a crime, violated a social norm and the offender deserves to be punished and the punishment must be proportionate to the crime that was committed (Green & Heliburn, 2019). For those who did commit a crime, one of the most common forms of punishment is to be sentenced to serve time in either jail or prison. The premise behind this form of punishment is that if someone is sentenced to jail or prison, they will be incapaciated, away from society and the offender will no longer want to commit a crime. Of course the length of that sentence can be traced back to laws that were found in the 1970’s and 1990’s (Petrich et al., 2021) Retributive justice is heavily grounded in incarceration and the length of sentences have been determined by laws and policies over the existence of the United States. This is going back to the idea that if someone commits a crime, they should be taken away from the community and they will not be a problem ever again and as violent crime rates rose, there was a public cry to be harder on crime to deterrer future crime and there was a myriad of legal and policy changes between the mid-1970's and 1990’s made sentences to imprisonment much more likely and longer (Petrich et al., 2021). The state and federal laws that were passed were deemed to be “tough crime,” in the “interest of public safety.” There were specific laws that have contributed to the amount of people being incarcerated at the state and federal level for example: The 1984 Federal Comprehensive Crime Control Act required a five-year sentence enhancement for carrying a firearm during the commission of another drug or violent offense. In the 1990s, over half of the states passed a three-strike or habitual offender law to target repeat offenders. Controversially, in California, these laws required a life sentence for individuals convicted of a felony who had been convicted of two or more felonies in the past. At the federal level, legislation such as the 1994 Violent Crime

5 Control and Law Enforcement Act provided states with additional funding for the construction of prisons, conditional on evidence that the state was sentencing more violent offenders to prison and for longer (As cited in Petrick et al 2021, Zimring et al 2001; Spohn 2008; Tonry 1996, 2009; National Academy of Sciences 2014; Pfaff 2017). The public saw the laws as keeping the community safe, but many did not know there was a monetary incentive for prisons to be built. There was no way or form that the prisons were going to sit open with no inmates, therefore building more prisons also fed the beast of passing tougher crime laws to fill the prisons. There has been a dysfunctional cycle between prisons, lawmakers and the public that has caused overcrowding, and ineffectiveness within the system. Now that the prisons are there, there was no choice but to fill them by passing laws that required lengthy sentences. The current trends and sentence lengths are significant; according to the Federal Bureau of Prisons (2023) 25.8% of the inmate population is serving a sentence of over five years, but less than ten (this the most common sentence); the second most common sentence makes up 22.5% of the population with a length over ten years, but less than fifteen. That means almost half the population is spending between five and fifteen years in prison. At this point, the sentences are being handed down, but there is no evidence that incarceration is effective, showing that retribution is also not effictive. The amount of people being incarcerated is from the idea that mass-incarceration will deter crime and reduce recidivism when mass incarceration has had a paradoxical effect. Harding et al. (2019) reviewed date in Michigan of violent offenders who were setenced to jail/prison time. Harding et al. (2019) also concluded; offenders who were seteneced to prison were not any more deterred from crime than those who were senteneced to probation or

6 commnunity service. Prison did not rehabilitate the offender and the sentence was not helpful for the offender in the long rung. The incapaciation of prison was inconvivent for the offender, but the study concluded that long term incarceration was an ineffective form of inveration and was not an effective had zero effect on deterring crime or reducing their likelihood of reoffending (Harding et al, 2019). Petrich et al. (2021) did a meta-analysis on mass incarceration and found that mass incarceration had no effect on recidivism and in fact only increased the amount offenders reoffended later. Instead of having the deterring effect that the public cried out for and that lawmakers created laws to do, science and statics are proving otherwise. Incarceration is undoubtably causing recidivism to rise. The more people being incarcerated, the more people can reoffend and contribute to the growing recidivism rate. Petrich et al. (2021) making the bold statement that mass incarceration is causing rising recidivism is not a theory or correlation anymore and is a criminogenic fact. There were distinct reasons found to impact the raising rate of recidivism and incarceration. There is also the suggestion that because there are so many people being incarcerated the number will undoubtably grow as there are just more people to reoffend. Another proposed idea is that prisons are seen as “criminal college,” where offenders who are going to prison are just learning more criminal behavior and perfecting it (Petrich et al., 2021). Such as, a drug criminal could potentially learn how to learn how to launder money from someone who was incarcerated for a white-collar crime. To make matters worse, prisons are not crime or drug free. Kolind and Duke (2016) reported that not only were inmates in prison more likely to use drugs, inmates who had no history of drug use were more likely to start using drugs. Prisons are

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