When the United States was created in 1776, it was believed that punishment for crime offenses should do three things: correct the offender, repair the wrong, and deter the evil that caused the crime to be committed (Welch, 54).  The idea of “correcting the offender” outweighed the other two purposes of punishment, and alongside the economic benefit of putting incarcerated prisoners to work, eventually lead to a retributive justice system. This retributive justice system was created and focused on punishment still, as well as the idea of “an eye for an eye”--if you commit a crime, you are punished for it. (Welch, 56). The other two principles--to repair any wrongs and to deter any evils that caused the crime to be committed--have become the basis for today’s ideas of restorative and rehabilitative justice practices, which are not prominently used in the United States. These other two practices focus on helping the offender so they will not continue to commit crime and can re-enter society as a productive member, rather than punishing them outright. By looking at restorative and rehabilitative justice practices, we see how they can positively impact offenders: their victims are more likely to gain closure, the offenders are more likely to improve their own well being, and upon release they are less likely to recidivate, which shows us these practices are more effective than our current retributive justice system. 

When first forming as a country, the United States focused its criminal justice system around corporal punishment: hanging, flogging, etc. Moving on, retribution--the punishment of criminal offenders--became the primary way to punish offenders for crimes, mainly through incarceration, or in plain terms: jail and prison. But this idea of retribution is ancient. Retributive justice is about morality, deterrence, and punishment, and is not “meant for the greater good of society” (Welch, 11). The morality aspect of retribution gives it an appeal to society, making them believe something good is being done after something bad occurred, although this is not the intent (Walen, 2016). Punishing offenders began with actions of corporal punishment, which we now know brought pleasure and peace of mind to those observing. But, the original intent of retribution towards offenders was to humiliate, control, and enforce strict codes (Welch, 50). Over time, some began to believe that we continue to use retribution as the primary practice of our justice system because it “is harsh and we over-represent recidivism rates” (Andenaes, 1952). Recidivism rates are hard to measure because they depend on the future, as well as how long an offender has been in jail and why they were placed in jail. Obviously offenders who commit harsh and violent crimes are placed in jail longer, and have a much smaller likelihood to have a chance at recidivating compared to someone who was arrested for a drug possession charge. Even still, punishment is meant to deter although today that is not always the result that ends up happening.

Deterrence and punishment both revolve around teaching the offender a lesson--not to commit crimes again, or in legal terms, not to recidivate. Recidivism has been an important reason behind the continuance of retributive justice; most believe if offenders are punished, they will no longer wish to commit crimes, and our society will be better and safer. Dr. Stanton E. Samenow has published work stating the opposite: “Punishment resulted in getting criminals off the street for lengthier periods of time, [but] statistics indicate that approximately four out of ten people were rearrested and and reconvicted after being released back into the community” (Samenow, 274). This data shows that the incarceration and punishment of offenders is neither contributing to lower crime rates nor a safer community. A twenty month long study done by the Brennan Center for Justice at New York University School of Law, called “What Caused the Crime Decline? [found] that increasing incarceration is not the answer [to controlling crime rates]” (Chettiar, 18). Incarceration has even been called “counterproductive” due to the data surrounding it showing that although crime rates have been decreasing, incarceration rates have increasing. Since 1990 and 1991, crime rates have declined by half and incarceration rates have doubled in New York City, as reported by the Brennan Center for Justice. (Chettiar, 18). 

The idea that retributive justice and incarceration are counterproductive is not only taken from the Brennan Center for Justice’s study and data, but a study performed by Daniel Reiser at Oxford University. Reiser’s study centered around testing solidarity and incarceration-like situation on one group of mice, while another group of mice were placed in large, open spaces. What Reiser was able to conclude is that the mice in the prison-like environment adopted “strange, repetitive, aggressive behaviors” (Reiser, 2014). Also, the group of mice who were placed together and allowed to roam around were able to develop new brain cells even as adults, meaning they were learning new, positive behaviors. This study strives to show that retributive justice and the solidarity of incarceration can be more harmful than helpful; leading to aggressive and strange behaviors that can be harmful should offenders be released back into society. 

Although the United States does not primarily use restorative justice today, The Smith Institute in the United Kingdom did a study where restorative justice was used primarily and had many positive outcomes. The study showed that through face-to-face contact between offenders and their victims; offenders were less likely to recidivate, victims were less angry and less likely to suffer from post-traumatic stress disorder, the practices cost less than traditional retributive practices, and that restorative justice was especially effective with “violent and property-related crime offenders” (Sherman, 34). The study’s results show that when given the chance to restore peace to their victims rather than receive only punishment, offenders also benefitted from the experience. Restorative justice is not only about restoring mental health, however, it can also be implemented financially in things like paying victims back for damages from property-related crimes or for a victim’s hospital bill, for example. In his essay, Dr. Sherman notes that although the data from the study he observed was mainly positive, restorative justice is not for everyone. 

This includes most non-violent offenses as well as drug offenses, which occupy the reason for incarceration for over 80% of offenders in state prisons (Sherman, 32). Also, for victims of property-related or violent crimes, some may not want to see their offenders. Rather, some may crave retribution as a form of revenge for what has happened to them, or do not want to be involved in any capacity. This makes restorative justice likely difficult to execute, but hopefully the possible benefits will eventually outweigh the possible obstacles. Even so, having offenders work to pay back their victims as well as face-to-face meetings between victims and offenders cost substantially less than prison. In reality, it can often cost nothing but time. Incarceration, however, can cost on average, around “$25,000 a year, [per inmate], at the taxpayer’s expense” (Welch, 4). The incredibly large expenses created by the incarceration of offenders are not even realized by most people. If more offenders could be given a chance to pay restoration towards their victims and community, financially or mentally, it could have a greater impact and benefit on our country as a whole. Hopefully restorative justice can have the greatest impact on the victim and the offender, however, and give them both peace of mind and the ability to move forward.

Although restorative justice has had positive implications on it's own, some believe that the best way to deter offenders from recidivating upon release is to use “restorative practices with rehabilitative ideals” (Waldgrave, 12). Through using the two together, the suggested method involves face-to-face contact with victims and/or financial restitution to represent the “restorative practices”. For the “rehabilitative ideals” aspect, it is suggested that the offender be enrolled in mandatory counseling or rehabilitation for mental illnesses such as drug or alcohol dependance and addiction, anger management courses, and sometimes even vocational training or education courses. Education courses are sometimes even required for offenders who do not have a high school diploma or a GED. The largest argument over implementing restorative justice and rehabilitative justice together surrounds the idea that it best benefits the offender, and that they will be less likely to commit crimes again. 

While there are many positive aspects to rehabilitative and restorative justice, many people oppose using them over incarceration and punishment. The opposition especially comes with the idea of educating offenders, when today, many people cannot afford education for themselves. They think that law-abiding citizens deserve education over those who are incarcerated, without realizing two things: who is actually incarcerated today, and how much it would cost versus incarceration. The cost to incarcerate offenders for less time while educating them rather than incarcerating them for as long as possible is much less. One year of incarceration costs around 25,000 tax dollars per inmate. If the community had a better understanding of how much of their money and taxes went towards prison costs, they may re-evaluate a retributive system. Also, many people do not understand that over half of federal prison populations are drug offenders and over a third are non-violent. Also, since America’s “War on Crime” began in 1965 and Nixon’s 1971 “War on Drugs” came about, crime rates have decreased exponentially; since 1991, they have decreased by fifty percent. But at the same time, incarceration rates have doubled since 1990, adding over one million people into prisons and jails (Sherman, 47). Most of these people are low level, non-violent, first or second-time offenders who get caught in minimum sentencing laws. 

These minimum sentencing laws were established during the sixties and seventies, making it federal law for first-time marijuana possession of any amount punishable with a mandatory minimum of 1 year incarceration (Welch, 34). Today, the wrong people are being locked up for way too long, and most of the time they shouldn’t be locked up at all. Incarcerating people may seem like the easy option, but many criminologists who study this say that our country has a “lack of concern with the idea of deterrence [and prefer an easy and quick way out]” (Allen, 16). It may make some people sleep better at night, until they get caught up in something they could’ve never imagined, and sentenced to a mandatory minimum of three years. Or one. Or ten. Incarcerating people takes away their whole lives, as well as their children's’ and family’s. No one belongs in jail for possessing drugs—they need help. Unfortunately, sometimes they can be put in jail for a life sentence, when they really need rehabilitation. 

Timothy Tyler was sentenced for life after getting caught with his third LSD possession charge. Rather than being sentenced to rehabilitation or a mental health facility where he could try to get off the drug, he was sentenced to a mandatory life sentence where he has been since 1994. This is just an example of overly-harsh mandatory sentencing laws putting away people who need treatment, not retribution. Tyler was a non-violent offender with mental health and addiction problems, not a vicious offender who needs to be taken from society. That is who needs to be put away: the vicious and violent offenders who threaten society. These violent offenders could also use rehabilitation to maybe someday re-enter society, but first they need to be removed from it and shown how they can change their ways. As for non-violent offenders however, incarceration and retributive justice are not the answer they need, restorative justice and rehabilitation are. 

In recent years, however, the Obama Administration began working on clemency appeals--motions that modify the punishment of a prisoner--for drug offenders who have a “clean prison record, do not present a threat to public safety, and were sentenced under out-of-date laws that have since been changed, and are no longer seen as appropriate” (Bruer, 2014). These laws are working to free those incarcerated for drug offenses, such as possession. Rather than be put in federal prison, these offenders should have been treated for addiction and possibly been taught vocational skills so that they did not resort to their old ways. Not only does this benefit the well being of the offender, but society--we can have more productive, working members and hopefully less illegal drug sales.

Now, I think our country needs to continue to account for the mistakes it has made in the past regarding the overzealous minimum sentencing laws and it's natural tendency to throw offenders in prison before considering other alternatives. It should not be the case that in the United States, over 80% of state prisons are populated with non-violent and drug offenders, and that 25% of the world’s incarcerated population are in the United States (Sherman, 27). Even the smallest changes can have large influences, Dr. Stanton E. Samenow has been publishing work about this idea since the 1980’s. He argues that all offenders, incarcerated or not, need “habilitation”, not “rehabilitation” which really means “to restore to a former capacity”. His idea of “habilitation is to help the offender change his thinking [which could even be done inside prisons for those who believe offenders deserve incarceration]” (Samenow, 275).  Because so many people do not understand that most of the prison population is made up of non-violent and drug offenders, many people oppose the idea of adjusting our justice system to implement more restorative and rehabilitative justice ideals. In result, people in prisons and jails begin to suffer further, becoming angry and aggressive rather than improving upon returning to society (Reiser, 2014). This is the opposite result that society wants: ex-convicts returning back to society to just be more angry, more likely to continue committing crimes, and to blame society for putting them in prison to begin with. This creates a more dangerous and harmful environment than before, and can be avoided if we begin to offer offenders help and a chance at improvement.

With the media always focusing on street and violent crime, it warps the perception of society into thinking these crimes are a much larger problem than they really are. People get scared, and elect to “lock up” those who break the law in order to feel safer. The appeal of retributive justice comes from the idea of “morality through punishment” (Walen, 2016). It means that the rest of the law-abiding citizens get to sleep better at night knowing people who break the law are sitting in prison. Even if those people are in prison for things such as selling and possessing drugs, financial fraud, and other non-violent crimes. But when sent to prison, they can become angry at society for putting them there or nothing--just waiting to get out and resort back to their old lifestyles and ways. Taking these offenders off the streets and throwing them in jail looks like it is a solution, but it is only a temporary fix, a bandaid. In the future, these offenders will most likely recidivate upon release out of anger and habit. Rather than allowing this to happen, we can change how we handle crime in our country and try to make more positive outcomes for everyone. With restorative and rehabilitative justice, victims have the ability to gain closure, offenders are able to “pay back” their victims, and the offenders are also given help taking their first steps towards changing their lives. They are taking steps towards becoming better, productive members of society who can benefit themselves, their families, and their community around them. Not only is retributive justice and incarceration known to be more expensive, it is also paid for by law-abiding taxpayers, which is another reason why we should begin making adjustments to our justice system. These adjustments should be made to sentencing protocols for crimes including minimum sentencing laws for jail time, as well as implementing restoration and rehabilitation first. This way, we can begin to make our country a better place with more productive citizens and a continuous deceleration of crime rates. 
