Transformative justice

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Transformative justice is a spectrum of social, economic, legal, and political practices and philosophies that aim to focus on the structures and underlying conditions that perpetuate harm and injustice. [1] Taking up and expanding on the goals of restorative justice such as individual/community accountability, reparation, and non-retributive responses to harm, transformative justice imagines and puts into practice alternatives to the formal, state-based criminal justice system.

Contents

Overview of Transformative Justice

As defined by American activist Mariame Kaba, transformative justice is a framework that focuses on community-building and collective solidarity against the repressive mechanisms of the carceral state. [2] First popularized by Queer, Black, Indigenous, Latinx, and other marginalized communities due to their perception that they were unable to rely on the police and the courts to obtain justice after being victimized by interpersonal harm (such as hate crimes, sexual assaults, and domestic violence), it prioritizes the relationships between the individual, the communities to which they are accountable, and the broader systems and surrounding environment in which we are implicated. [3] Contemporary transformative justice theorizing traces its lineage to other anti-carceral and abolitionist social movements as led by Black, Indigenous, and other racialized communities who are often directly harmed by the carceral state.

Transformative justice divests from traditional methods of state-sanctioned punishment, such as police, prisons, courts and juvenile delinquency programs, as it is premised on the assumption that these institutions inflict more harm on individuals through surveillance and social control, which fosters even more violence and harm both within prisons and communities on the outside. [2]

Transformative justice aims to resist and divest from traditional methods of state-sanctioned punishment such as police, prisons, the judiciary, and juvenile delinquency programs. Premised on the recognition that these institutions frequently inflict compounding harm on individuals through surveillance and social control, transformative justice advocates look to move away from the ways in which the criminal justice system perpetuates harm both within prisons and communities on the outside. [2]

Transformative justice also rests on the belief that interpersonal harm interacts with and reflects systemic and institutional mechanisms of oppression. For instance, sexual assault mirrors the patriarchal conception of women as devoid of personal agency. Therefore, transformative justice recognizes that addressing individual interpersonal harm and conflict must simultaneously aim to dismantle systemic structures of power (such as patriarchy, cisheteronormativity, racism, ableism, and colonialism). [2] To this end, transformative justice applies a systems approach, seeking to see problems as not only evidence of crime but also as a catalyst for crime. [4] With respect to those impacted, it aims to recognize instances of harm as an opportunity for a transformative, relational, and educational intervention for victims, offenders, and the broader community. In this light, applications of transformative justice practices can meaningfully apply even between people who have had no prior contact.

Transformative justice takes the principles and practices of restorative justice beyond the criminal justice system. It applies to areas such as environmental law, corporate law, labor-management relations, consumer bankruptcy and debt, and family law. [4] Transformative justice uses a systems approach, seeking to see problems, as not only the beginning of the crime but also the causes of crime, and tries to treat an offense as a transformative relational and educational opportunity for victims, offenders and all other members of the affected community. [5] In theory, a transformative justice model can apply even between peoples with no prior contact.

Writer and transformative justice practitioner adrienne maree brown contends that transformative justice cannot occur if the reaction to each committed transgression is one of a public takedown (reminiscent of cancel culture). [6] brown calls out the hypocrisy of thinkers in the transformative justice movement who reproduce the very forms of retribution and violence in their disagreements that transformative justice seeks to subvert. Additionally, brown offers practical considerations to reflect on in situations of conflict in the goal of a collective pivot to transformative justice:

Transformative justice can be seen as a general philosophical strategy for responding to conflicts akin to peacemaking. [7] Transformative justice is concerned with root causes and comprehensive outcomes. It is akin to healing justice more than other alternatives to imprisonment. [8] In this, transformative justice takes the principles and practices of restorative justice beyond the criminal justice system and applies to areas such as environmental law, corporate law, labor-management relations, consumer bankruptcy and debt, and family law. [4]

As in transformative learning, one works from desired future states back to the present steps required to reach them. The issue is not whether the perpetrator may make a choice to do something similar again, but whether the community is willing to support the victim and perpetrator in some form of contact. [9] It is possible for the community to choose to support the perpetrator and not the victim as defined by the law, but if they do so they may be obligated to support some re-definition of "equity" so that law comes back into line with the social concept of equity. For example, it is possible for the community to support imprisonment as a means of isolation but not punishment.

This model for decarceration may have roots in the work of Samuel Tuke and B. F. Skinner but departs by relying on individual volunteers' caring and supporting capacity, not any socially imposed etiquette derived from civilization. Transformative justice theory has been advanced by Ruth Morris [10] and Giselle Dias of the Canadian Quakers.

Anarchist criminology tends to favour holistic transformative justice approaches over restorative justice, which it tends to argue is too beholden to the existing criminal justice system. [11]

Distinctions between transformative and restorative justice

Transformative justice is distinguishable from restorative justice in that transformative justice places emphasis on addressing and repairing harm outside of the state. [12] adrienne maree brown uses the example of a person who has stolen money in order to buy food to sustain themselves, writing that “if the racialized system of capitalism has produced such inequality that someone who is hungry and steals a purse to resource a meal, returning the purse with an apology or community service to does nothing to address that hunger”. [13] Instead, transformative justice requires “the work of addressing harm at the root, outside the mechanisms of the state, so that we can grow into the right relationship with one another”. [13]

Transformative justice is further distinct from restorative justice in that, as many activists and movements stress, the latter is more easily vulnerable to state co-optation. While many of the goals of restorative justice intersect or are compatible with the goals of transformative justice, many restorative justice practices tend to operate within the confines of existing state structures, such as within jails or through community programs involving law enforcement. For example, many restorative justice initiatives take place directly within jails and involve a collaborative relationship with law enforcement or with state sponsored justice systems. As Mimi Kim writes: [14]

“What most of these restorative justice programs share, however, is a collaborative tie to law enforcement, a fact often taken for granted or just as easily overlooked as the promise of restoration rather than retribution distracts attention from the carceral conditions that still bind many of these practices. While pitched as an alternative to the machinery of mass incarceration, restorative justice programs are often initiated from within or in close collaboration with the criminal legal system, leaving its assumptions, its personnel, and its program design within the logic and institutions of the carceral state. In practice, this means that these programs, in large part, leave the selection of cases and, likewise, their potential withdrawal from qualification to prosecutors; failure to meet law enforcement standards may result in sentencing and incarceration; and a number of such programs are carried out entirely within the walls of jails and prisons.”

A stark divide between restorative justice and transformative justice rests on the question of whether or not to engage with the criminal justice system in navigating responses to instances of harms or violence. It is the reliance on or collaboration with formalized or state systems of justice that distinguishes restorative justice approaches from transformative justice ones. Thus, while restorative justice and transformative justice may share similar ideological underpinnings and goals, their set of approaches and tactics can be quite divergent.

In contrast to restorative justice, no quantification or assessment of loss or harms or any assignment of the role of victim is made, and no attempt to compare the past (historical) and future (normative or predicted) conditions is made either. [5] While restorative justice seeks to return the victim to their initial state before the harm occurred, transformative justice is more concerned with questioning whether the conditions in place before the harm are themselves equitable and just, and looks to redress them in order to prevent further harm within the community. [15] The victim is not normally part of the transformative process, but can choose to be. Participants agree only on what constitutes effective harms reduction, which may include separating or isolating perpetrator and victim.

In contrast to equity-restorative justice, there is no social definition of equity imposed on participants. Each is free to decide on some "new normal" state of being for themselves, and is not pressured to agree on it. [16] A victim may continue to seek revenge or desire punishment, e.g. as in retributive justice systems. A perpetrator may lack remorse and may say that they lack remorse.

Applications of transformative justice

In post-colonial and post-conflict settings

Transformative justice also refers to policy and practice responses to socioeconomic issues in societies transitioning away from conflict or repression. It is closely associated with the scholarship and practice of transitional justice, and refers to "transformative change that emphasises local agency and resources, the prioritisation of process rather than preconceived outcomes, and the challenging of unequal and intersecting power relationships and structures of exclusion at both local and global levels". [17]

Climate justice

Some climate justice approaches promote transformative justice where advocates focus on how vulnerability to climate change reflects various structural injustices in society, such as the exclusion of marginalized groups from decision-making and from climate resilient livelihoods, and that climate action must explicitly address these structural power imbalances. For these advocates, climate change provides an opportunity to reinforce democratic governance at all scales, and drive the achievement of gender equality and social inclusion. At a minimum, priority is placed on ensuring that responses to climate change do not repeat or reinforce existing injustices, which has both distributive justice and procedural justice dimensions. Other conceptions frame climate justice in terms of the need to curb climate change within certain limits, like the Paris Climate Agreement targets of 1.5C, otherwise the impacts of climate change on natural ecosystems will be so severe as to preclude the possibility of justice for many populations. [18]

Sexual Violence and Harm

Transformative justice aims to recognize and sit with the needs and desires of victim-survivors of sexual violence in seeking justice. Acknowledging the interconnectedness of individual and social justice, advocates of transformative justice hold that experiences of intimate partner violence and sexual violence are linked to the broader ways that factors such as race, class, gender, sexuality, ability, migrant and legal status, and beyond manifest as hierarchies of power and oppression. [4]  Recognizing that the state and formal criminal justice system often uphold these hierarchies, transformative justice responses to sexual violence often seek resolutions within community or civil society-based groups. [12]

As stated by the generation FIVE coalition, a response to sexual violence as grounded in transformative justice must promote:

1.     Survivor safety, healing and agency

2.     Offender accountability and transformation

3.     Community response and accountability

4.     Transformation of the community and social conditions that create and perpetuate sexual violence, i.e. systems of oppression, exploitation, domination, and State violence. [4]

While transformative justice seeks to compassionately put the experiences of those harmed by sexual violence in conversation with the way that communities are both sites and sources of similar violence, feminist critiques of restorative justice also extend to transformative justice. Noting in particular how some victim-survivors may desire a retributive and carceral “solution”, Annalise Acorn provides important complexity to alternative modes of justice that calls on transformative justice practitioners to be attentive to the intimate and profound harm of sexual violence. [19]

See also

Related Research Articles

In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term crime does not, in modern criminal law, have any simple and universally accepted definition, though statutory definitions have been provided for certain purposes. The most popular view is that crime is a category created by law; in other words, something is a crime if declared as such by the relevant and applicable law. One proposed definition is that a crime or offence is an act harmful not only to some individual but also to a community, society, or the state. Such acts are forbidden and punishable by law.

<span class="mw-page-title-main">Justice</span> Concept of moral fairness and administration of the law

Justice, in its broadest sense, is the concept that individuals are to be treated in a manner that is equitable and fair.

<span class="mw-page-title-main">Violence</span> Use of physical force or psychological power with the intent to inflict harm

Violence is often defined as the use of physical force by humans to cause harm and degradation to other living beings, such as humiliation, pain, injury, disablement, damage to property and ultimately death, as well as destruction to a civilization society's living environment. There's growing recognition among researchers and practitioners of the need to include violence that does not necessarily result in injury or death. The World Health Organization (WHO) defines it as "the intentional use of physical force or power, threatened or actual, against oneself, another person, or against a group or community, which either results in or has a high likelihood of resulting in injury, death, psychological harm, maldevelopment, or deprivation."

<span class="mw-page-title-main">Retributive justice</span> Type of punishment

Retributive justice is a legal concept whereby the criminal offender receives punishment proportional or similar to the crime. As opposed to revenge, retribution—and thus retributive justice—is not personal, is directed only at wrongdoing, has inherent limits, involves no pleasure at the suffering of others, and employs procedural standards. Retributive justice contrasts with other purposes of punishment such as deterrence, exile and rehabilitation of the offender.

<span class="mw-page-title-main">Restorative justice</span> Restitution with input from victims and offenders

Restorative justice is an approach to justice that aims to repair the harm done to victims. In doing so, practitioners work to ensure that offenders take responsibility for their actions, to understand the harm they have caused, to give them an opportunity to redeem themselves, and to discourage them from causing further harm. For victims, the goal is to give them an active role in the process, and to reduce feelings of anxiety and powerlessness. Restorative justice programs can also complement traditional methods, such as retributive justice, and it has been argued that some cases of restorative justice constitute punishment from the perspectives of some positions on what punishment is.

<span class="mw-page-title-main">Prison abolition movement in the United States</span> Movement to end incarceration

The prison abolition movement is a network of groups and activists that seek to reduce or eliminate prisons and the prison system, and replace them with systems of rehabilitation and education that do not focus on punishment and government institutionalization. The prison abolitionist movement is distinct from conventional prison reform, which is intended to improve conditions inside prisons.

<span class="mw-page-title-main">Howard Zehr</span> American criminologist

Howard J. Zehr is an American criminologist. Zehr is considered to be a pioneer of the modern concept of restorative justice.

Restorative practices is a social science field concerned with improving and repairing relationships and social connections among people. Whereas a zero tolerance social mediation system prioritizes punishment, RP privileges the repair of harm and dialogue among actors. In fact, the purpose of RP is to build healthy communities, increase social capital, decrease crime and antisocial behavior, mend harm and restore relationships. It ties together research in a variety of social science fields, including education, psychology, social work, criminology, sociology, organizational development and leadership. RP has been growing in popularity since the early 2000s and varying approaches exist.

Specialized domestic violence courts are designed to improve victim safety and enhance defendant accountability. There is no one set definition of a specialized violence court, although these types of courts can be either civil or criminal and typically hear the majority of an area's domestic violence cases on a separate calendar. Additionally, these courts are typically led by specially assigned judges who can make more informed and consistent decisions based on their expertise and experience with the unique legal and personal issues in domestic violence cases.

Victims' rights are legal rights afforded to victims of crime. These may include the right to restitution, the right to a victims' advocate, the right not to be excluded from criminal justice proceedings, and the right to speak at criminal justice proceedings.

The following outline is provided as an overview of and topical guide to domestic violence:

<span class="mw-page-title-main">Alternatives to imprisonment</span> Types of punishment or treatment other than time in prison

The alternatives to imprisonment are types of punishment or treatment other than time in prison that can be given to a person who is convicted of committing a crime. Some of these are also known as alternative sanctions. Alternatives can take the form of fines, restorative justice, transformative justice or no punishment at all. Capital punishment, corporal punishment and electronic monitoring are also alternatives to imprisonment, but are not promoted by modern prison reform movements for decarceration due to them being carceral in nature.

Violence against men comprises violent acts that are disproportionately committed against men or boys. Men are overrepresented as both victims and perpetrators of violence. Violence against women is the opposite category, where acts of violence are targeted against the female gender.

<span class="mw-page-title-main">Management of domestic violence</span>

The management of domestic violence deals with the treatment of victims of domestic violence and preventing repetitions of such violence. The response to domestic violence in Western countries is typically a combined effort between law enforcement, social services, and health care. The role of each has evolved as domestic violence has been brought more into public view.

<span class="mw-page-title-main">Sexual assault of LGBT persons</span>

Sexual assault of LGBT people, also known as sexual and gender minorities (SGM), is a form of violence that occurs within the LGBT community. While sexual assault and other forms of interpersonal violence can occur in all forms of relationships, it is found that sexual minorities experience it at rates that are equal to or higher than their heterosexual counterparts. There is a lack of research on this specific problem for the LGBT population as a whole, but there does exist a substantial amount of research on college LGBT students who have experienced sexual assault and sexual harassment.

<span class="mw-page-title-main">Carceral feminism</span> Forms of feminism that advocate for increased prison sentences

Carceral feminism is a critical term for types of feminism that advocate for enhancing and increasing prison sentences that deal with feminist and gender issues. The term criticises the belief that harsher and longer prison sentences will help work towards solving these issues. The phrase "carceral feminism" was coined by Elizabeth Bernstein, a feminist sociologist, in her 2007 article, "The Sexual Politics of the 'New Abolitionism'". Examining the contemporary anti-trafficking movement in the United States, Bernstein introduced the term to describe a type of feminist activism which casts all forms of sexual labor as sex trafficking. She sees this as a retrograde step, suggesting it erodes the rights of women in the sex industry, and takes the focus off other important feminist issues, and expands the neoliberal agenda.

<span class="mw-page-title-main">Paramilitary punishment attacks in Northern Ireland</span> Informal criminal justice system operated by loyalist and republican groups in Northern Ireland

Since the early 1970s, extrajudicial punishment attacks have been carried out by Ulster loyalist and Irish republican paramilitary groups in Northern Ireland. Attacks can range from a warning or expulsion from Northern Ireland, backed up by the threat of violence, to severe beatings that leave victims in hospital and shootings in the limbs. The cause of the attacks is disputed; proposed explanations include the breakdown of order as a result of the Northern Ireland conflict, ideological opposition to British law enforcement, and the ineffectiveness of police to prevent crime.

<span class="mw-page-title-main">Anarchist criminology</span> School of thought in criminology

Anarchist criminology is a school of thought in criminology that draws on influences and insights from anarchist theory and practice. Building on insights from anarchist theorists including Pierre-Joseph Proudhon and Peter Kropotkin, anarchist criminologists' approach to the causes of crime emphasises what they argue are the harmful effects of the state. Anarchist criminologists, a number of whom have produced work in the field since the 1970s, have critiqued the political underpinnings of criminology and emphasised the political significance of forms of crime not ordinarily considered to be political. Anarchists propose the abolition of the state; accordingly, anarchist criminologists tend to argue in favour of forms of non-state justice. The principles and arguments of anarchist criminology share certain features with those of Marxist criminology, critical criminology and other schools of thought within the discipline, while also differing in certain respects.

Secondary victimisation refers to further victim-blaming from criminal justice authorities following a report of an original victimisation.

<span class="mw-page-title-main">Abolition feminism</span>

Abolition Feminism is a branch of feminism that calls for the elimination of the prison industrial complex. The term was coined by thinkers Angela Y, Davis, Gina Dent, Erica R. Meiners, and Beth E. Richie in their book Abolition. Feminism. Now. Abolitionist Feminist thinkers promote the idea of prison abolition, and embrace an anti-racism, anti-capitalist, anti-violence feminism. Abolition Feminism is in opposition to carceral feminism. Abolitionist Feminist reject carceral solutions to gender-based violence and propose models of transformative and restorative justice.

References

  1. ↑ Cossman, Brenda. “Regulating Reparatively”. In The New Sex Wars, 163-196. New York: New York University Press, 2021.
  2. 1 2 3 4 Kaba, Mariame. We Do This ‘Til We Free Us. Haymarket Books, 2021.
  3. ↑ Chen, Ching-In, Jai Dulani, and Leah Lakshmi Piepzna-Samarasinha, eds. The Revolution Starts at Home: Confronting Intimate Violence Within Activist Communities, 2nd ed. AK Press, 2016.
  4. 1 2 3 4 5 Generation FIVE. Toward Transformative Justice: A Liberatory Approach to Child Sexual Abuse and other forms of Intimate and Community Violence. PDF. Generation FIVE, 2007.
  5. 1 2 Morris, Ruth. Stories of Transformative Justice. Canadian Scholars Press, 2000.
  6. 1 2 Dixon, Fieris, and Leah Lakshmi Piepzna-Samarasinha, eds. Beyond Survival: Strategies and Stories From the Transformative Justice Movement. AK Press, 2020.
  7. ↑ Creative Interventions. Creative Interventions Toolkit: A Practical Guide to Stop Interpersonal Violence. PDF. Creative Interventions, 2007.
  8. ↑ Page, Cara, and Erica Woodland. Healing Justice Lineages. Penguin Random House, 2023.
  9. ↑ Ritchie, Andrea. Expanding Our Frame: Deepening our Demands for Safety and Healing for Black Survivors of Sexual Violence, A Policy Brief. PDF. National Black Women’s Justice Institute, 2019.
  10. ↑ Quakers in the World. “Ruth Rittenhouse Morris”. Accessed April 4, 2024. https://www.quakersintheworld.org/quakers-in-action/162
  11. ↑ Novella II, Anthony J., Mark Seis, and Jeff Shantz. “Introduction: The Rise of Anarchist Criminology”. In Contemporary Anarchist Criminology: Against Authoritarianism and Punishment, edited by Anthony J. Nocella II, Mark Seis, and Jeff Shantz. Peter Lang, 2018.
  12. 1 2 Kim, Mimi E. “From carceral feminism to transformative justice: Women-of-color feminism and alternatives to incarceration”. Journal Of Ethnic & Cultural Diversity in Social Work 27, no. 3 (2018): 219-233. doi:10.1080/15313204.2018.1474827
  13. 1 2 brown, adrienne marie. We Will Not Cancel Us: And Other Dreams Of Transformative Justice. AK Press, 2020.
  14. ↑ Kim, Mimi E. “Anti-Carceral Feminism: The Contradictions of Progress and the Possibilities of Counter-Hegemonic Struggle”. Affilia 35, no. 3 (2019): 309-326. doi:10.1177/0886109919878276.
  15. ↑ Mingus, Mia. “Transformative Justice: A Brief Description”. TransformHarm, January 11, 2019. https://transformharm.org/tj_resource/transformative-justice-a-brief-description/
  16. ↑ Sociology Lens Insights. “Restorative Justice and Transformative Justice: Definitions and Debates”. Accessed October 11, 2019. https://www.sociologylens.net/topics/crime-and-deviance/restorative-justice-and-transformative-justice-definitions-and-debates/11521
  17. ↑ Gready, Paul, and Simon Robins, eds. From Transitional Justice to Transformative Justice. Cambridge University Press, 2019. doi:10.1017/9781316676028
  18. ↑ Cameron, Edward, Tara Shina, and Wendi Bevins. Climate Justice: Equity and Justice Informing a New Climate Agreement. PDF. World Resources Institute and Mary Robinson Foundation, 2013.
  19. ↑ Acorn, Annalise. Compulsory Compassion: A Critique of Restorative Justice. Vancouver: University of British Colombia Press, 2004.

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