What’s the Opposite of Punishment?

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The U.S. criminal justice system traditionally places a high value on punishment. Convictions, lengthy prison terms and public condemnation of criminal behavior by “tough on crime” prosecutors, judges, and elected officials are the norm.

But what if the system offered another way: a “ path of atonement” that would lead to redemption instead of a sentence or, for those already incarcerated, a way to make amends for the harms caused to victims and society?

A forthcoming University of Pennsylvania Law paper argues that it’s time to try alternatives to a correctional system that rarely fulfills its mission of “correcting”  or rehabilitating individual criminal behavior.

The authors of the paper, Paul H. Robinson and Muhammad Sarahne, both of the University of Pennsylvania, call their path “the opposite of punishment,” noting that it relies on positive examples of reformed offenders to pave the way for criminal justice reform.

Before explaining the path to the proposed systematic changes and its benefits, the authors detail the behaviors that an offender would need to exhibit in order to be characterized as working towards becoming a “positive example.”

There is a type of offender that the public should “recognize and celebrate” — the one who has been reformed to the core. This type of offender can redeem  himself or herself through many different avenues, by confessing, apologizing, or making amends.

A positive-example offender will also seek to change their own life for the better through programs like prison job training, educational opportunities, and advocacy, all while promising to abide by the law in the future.

The authors give the example of Alan Melton, who robbed a grocery store after he was laid off from his longtime job. Melton needed the money to pay for groceries, gasoline and his stepson’s funeral, but after a few days of thinking it over, he turned himself into the police and promised to make a full restitution.

Melton is a perfect example of an offender already on the path to atonement, but this can happen after conviction too, the authors argue.

Raphael Johnson, who was convicted  of second degree murder and spent many years in solitary confinement because of misconduct, decided to turn his life around while imprisoned. While institutionalized, he became a certified carpenter, plumber, electrician, and paralegal while corresponding and apologizing to his victim’s family.

Johnson’s story, the authors explain, shows how being on the “path of atonement” is important for personal and systematic reform, since he improved himself while improving the lives of the victim that he cannot bring back.

The Logistics of a New Program

The authors explain that a public redemption program’s aim is to fundamentally change how we treat offenders who are working towards a better future. This way, other offenders will be inspired to do the same, it’ll help the offenders to avoid future criminality.

The proposed public redemption plan outlined would begin with an initial application, followed by a hearing where the “positive example” offender would present her case to prove that she is rehabilitated and is passionate about making a difference.

The hearing would generally take place after “the deserved punishment” has been completed, the authors suggest.

Anticipating skeptics who would argue it’s easy to “fudge” reformed behavior, the authors argue that “that the public redemption decision be made by a jury.”

“No doubt juries will exercise some flexibility in interpreting whether the prerequisites are satisfied in a given case,” they wrote.

The authors also suggested that a state governor could decide the case through executive clemency or pardoning power, which would add reliability and authority.

“The costs of a public redemption procedure ought to be minimal” because “there are  essentially no limitations on the kind of information that can be introduced, there is  essentially no pre-hearing procedure needed,” like a lengthy voir dire that criminal trials experience, the authors wrote.

These trials could be completed in a few hours for most cases, and the paper added that prospective trial jurors could participate in short public redemption hearings while they wait to be called for trial.

Moreover, the authors wrote, victims’ families and community organizers should be welcome to express their views at a redemption hearing.

Why Should the Status Quo Change? 

“A formal public recognition program might at little cost have dramatic positive effects for offenders, for victims, and for society generally,” the paper said.

If the offender is found to be “redeemed,” he deserves a public acknowledgement of his new status. Moreover, this positive result should coincide with an update in the criminal record that records the redemptive moves made by the offender.

The authors add that the offender should then be exempt “from all collateral consequences of conviction” like fines, community service, and restrictions on voting.

Through an offender apologizing and making amends for crimes committed, communities and victims alike have a chance to come to terms with their trauma, and look to the future, the authors wrote.

“Our criminal justice history has been almost exclusively based upon advertising the negative example of conviction and punishment as the means by which we condemn prohibited conduct, stigmatize violators, and promote societal norms,” the paper concluded.

“Perhaps it is worth at least experimenting with a system of positive examples to promote these same important goals.”

Paul H. Robinson is the Colin S. Diver Professor of Law at the University of Pennsylvania Law School, and he has been appointed to the National Academy of Sciences, Committee on Law and Justice (CLAJ). Muhammad Sarahne is an SJD Candidate at the University of Pennsylvania Law School and a Dean’s Scholar.

The full report can be assessed here. 

Additional Reading: After the Crime: Should Redemption Be Rewarded?

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