Incarceration, restorative justice and health

Of the barrage of discouraging pandemic statistics - the quarter of a million U.S. deaths to date, the 93 daily new cases per 100,000 residents and current 20+ percent test positivity rate in my adopted state of Utah - one of the most striking is that of the 14 persons who died from COVID-19 in Texas county jails from April to September, 11 were awaiting trial and had not been convicted of a crime. A recent report of COVID-19 deaths in Texas correctional institutions from the University of Texas at Austin found that jail deaths represented only 6 percent of the 231 overall deaths during incarceration (including prison staff). Those serving time for a criminal conviction were, clearly, not sentenced to death by suffocation from a deadly virus. Since Texas accounts for approximately 9 percent of the U.S. population, my conservative estimate is that at least 100 Americans, mostly persons of color, have already died from COVID-19 while detained in jails awaiting trials, unable to physically distance or otherwise protect themselves.

A few years ago, as a member of the American Academy of Family Physicians' Commission on the Health of the Public and Science, I co-authored a position paper that articulated a family medicine perspective on the negative effects of mass incarceration on the health of justice-involved persons, their families, and their communities. We found that in 2016, the U.S. corrections system supervised 6.6 million people (1 in every 50 residents) in jails, prisons, or on probation or parole - the highest incarceration rate in the world and a nearly fivefold increase since 1978. Given these figures, a basic understanding of the justice system has become essential not only for family physicians and internists, but also pediatricians, who are increasingly likely to encounter justice-involved youth. The "Patients, Populations, and Policy" course that I co-direct at Georgetown includes a mandatory screening of the documentary 13th, which argues that a loophole in the 13th Amendment to the U.S. Constitution, which abolished slavery and involuntary servitude for African Americans "except as a punishment for crime," enabled institutionalized racism in policing and criminal sentencing that persists to this day.

This background explains why many progressive Americans are not celebrating the recent election of Senator Kamala Harris, a former prosecutor, to the office of Vice President of the United States. As the current Vice President pointed out during their October 7 debate, during Harris's tenure as California Attorney General, Black persons were much more likely to be prosecuted for minor drug offenses and were disproportionately incarcerated compared to their share of the general population. In a New York Times Magazine article, former felon Reginald Betts reflected on his mixed feelings about prosecutors and mass incarceration. Betts, who was convicted of carjacking and armed robbery and imprisoned from age 16 to 24, was shocked to learn after his release that his mother had been raped at gunpoint just weeks after his arrest. Naturally, even though some of the men with whom he served time were guilty of similar offenses, Betts "thought he [the rapist] should spend the rest of his years staring at the pockmarked walls of prison cells that I knew so well."

Betts observed that most Americans who oppose mass incarceration today imagine that most of the prison population is serving time for nonviolent drug-related crimes. Not so: "You could release everyone from prison who currently has a drug offense and the United States would still outpace nearly every other country when it comes to incarceration." What, then, is the responsibility of progressive prosecutors who, like Vice President-elect Harris, desire to address inequities in the justice system that result not only from unjust policing, but penalties for the crimes themselves? Betts responded:

The prosecutor’s job, unlike the defense attorney’s or judge’s, is to do justice. What does that mean when you are asked by some to dole out retribution measured in years served, but blamed by others for the damage incarceration can do? The outrage at this country’s criminal-justice system is loud today, but it hasn’t led us to develop better ways of confronting my mother’s world from nearly a quarter-century ago: weekends visiting her son in a prison in Virginia; weekdays attending the trial of the man who sexually assaulted her.

Ideally, our criminal justice system should serve two purposes: punishment and rehabilitation. That three-quarters of persons released from state prisons in 2005 were arrested again within 5 years suggests that the system fails miserably at the latter, and if spending time behind bars (punishment) is supposed to deter criminals from committing crimes again, failing at the former as well. As Betts wrote:

It always returns to this for me — who should be in prison, and for how long? I know that American prisons do little to address violence. If anything, they exacerbate it. If my friends walk out of prison changed from the boys who walked in, it will be because they’ve fought with the system — with themselves and sometimes with the men around them — to be different. 

Through the mystery novels of the late Tony Hillerman, I am superficially familiar with the Navajo Nation's concept of "restorative justice", described in a 1994 New Mexico Law Review article by former Navajo Nation Chief Justice Robert Yazzie. Yazzie characterized traditional American justice as an "adversarial" process administered by strangers:

Law, in Anglo definitions and practice, is written rules which are enforced by authority figures. It is man-made. Its essence is power and force. The legislatures, courts, or administrative agencies who make the rules are made up of strangers to the actual problems or conflicts which prompted their development. When the rules are applied to people in conflict, other strangers stand in judgment and police and prisons serve to enforce those judgments.

In contrast, traditional Navajo peacemaking shuns a justice system based on "social control" in favor of pragmatic group problem-solving about "the means to live successfully." In a related article, Yazzie wrote:

Navajo peacemaking is about the effects of what happened. Who got hurt? What do they feel about it? What can be done to repair the harm? ... In Navajo peacemaking, offenders are brought in to a session involving the person accused of an offense and the person who suffered from it, along with the “tag-along” victims of the crime, namely the relatives of the accused and of the person hurt by the accused.  The sessions are moderated by a community leader called a “peacemaker.” The action is put on the table. People talk about what happened and how they feel about it. A harmful act is “something that gets in the way of living your life,” and Navajo peacemaking deals with such an act by identifying it, talking about it, and devising a plan to deal with it.

The recent execution of a Navajo man on federal death row for the carjacking-murder of two Navajos in 2001, despite the opposition of the Navajo Nation, highlighted the potential advantages of incorporating restorative justice into state and federal criminal justice systems. Although it's possible that the victims' loved ones gained some satisfaction from the execution (albeit 19 years after the murders), it's hard to argue that any harm was "repaired" or harmony restored by this second violent act. (Note: as a practicing Catholic, I believe that the death penalty is wrong regardless of the crime.) I don't believe that prisons should be abolished, any more than I believe that police departments should be defunded. But if the U.S. is going to continue to pour hundreds of billions of dollars into incarceration every year, a large chunk of those dollars ought to be devoted to peacemaking - making the offender whole and less likely to offend again - rather than punishment.