The act of dropping 16 felony charges against TV star Jussie Smollett didn’t need to be the injustice that it has become.
Even though they’re convinced he’s guilty, prosecutors in Chicago could have forgone prosecution in a different way — one that embraced the theory of restorative justice — and not passed up a perfect opportunity to model a new and more productive way of thinking about accountability.
Restorative justice’s roots lie in indigenous cultures and are older than our criminal legal system. Its practice became formalized in Canada 45 years ago in what’s called the “Kitchener experiment.” In lieu of going to jail, two teenagers who went on a vandalism spree met and made restitution arrangements with all 22 people whose property they damaged. Incarcerating the two wouldn’t have necessarily made everyone whole — financially or emotionally.
Restorative justice’s popularity is gaining now, most likely because it’s cheaper than locking people up, and it’s more satisfying to victims. According to Pew Charitable Trusts, 35 states have enacted legislation “encouraging the use of restorative justice” techniques.
These programs usually require victims and perpetrators to meet and discuss the harm that’s been done and ways to repair it. Studies in other countries have shown that people who’ve done harm are less likely to do it again once they learn the impact of their actions on other people — and when the lesson happens in a non-adversarial environment.
Restorative justice practices acknowledge two facts: one, that crime causes harm, and two, justice and accountability necessarily entail healing said harm. Healing requires that the system hear and acknowledge the people most affected by a crime and see that reparations are made.
Not embracing these principles is where prosecutors went wrong. The fact that Smollett wasn’t a victim doesn’t make this a victimless crime, yet that’s how they acted.
The victims in this case include the Chicago Police Department, whose time was wasted; Chicago taxpayers who footed a $130,000 bill for the investigation (far more than the $10,000 bond Smollett forfeited); and future victims of hate crimes whose trauma may be doubted. None of them were even consulted, much less given an opportunity to face Smollett and ask him why this happened.
Now those victims are dissatisfied, borderline rageful. And they want their justice the usual way: doling out convictions and terms of imprisonment.
One of the greatest modern American myths is that accountability must require punishment. On the contrary, accountability means accepting responsibility for one’s behavior and taking action to repair the harm. Every day, defendants in the same Cook County courthouse that released Smollett plead guilty and may never take responsibility for what they’ve done.
That accountability and punishment are inseparable is prosecutorial dogma that’s caused our prison populations to swell more than three times since Smollett was born.
The resolution of Smollett’s case moved away from that stance but in the wrong direction. A restorative justice model produces the same legal results — charges dismissed — but the feelings surrounding that disposition are much different because the community, in this case, Chicago, isn’t cheated of the reconciliation it deserves.
Foregoing restorative justice in this case didn’t do Smollett any favors, either. It’s true that he won’t go to prison or have a record, but he doesn’t know the harm he caused. He isn’t required to understand how his behavior affected other human beings or admit that his false report was a choice that could have been made differently.
If prosecutors would have embraced restorative justice principles, Smollett wouldn’t have dared to pose as the victim in this case, again, in a speech outside the courthouse like he did. He would have known better.
Restorative justice isn’t appropriate for every criminal case. Some victims don’t want it, and some defendants aren’t willing to participate. And we must admit that there are some corners of the human heart that restorative justice can’t reach: Certain harms can’t be healed through a mere meeting.
To find out more about Chandra Bozelko and read features by other Creators writers and cartoonists, visit the Creators website at www.creators.com.