Moving The Goal Post: Punitive To Restorative
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Isn’t it disheartening how race and social status have colored the supposed black and white letter of the law? In this episode, Bill Stierle and Tom discuss the difference between the punitive and the restorative system. They use the college cheating scandal as an example where a prominent celebrity nearly got off with minimum jail time. On the other hand, an African-American mother was nearly sentenced to half a decade behind bars for a much lesser offense. Bill and Tom expose how law and order no longer run the nation unless it is colored by privilege. They ask the question of how the nation is supposed to move into a better system with all the damage already done.
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There are many troubling things happening in our country and in the world to an extent, some domestic, some international. I’ve been thinking about, “The rules keep changing,” or “Maybe there are no rules,” or “Why are we allowing the rules to be changed?” I use this expression and it seems like we keep moving the goal post in certain aspects in our culture here in the United States especially in our political climate, and that’s a good place to start. People are having a lot of trouble reconciling where truth lies and all this or how truth is changing or of course as we say, “Being purchased.”
This is a tough time for us. When we start exposing how justice isn’t applied evenly, there are certain selections that are being made and take place that are not in alignment with truth. When the truth is like, “Don’t look under that rock over there,” we know that there’s something that is underneath that rock. Don’t look at it and we’re going to vote on what we’re not seeing. When we find what’s underneath the rock later, we’re going to say, “Move on, we’re over it.” We’ve got 3, 4, 5 things in the environment at this time. Whether it’s Judge Kavanaugh where it’s like, “Here’s the thing that’s under the rock. Here’s this book. Here’s this new discovery. FBI didn’t interview enough people.” There were people that showed up but their authorities or their bosses said, “We’re not going to interview that person. That’s going to be outside the scope of the investigation.” What does that mean, outside the scope of the investigation? Isn’t the investigation just the investigation?
One would hope it would be.
What are we going to do with law and justice moving forward? When somebody does or something that happens that’s wrong, who’s going to be accountable to fix it? Are we going to continue to punish? We are regrettably in a punitive system, we are not in a restorative system of justice. Are we going to keep doing penitentiary responses in an uneven way, applying different forces or levels of truth of investigation? Are we going to allow one race, one side of the aisle, one city to get away with injustices and not do a better job of accountability? The problem comes from when accountability is applied to a punitive system is different than when accountability is applied to a restorative system. We don’t have a restorative system. We have a punitive system. Therefore, I don’t want to punish this college frat person for bad behavior because they’re only nineteen years old. It’s going to ruin them for the rest of their life. I do want to apply the full weight of the justice system to this nineteen-year-old inner-city kid for making a mistake.
We’ve seen an example of this with the college cheating scandal. Felicity Huffman pled guilty to paying $15,000 for having somebody doctor her child’s SAT exam. She got fourteen days in prison. The prosecution was seeking 30 days in prison. The interesting thing about this is there came out a story that there was an African-American woman who had changed the address of where her child lived to her friend’s house or relative’s house so that she could attend a better school district.
Clearly, it’s what I would call a much lower level offense than bribery or paying someone to fix a test. This is falsifying your residency. This woman was initially convicted and sentenced to five years in jail. A footnote to that is the judicial system quickly changed that sentence and she did not serve five years in prison. She didn’t serve any time in prison, it got reduced. I do want to acknowledge there was a correction, thankfully. It still highlights an injustice due to race, class, what society would view as different classes of citizens, unfortunately.
Vietnam war, when a senator’s son didn’t go to the war. He avoided the draft. There’s a whole song and a whole movement around, “I’m not a senator’s son. I’m not a fortunate one.” That’s the Fortunate Son song. Are you fortunate? If you’re fortunate then the law applies differently to you. If you’re going to Yale, it’s different than you’re a nineteen-year-old with indecent exposure outside a bar urinating on the wall after being drunk. You will get time and it will cost you money. College freshmen will be college freshmen. They get drunk and they swing their penis around.
Silly would be a nice way to put it. Stupid would be another way to put it things.
If there's one thing about children and Americans, we love our choice even if it’s at the expense of the environment or health.
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Let’s go to the two systems, the punitive system versus the restorative system. We have a more robust restorative system. These things would be talked about in perspective and perception of each other. What we would do then is do a better job of restoring a moment and assign where is the damage done and where’s the level of accountability. One of the quickest things that helped heal South Africans apartheid system was doing peace and reconciliation courts. That was the thing that helped that country come back from this oppressive separate system where crimes from one race were done to another race. Where death was caused by the ordering of some authority figures towards a race. There’s nothing like a mom venting, crying and telling an officer, “You killed my son.” That person has to listen to that. That person for their part is going like, “I killed your son and I was ordered to do it.” That’s the truth part of it.
Truth and reconciliation are, “I’ve got to bring the truth and we get to be proportional and own the accountability on the inside. Everybody’s going to know that I followed orders blindly and it came from that guy up there. That guy up there that gave me that order, that person can come sit here too and say, “I was given orders by the person above me.” It’s truth and reconciliation. What is going to be the reconciliation peace to that? We’re not going to put all of these people that oppressed and murdered people. We’re not going to take that group of people and stick them all in jail as they did it to us. We’re not doing that. There are going to be limitations on their experience moving forward because we do need some form of accountability, ankle bracelets, living at home.
There are a lot of things you can’t do now because you took the freedom and lives away from others. There’s a certain sense of, “Here’s what this is going to look like.” Who are the people then, Tom, do we need to lock up? Who?
That’s a tricky question to answer.
Let’s make it simple. Only people that are a danger to society. Only somebody that is going to harm another person that there is a physical or habitual pattern. It doesn’t look like that you’re going to stop doing what you’re doing. Therefore, we need to protect the rest of society from what you’re doing because you’re harming other people. You’re not healthy for our society. Therefore, we need to move you.
That would suggest the first time offenders maybe get a pass, repeat offenders don’t.
We’re looking at physical mostly, psychological possibly. Here’s a person doing something and there is an extreme cost of exposure for the action that you did. Brett Kavanaugh as a college freshman did this thing. The adults in the room would not say, “Freshmen boys are going to be freshman boys.” No, freshman boys that do this need to be initiated into adult behavior. Our society does not accept this behavior and we are going to take that out for a spin. Is it a public shaming? It’s more like an initiation versus the public shaming. Public shaming means I’ve got to carry the shame and guilt and my self-worth has got to take it in. Initiation is, “You’re acting like a boy. You need to act like a man. You’re acting like a spoiled person, you need to act like a young adult.”
Let’s take Brett Kavanaugh. It’s an interesting segue because of this whole piece about the reality of what are we going to do with law and justice moving forward. This is a big concern. There’s a new book that came out and also some articles in the New York Times that are pointing out that back during the Judiciary Committee hearing to decide whether Brett Kavanaugh’s nomination in the Supreme Court is going to go to a full vote of the senate, at one point, they took a pause. They said, “There’s no harm in having the FBI do a little more digging into some of these new allegations for a few days.”
The Republicans on the committee wanted to have the vote and move it forward and get it done. It was Jeff Flake, the Senator from Arizona, the one Republican who said, “There’s no harm in looking at this a little further.” They looked at it and three days come around, they get a report from the FBI. They say, “There’s not enough that causes us concern, we’re going to go to a full vote.” He was voted on a party-line, got through committee and then was voted by the Senate and then again was approved to be in Supreme Court Justice. Now we’re learning there was more to this FBI investigation story.
The same thing happened in the Clarence Thomas hearing where there was another woman ready to go standing, waiting to testify. She was going to tell a similar but different story about things that Clarence Thomas said to her that were outside the experience of an adult male talking about sexuality. She was sitting there and waiting. One of the senators at the time says, “We’re not going to need your testimony now.” No, they needed to bring her testimony out. She’s sitting there going, “I don’t understand why you don’t need my testimony. You want to do truth, don’t you?
Apparently not.
People try to protect the need for respect, protect votes and protect the need for recognition, acknowledgment, self-worth and identity. Our identity won’t look good if we say or do these things. We’re going to give the other side something to run against. How could the truth be used as something to run against? I’m shaking my head a little bit like, “Isn’t truth a good thing? Not for children, it’s not. If you do truth, they lose choice. One thing about children and Americans is we love our choice. We like choice at the expense of the environment. We like choice at the expense of our health.
I can say that.
We don’t want to know what’s in our food because we’re going to lose choice. If we know what’s in our food then we have to make a healthy choice. No, I want my healthcare to fix that. It’s like, “You’re the one who’s putting junk in your body.” I don’t want to see it. If I don’t see it, I don’t know it. I’m going to have to pay for it with being overweight and there’s this diabetes thing that goes with that. It’s like the billions of dollars that are being spent in the healthcare system are being fed by the food industry.
We could go off for a long time on how we don’t have a healthcare system. We have a sick care system. That’s a whole different thing. I don’t want to go down that rabbit hole.
The main thing in the law and justice moving forward is, are we going to be a society that advocates for truth and does scary honesty? To be able to move our mindset away from a punitive system into a restorative system. The restorative system is the way out. The restorative system does a better job of going like, “There’s been a lot of injustice being done here.” This is not justice. It’s not justice what’s happening in Flint with the water crisis. It’s not justice happening in Newark with their water crisis. There’s no justice for low-income people in those cities. The real estate markets are depressed that they’re poor people there. They’re people of color there and nobody’s responding to provide protection for young people. No, we’re going to put that off. There are going to be problems there.
I can’t even see in my mind’s eye what a restorative system would look like. I have to be honest with you because it seems like the truth is under assault by even the President of the United States. To stick with the issue on Kavanaugh, there are several aspects to this where not only did we learned from this new book that came out and the New York Times articles that are shared with us. There were more people the FBI knew about and did not investigate at the request of the White House. The idea that the White House could say to the FBI, “You can go and investigate this but only interview these people.” Like you said, “Don’t look under this rock over here.” We don’t want to find what’s under that rock. To put up the appearance that there was an investigation and nothing was found is scary.
In the American society, the more money you have to be able to pay for lawyers in a civil case, the more you can purchase your own truth.
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The nice part of what you’re saying is during the Nuremberg trials with Nazi war criminals, there was a question. How could you and your men do this horrific act of putting the people through the gas chamber? How could you do that? Me and my fellow officers had a German term for it, amtssprache. It loosely means office language. It’s because authorities told us to do it, we were compelled to do it.
As if they were nothing more than a machine, a button was pushed and therefore it did it.
“That’s why we did it. We are following orders because if we did not follow orders, we would die.” In other words, the order of things and our own life self-preservation over-rid our moral and ethical response of not killing others. Did anyone die because of Kavanaugh’s experience?
No.
No, but there was damage done. If this person had this experience of this young adult, all of a sudden there was this thing that took place.
There’s definite harm that occurred, no question. It was psychological harm. If you haven’t seen Christine Blasey Ford’s testimony, her husband didn’t understand why in this new house they had, she wanted two front doors put in two different locations of the house. It had to do with her need for safety to be able to escape something and not have only one potential exit from a room or from a house. We can all safely say not normal.
It’s damaged, the word normal doesn’t help us here but the word safety does help us here. The need for safety was not met from a traumatic experience at fourteen. The need for safety was so impacting that it came into a person’s adult life. Here’s this person that was the activator of it. Was that young child, Kavanaugh, responsible for the way she took it and the way she was damaged? The answer is that’s not why she was testifying. She was testifying to make him responsible. She was testifying to do scary honesty about the truth that they were nominating into the court. That’s what they were doing about a person who struggles or had struggled with sexuality in the past.
It’s the proper treatment of your fellow human being whether sexuality or not, or restraining her preventing her from leaving. There are all sorts of aspects of this. The rather scary part about this is to see the President tweeting when this latest information comes out in the New York Times and this latest book that there were other people who weren’t investigated. Donald Trump appeals openly to the justice department in his tweets and says, “Justice department, save Brett Kavanaugh,” as though that is the responsibility of the Justice Department and that it’s his personal defense team.
Either he doesn’t understand that those two things are not supposed to be conflated, or his own ability to meet his own need for choice to have anything he wants at any time includes running over the legal system in which he has a great history of. He has a great history of running over the legal system with all the lawsuits, all the bankruptcies. He’s run over them with little consequence to him.
That’s an example of our American society and the more money you have to be able to pay for lawyers. Usually, you can run the clock out in a civil case pretty much anybody else that can’t afford to outlast you and purchase your own truth.
We could take this thing moving the goalposts because truth and moving the goalposts have to do with, how does the money work and how does a person’s status influence move the goalposts. What are we going to do with law and what are we going to do with the legal system and the justice system moving forward it? The TV show Law & Order, that used to look clean and clear because it looked clean and clear that the legal system was working hand-in-hand with the justice system. We’ve got a brand-new TV show that’s coming up. It’s not going to be Law and Order. It’s got to be called Law, Order and Privilege. Here’s the law, here’s the order and here’s the influence that privilege has on it.
Law, Order and Race, here’s the law, here’s the order and here’s the influence that race has on that. Law, Order and Sexuality. Here’s the law, here’s the order and here’s the influence and the inequality that shows up with that. We have a whole new TV show, we have three new TV shows that can be clearly cut and done. It’s like, “Here’s this case, here’s the law, here’s the order, here’s the justice system and here’s the influences of race and privilege, sexuality on that system. Law, order and the Second Amendment, this person’s right to live is not as important as this person’s right to carry the gun that affected this person’s right to live.
Our system needs to do this. Tom, as we come to the conclusion of a complex issue of how do we get the punitive system, the penal system, the penitentiary, the penitents because that’s the way the system was built on. A person goes to jail to think about the thing they did and come back after penance and time. Then somehow follows the rule of God not to make the same penitent mistake again coming out. If our recidivism rate was not 74% that people go out and then come back in, the penitentiary system would work. It’s not working right now. What we need to do is look at what we are going to do with the restorative system, how we are going to apply truth and investigate truth so that what happens is that here’s the truth, here’s the consequence for that and here’s where the accountability shows up because of that.
It’s interesting that you put it that way because as you’re saying that I’m thinking, “How can you have a restorative system if certain people can purchase their way out of even a determination that they did something wrong?” That’s the privilege side of it. I’m sure there are numerous examples of you people of privilege being able to afford lawyers and outside experts who give opinions and convince a jury that the individual doesn’t need to be responsible. They don’t get restored, they got off and got away with it.
Our next show is going to be truth and privilege. How does that sound, Tom?
I like that. It’s closely related to somewhat we’re talking about here. I like the idea of truth and privilege and taking that out for more of a spin. Eventually, I do hope we get to the restorative and the reconciliation part because this is disheartening. As we go through all this, you can find time and time again how truth is purchased and outright assaulted.
We could have some gratitude and appreciation if we make the turn as a nation and do some things similar that South Africa did with their systems of justice and their systems of things. They’re rewriting the honesty that they had to face moving forward to get closure and to get greater healing to take place. We can do some nice things moving forward. Tom, thanks a lot.
That sounds great, Bill.
Take care.
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