From Low-Level Crimes to Murder: The Failure of the Retributive Criminal Justice System in the United States

In October 2018, my 23-year-old brother was charged with first-degree murder and two counts of second-degree aggravated assault with a deadly weapon. This accusation came only a few months after he was released from a correctional facility for possession of marijuana and theft of the amount between $100 and $750.

In the days that followed his arrest, I grappled with a plethora of questions. Why did my brother escalate from low-level crimes to murder? Was this acceleration related to his history of drug abuse? Did I do enough to support him when he got out of the correctional facility? My brother went into a correctional facility having committed minor infractions, but exited with severe psychological issues and an untreated drug addiction. He re-entered society incredibly unstable and went on to perpetrate a much more serious violation.

This is not to say that my brother should not be held accountable for his actions, but rather that his experience in the system had quite the opposite effect of its intention: instead of rehabilitating him, incarceration helped make him into a murderer.

My brother is a stark reminder that the retributive criminal justice system, which holds that the proper response to criminal activity is a punishment equivalent to their offense, is both inefficient and detrimental to individuals and communities. And he is just one case in a sea of millions of other vulnerable people who now share the same fate.

The Prison-Industrial Complex of the United States

The U.S. incarcerates more people than any other country in the world. A disproportionate number of people of color and individuals with lower socioeconomic status represent the majority of the population behind bars. Acclaimed legal scholar, advocate, and civil rights lawyer Michelle Alexander (2010) writes about how mass incarceration in the U.S. is a form of racial and social control in her book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness. She contends that the U.S. targets marginalized communities through the executions of “the drug war” and the “get tough movement.” Supposed crime reduction strategies–along with the ever-expanding policies of targeting undocumented immigrants–allow private prisons to receive a per diem from the U.S. government for each inmate incarcerated. In turn, corporations exploit these individuals for cheap labour, a practice known as the prison-industrial complex (PIC). This is clearly problematic. As the retributive criminal justice funnels mostly black and brown bodies into prisons, companies profit off of their presence in prisons.

The entire retributive system is based on an assumption that once an inmate is released from incarceration, they will reintegrate into society with a better understanding of how to respect the rights of others and follow the societal norms associated with responsible citizenship, but this assumption is unfounded. It is highly evident that the retributive criminal justice system is failing to prevent future crime. In fact, the retributive system tends to induce reoffending at an enormous financial, emotional, and social cost to individuals and communities.

If incarceration actually facilitated rehabilitation, then the assumption that inmates would afterwards reintegrate as ideal citizens might make sense, but there is ample evidence that shows otherwise. Individuals that re-enter their communities after incarceration face myriad challenges, such as stigmatization, barriers to housing and employment, and mental health and/or addiction issues. Alexander describes these challenges as a form of permanent, second-class status in which those who have been incarcerated can be legally discriminated against, denied the right to vote and automatically excluded from juries. While individuals and organizations have diligently tried to aid individuals reintegrating into society, the consistently high rates of recidivism provide insight into the disturbing reality that sending people to jail doesn’t work.

Reform vs. Transformation

In order to confront the failed U.S. carceral state, we should pursue three objectives. First, we ought to follow Alexander’s call-to-action to continue to add and diffuse information on the devastating effects of mass incarceration. Second, we must mobilize a broad-based movement to dismantle the current racist and futile retributive criminal justice system. Third, we need to follow the leaders and organizations–Angela Davis, INCITE!, generationFIVE–who have been calling for the implementation of an interpersonal or community-based model for years.

The transformative justice model challenges the retributive criminal system, which is primarily responsible for the violent oppression of marginalized communities, and policies that serve to legitimize the existing system of crime control. Transformative justice instead relies upon the leadership and interests of marginalized communities who understand that forms of violence take place within the structural conditions of poverty, racism, sexism, transphobia, xenophobia, etc., and seeks resolutions within the more personal systems of community or civil society. According to Mimi E. Kim, “Communities are…sites for prevention, intervention, and transformation, spaces where interventions can be imagined, initiated, and implemented.” While the transformative justice model may take more time, it may provide opportunities for the victim-survivor, perpetrator, and community at large to find healing after a crime has been committed, healing that a retribution-based system prevents.

Drug decriminalization and prison reform is not enough. We instead must strive to dismantle the entire PIC, the entire retributive criminal justice system, and replace it with a model that has a firm grasp of the real conditions of people’s lives and how we can hold individuals accountable for their wrongdoings without contributing to structural violence. We owe it to ourselves and our communities to create conditions that can prevent future harm, including harm perpetrated by incarceration and policing. It is easy for many to disregard individuals who have been swept up by the PIC and see them only as defined by the worst moments of their lives, but we must see past the singular act of a crime. It is in our best interests, and in the interests of victims and perpetrators, to commit to holistic approaches that foster the rebuilding of individuals and communities. Rather than reacting to the damage after crimes are committed, we need to begin to reconsider the conditions that led to them in the first place.

In light of what my family has been through, I can continue to spread awareness about what this system does to ordinary people with drug addictions–and hope that one day we, as concerned citizens, may be able to deliver other individuals and communities from bearing the excruciating pain that a retributive justice model inflicts.

Photo Credit: Luis Argerich CC-BY 2.0