Restorative Justice in Tennessee

“Bennett’s Law” will make drunk drivers pay child support to their victims

There are many varieties of justice. American jurisprudence has focused on retribution. This means balancing the books by inflicting pain on the criminal in proportion to the harm he has done. There may be a sense of balance, but the effects are not helpful. It does little to make an offender any less likely to do harm again. It provides no direct compensation to those he has harmed. And if the punishment is monetary, it punishes the wealthy less than the poor.

There is an underlying assumption that retributive punishment — the harsher, the better — will deter offenses and make an offender less likely to commit another crime. Research shows that this assumption is wrong. A meta-analysis of 111 studies, including over 440,000 offenders, found that retributive punishment produced a slight (3%) increase in recidivism (return to prison). These findings were consistent across adults and juveniles, males and females, and whites and minorities. In the US, the overall recidivism rate is around 70%, meaning 70% of offenders are rearrested within five years of release from the criminal justice system. And this is a conservative measure: it only counts those who have been foolish enough to be caught.

One part of the reason for this failure is that the vast majority of offenders who enter the American criminal justice system suffer from some serious disorder. About 60% have at least one mental health problem. Eighty percent have a substance use disorder. Between 50 and 60 percent have had at least one traumatic brain injury, leading to neurocognitive impairment. Many have all: overlap is common among substance use disorders and mental health or neurocognitive problems. Even in the best of cases, American offenders have neither the motivation nor the means to do better.

Stockpiling these people in prisons does nothing to deal with the reasons they commit their crimes. An American prison is a training center where criminals can learn to do their crimes more effectively, and reduce their odds of being caught again. It exposes them to more addictive drugs and allows them to network with people like themselves to create gangs that will continue to operate outside of the prison walls.

Rehabilitative justice

A second approach, found in countries like Finland, is rehabilitative justice: to treat and train offenders to be more functional, successful members of society. It lacks the visceral emotional reward of “an eye for an eye,” but there’s something going for it: it works.

You can probably picture an American prison cell, circa 1990. Harsh, empty, dehumanizing. This is the equivalent in Finland at the same time:

In Finland, the emphasis on rehabilitative justice means people don’t go to prison for minor offenses. The most common punishments are fines and probation, as well as community service. To compensate for differences in wealth, a day fine system is in effect: they calculate fines in proportion to the offender’s income if it is higher than the minimum. And while American prisons are getting worse, Finnish prisons are getting better. A conviction in America can mean losing the right to vote and being kept out of jobs; in Finland, the point is to heal a person and train him to return to society.

The effects of this approach have been remarkable: the recidivism rate is half that in the United States.

It’s not just Finland. In Norway, there are 72 jailed offenders per 100,000 people. In America, the rate is 693 jailed per 100,000. In its maximum-security prisons, each Norwegian inmate gets a private room with a television, a refrigerator, and a desk. He also has access to a fully equipped kitchen and metal and woodworking shops. There are “no coils of razor wire in sight, no lethal electric fences, no towers manned by snipers — nothing violent, threatening or dangerous.” As a result, within five years of release from prison Norway has a recidivism rate of twenty percent. Over the same period, the rate for American prisoners is seventy-five percent.

Restorative justice

Rehabilitative justice is clearly preferable to simple retribution. But what about the victim? A final approach to justice is to make the offender make things right if it is possible to do so. Restorative justice involves a meeting between victims and offenders, often including members of the larger community. The goal is to find a consensus on what the offender can do to repair the harm he has done to his victims. Not only does the offender take responsibility, but the victims also have an active role, and it reduces their feelings of powerlessness. Restorative justice works best with serious crimes with personal victims. It also works better with violent crimes than with crimes of property.

The American state of Tennessee is taking a small step toward restorative justice with “Bentley’s Law.” It results from the efforts of a grandmother whose son, fiancé, and four-month-old grandson died by the act of a drunk driver. She now is raising the couple’s two other children, Mason and Bentley. That grandmother, working through the political system, has refused to be just another victim. And her solution opens the door to restitution for others like her.

Passed unanimously by both chambers of the legislature, the bill will require that drunk drivers pay child support for children whose parents they kill in auto crashes. Anyone found guilty of vehicular homicide because of intoxication must pay until each of the victim’s children turns 18. It is now on its way to the governor’s desk for his signature to become law. Governor Lee has not yet said whether he will sign the bill, but given the support already shown any veto would fail.

A parent is responsible for the education and the upbringing of that child and when then that parent is removed from the home … someone needs to be responsible.” — Rep. Mark White

Other states have proposed similar legislation, but Tennessee is the first in America to pass such a bill. As Mothers Against Drunk Driving (MADD) puts it, “Bentley’s Law allows for another avenue of restitution to help ensure justice.”

Synergistic justice

There is no need to choose only one form of punishment over the others. A mix of rehabilitative and restorative justice would create a synergy: a whole greater than the sum of its parts. It brings a higher rate of victim satisfaction and a reduction in the offender's likelihood to commit the crime again. Together, this could be a step toward punishment that makes each offender pay, enables him to do better, and empowers the victim to recover and move on. Together, they make crime less likely while repairing the harm that it causes.

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