Anti-Oppressive Restorative Justice: Behavior Analysis in Alternatives to Policing

Abstract

The history of American policing, behavior criminalization, and carceral justice is rooted in racist practice dating back to the 1700s. In addition to racially disproportionate punishment doled out by these systems, they are not designed to support behavioral punishment of harm or reinforcement of prosocial behavior for socially significant change. One alternative to this retributive carceral justice system is restorative justice. This article offers a conceptually systematic examination of restorative justice for behavior change, an examination of the functional utility of various restorative approaches, alignment of restorative justice with behavior analytic ethics, and suggestions for incorporating anti-oppressive practices.

Introduction

Since the 1700s, American policing has historical roots in maintenance of order as it pertains to property and capital interests. In addition, its roots lie in the formal slave patrol, which existed to capture, return, and punish enslaved people, who were viewed as property, and to deter revolts of enslaved people via organized terror (Reichel, 1992; Walker, 1998). Racism can be seen in modern American policing, which disproportionately targets Black, Indigenous, and Latine people, whether it be through use of stop-and-frisk (Pierson et al., 2020), marijuana-related arrests (American Civil Liberties Union [ACLU], 2020), many misdemeanor arrests (Stevenson & Mayson, 2018), nonlethal force used by police (Fryer, 2016), or lethal force used by police (Edwards et al., 2020).1 In addition to the harms of lethal and nonlethal force and of systemic racism in policing, racism and colorism can also be seen in the judicial system and the use of the carceral system as a means of managing criminalized behavior (Enns et al., 2019; Horowitz & Utada, 2018; Hochschild & Weaver, 2007; Monk, 2019; U.S. Sentencing Commission, 2017). In addition to disparate harms of systemic racism in the carceral system, the probability for physical, mental, and social harms of prison exist for all, irrespective of race.

The carceral system is a system based on retributive justice and is not a system with the capacity to enact socially significant behavior change for those it deems criminal. In a retributive carceral justice approach, “crime” is defined as engagement in a behavior or behaviors which are in violation of preestablished rules of the state, which leave little consideration for harm, or lack thereof, caused by behavior. Through this system the focus of justice lies in deciding whether a rule has been broken and determining who has broken the rule. In this system, aversive control and social isolation are utilized to attempt to deter criminal behavior and prevent future instances of behavior (Zehr, 1985).

In addition, the criminalization of behavior is malleable, and whether or not a behavior is criminalized can shift over time (Duff et al., 2010). Thus, some less harmful behaviors have the potential to be criminalized whereas more harmful behaviors may not be. This is not to indicate that currently criminalized behaviors are free from harm, but to note that harm is not directly tied to the criminalization of a behavior (Albonetti & Hepburn, 1996; Millie, 2011). In addition, factors such as racism in the criminal carceral justice system may affect the punitive measure (typically sentence time or monetary fine amount) prescribed when one is convicted, so that a Black juvenile female may spend nearly 3 months in detention for failure to turn in homework and attend school while on probation for prior assault and theft charges (Cohen, 2020), whereas a white adult male may spend 3 months in jail after being convicted of three counts of felony sexual assault (Grinberg & Shoichet, 2016).

The Functions of Using Restorative Justice Practices

One alternative to policing and carceral justice is restorative justice. There are many definitions of restorative justice, and different practitioners across a variety of processes and professions utilize the term “restorative” as a part of emerging methodologies. One definition of restorative justice is that of a justice mechanism with a specified process in which all affected parties of an offence participate collectively in resolution and is centered on values of repair of harm and repair of community after a harm has been enacted (Daly, 2015). It has been noted that direct restoration of a relationship may not be feasible or desired after an offence, and as such alternative terms such as “transformative justice” and “innovative justice” are emerging as well to better describe these practices (Daly, 2015; Johnstone & Van Ness, 2007).

When comparing a retributive justice approach like our current carceral system to a restorative approach, there are clear delineations in approach that can be examined through a conceptually systematic behavioral lens. Unlike in a retributive justice approach, in a restorative justice approach, “crime” is defined as a behavior resulting in interpersonal harm or violation, and the focus of justice is on communal problem solving and identification of needs and obligations for repairing that harm. In this system, an offence is addressed through a lens of functional contextualism that considers the moral, social, economic, and political factors contributing to the behavior causing harm. In a restorative justice system, social supports and skill building are utilized to attempt to deter criminal behavior, and acknowledgement of harm, amends and reparations, community support, and focus on the behavior’s harmful consequences are utilized to attempt to decrease future engagement in that harmful behavior (Zehr, 1985).

Principles of modern restorative justice include centering the victim of offences, offenders accepting responsibility for the offence, opportunities for dialogue for perspective taking, repairing harms through amends or reparations, decrease of future harm through skill building and access to resources, and community reintegration of both victims and offenders (Liebmann, 2007). In addition, although the terms “victims” and “offenders” are frequently utilized in the restorative justice literature, these are mentalistic labels that assign a role instead of focusing on a behavior, and which also serve to ignore both interlocking contingencies of harm as well as structural and systemic harms of oppression. As such, restorative justice language is shifting in some spaces from the terms “victim” and “offender” to “those who have been harmed” and “those who have enacted harm” in a given context. It acknowledges that these roles are context-dependent and have the potential to change across situations and time, such that an individual in a given context may be harmed, and in another context be the one causing harm (Gavrielides, 2017).

Restorative Justice Approaches

There are many different approaches to restorative justice that may be taken, and each serves a slightly different function. These approaches include, but are not limited to, victim offender mediation, sentencing circles and healing circles, conferencing, and community panels or peer juries (Strong & Van Ness, 2015). Victim offender mediation is typically utilized when there is a person who has been harmed, and a person who has caused that harm. In this mediation, an impartial third party helps to facilitate the restorative process, and this mediation may happen directly with all parties meeting in person, or indirectly with the mediator acting as a go between, based on the preference of the person who was harmed (Reno et al., 2002). Circles may be used when there is a person who has been harmed, and a person who has caused that harm, and when these parties need ongoing communal support. Healing circles may be created for those who have been harmed, whereas separate healing circles may be created for those who have enacted harm, recognizing that trauma or learning histories of harm may affect one’s enactment of harm on others. Separate sentencing circles are utilized for other decision-making and follow-through components of the restorative process, such as the person who caused harm accepting responsibility and making amends (Strong & Van Ness, 2015).

Conferencing (a type of circle that involves both the person who was harmed and the person who enacted harm, as well as the community) may be utilized if that harm may be directly or indirectly felt by a larger community. In conferencing the entire community comes together to work through the restorative process with the aid of a facilitator, and often components of community integration may take place immediately following the conferencing event (Strong & Van Ness, 2015; Stuart & Pranis, 2006). Community panels or peer juries may be utilized, especially in instances where there is not a clear victim of the harm that was caused, or if the harm indirectly affected the community at large instead of an individual. Community panels and peer juries provide a restorative process that gives agency to the community to identify the harms caused and the need for the reparation of harm, and provides the person who enacted harm with a space to take responsibility and make amends (González et al., 2018; Strong & Van Ness, 2015).

Restorative Justice and Behavior Analytic Ethics

Just as behavior analysts recommend the least restrictive procedures for client behavior change and avoiding reinforcement, which requires excessive motivating operations for successful change (Behavior Analyst Certification Board (BACB), 2019, 4.09, 4.10), so are behavior analysts capable of examining the restrictiveness of a carceral setting, and imagining alternatives rooted in humanity and efficacy. Many principles of restorative justice are in alignment with ethical behavior practice, and behavior analysis may be a valuable support for some components of a restorative process. Much like in ethical behavior analytic practice (Behavior Analyst Certification Board (BACB), 2019, 2.02), restorative justice establishes a hierarchy of parties to which it is responsible. Those who have been harmed may feel entirely left out of, or even abused by, the processes of the carceral justice system (Zehr, 2015). However, in restorative justice, the primary beneficiary of any component of the process is the person who was harmed, or in some instances the community that was harmed.

Much like in ethical behavior analytic practice, which is individualized and centers the client by involving them directly in program planning and consent (Behavior Analyst Certification Board (BACB), 2019, 4.02, 4.03), in restorative justice the needs of the person harmed (including information and truth-telling, empowerment, and restitution) are centered and drive the justice process (Zehr, 2015). Behavioral technologies, such as goal setting and task analysis creation, may be meaningful to those who have been harmed in selecting specific, measurable, and achievable asks of restoration and future harm prevention of those who caused harm. Contingency management and behavioral support for those who enacted harm in completing the asks made of them by a person harmed may also assist in meeting the needs of those who have been harmed.

After the person or people harmed, the next most affected beneficiary of a restorative justice process is the person who enacted harm. Much like behavior analysts utilize reinforcement instead of punishment whenever it is possible to do so, and include reinforcement for alternative behaviors when punishment of a harmful behavior is necessitated (Behavior Analyst Certification Board (BACB), 2019, 4.08a, b), restorative processes focus on the use of or development of perspective taking and empathy building to meet the needs of those who enact harm. These needs include accountability, which addresses harm and responsibility by transforming shame into committed action, and providing support for the personal healing of past harms and self-destructive behavior, support to build one’s own competencies and prevent future harm, support for community integration, and the potential of a space that acts as a temporary support of restraint from continuing to enact harm (Zehr, 2015).

All operant behavior, including harmful behavior, serves some type of function and may be maintained by more than one function in a given context. Much like behavior analysts support clients by first conducting assessments (including a functional assessment if there is a goal of behavior reduction) and collecting and displaying data to inform decision making (Behavior Analyst Certification Board (BACB), 2019, 3.01), behavior analysis has the potential to make a meaningful contribution to components of support for a person who enacts harm by using needs assessments and functional behavior assessments to inform material supports and behavior change plans for those working to reduce their own harmful behavior. As behavior analysts note the environmental supports needed to support behavior change and advocate for the removal of environmental constraints for a client (Behavior Analyst Certification Board (BACB), 2019, 4.06, 4.07b), so too would this environmental assessment and advocacy benefit a person who enacted harm and is attempting to reduce their own harmful behavior. Behavior analysts would also likely be equipped to assist in the design of research on the impact of the provision of core environmental supports (including, but not limited to, clean water, food, housing, clothing, health care, mental health care, community, meaningful work or ways to contribute, and other social supports and forms of environmental enrichment) on the future rates of harmful behavior at both the ontogenetic and cultural levels. And just as behavior analysts may support clients in building conceptually consistent functional replacement behavior (Behavior Analyst Certification Board (BACB), 2019, 4.01) via targeted support with clearly defined measurable goals that, when met, signal the discontinuation of services (Behavior Analyst Certification Board (BACB), 2019, 4.11), so may behavior analysts assist in creating skill building support for functionally related and ancillary behaviors that meet goals identified by the person who was harmed as well as assessment-identified needs for the person who enacted harm.

It is important to note, however, that all the suggestions detailed above do not account for the totality of a restorative process. They are merely one facet of support that may be meaningful in a restorative justice path. In addition to these supports, community support and healing for those who have been harmed is a crucial component of the restorative process that, although probably not in the scope of most behavior analysts, is still the foremost critical component of a restorative justice path.

Building Anti-Oppressive Restorative Justice Practices

Although restorative justice as a justice movement often focuses on operant interpersonal harm, it is important to acknowledge the impact of systemic cultural harm. Considering alternatives to policing requires the acknowledgement of American policing as a direct result of colonization and oppression of Indigenous peoples. When considering restorative practices, it must be recognized and addressed that many current modalities and processes utilize (and often systematize or commodify) sacred Indigenous practices, while simultaneously erasing historical origins and disinvolving Indigenous peoples’ implementation, consultation, or supervision of these modalities (Malik, 2018). Considerations for anti-oppression in restorative justice include the identification of which Indigenous peoples’ land the practice is taking place on, and the intentional centering and inclusion of those peoples in restorative practice building. This also includes accountability and restoration at all levels, and should address reparations for past disinvolvement, appropriation, and colonization at the systemic level (Malik, 2018) for both Indigenous peoples and enslaved peoples and their descendants.

Another consideration for anti-oppression in restorative justice involves a careful assessment of both the topography and function of the restorative process as it is being enacted, with careful consideration for whom it is being enacted by. Many processes are labeled as restorative, and the carceral justice system has begun to engage in the use of what it calls restorative justice practices. Although on the surface these practices may appear topographically similar to other restorative justice practices, functionally they are often different. Frequently these practices may solely be a precursor to, or a component of, imprisonment, serving to make the carceral justice more palatable to the general populace while failing to address the harms of the carceral system which remain (Agnihotri & Veach, 2017). To build an anti-oppressive system of restorative justice requires disinvestment from the current carceral system.

Finally, anti-oppression in restorative justice requires a conceptually systematic understanding of cultural contingencies, and the potential for recreation of or reenactment of harm in new endeavors. As many calls for police abolition and prison abolition involve suggestions for the reallocation of crisis response to the helping profession fields, it is critical that we consider the ways in which racism is also present in these spaces and how racist power hierarches can perpetuate harm from helping professionals toward the people they serve (Bussey, 2019; Ford, 2019; Miller & Garran, 2017; Sylvestre et al., 2019). To endeavor to build restorative justice systems and social support systems which do not further perpetuate oppression requires vigilant anti-racism. They also require practitioners to operate from a place of humility, to graciously accept feedback when cultural, colonial, or oppression-based harms occur, and to swiftly shift behavior. To commit to restorative justice practices and the reduction of harm is to commit to accountability and restoration at all levels (Malik, 2018).