Criminal Law

Prof. Ortman
Incarceration

I. Incarceration’s Roots .......................................................................................... 1

II. From Incarceration to Mass Incarceration ...................................................... 2
A. Statistics ...................................................................................................... 2
B. Explaining Mass Incarceration ................................................................ 5
C. Mass Incarceration on Trial ..................................................................... 9
III. Alternatives? .......................................................................................................16
A. Prison Abolitionism ................................................................................16
B. Restorative and Transformative Justice ...............................................20

I. INCARCERATION’S ROOTS 1
In the decades after Independence, reformers reshaped criminal punishment
in America. Massachusetts led the way, authorizing the first “proto-prison” in
1785, on Castle Island in Boston Harbor. By 1822, more than fifteen states had
constructed prisons. There is no single explanation for the rapid rise of incar-
ceration at the end of the eighteenth century and beginning of the nineteenth,
but the critical intellectual spark came from the rationalist approach to crime
and punishment of Enlightenment writers, above all Cesare Beccaria.
For Beccaria, punishment was justified only insofar as it prevents crime. “The
purpose of punishment,” he explained, “is nothing other than to prevent the
offender from doing fresh harm to his fellows and to deter others from doing
likewise.” Thus, Beccaria argued, punishments must be proportional—painful
enough to make the crime not worth doing, but no more. They must be
prompt—“the smaller the lapse of time between the misdeed and the punish-
ment, the stronger and more lasting the association in the human mind between
the two ideas crime and punishment.” And, most importantly, they must be certain.
“The certainty of even a mild punishment,” Beccaria elaborated, “will make a
bigger impression than the fear of a more awful one which is united to a hope
of not being punished at all.”
When they assessed their criminal justice apparatuses through a rationalist
Beccarian lens, American reformers found them wanting. Crime, they saw, was
rising. The traditional pillars of punishment—corporal punishment for minor
crime and the death penalty for anything serious—seemed not up to the chal-
lenge. Corporal punishments had perhaps deterred crime and rehabilitated of-
fenders in the closed societies of early colonial days, when the stigma of the
sanction could not easily be shaken. But they appeared ineffectual in the increas-
ingly mobile world of the late eighteenth and early nineteenth centuries.

This section is adapted from Daniel Epps and William Ortman, The Informed Jury, 75
1

VAND. L. REV. 823 (2022).

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 As to the death penalty itself, reformers worried, as Beccaria had, that the
widespread application of capital punishment “hardened” public sentiments,
leading to more crime, not less. Their misgivings focused particularly on juries.
The system of ad hoc jury mitigation that had matured in the eighteenth century,
they believed, undercut the criminal law’s deterrent force. The problem lay in
jurors’ hesitation to condemn defendants to death for relatively minor crimes.
In the preamble to ultimately unsuccessful 1778 legislation, Thomas Jefferson
remarked that the “experience of all ages and countries hath shewn that cruel
and sanguinary laws defeat their own purpose by engaging the benevolence of
mankind to withhold prosecutions, to smother testimony, or to listen to it with
bias.”
Jefferson and other American reformers saw ad hoc jury mitigation as incom-
patible with the “mild but certain” punishment championed by Beccaria. That
was the backdrop for their move to replace the death penalty with carceral pun-
ishment for many felonies. In 1786, Pennsylvania abolished the death penalty
for robbery and burglary and substituted imprisonment for up to ten years. Less
than a decade later, Pennsylvania cut back on the death penalty even further,
limiting it to first-degree murder. For other serious felonies, legislators provided
sentencing ranges—five to eighteen years for second-degree murder, five to
twelve for arson, ten to twenty-one for rape, and two to ten for maiming. Other
states followed with similar reforms, including three—Virginia, New York and
New Jersey—in 1796 alone. Some states lagged behind, but even still, as Stuart
Banner notes, “the small number of offenses carrying the death penalty relative
to the English penal code became a point of pride for Americans of the late
eighteenth century.”
What effect did these penal reforms have on juries? The reformers’ objective
was to deter crime by making punishment certain. Ad hoc jury mitigation stood
in their way. To get around it, they had to stop juries from acquitting guilty
defendants out of fear that a conviction would lead to inhumane punishment.
Their solution was to excise the inhumanity from the penal statutes. The same
juries that shuddered to condemn a defendant to death, they evidently believed,
wouldn’t hesitate before sending him to the penitentiary. Juries would no longer
act as the system’s “guard against inhumanity” if there was no inhumanity to
start out with. Or so it seemed to the reformers of the time.

II. FROM INCARCERATION TO MASS INCARCERATION

A. Statistics
John F. Pfaff, LOCKED IN: THE TRUE CAUSES OF MASS
INCARCERATION AND HOW TO ACHIEVE REAL REFORM (2017)

The statistics are as simple as they are shocking: The United States is home
to 5 percent of the world’s population but 25 percent of its prisoners. We have
more total prisoners than any other country in the world, and we have the
world’s highest incarceration rate, one that is four to eight times higher than
those in other liberal democracies, including Canada, England, and Germany.

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Even repressive regimes like Russia and Cuba have fewer people behind bars
and lower incarceration rates.
It wasn’t always like this. Just forty years ago, in the 1970s, our incarceration
rate was one-fifth what it is today. It was comparable to that of most European
countries, and it had been relatively stable all the way back to the mid- to late
1800s. It was, in short, nothing out of the ordinary.
In fact, the prison boom started so suddenly that it caught most observers
by surprise. In 1979, a leading academic wrote that the incarceration rate would
always remain fairly constant, because if it climbed too high, state governments
would adjust policies to push-it back down. As Figure 1 makes clear, however,
the timing of that paper could not have been worse. The number of people in
state or federal prisons rose from just under 200,000 in 1972 to over 1.56 million
in 2014; the incarceration rate grew from 93 per 100,000 to 498 per 100,000
(peaking at 536 per 100,000 in 2008). Another 700,000 people are in county jails
on any given day, more than two-thirds of whom have not been convicted of
any crime and are simply awaiting trial.
Remarkably, these numbers understate how many people are locked in pris-
ons and jails each year. In 2014, approximately 2.2 million people were in state
or federal prisons at some point, and perhaps as many as 12 million passed
through county jails. Although the data are patchy, it’s clear that tens of millions
of Americans have spent time in prison or jail since the 1970s. . . .
One clear cause was rising crime. Starting around 1960, crime rates started
to climb steadily. By 1980, violent crime rates had risen by over 250 percent, and
property crime rates by over 200 percent; after a brief lull in the early 1980s,
violent crime spiked again in 1984, peaking in 1991 at almost 400 percent of its
1960 level (more or less). By the start of the l 990s, violent crime in America had
never been worse, and property crime remained as bad as it had been in 1980.
(See Figure 2.)
It’s not surprising, then, that prison populations also increased sharply dur-
ing these decades. Surely this was in part just a mechanistic response, since more
crime leads to more arrests, and thus to more convictions and more prisoners.
But a mechanistic response cannot fully explain what happened with incarcera-
tion. The impact of rising crime on prison populations is difficult to measure
empirically, and it can only be done with a fair amount of uncertainty, but the
best estimate of that impact suggests that rising crime over the 1970s and 1980s
can explain, at most, just half the increase in prison populations over those two
decades. And that relationship likely weakened during the 1990s, as prison pop-
ulations continued to rise even as crime declined.
Few, however, pushed back against this relentlessly rising incarceration rate.
During the 1980s and 1990s, support for increased incarceration was strong.
Crime was rising throughout the 1980s, making tough-on-crime policies popu-
lar, and although crime began a slow and steady decline in the 1990s, many
viewed incarceration as a primary cause of that decline and thus continued to
support it. There were some brief calls for reform at the start of the 2000s, as
crime continued to decline and state bud­ gets contracted in the wake of the
dot-com crash, but they were fleeting. Economic recovery came quickly, and
any nascent reform efforts quickly foundered. With the fiscal crisis of 2008, re-
formers revived their efforts, and the movement finally started to pick up steam.

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With prison populations at all-time highs and crime dropping to forty-year lows
during a fiscal collapse far deeper and more sustained than the 2000 contraction,
the opportunity to push for real reform seemed to be at hand. . . .
In 2010, for the first time since 1972, the US prison population edged down-
ward. And then it continued to fall for three of the next four years. By the end
of 2014, the last year for which we have national data, it was about 4 percent
smaller than it had been in 2010. That’s not a large drop, and certainly not one
that challenges our position at the top of the international incarceration tables,
but—perhaps!—it’s a sign of things to come.

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 B. Explaining Mass Incarceration
Michelle Alexander, THE NEW JIM CROW: MASS INCARCERATION IN THE
AGE OF COLORBLINDNESS (2010)

I reached the conclusions presented in this book reluctantly. Ten years ago, I
would have argued strenuously against the central claim made here—namely,
that something akin to a racial caste system currently exists in the United States.
. . . Quite belatedly, I came to see that mass incarceration in the United States
had, in fact, emerged as a stunningly comprehensive and well-disguised system
of racialized social control that functions in a manner strikingly similar to Jim
Crow. . . .
The impact of the drug war has been astounding. In less than thirty years, the
U.S penal population exploded from around 300,000 to more than 2 million,
with drug convictions accounting for the majority of the increase. . . . The racial
dimension of mass incarceration is its most striking feature. No other country
in the world imprisons so many of its racial or ethnic minorities. The United
States imprisons a larger percentage of its black population than South Africa
did at the height of apartheid. In Washington, D.C., our nation’s capitol, it is
estimated that three out of four young black men (and nearly all those in the
poorest neighborhoods) can expect to serve time in prison. Similar rates of in-
carceration can be found in black communities across America. . . .
[A]lthough it is common to think of the Jim Crow regime following immedi-
ately on the heels of Reconstruction, the truth is more complicated. And while
it is generally believed that the backlash against the Civil Rights Movement is
defined primarily by the rollback of affirmative action and the undermining of
federal civil rights legislation by a hostile judiciary, the seeds of the new system
of control—mass incarceration—were planted during the Civil Rights Move-
ment itself, when it became clear that the old caste system was crumbling and a
new one would have to take its place. . . .
The rhetoric of “law and order” was first mobilized in the late 1950s as South-
ern governors and law enforcement officials attempted to generate and mobilize
white opposition to the Civil Rights Movement. In the years following Brown v.
Board of Education, civil rights activists used direct-action tactics in an effort to
force reluctant Southern states to desegregate public facilities. Southern gover-
nors and law enforcement officials often characterized these tactics as criminal
and argued that the rise of the Civil Rights Movement was indicative of a break-
down of law and order. Support of civil rights legislation was derided by South-
ern conservatives as merely “rewarding lawbreakers.”
For more than a decade—from the mid-1950s until the late 1960s—conserva-
tives systematically and strategically linked opposition to civil rights legislation
to calls for law and order, arguing that Martin Luther King Jr.’s philosophy of
civil disobedience was a leading cause of crime. Civil rights protests were fre-
quently depicted as criminal rather than political in nature, and federal courts
were accused of excessive “lenience” toward lawlessness, thereby contributing
to the spread of crime. In the words of then–Vice President Richard Nixon, the

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increasing crime rate “can be traced directly to the spread of the corrosive doc-
trine that every citizen possesses an inherent right to decide for himself which
laws to obey and when to disobey them.” . . .
Unfortunately, at the same time that civil rights were being identified as a
threat to law and order, the FBI was reporting fairly dramatic increases in the
national crime rate. Despite significant controversy over the accuracy of the sta-
tistics, these reports received a great deal of publicity and were offered as further
evidence of the breakdown in lawfulness, morality, and social stability. To make
matters worse, riots erupted in the summer of 1964 in Harlem and Rochester,
followed by a series of uprisings that swept the nation following the assassina-
tion of Martin Luther King Jr. in 1968. The racial imagery associated with the
riots gave fuel to the argument that civil rights for blacks led to rampant crime.
Cities like Philadelphia and Rochester were described as being victims of their
own generosity. Conservatives argued that, having welcomed blacks migrating
from the South, these cities “were repaid with crime-ridden slums and black
discontent.” . . .
Early on, little effort was made to disguise the racial motivations behind the
law and order rhetoric and the harsh criminal justice legislation proposed in
Congress. . . . As the rules of acceptable discourse changed, however, segrega-
tionists distanced themselves from an explicitly racist agenda. They developed
instead the racially sanitized rhetoric of “cracking down on crime”—rhetoric
that is now used freely by politicians of every stripe. Conservative politicians
who embraced this rhetoric purposefully failed to distinguish between the direct
action tactics of civil rights activists, violent rebellions in inner cities, and tradi-
tional crimes of an economic or violent nature. Instead, as Marc Mauer of the
Sentencing Project has noted, “all of these phenomenon were subsumed under
the heading of ‘crime in the streets.’” . . .
The law and order perspective, first introduced during the peak of the Civil
Rights Movement by rabid segregationists, had become nearly hegemonic two
decades later. By the mid-1990s, no serious alternatives to the War on Drugs
and “get tough” movement were being entertained in mainstream political dis-
course. Once again, in response to a major disruption in the prevailing racial
order—this time the civil rights gains of the 1960s—a new system of racialized
social control was created by exploiting the vulnerabilities and racial resentments
of poor and working-class whites. More than 2 million people found themselves
behind bars at the turn of the twenty-first century, and millions more were rele-
gated to the margins of mainstream society, banished to a political and social
space not unlike Jim Crow, where discrimination in employment, housing, and
access to education was perfectly legal, and where they could be denied the right
to vote. The system functioned relatively automatically, and the prevailing sys-
tem of racial meanings, identities, and ideologies already seemed natural. Ninety
percent of those admitted to prison for drug offenses in many states were black
or Latino, yet the mass incarceration of communities of color was explained in
race-neutral terms, an adaptation to the needs and demands of the current po-
litical climate. The New Jim Crow was born.

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James Forman, Jr., Racial Critiques of Mass Incarceration: Beyond the
New Jim Crow , 87 N.Y.U. L. REV. 21 (2012)

The New Jim Crow writers typically start their argument with a historical
claim, grounded in a theory of backlash. The narrative is as follows: Just as Jim
Crow was a response to Reconstruction and the late-nineteenth century Populist
movement that threatened Southern elites, mass incarceration was a response to
the civil rights movement and the tumult of the 1960s. . . . There is much truth
to this account, and its telling demonstrates part of what is useful about the Jim
Crow analogy. Today, too many Americans refuse to acknowledge the continu-
ing impact of race and prejudice on public policy. By documenting mass impris-
onment’s roots in race-baiting political appeals, the New Jim Crow writers ef-
fectively demolish the notion that our prison system’s origins are exclusively
colorblind.
But in emphasizing mass incarceration’s racial roots, the New Jim Crow
writers overlook other critical factors. The most important of these is that crime
shot up dramatically just before the beginning of the prison boom. Reported
street crime quadrupled in the twelve years from 1959 to 1971. Homicide rates
doubled between 1963 and 1974, and robbery rates tripled. Proponents of the
Jim Crow analogy tend to ignore or minimize the role that crime and violence
played in creating such a receptive audience for Goldwater’s and Nixon’s ap-
peals. . . .
Nor were white conservatives such as Nixon and Goldwater alone in de-
manding more punitive crime policy. In The Politics of Imprisonment, Vanessa
Barker describes how, in the late 1960s, black activists in Harlem fought for
what would become the notorious Rockefeller drug laws, some of the harshest
in the nation. Harlem residents were outraged over rising crime (including drug
crime) in their neighborhoods and demanded increased police presence and
stiffer penalties. The NAACP Citizens’ Mobilization Against Crime demanded
“lengthening minimum prison terms for muggers, pushers, [and first] degree
murderers.” The city’s leading black newspaper, The Amsterdam News, advo-
cated mandatory life sentences for the “non-addict drug pusher of hard drugs”
because such drug dealing “is an act of cold, calculated, pre-meditated, indis-
criminate murder of our community.”
Rising levels of violent crime and demands by black activists for harsher
sentences have no place in the New Jim Crow account of mass incarceration’s
rise. As a result, the Jim Crow analogy promotes a reductive account of mass
incarceration’s complex history in which, as Alexander puts it, “proponents of
racial hierarchy found they could install a new racial caste system.”

John F. Pfaff, LOCKED IN: THE TRUE CAUSES OF MASS INCARCERATION

AND HOW TO ACHIEVE REAL REFORM (2017)

[C]urrent reform efforts rely on a conventional wisdom about prison (pop-

ulation) growth—what I will call the “Standard Story”—that either substantially
oversimplifies or simply gets wrong the factors driving the incarceration epi-
demic. . . The core failing of the Standard Story is that it consistently puts the
spotlight on statistics and events that are shocking but, in the grand scheme of

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things, not truly important for solving the problems we face. As a result, it gives
too little attention to the more mundane-sounding yet far more influential causes
of prison growth. For example, a core claim of the Story, made perhaps most
forcefully by Michelle Alexander in her book The New Jim Crow: Mass Incarceration
in the Age of Color-Blindness, is that our decision to lock up innumerable low-level
drug offenders through the “war on drugs” is primarily responsible for driving
up our prison populations. In reality, only about 16 percent of state prisoners
are serving time on drug charges-and very few of them, perhaps only around 5
or 6 percent of that group, are both low level and nonviolent. At the same time,
more than half of all people in state prisons have been convicted of a violent
crime. . . .
The Standard Story also argues that increasingly long prison sentences have
driven growth, and thus that cutting back sentences would effectively cut prison
populations. President Barack Obama made this claim in a major 2015 speech,
and it has been made repeatedly before and after by innumerable academics,
journalists, and policymakers. The claim isn’t exactly wrong: by international
standards our sentences are long, and if people spent less time in prison, obvi-
ously prison populations would de­ cline. In practice, however, most people
serve short stints in prison, on the order of one to three years, and there’s not a
lot of evidence that the amount of time spent in prison has changed that much—
not just over the 1990s, 2000s, and 2010s, but quite possibly over almost the
entire prison boom.
The far more significant change . . . is the increased rate at which people get
sent to prison in the first place. The primary driver of incarceration is increased
prosecutorial toughness when it comes to charging people, not longer sentences.
Stopping prosecutors from sending people to prison to start with would be far
more effective in cutting incarceration rates than reducing the amount of time
prisoners spend in prison once they get there—and this fact points to a very
different set of reforms than those generally proposed. . . .
There is one central aspect of the Standard Story, however, with which I
agree: the critical role that race has played in driving up prison popula-
tions. . . . To figure out what we must do to responsibly reduce the prison pop-
ulation, we must understand why we have seen the results that we have--and
that implicates race (along with class and other factors). To address why prose-
cutors have become more aggressive in filing charges, for example, we must
think about the impact of racial segregation. Urban prosecutors are elected at
the county level, where political power is concentrated in the wealthier, whiter
suburbs, while crimes disproportionately occur in the poorer urban cores with
higher populations of people of color. This segregation of costs and benefits is
a racial story more than anything else. . . .

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 C. Mass Incarceration on Trial
Jonathan Simon, MASS INCARCERATION ON TRIAL: A REMARKABLE
COURT DECISION AND THE FUTURE OF PRISONS IN AMERICA (2014)

[A]lthough the levels have stopped rising, the flood of mass incarceration is
still upon us, and the effects of what has been done remain, largely below the
surface. Beyond the numbers, the quantitative story of mass incarceration, we
as a society know shockingly little about what this far-from-natural disaster has
wrought, the qualitative story of mass incarceration. What kind of prisons has it
produced? What kinds of prisoners do they hold? Is imprisonment necessary to
sustain lower crime levels? Without answers to such questions, it will be impos-
sible to rebalance and restore an American criminal justice system that has, in
the view of one its sharpest observers, William Stuntz, “collapsed.”
Despite being a specialist in the study of punishment and society, even an
early identifier of some of the critical features that have come to define mass
incarceration, I did not know enough to ask these questions, let alone begin to
think about answering them, until the end of the last decade, some thirty-five
years into the age of mass incarceration and a quarter century after I had begun
to study it. The source of this late insight was an unusual federal trial held before
a special three-judge court in 2009. . . . This litigation revealed a depth of de-
pravity in California’s prisons that most academic critics, including me, had not
imagined. When the Supreme Court reviewed the California decision, the result
was a resounding legal victory for prisoners. The majority opinion in Brown v.
Plata drew a direct line between the sentencing practices of mass incarceration
and the inhumane conditions in prisons—the quantitative and qualitative sto-
ries. The majority, while only one vote strong, powerfully proclaimed the human
dignity of prisoners and the requirement to provide humane conditions as core
animating values of constitutional punishment.

Brown v. Plata, 563 U.S. 493 (2011)

Justice KENNEDY delivered the opinion of the Court.

This case arises from serious constitutional violations in California’s prison

system. The violations have persisted for years. They remain uncorrected. The
appeal comes to this Court from a three-judge District Court order directing
California to remedy two ongoing violations of the Cruel and Unusual Punish-
ments Clause, a guarantee binding on the States by the Due Process Clause of
the Fourteenth Amendment. The violations are the subject of two class actions
in two Federal District Courts. The first involves the class of prisoners with
serious mental disorders. That case is Coleman v. Brown. The second involves
prisoners with serious medical conditions. That case is Plata v. Brown. The order
of the three-judge District Court is applicable to both cases. . . .
At the time of trial, California’s correctional facilities held some 156,000 per-
sons. This is nearly double the number that California’s prisons were designed
to hold, and California has been ordered to reduce its prison population to

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137.5% of design capacity. By the three-judge court’s own estimate, the required
population reduction could be as high as 46,000 persons. Although the State has
reduced the population by at least 9,000 persons during the pendency of this
appeal, this means a further reduction of 37,000 persons could be required. As
will be noted, the reduction need not be accomplished in an indiscriminate man-
ner or in these substantial numbers if satisfactory, alternative remedies or means
for compliance are devised. The State may employ measures, including good-
time credits and diversion of low-risk offenders and technical parole violators
to community-based programs, that will mitigate the order’s impact. The popu-
lation reduction potentially required is nevertheless of unprecedented sweep and
extent.
Yet so too is the continuing injury and harm resulting from these serious
constitutional violations. For years the medical and mental health care provided
by California’s prisons has fallen short of minimum constitutional requirements
and has failed to meet prisoners’ basic health needs. Needless suffering and
death have been the well-documented result. Over the whole course of years
during which this litigation has been pending, no other remedies have been
found to be sufficient. Efforts to remedy the violation have been frustrated by
severe overcrowding in California’s prison system. Short-term gains in the pro-
vision of care have been eroded by the long-term effects of severe and pervasive
overcrowding. . . .
I
A
The degree of overcrowding in California’s prisons is exceptional. Califor-
nia’s prisons are designed to house a population just under 80,000, but at the
time of the three-judge court’s decision the population was almost double that.
The State’s prisons had operated at around 200% of design capacity for at least
11 years. Prisoners are crammed into spaces neither designed nor intended to
house inmates. As many as 200 prisoners may live in a gymnasium, monitored
by as few as two or three correctional officers. As many as 54 prisoners may
share a single toilet.
The Corrections Independent Review Panel, a body appointed by the Gov-
ernor and composed of correctional consultants and representatives from state
agencies, concluded that California’s prisons are “‘severely overcrowded, imper-
iling the safety of both correctional employees and inmates.’ In 2006, then-Gov-
ernor Schwarzenegger declared a state of emergency in the prisons, as “‘imme-
diate action is necessary to prevent death and harm caused by California’s severe
prison overcrowding.’” The consequences of overcrowding identified by the
Governor include “‘increased, substantial risk for transmission of infectious ill-
ness’” and a suicide rate “‘approaching an average of one per week.’” Ibid.
Prisoners in California with serious mental illness do not receive mini-
mal, adequate care. Because of a shortage of treatment beds, suicidal inmates
may be held for prolonged periods in telephone-booth-sized cages without toi-
lets. A psychiatric expert reported observing an inmate who had been held in
such a cage for nearly 24 hours, standing in a pool of his own urine, unrespon-
sive and nearly catatonic. Prison officials explained they had “‘no place to put

10
him.’” Other inmates awaiting care may be held for months in administrative
segregation, where they endure harsh and isolated conditions and receive only
limited mental health services. Wait times for mental health care range as high
as 12 months. In 2006, the suicide rate in California’s prisons was nearly 80%
higher than the national average for prison populations; and a court-appointed
Special Master found that 72.1% of suicides involved “some measure of inade-
quate assessment, treatment, or intervention, and were therefore most probably
foreseeable and/or preventable.”
Prisoners suffering from physical illness also receive severely deficient care.
California’s prisons were designed to meet the medical needs of a population at
100% of design capacity and so have only half the clinical space needed to treat
the current population. A correctional officer testified that, in one prison, up to
50 sick inmates may be held together in a 12–by 20–foot cage for up to five
hours awaiting treatment. The number of staff is inadequate, and prisoners face
significant delays in access to care. A prisoner with severe abdominal pain died
after a 5–week delay in referral to a specialist; a prisoner with “‘constant and
extreme’” chest pain died after an 8–hour delay in evaluation by a doctor; and a
prisoner died of testicular cancer after a “failure of MDs to work up for cancer
in a young man with 17 months of testicular pain.” Doctor Ronald Shansky,
former medical director of the Illinois state prison system, surveyed death re-
views for California prisoners. He concluded that extreme departures from the
standard of care were “widespread,” and that the proportion of “possibly pre-
ventable or preventable” deaths was “extremely high,” Many more prisoners,
suffering from severe but not life-threatening conditions, experience prolonged
illness and unnecessary pain. . . .
D...
The three-judge court heard 14 days of testimony and issued a 184–page
opinion, making extensive findings of fact. The court ordered California to re-
duce its prison population to 137.5% of the prisons’ design capacity within two
years. Assuming the State does not increase capacity through new construction,
the order requires a population reduction of 38,000 to 46,000 persons. Because
it appears all but certain that the State cannot complete sufficient construction
to comply fully with the order, the prison population will have to be reduced to
at least some extent. The court did not order the State to achieve this reduction
in any particular manner. Instead, the court ordered the State to formulate a plan
for compliance and submit its plan for approval by the court. . . .
II
As a consequence of their own actions, prisoners may be deprived of rights
that are fundamental to liberty. Yet the law and the Constitution demand recog-
nition of certain other rights. Prisoners retain the essence of human dignity in-
herent in all persons. Respect for that dignity animates the Eighth Amendment
prohibition against cruel and unusual punishment. “‘The basic concept underly-
ing the Eighth Amendment is nothing less than the dignity of man.’” Atkins v.
Virginia, 536 U.S. 304, 311 (2002) (quoting Trop v. Dulles, 356 U.S. 86, 100 (1958)
(plurality opinion)).

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 To incarcerate, society takes from prisoners the means to provide for
their own needs. Prisoners are dependent on the State for food, clothing, and
necessary medical care. A prison’s failure to provide sustenance for inmates
“may actually produce physical ‘torture or a lingering death.’” Estelle v. Gamble,
429 U.S. 97, 103 (1976) (quoting In re Kemmler, 136 U.S. 436, 447 (1890)). Just as
a prisoner may starve if not fed, he or she may suffer or die if not provided
adequate medical care. A prison that deprives prisoners of basic sustenance, in-
cluding adequate medical care, is incompatible with the concept of human dig-
nity and has no place in civilized society.
If government fails to fulfill this obligation, the courts have a responsibility
to remedy the resulting Eighth Amendment violation. See Hutto v. Finney, 437
U.S. 678, 687, n. 9 (1978). Courts must be sensitive to the State’s interest in
punishment, deterrence, and rehabilitation, as well as the need for deference to
experienced and expert prison administrators faced with the difficult and dan-
gerous task of housing large numbers of convicted criminals. See Bell v. Wolfish,
441 U.S. 520, 547–548 (1979). Courts nevertheless must not shrink from their
obligation to “enforce the constitutional rights of all ‘persons,’ including prison-
ers.” Cruz v. Beto, 405 U.S. 319, 321 (1972) (per curiam). Courts may not allow
constitutional violations to continue simply because a remedy would involve in-
trusion into the realm of prison administration. . . .
B
[Pursuant to the Prison Litigation Reform Act (PLRA), a three-judge district
court can impose a “population limit” only if it finds that “crowding is the pri-
mary cause of the violation of a Federal right.” 18 U.S.C. § 3626(a)(3)(E)(i).]

The three-judge court found the primary cause requirement satisfied by the
evidence at trial. The court found that overcrowding strains inadequate medical
and mental health facilities; overburdens limited clinical and custodial staff; and
creates violent, unsanitary, and chaotic conditions that contribute to the consti-
tutional violations and frustrate efforts to fashion a remedy. The three-judge
court also found that “until the problem of overcrowding is overcome it will be
impossible to provide constitutionally compliant care to California’s prison pop-
ulation.” . . .
Numerous experts testified that crowding is the primary cause of the con-
stitutional violations. The former warden of San Quentin and former acting sec-
retary of the California prisons concluded that crowding “makes it ‘virtually im-
possible for the organization to develop, much less implement, a plan to provide
prisoners with adequate care.’” The former executive director of the Texas De-
partment of Criminal Justice testified that “‘[e]verything revolves around over-
crowding’” and that “‘overcrowding is the primary cause of the medical and
mental health care violations.’ The former head of corrections in Pennsylvania,
Washington, and Maine testified that overcrowding is “‘overwhelming the sys-
tem both in terms of sheer numbers, in terms of the space available, in terms of

12
providing healthcare.’” And the current secretary of the Pennsylvania Depart-
ment of Corrections testified that “‘the biggest inhibiting factor right now in
California being able to deliver appropriate mental health and medical care is the
severe overcrowding.’” . . .
C...
Construction of new facilities, in theory, could alleviate overcrowding, but
the three-judge court found no realistic possibility that California would be able
to build itself out of this crisis. At the time of the court’s decision the State had
plans to build new medical and housing facilities, but funding for some plans
had not been secured and funding for other plans had been delayed by the leg-
islature for years. Particularly in light of California’s ongoing fiscal crisis, the
three-judge court deemed “chimerical” any “remedy that requires significant ad-
ditional spending by the state.” . . .
The common thread connecting the State’s proposed remedial efforts is that
they would require the State to expend large amounts of money absent a reduc-
tion in overcrowding. The Court cannot ignore the political and fiscal reality
behind this case. California’s Legislature has not been willing or able to allocate
the resources necessary to meet this crisis absent a reduction in overcrowding.
There is no reason to believe it will begin to do so now, when the State of Cali-
fornia is facing an unprecedented budgetary shortfall. As noted above, the leg-
islature recently failed to allocate funds for planned new construction. Without
a reduction in overcrowding, there will be no efficacious remedy for the uncon-
stitutional care of the sick and mentally ill in California’s prisons. . . .
III
Establishing the population at which the State could begin to provide con-
stitutionally adequate medical and mental health care, and the appropriate
timeframe within which to achieve the necessary reduction, requires a degree of
judgment. The inquiry involves uncertain predictions regarding the effects of
population reductions, as well as difficult determinations regarding the capacity
of prison officials to provide adequate care at various population levels. Courts
have substantial flexibility when making these judgments. “‘Once invoked, “the
scope of a district court’s equitable powers ... is broad, for breadth and flexibility
are inherent in equitable remedies.” Hutto, 437 U.S., at 687, n. 9 (quoting Milliken
v. Bradley, 433 U.S. 267, 281 (1977).
Nevertheless, the PLRA requires a court to adopt a remedy that is “narrowly
tailored” to the constitutional violation and that gives “substantial weight” to
public safety. 18 U.S.C. § 3626(a). When a court is imposing a population limit,
this means the court must set the limit at the highest population consistent with
an efficacious remedy. The court must also order the population reduction
achieved in the shortest period of time reasonably consistent with public safety.

13
 A
The three-judge court concluded that the population of California’s prisons
should be capped at 137.5% of design capacity. This conclusion is supported by
the record. Indeed, some evidence supported a limit as low as 100% of design
capacity. The chief deputy secretary of Correctional Healthcare Services for the
California prisons testified that California’s prisons “‘were not designed and
made no provision for any expansion of medical care space beyond the initial
100% of capacity.’” Other evidence supported a limit as low as 130%. . . .
B...
The State has already made significant progress toward reducing its prison
population, including reforms that will result in shifting “thousands” of prison-
ers to county jails. As the State makes further progress, the three-judge court
should evaluate whether its order remains appropriate. If significant progress is
made toward remedying the underlying constitutional violations, that progress
may demonstrate that further population reductions are not necessary or are less
urgent than previously believed. Were the State to make this showing, the three-
judge court in the exercise of its discretion could consider whether it is appro-
priate to extend or modify this timeline.
Experience with the three-judge court’s order may also lead the State to sug-
gest other modifications. The three-judge court should give any such requests
serious consideration. The three-judge court should also formulate its orders to
allow the State and its officials the authority necessary to address contingencies
that may arise during the remedial process.
These observations reflect the fact that the three-judge court’s order, like all
continuing equitable decrees, must remain open to appropriate modification.
They are not intended to cast doubt on the validity of the basic premise of the
existing order. The medical and mental health care provided by California’s pris-
ons falls below the standard of decency that inheres in the Eighth Amendment.
This extensive and ongoing constitutional violation requires a remedy, and a
remedy will not be achieved without a reduction in overcrowding. The relief
ordered by the three-judge court is required by the Constitution and was author-
ized by Congress in the PLRA. The State shall implement the order without
further delay.
The judgment of the three-judge court is affirmed.

Justice SCALIA, with whom Justice THOMAS joins, dissenting.

Today the Court affirms what is perhaps the most radical injunction issued
by a court in our Nation’s history: an order requiring California to release the
staggering number of 46,000 convicted criminals.
There comes before us, now and then, a case whose proper outcome is so
clearly indicated by tradition and common sense, that its decision ought to shape
the law, rather than vice versa. One would think that, before allowing the decree
of a federal district court to release 46,000 convicted felons, this Court would
bend every effort to read the law in such a way as to avoid that outrageous result.
Today, quite to the contrary, the Court disregards stringently drawn provisions

14
of the governing statute, and traditional constitutional limitations upon the
power of a federal judge, in order to uphold the absurd.
The proceedings that led to this result were a judicial travesty. I dissent be-
cause the institutional reform the District Court has undertaken violates the
terms of the governing statute, ignores bedrock limitations on the power of Ar-
ticle III judges, and takes federal courts wildly beyond their institutional capac-
ity.
I...
B
Even if I accepted the implausible premise that the plaintiffs have estab-
lished a systemwide violation of the Eighth Amendment, I would dissent from
the Court’s endorsement of a decrowding order. That order is an example of
what has become known as a “structural injunction.” . . . Structural injunctions
[turn] judges into long-term administrators of complex social institutions such
as schools, prisons, and police departments. Indeed, they require judges to play
a role essentially indistinguishable from the role ordinarily played by executive
officials. Today’s decision not only affirms the structural injunction but vastly
expands its use, by holding that an entire system is unconstitutional because it
may produce constitutional violations.
The drawbacks of structural injunctions have been described at great length
elsewhere. This case illustrates one of their most pernicious aspects: that they
force judges to engage in a form of factfinding-as-policymaking that is outside
the traditional judicial role. The factfinding judges traditionally engage in in-
volves the determination of past or present facts based (except for a limited set
of materials of which courts may take “judicial notice”) exclusively upon a closed
trial record. That is one reason why a district judge’s factual findings are entitled
to clear-error review: because having viewed the trial first hand he is in a better
position to evaluate the evidence than a judge reviewing a cold record. In a very
limited category of cases, judges have also traditionally been called upon to make
some predictive judgments: which custody will best serve the interests of the child,
for example, or whether a particular one-shot injunction will remedy the plaintiff’s
grievance. When a judge manages a structural injunction, however, he will inevi-
tably be required to make very broad empirical predictions necessarily based in
large part upon policy views—the sort of predictions regularly made by legislators
and executive officials, but inappropriate for the Third Branch. . . .
It is important to recognize that the dressing-up of policy judgments as fac-
tual findings is not an error peculiar to this case. It is an unavoidable concomi-
tant of institutional-reform litigation. When a district court issues an injunction,
it must make a factual assessment of the anticipated consequences of the injunc-
tion. And when the injunction undertakes to restructure a social institution, as-
sessing the factual consequences of the injunction is necessarily the sort of pre-
dictive judgment that our system of government allocates to other government
officials.
But structural injunctions do not simply invite judges to indulge policy pref-
erences. They invite judges to indulge incompetent policy preferences. Three years
of law school and familiarity with pertinent Supreme Court precedents give no

15
insight whatsoever into the management of social institutions. Thus, in the pro-
ceeding below the District Court determined that constitutionally adequate med-
ical services could be provided if the prison population was 137.5% of design
capacity. This was an empirical finding it was utterly unqualified to make. Ad-
mittedly, the court did not generate that number entirely on its own; it heard the
numbers 130% and 145% bandied about by various witnesses and decided to
split the difference. But the ability of judges to spit back or even average out
numbers spoon fed to them by expert witnesses does not render them compe-
tent decisionmakers . . . .

Justice ALITO’s dissent, which Chief Justice ROBERTS joined, is omitted.

III. ALTERNATIVES?
A. Prison Abolitionism
Mariame Kaba, WE DO THIS ‘TIL WE FREE US (2021)

Prison-industrial complex abolition is a political vision, a structural analysis

of oppression, and a practical organizing strategy. While some people might
think of abolition as primarily a negative project—“Let’s tear everything down
tomorrow and hope for the best”—PIC abolition is a vision of a restructured
society in a world where we have everything we need: food, shelter, education,
health, art, beauty, clean water, and more things that are foundational to our
personal and community safety.
Every vision is also a map. As freedom fighter Kwame Ture taught us,
“When you see people call themselves revolutionary always talking about de-
stroying, destroying, destroying but never talking about building or creating,
they’re not revolutionary. They do not understand the first thing about revolu-
tion. It’s creating.” PIC abolition is a positive project that focuses, in part, on
building a society where it is possible to address harm without relying on struc-
tural forms of oppression or the violent systems that increase it.
Some people may ask, “Does this mean that I can never call the cops if my
life is in serious danger?” Abolition does not center that question. Instead, abo-
lition challenges us to ask “Why do we have no other well-resourced options?”
and pushes us to creatively consider how we can grow, build, and try other ave-
nues to reduce harm. Repeated attempts to improve the sole option offered by
the state, despite how consistently corrupt and injurious it has proven itself, will
neither reduce nor address the harm that actually required the call. . . .
What work do prisons and policing actually do? Most people assume that
incarceration helps to reduce violence and crime, thinking, “The criminal pun-
ishment system might be racist, sexist, classist, ableist, and unfair, but it at least
keeps me safe from violence and crime.” Facts and history tell a different story:
Increasing rates of incarceration have a minimal impact on crime rates. Research
and common sense suggest that economic precarity is correlated with higher

16
crime rates. Moreover, crime and harm are not synonymous. All that is crimi-
nalized isn’t harmful, and all harm isn’t necessarily criminalized. For example,
wage theft by employers isn’t generally criminalized, but it is definitely harmful.
Even if the criminal punishment system were free of racism, classism, sex-
ism, and other isms, it would not be capable of effectively addressing harm. For
example, if we want to reduce (or end) sexual and gendered violence, putting a
few perpetrators in prison does little to stop the many other perpetrators. It does
nothing to change a culture that makes this harm imaginable, to hold the indi-
vidual perpetrator accountable, to support their transformation, or to meet the
needs of the survivors. . . .
A world without harm isn’t possible and isn’t what an abolitionist vision
purports to achieve. Rather, abolitionist politics and practice contend that dis-
posing of people by locking them away in jails and prisons does nothing signif-
icant to prevent, reduce, or transform harm in the aggregate. It rarely, if ever,
encourages people to take accountability for their actions. Instead, our adver-
sarial court system discourages people from ever acknowledging, let alone taking
responsibility for, the harm they have caused. At the same time, it allows us to
avoid our own responsibilities to hold each other accountable, instead delegating
it to a third party—one that has been built to hide away social and political fail-
ures. An abolitionist imagination takes us along a different path than if we try to
simply replace the PIC with similar structures.

Dorothy E. Roberts, Foreword: Abolition Constitutionalism , 133 HARV.

L. REV. 1, 114–18 (2019)

Prison abolition is a long-term project that requires strategically working to-

ward the complete elimination of carceral punishment. No abolitionist expects
all prison walls to come tumbling down at once. Yet abolitionist philosophy is
defined in contradistinction to reform: reforming prisons is diametrically op-
posed to abolishing them. Efforts to improve the fairness of carceral systems
and to increase their efficiency or legitimacy only strengthen those systems and
divert attention from eradicating them. How can abolitionists take incremental
steps toward dismantling prisons without falling into reformist traps? Prison
abolitionists resolved this quandary with the concept of “non-reformist re-
form—those measures that reduce the power of an oppressive system while il-
luminating the system’s inability to solve the crises it creates.” By engaging in
nonreformist reforms, abolitionists strive to make transformative changes in
carceral systems with the objective of demolishing those systems rather than
fixing them. They recognize that these reforms alone are inadequate; indeed,
achieving these piecemeal changes in the prison industrial complex reveals the
necessity of its total eradication. To be abolitionist, reforms must shrink rather
than strengthen “the state’s capacity for violence.” . . .
Abolition constitutionalism could support many of the nonreformist re-
forms in which prison abolitionists and other activists are already engaged, in-
cluding efforts to stop prison expansion by opposing prison construction or
shutting down prisons that already exist; end police stop-and-frisk practices;
eliminate the requirement of money bail to release people charged with crimes;

17
repeal harsh mandatory minimums, even for violent crimes; give amnesty to in-
dividual prisoners, including political prisoners and prisoners believed to have
killed in self-defense; and decriminalize drug use and possession and other non-
violent conduct. To the extent that such practices perpetuate slavery in violation
of the Thirteenth Amendment, Congress, state legislatures, and city assemblies,
as well as courts, are empowered by the Federal and state to enact these nonre-
formist reforms.

Allegra M. McLeod, Envisioning Abolition Democracy , 132 HARV. L.

REV. 1613, 1628–30 (2019)

Along with rethinking how to respond to the most awful forms of state-
perpetrated violence, abolitionists in Chicago and elsewhere have sought to ad-
dress other forms of less public interpersonal harm. This has involved develop-
ing alternative means of preventing violence and alternative means of respond-
ing in the aftermath of harm. These efforts are small-scale attempts to prefigure
different relationships between people, to develop meaningful and thick mutual
support networks, to constitute real alternatives to police and jail intervention,
and to build power that may be used to realize farther-reaching change.
Many of these local projects provide alternative first responders, mediation
support, or other forms of mutual aid to those who would otherwise likely be
subject to victimization, arrest, possible police violence, or incarceration. In
these various programs around the country, community members aim to inter-
vene before conflicts escalate. In Chicago and some other major cities, for ex-
ample, teams of “violence interrupters,” associated with a program called Cure
Violence, work to identify community conflicts likely to escalate into gun vio-
lence or other violent assaults. Then mediators, often individuals formerly in-
volved in gangs, intervene to help resolve or de-escalate disputes. The program
is accompanied by ongoing empirical analysis that has demonstrated success in
the form of “statistically significant reductions in violence,” and is being repli-
cated in communities around the country. . . . Of course, not all interpersonal
harm will be prevented through these measures; but neither is such harm effec-
tively addressed through existing penal measures. These projects hold more
promise than penal measures, however, because they initiate a shift in resources,
values, and political power, transforming the people whose lives they touch and
shifting attention toward how to reduce harm on the ground such that over time
more far-reaching change may become possible.

Paul Butler, CHOKEHOLD (2017)

U.S. prisons are built for black men, and black men will be free, literally and
figuratively, only when prisons are no more. . . . Our moral justification for forc-
ing human beings to live in cages is that they have freely chosen to do wrong.
But the United States has never had the capacity to make those judgments on a
non-racial basis and it is hard to imagine that it ever will. So we have to stop
it. . . .
I get it. Prison abolition sounds crazy, reckless, and unsafe. . . . But here’s an
essential fact you need in order to open your mind to abolition: fewer than one

18
in five people who are in prison are there for homicide or a sex crime. If we
think of those as the most dangerous crimes, we understand that prison is not
mainly about protecting us from perilous offenders. Even if we are uncertain
about the best intervention for the small group of inmates who are likely to
seriously harm others on the outside, we can begin the abolitionist project by
focusing on alternatives for the 80 percent.

Thomas Ward Frampton, The Dangerous Few: Taking Seriously Prison

Abolition and Its Skeptics , 135 HARV. L. REV. 2013 (2022)

Conversations about prison abolition seem to begin and end with some ver-
sion of the following exchange:

Skeptic: Wait, so no more prisons?

Abolitionist: Yes, that’s the basic idea.

Skeptic: None?

Abolitionist: Pretty much.

Skeptic: But you don’t really mean you intend to set loose the axe murderers and
serial rapists? That’s a terrible idea.

Abolitionist: Well, see

Abolitionists typically have several different answers they might then offer, and
this is, of course, unsurprising; abolitionists “don’t hold one uniform vi-
sion.” But often these standard answers are less than satisfactory to the skeptic:
they either offer too few assurances or present watered-down versions of aboli-
tionism that recast the project in decidedly reformist terms. Even those firmly
within the abolitionist camp have acknowledged that this issue (the problem of
“the dangerous few”) constitutes a “spectral force haunting abolitionist
thought,” a topic that inevitably arises “as soon as abolitionist discourses navi-
gate towards the programmatic and enter the public arena.”

Randall Kennedy, SAY IT LOUD!: ON RACE, LAW, HISTORY, AND CULTURE

(2021)

If the abolitionist literature displays certain virtues, it also manifests certain

vices. As used by the activist-intellectuals under discussion, the term “abolition”
is in itself a problem. Death penalty abolitionists demand an end to the state-
administered killing of individuals immediately and unconditionally. Similarly,
antislavery abolitionists demanded the immediate and unconditional cessation
of enslavement. They sought its prohibition because slavery was unequivocally
evil and served no good social function. The same cannot be said of prisons or
the police. They are both institutions that can and do serve useful social func-
tions. Slavery cannot be put to any just use. Prisons can. Prisons house convicted

19
inmates who have hurt society by injuring victims absent justification or excuse.
They are confined to prevent further criminality, to deter others who might be
inclined to transgress the boundaries of criminal law, and to impose punish-
ment. . . .
America is disgraced by the barbarity, the hyper-punitiveness, and obvious
inequities in its system of criminal justice . . . . Justice requires that arbitrariness,
prejudice, and cruelty be removed from such agencies. But that is a project of
reform, not abolition. . . . “Abolition” has a dramatic, absolutistic ring to it.
“Shrinking, the imprint of prisons is less alluring. It is also partly a matter of
wanting to avoid conceding openly that at least to some extent prisons do serve
a useful social function. . . .
Some [abolitionists] insist that they really do seek the complete removal of
all carceral institutions. This aspiration is so far-fetched that it lacks the plausi-
bility needed to gain substantial political traction. No political movement can do
away with human evil and thus moot the necessity for protection against it. . . .
I am not claiming that police and prisons can ensure our safety . . . . There are
limits to what any system of criminal law enforcement can accomplish. But by
seeking to apprehend, detain, deter, and punish lawbreakers, society signals a
profound disapproval of criminal encroachment upon others. That signal is ren-
dered all too indistinct by abolitionist theorists. . . .
Localities across the country are already benefiting from reforms in the ad-
ministration of criminal law that abolitionists spurred . . . More and deeper re-
forms will, one hopes, ensue. Abolitionism has erred, however, in choosing to
target for erasure (actually or even only rhetorically) public institutions that are
essential. If the racial promised land for abolitionism is a polity devoid of police
or prisons, it . . . has no likelihood of realization and a great likelihood of gener-
ating a retrograde reaction.

B. Restorative and Transformative Justice

Adriaan Lanni, Taking Restorative Justice Seriously , 69 BUFF. L. REV. 635
(2021)

Restorative justice takes many forms, but in the criminal context it typically
involves a meeting between the victim, the offender, and other members of the
community. In this meeting, the offender expresses remorse for the harm caused
and the group agrees on actions the offender can take to repair the harm and
prevent re-offending. Restorative programs can be used as a form of diversion
from the criminal process, as an alternative form of sentencing, or, in more se-
rious cases, as a way to reduce the criminal sentence. Proponents argue that
restorative processes offer victims more satisfaction than the criminal process
and do a better job of holding the offender accountable while promoting rein-
tegration and avoiding or reducing incarceration. . . .
The modern restorative justice movement stems from a variety of practices
developed in very different contexts. For this reason, there is no authoritative
theory or agreed-upon definition of restorative justice. Restorative approaches

20
share the view that the proper response to an offense should focus not on pun-
ishment, but on meeting the needs of the victim, holding the offender account-
able for the harm caused, taking steps to repair as much as possible the harm
suffered by the victim and the community, and addressing the offender’s needs
to prevent reoffending and promote reintegration. . . .
Let me begin with a personal story—one that may help illustrate some of
the advantages of restorative justice compared to the criminal process. For the
past few years I have worked as a volunteer case coordinator with Communities
for Restorative Justice, a Massachusetts non-profit that takes referrals from po-
lice departments and prosecutors. One of the first cases I worked on involved a
teenager (let’s call him “James”) who was smoking pot with friends late at night
when they decided to stick someone up as a prank. They confronted a man
(“Michael”) as he was walking home. When Michael refused to give them
money, James pulled out a BB gun. Michael ran away and contacted the police,
who arrested James soon after. James thought Michael should have realized it
was a prank since he and his friends were laughing and it was a BB gun. For his
part, Michael was afraid that he might be shot in the back at any moment as he
ran away and continued to experience fear and symptoms of post-traumatic
stress disorder months after the incident.
At the restorative justice circle James explained that he had himself been
traumatized after having a gun pulled on him, and he said he was sorry that he
had caused another person to suffer in that way. Michael said afterward that
meeting James made him feel less afraid when he thought about the incident.
After hearing about the economic and other challenges James and his mother
had faced, he came away from the circle with empathy for James rather than
anger. I can’t explain exactly why or how—maybe it was the way James’s mom
wrapped Michael up in a hug at the end—but James’s case inspired me. I walked
into that room with curiosity and hope, but also with the skepticism of an aca-
demic; I walked out with a firm belief in the transformative potential of restor-
ative justice. . . .
[T]he interaction between victim and offender plays a central role in restor-
ative justice. But in practice, many restorative justice programs have difficulty
ensuring direct victim participation: participation rates at or below fifty percent
are not uncommon, and victim participation levels rarely exceed eighty percent.
Victims who decline to participate often cite the time and effort involved. Ex-
panding restorative justice to more serious crimes may raise additional obstacles
to victim participation if victims are not emotionally ready to participate within
the compressed time frame of a criminal case. There is evidence that victims’
willingness to participate in an encounter with the offender tends to increase
over time after more harmful offenses, presumably because victims may be too
angry and fearful immediately after a serious crime to consider meeting with the
offender. Successful victim-offender encounters in very serious cases such as
homicide tend to occur years after the offense. . . .
Surrogate victims offer [an] alternative. A surrogate victim who has suffered
a similar offense may participate when the direct victim is unavailable. Surrogate
victims may also be used to provide insight into the harm caused by offenses
that do not involve readily identifiable victims. For example, parents of victims
of gun violence might serve as surrogate victims in firearms cases; individuals

21
who have suffered from drug addiction or drug violence and their family mem-
bers might serve as surrogate victims in narcotics cases; and victims of drunk-
driving or reckless driving accidents might participate in motor vehicle cases that
did not result in injuries. . . . Adopting a restorative approach to violent offenses,
burglaries and other theft-related offenses, and “victimless” crimes like drunk
driving, drug dealing/trafficking and firearms offenses that lend themselves to
a restorative encounter with a surrogate victim would have a major impact on
mass incarceration. . .
The call to adopt a restorative approach stems in part from a desire to alle-
viate the racially discriminatory and overly punitive aspects of the criminal legal
system. It is therefore vital that restorative justice be expanded in a way that
ensures equal access and fair treatment, particularly for communities of color
and poor communities. Because restorative justice often involves discretion by
many actors, expanding restorative justice has the potential to re-create existing
racial and class biases in the administration of criminal justice. Wealthier com-
munities may be in a better position to provide restorative programs with fund-
ing and volunteer support. Discretionary decisions by police, prosecutors, and
restorative justice providers to refer certain offenders to restorative justice may
be affected by explicit and implicit biases. The informality of restorative pro-
cesses may allow differences in socioeconomic status and education among par-
ticipants to influence outcomes. And the process may not fully acknowledge
underlying social and economic conditions that may reduce the offender’s indi-
vidual responsibility. . . .
Critics . . . have argued that restorative justice as it is traditionally practiced
does not adequately consider the root causes of crime, including systemic racism
and other forms of structural injustice. These critics argue for “transformative
justice,” which attempts not only to address specific harms, but to “enable the
wider community to take responsibility for the underlying causes of crime: pov-
erty, abused children, unemployment, discrimination, and other deep social
problems.” While some theorists see this broader transformative justice move-
ment as distinct from restorative justice, proponents of restorative justice have
increasingly argued that restorative justice can and should incorporate trans-
formative approaches.
A transformative approach would affect the restorative process in at least
three ways. First, care would be taken to prevent the informality of the process
from reinforcing existing power and status differences. Through careful advance
preparation of the participants and reflective listening (paraphrasing the parties’
positions when necessary), the facilitator can help alleviate power imbalances
between the participants during the restorative encounter. . . .
Second, the restorative encounter should include discussion of the social
and economic disadvantages that may have contributed to the offense. Unlike
the criminal process, restorative encounters naturally lend themselves to exam-
ining the offense in a broader context, including the prior relationship between
the parties and the motivations of both the responsible and impacted parties. A
transformative approach would go deeper. It would encourage a discussion of
other factors that have affected the responsible party, such as trauma, economic
disadvantage, family disruption due to incarceration or addiction, and poor ed-

22
ucational and health services. And repair agreements would incorporate treat-
ment and other social services to help address the harms experienced by the
responsible party. . . .
Third, a transformative approach would consider the social context in for-
mulating the terms of the restorative agreement, i.e., the acts the offender must
undertake to complete the restorative program. In particular, it is important to
recognize the way in which economic and social disadvantages might affect par-
ticular offenders’ ability to complete onerous and time-consuming restorative
agreement items. For example, extensive community service may be unrealistic
for an offender who works long hours and has limited access to childcare. A
restitution payment that may be reasonable for some offenders may create a
crushing burden for others. And, ideally, the restorative program should provide
referrals to mental health, addiction services, and other social services where
needed. At the same time, when considering referrals to social services pro-
grams, restorative justice practitioners must avoid setting offenders up to fail by
imposing unrealistic burdens on offenders who already face difficult circum-
stances. . . .

23