IDK Man - Angela Davis was right lol

 I want to examine Brettschneider’s discussion of restorative justice and the way it related to punishment. Brettschneider is essentially arguing that criminals violate rules that we established for the mutually respectable treatment of each other. They are failing to act as a good-faith participant in society. The question is – how can we restore the key aspect of mutual accountability where people play a role as equal autonomous rulers in making the law, thus having equal obligations to follow the law. The criminal is a citizen who is broken in that they created the law that they felt like we were all obligated to follow but then did not follow it. This idea is similar to what was articulated by Stephen and William Darwall when they talked about how punishment involves restoring someone to a state of mutual accountability. Therefore punishment involves holding people accountable for their actions and securing their appreciation of the necessity to take accountability to others for what they did. They must apologize to the community for failing as a joint author of the law and taking advantage of that status and to the victim for what they did.

Brettschneider states that “Democratic citizens pursuing the common good have a basic need to be free from violence and other abuses. Even those convicted of crimes can appreciate this rationale when they think about the law in general, not just from their particular circumstances.” He goes on to say “Adopting the position of a citizen in general, they can acknowledge the legitimacy of the laws under which they were convicted and, thus, are rightly subject to it themselves when they break the law. This is how the Trop principle, therefore, justifies prisoners’ loss of liberty by ensuring that the punishment is consistent with democratic citizenship” (142).

I largely agree with Brettschneider’s account, in theory, however, I believe that this framework of examining punishment fails to suffice in reality due to most democratic states being unjust. In today’s society, voter disenfranchisement disproportionately affects people of color, and due to the history of voting in this country, most people of color did not have a say regarding the laws that governed them and the statutory interpretation that provided recourse through the law for them. As a result, they cannot acknowledge “the legitimacy of the laws under which they were convicted” and have no reason to “rightly subject to it themselves when they break the law” (160). Therefore, there is no justification for the loss of liberty with imprisonment. Tommie Shelbie spoke about these cases where (this is quoting Brettschneider’s summary of his argument) that “those who have been deprived of basic material goods cannot rightly be held legally responsible for crime that is property related.” If people of color feel that the profound structural injustices they experience cause the law’s formation to make the law be illegitimate, the Trop principle does not hold up. The system of popular sovereignty treated marginalized people unequally and devalued their role in its exercise, so the laws it created are illegitimate.

For example, if an impoverished person commits welfare fraud to sustain themselves and their family and ensure their children are being fed, that is not an individual failure but a systemic one. No individual has to apologize or be held accountable. The system needs to be. The restorative model presupposed a just structure of the state and popular sovereignty, but what if this is not the case. It raises a question as to where the system being a part of the problem committed by the individual renders the punishment cruel rather than restorative.  How does Brettschneider’s argument apply in a country like the USA – where we fall dramatically short of the norms that give value to the law-making process, we do not have equality of interest in the way we make laws, we are systematically biased against some people to the advantage of others, we do not respect the autonomy of people equally, we do not engage in mutual justification, and we obstruct the access of people of color (especially Black and indigenous people) to the ballot.

               The Trop principle says we created the rules that govern us, so we acknowledge them as legitimate and accept our punishment. For marginalized people, they did not create those rules – the project of those rules was forced onto them, it was not one they were a part of. This seems to affect the way the principle can be applied. This causes this account to be purely ideal theory, something we can aspire to but cannot say is how punishment is justified and how it functions. If we do not admit that this account seems like it could be unhelpful and even misleading at times.