A couple weeks ago, I was in the middle of writing a proposal to explore restorative justice approaches to elder abuse when I happened to see the new Pew Center report on incarceration (see Pew Report) that showed that more than one in 100 American adults are behind bars. That’s 1.6 million, the highest rate of any nation in the world. And it gets worse: one in 36 Hispanic and one in 15 adult Black men are incarcerated. Among young Black men, the figure is one in nine. The racial divide extends to women too, with one in 100 Black women aged 35 to 39 incarcerated compared with one in 355 for Whites.
After I got past my initial shock and depression, I went back to work with new resolve, more convinced than ever of the need for new approaches to elder abuse.
Be assured, I’m a huge fan of the police, prosecutors, forensics researchers and everyone else responsible for the enormous strides our field has made in improving prosecution rates in elder abuse cases. And a lot still remains to be done. That’s particularly true, I believe, in the case of financial abuse, where so many predators operate with impunity; some brazenly brag that the risk of getting caught and the flimsy penalties and sentences they face are simply the cost of doing business. But, as our field embraces criminal justice approaches, we ought be careful. We need to be sure, for example, that the approaches we advocate for are fair and appropriate. We need to guard against becoming so focused on prosecution that it overshadows other promising approaches. We need alternatives that we can divert offenders to when it’s appropriate. And, we need to be watchful and honest about unintended consequences.
It used to be that prosecutions were rare and few police and prosecutors received training. Things started to change quickly in the 90s with the infusion of domestic violence theory, policy, and practice into our field. In addition to offering such promising new interventions as support groups, safety planning, shelters, and orders of protection, it prompted us to focus on the criminal justice system. A significant amount of federal and state dollars now go for training police and prosecutors, for advancing forensics research, and for letting the public know that abuse is a crime.
All well and good. We’ve “criminalized” elder abuse under the banner of accountability, and clearly, it’s one way to achieve accountability. But accountability goes beyond punishing offenders. It requires that perpetrators acknowledge the harm they’ve caused and make amends to their victims and communities. If we’re serious about accountability, it’s time we stopped shrugging our shoulders at the fact that few perpetrators pay restitution, assuming that nothing can be done about it. It’s time to hold ourselves and “the system” accountable for ensuring that the needs of victims aren’t overlooked. It seems to me that the resources now directed toward the criminal justice system far exceed those devoted to restitution recovery, victim compensation, advocacy, preventative services, legal assistance, or social services aimed at healing, protecting, and empowering. Or seeing to it that offenders with mental health problems get the services they need, which is what so many victims want.
It’s my belief in the need to expand our view of accountability that’s led me to explore restorative justice (RJ). RJ isn’t a single intervention, but rather multiple techniques like victim-offender mediation in which victims confront their abusers in safe settings to tell them how they were affected, seek answers, and negotiate remuneration. Although I’m not aware of traditional victim-offender mediation being used in elder abuse, innovative programs and courts across the country are using mediation to resolve conflicts among family caregivers, as an alternative to guardianship, and to reach settlements in abuse cases, with promising results. Another RJ approach, family group conferencing (or talking circles), is currently being explored by several Indian tribes in the US and a mainstream program in Canada. The groups draw upon the potent power of family relationships and support networks to support the vulnerable, motivate or pressure members to get help for mental health problems, negotiate settlements, and support caregivers sanction offenders. For more on RJ, see the page on my Web site Restorative Justice Approaches to Elder Abuse Prevention.
RJ advocates contend that approaches like these may, in some respects, ensure greater accountability than the traditional criminal justice system. For example, in the traditional system, offenders plead innocent, leaving it up to prosecutors to prove their guilt. In contrast, RJ creates incentives for offenders to step up, admit what they’ve done, and make amends. In the traditional system, perpetrators often don’t hear the full extent of the pain, loss, and suffering they’ve caused, and victims don’t have the satisfaction of been heard. Police dramas would have us believe that the only outcome that satisfies victims is when their offenders receive harsh punishments. But victim advocates tell us that having a voice in the process, being compensated, hearing perpetrators’ explanations and expressions of remorse, and negotiating solutions can be both healing and empowering.
There are other reasons to be cautious about criminal justice approaches to elder abuse. In previous postings I’ve discussed the unintended consequences of some criminal justice approaches on certain victims. For example, mandatory arrest laws, which many states have adopted to combat domestic violence, have resulted in dramatic increases in the arrest of women as “mutual combatants” despite the fact that most women are acting in self-defense. That’s because the laws don’t typically distinguish between one-time and chronic violence, or between minor and severe violence, This is particularly true for poor women, women of color, and undocumented immigrant women. Makes me wonder if that’s reflected in the PEW findings.
It was while working on a project for the National Indian Council on Aging (NICOA) that I first got interested in RJ, as several tribes had programs. As former NICOA director Dave Baldridge put it, “Restorative justice was once an unspoken, widely-accepted aspect of American Indian tribal cultures. As Native communities were family-based and relationship oriented rather than relying on rules of law, many Native people—elders most of all--still adhere to restorative justice concepts.”
Again, I’m not knocking criminal justice approaches. I simply think we need to expand our way of thinking about accountability and focus attention and resources on approaches that empower, compensate, and restore as well as punish. RJ holds promise for doing that. I’ll keep you posted on my proposal.
