Doug Noll on Justice

Hi there, I'm Doug Noll and I'm here to talk about justice today with my friend Morgan, who is going to be asking me questions. She is going to be testifying in, uh, before the California Assembly on justice matters, and so I thought we would take some time to understand theories of justice so that she could be well informed, and we hope that you you'll be well informed about justice too. This is a really important issue, especially in today's environment of incivility and unrest and disputation and people not getting along very well and having really radical strong beliefs. There's a strong sense of injustice everywhere, and so it really helps, I think, for us to understand what justice really is. One of the interesting things that I do in my law classes I ask my students, "What is justice?" And these are third-year law students who are about ready to take the California Bar Exam. And every time I ask that question, I get a glassy-eyed stare from my students. I laugh and I say, "Wait a minute, you're going to be sitting for the bar in a couple of months and you can't even tell me what justice is?" Well, of course it's a trick question because the problem that we face is that justice doesn't have any one definition. Definition. And so when people throw out terms like criminal justice or social justice, they really don't know what they're saying because if you ask them, "Well, what do you mean by that?" they're hard-pressed to give us really clear definitions. So in this talk I'm going to hopefully raise the fog a little bit on this meaning of the word justice so that when we hear the term justice, our radar goes up, we can ask some clarifying questions to make sure that we're very clear about what we mean by this important but very confusing term. So in this lecture, I'm going to be talking about the relation of justice to conflict, because that's what it's all about, really. I'm going to be talking about definitional issues. What exactly is justice? And it turns out there are 6 6 or 7 different definitions of justice, all of which are valid, and it depends on the context in which we're talking about justice to determine which definition is most appropriate. We're going to be talking about the 3 classical theories of justice. We're going to be talking about distributive justice, another form of justice. We're going to be talking about procedural justice. And we're not done yet, we're going to be talking about retributive and and restorative justice. So you can see just by the scope of this that we're covering many, many definitions of justice. So, uh, I'm going to conclude with a little bit of talking about justice in relationship to peace because as a peacemaker I'm deeply concerned about justice and the sense of justice that people have when they are able to resolve conflict. So let's get started. The first question is, why do we have justice? Why does the term justice even exist? Why is it even important as a word and as a concept in our society? Basically, justice regulates cooperative behavior in society, and it specifies the reasonable solutions to conflict so that when we have a dispute over How to divide up a pasture, for example. How do we go about dividing that pasture up that's reasonable for everybody involved? But not only reasonable for everybody involved right now, but reasonable for the community into the future. And so the concept of justice defines the different mechanisms and processes and procedures and ways that we measure how we come up with solutions to various kinds of conflicts. Um, it also coordinates social interaction. We are inherently cooperative animals. Aggression is really a learned behavior. Trust and cooperation are innate behaviors in humans, and they're really hardwired into our brains so that we can— we have developed mechanisms over many, many thousands, hundreds of thousands of years to coordinate behavior in order to succeed in passing the human genome into the future. Started, of course, with small clans, which built into communities, and then eventually nations and nation-states. And all this very complex society that we live in today is possible because we can coordinate ourselves in a way. Imagine 4 people coming up to a 4-way stop sign in an intersection, all driving big SUVs. If we didn't have a concept of justice to regulate how we navigate that intersection, we would have massive amounts of of carnage in the intersection. And so justice is a way of specifying how do we navigate through a four-way stop sign in a way that allows everybody to get through in due time without delay and without crashing 10,000-pound automobiles into each other. So that's a simple concept that demonstrates the complexity of society and why justice needs to coordinate our behaviors. It also shapes our behavior because most people are taught to be fair and want justice. They want to do justice and they want justice done to them. Justice defines how we behave towards each other, and so we will call people, "That's really unfair," or, "He is a really— or she is a really just, fair person." And so it's approbative as well as normative in terms of how It tells us how we're going to act. Another thing that's really interesting is the concept of self-interest versus altruism. Self-interest is the idea that we're going to do things to benefit ourselves. Altruism is the idea that we are going to help others. And so justice is that tension between I want what I want, but I also have to help you get what you want, or I am here to serve you as as well. And so justice is again one of those mechanisms that helps us balance self-interest versus altruism. And these are competing needs that we have within us. Altruism is hardwired into us, as is self-interest, and so we have to have some sort of modality or mechanism to help resolve the tension between selfishness and being selfless. The other thing that we think about when we think about justice is the idea that in societies that function well, people must be able to accept outcomes that are personally not the most desirable for them. Now, in autocratic societies, that acceptance is done by force, which people don't like because they don't like losing their autonomy. And so we say— we can say those societies are less just because because decisions around allocation of resources, for example, are made by autocrats who are self-interested in preserving their power position and privilege, as opposed to altruism where they're really trying to, for example, take a utilitarian view and benefit the most people. In a more democratic society, we are looking for ways of determining conflicts that aren't always going to meet everybody's needs every time, but over the broad span of time and over thousands and thousands of conflicts, there is a rough sense of justice that people feel like the system is generally fair. But as we will see, the idea of substantive justice is subjective, and so that, for example, the court system, the legal system in the United States can never guarantee substantive justice. Substantive justice is always subjective. What I think is fair is different than what you might think is fair. But in any event, people have to accept that they're going to lose sometimes. And if they can't accept that, then that leads us to a problem around justice. So there are three classical theories of justice. And these theories have evolved from the time of the Greeks. And find themselves actually very, very much alive and in play today. So let's take a look at what these theories are. We're going to look at them in the sense of how indigenous people might think about these three classical theories. So we have— the first one we have is a positive law or obedience. The second basic theory is utilitarianism or the common good. And the third is natural rights or human rights theory. Of justice. So we'll take a look at each of these in order. The first theory of justice, and the one that's probably been around the longest, is the positive law theory of justice. Positive law says that justice is measured by obedience to law. Positive law theory does not tell us whether a law is just or not. What it does is regulate behavior in the relationship to a law. So under this theory of justice, we would— we could never say a law about dog walking is just or unjust. We can only say if you obey the law, you are a just person. If you disobey the law, you are an unjust person. So positive law theory is basically about obedience to the law, not about whether the law itself benefits people or whether it's any whether it favors people in a discriminatory way. Positive law theory tells us nothing about that. It is strictly about coercion and obedience. The second theory is called the social good theory of justice. Basically, this is a concept of utilitarianism, really ex— let me find the right word— developed probably by Jeremy Bentham in the 17th century. Century. The idea, and the idea of this theory of justice is that rules and laws and ways of dispensing justice are deemed fair and good when they benefit the most people. Most of the people, most of the time. That's called utilitarianism. And the idea is that a law that, or a rule, or a way of doing justice that benefits the community as a whole is a just law. So we can measure laws about how well they, one, compel obedience— positive law— but in addition, how many people benefit from the law. And if the law benefits the community as a whole, then it's a just law. Now that means there's going to be a minority of people who are potentially hurt by the law. And this is where we get into huge conflict. So for example, for the last 40 years or 50 years, we've had Environmental Protection Act in the United States, and that is a utilitarian law. It is designed to help the most people by preserving the environment and aspects of the environment, primarily water and air and toxic substances, with the idea that, that the most people are going to benefit by regulating the ability to pollute the environment. But there are a minority of people who are hurt by that, and that would be landowners, factory owners, people who consider the environment to be a free resource for which they should not be charged. And what regulation does is impose an implicit charge on the use of the environment and spread the cost to the people who are using the environment at the expense of the common good. That, of course, course, is very controversial because it flies in the face of people who claim that property rights trump the ability of the government to regulate the use of property. And here is a classic conflict of positive law justice versus social good justice. And these are not easy to reconcile. But we still are looking— when we're looking at utilitarianism, we're still looking at does this law benefit the most of the people most of the time. If so, then we would call that law just, even though there's a minority of people who are hurt by the law. The third theory of justice is one that most people are familiar with, and that's called the natural rights or human rights theory of justice. And the greatest document that talks about these rights and enumerates them in a really elegant way is the Declaration of Independence. Thomas Jefferson, when he wrote the Declaration of Independence, Independence, had spent years reading all of the— what then existed— literature on human rights, going all the way back to the Greeks, and was at that time the foremost expert in human rights. And so he exposited a theory of human rights in the Declaration of Independence. The idea here is that as human beings, because we're sentient conscious beings, we have certain inalienable rights just because we're human beings. And those rights cannot be abridged or violated by anybody because to do so would be unjust. And thus when we look at statutory schemes in the United States, we would see, for example, anti-discrimination laws. Well, the law prohibits discrimination against those things that cannot be changed in a human being, such as color of skin, racial identity, racial origin, now sexual orientation in many cases. And again, this is controversial because oftentimes the enforcement of human rights theory of justice, number one, is not for the benefit of the whole, of the larger group, because it's actually protecting the minorities. And number two, positive law theory gets in the way because of people don't want to obey anti-discrimination laws. So it gets extremely complex. And as you can see from these three classical theories of justice, they conflict with each other. We can have— we can look at positive law, social good, and human rights or natural rights theories of justice, and oftentimes they are absolutely irreconcilable. And this is the first point that I want to make: when we use the term justice, We have to be very clear about what kind of justice we're talking about. Because if we're not clear, somebody could be thinking, saying justice and thinking positive law theory, somebody else could be thinking natural rights theory, and even though they're both using the same term justice, they're going to be in a huge conflict because they are not being clear about what kind of justice they're talking about. So definition becomes critical around beliefs about justice and structures of justice and that sort of thing. So let's, let's look at what the really classic problem is. Conservatives emphasize positive law. They want security, they want certainty, they want safety, so they are looking for the law to be enforced and obedience to law no matter what. And no matter how unjust the law is, they don't care. All they want is safety. The The progressives, on the other hand, are totally focused on human rights and the natural rights theory of law, and what they want are the dignity of the human being to be honored regardless of what positive law says, because positive law often interferes with human rights. And so they are very focused on that. And when you have these two extreme positions around justice, as you point out, it's very difficult to get to action because people are talking about justice but they're coming at it with very, very different meanings. And so the first thing we have to do when we are starting to engage people is to get some definitional issues out there and get people talking about, "Well, what do you mean by justice?" And most of the time they're going to be really confused by it because they don't know themselves. So that gets us to a really interesting aspect that I've discovered in studying this, and that is that when we look at positive law, social good, and natural rights forms of justice, the conflict that is inherent between those three classical theories is resolved in our constitutional form of government. Because positive law says that conformity to law is the measure of justice, the obligation is obedience. Social good says most good for the most people, and it's the the measure or the obligation is to promote the good of society, and natural rights says we are here to preserve individual rights and the obligation is to recognize human rights. Look at how our constitutional form of government is set up. It's incredible how this all worked out. The positive law theory of justice is embodied in the executive branch of government, which has the duty not to make law but to enforce law. Social good is the responsibility the legislature, which has the ability to look at the good of the whole and pass laws that basically are for the good of everybody, with of course burdens on the minority. And the courts are responsible for protecting our natural rights. So the whole balance— scheme of balance of powers that our founding fathers put together in our Constitution, in the federal Constitution, and we also see this reciprocated in the state constitution in California, is how we, how we balance these three conflicting definitions of justice. And balance of powers is therefore nothing more than a reconciliation of contradictory theories of justice in a very elegant, powerful way. And that's what has made our government so powerful. And people forget this. They forget this. They don't understand this. And they don't understand. So, so We get into these huge ideological conflicts because people are forgetting that each, each branch of government has its own form of justice that it is responsible for maintaining, and each branch of government has a different, has a different, has a different function in terms of bringing justice to the people. And once we begin to understand that, then all of a sudden we can start thinking more deeply about the conflicts that we face in our society.

You use the term ideological conflict. Can you help me understand what is the connection or the difference between definition of justice and an ideology?

Sure. An ideology is— what does ideology mean? It's knowledge of an idea. So it is— we can shortcut it and say is a belief structure that guides people's behaviors. Beliefs are nothing more than heuristic shortcuts that we unconsciously create to guide us in our daily lives. And beliefs can be very deep-seated or they can be very, very simple beliefs that are easily changed. Deep-seated beliefs are very difficult to change. Beliefs really guide, are there to guide us in our daily behaviors and decision-making. Beliefs may or may not accord with the theories of justice. If, as we saw just over the weekend in the Charlottesville protests and the injury of those 19 people and the death of that woman, one by neo-Nazi people and white supremacists, if you were to talk to them, I suspect that what you would find is their definition of justice is very strongly positive law, very anti-human rights, very anti Or if they were going to define social good, they would define it as being autocratic, white supremacy, no room for anybody to have any different opinions. That's how they would, and that would be a very powerful positive law sense of justice. And there's no way you could measure that positive law because it's only obedience to law. So if they had their way, they would be dictators telling us all what to believe and how to behave. And we could, and even though we may say, but under a natural rights theory, laws are very unjust. Under positive law theory, the only thing we can do is say obedience is justice. So ideology may dictate which theory of justice is going to dominate our thinking. If you talk to a progressive person, you will find that natural rights theory dominates, and so protecting individual rights is justice, and they will do whatever they can to see that individual rights are honored and humans are treated with dignity and respect. So ideology has a lot to do with justice, but it really— what it does is tells us what kind of justice people are inclined to believe in as their beliefs manifest in their actions and behaviors. So when we think about classical theories of justice, when we think about classical theories of justice and peacemaking, We understand this. Positive law resolves conflict without regard to relationships. It's what— just simply whether or not the law has been obeyed or not. So we can say that positive law is a form of peacemaking in the sense that it is resolving conflicts, but it is only resolving conflicts in the context of an abstract law without regard to whether or not people are going to have shalom between them, peace between them. Social good resolves conflicts on the basis of what is best for most people. So there is some relationship, but it's really the relationship of the individual to society, and the society's interests as a whole are greater than that of the individual. And so, and that's how conflicts are going to get resolved. And when we look at natural rights theories, those kinds of conflicts are going to be resolved by upholding individual rights, maybe at the expense of society and maybe at the expense of obedience to law. Because the right of the human being under natural rights theory is the highest right of all, if that theory is taken to its greatest extreme. So peacemaking is a value-based process, shalom, right relationships between people, and actually peacemaking does need positive law because we need to have safety and security and order. Peacemaking involves social good because we want to make sure that most good, for the most part, the good of society is furthered by whatever we do because if we don't then our communities are going to dissolve into chaos and starvation and disease. And of course peacemaking also involves human rights theories of justice because we have to respect the individual dignity of each human being. And so peacemaking is again involved in that very complex process. Of balancing and helping people balance these conflicting theories of justice in any given conflict, which makes the work of the peacemaker or the mediator extremely difficult and challenging. Alright, let's move on. The next kind of justice that we want to talk about is distributive justice. Distributive justice is like a three-legged stool, and it has the three legs, each of which must be of equal length in order for for us to feel like there's justice. Each leg is like this. One leg is called equity, one leg is called equality, and one leg is called need. Without these three legs being relatively balanced, the stool, the justice stool of distributive justice will topple over and people will feel a deep and abiding unfairness in the way they're being treated. So let's look at each of these carefully. Equity is the distribution according to contribution. So if I'm in a clan 250,000 years ago and I go out and kill the big hairy woolly mammoth and cut off the big haunch and drag it all the way back to camp, I should get, I should receive in proportion to what I contributed. So that means I'm going to get first in the choices, hungsat ni, out of that haunch before anybody else because I made it happen, so I should be compensated for that. So it's distribution according to contribution. When you talk to people who are of a conservative bent, they believe strongly in equity. Capitalism is the idea that you should be able to earn and keep what you earn because you are creating wealth and you're creating capital and you're creating jobs. You shouldn't be taxed, you shouldn't be regulated, you should— you have a right to equity because without you there would be no wealth for anybody. And so that is the concept of equity and is one of the three legs of distributive justice and it's very important.

This definition of equity reminds me of more of the literal financial-based definition of equity. Correct.

Is that correct?

That's correct. And in my professional life the term equity is equity is used differently, more around sort of educational equity.

Let's, let's, you're going to see, you're going to see, now it's going to be interesting. Yes, that's correct. People use equity in a different way and they use it in a very confusing way.

It's almost used as a synonym for access.

That's right. So we still have to deal with equality and need, those are the three legs. And when people are talking about social equity or educational equity, they're really talking about equality and access. Need in the distributive justice triangle. So let's see, and they use equity because equity is very powerful, it's a very powerful persuasive term because people just inherently feel, I ought to eat what I kill. And people, and so if you start talking about equality and need, now people are talking about socialism and communism and it just freaks everybody out. So watch how this unfolds. Unfolds and you'll see where the confusion is.

And in the definition that's more of the original financial-based definition of equity, what does inequity then mean?

Well, inequity would mean that I am not being compensated according to what I contribute. In other words, I'm contributing more than what I'm taking out. I mean, I experienced this in my law firm. When I left my law firm, I left far more money in that law firm than I ever took out. You could say that is inequity because if it were an eat what you kill kind of situation, I should have taken out many, many hundreds of thousands, if not millions of dollars more money than I did because that's what I contributed to the firm. So distributive justice would say under the equity idea is that I should at least take out what I've contributed to be fair. But that By itself doesn't work. It's not a well-balanced— we don't have a well-balanced community or organization when all you're doing is basing stuff on equity. Because people will then do whatever they have to do to take out what they take, and they will cheat to get ahead. And it also said— it also talks about, well, what happens when you have a crummy day or crummy month and you're not making any money? Are you going to starve in that month? Or what do we do about the people who are ill and infirm? Where are our children? And what do we do about the costs of society that are not borne individually but really have to be borne through some sort of taxation and redistribution system? So let's take a look at those ideas. So the second, the second idea around distributive justice is equality. This is distribution according to rank. If we are equals, we should each have an equal share of that hunch of the Harry Willy mammoth that one of us dragged into camp. And the reason that that's true is because we're all equal members of the clan, of our society, and we should be treated equally. And therefore we each have an equal claim on the resources that we all bring together. And that's what it means to be an equal partner. And so we should all have an equal— be treated equally. And that's the idea of equality. Inequality occurs when we are— people of similar rank are treated in disproportionate ways, where one person of equal rank to another is granted more resource or more access or more wealth or more status than somebody else of equal rank. We call that discrimination. We call that inequality. And of course it raises the conflict. And so we will see that in a lot of ideological conflicts, identity conflicts, people are demanding that they be treated equally with people who have power, position, and privilege because there's— because now they're going back to natural rights saying we're all human beings, we all have these fundamental rights, we should all be treated equally in the same way. And the people with power, position, and privilege say no, I'm of higher rank than you, or even if we're of the same rank, I'm entitled to more than you are because some pigs are more equal than others, to quote Thoreau. So the third concept of distributive justice is the idea of need, which is distribution according to need. In any thriving society, no matter how large or how small, there are people who are ill, there are people who are elderly who no longer can take care of themselves, and there are children who need to be taken care of until they can become productive. All of those segments of our society have a need to be cared for, and they have a legitimate demand on resources of the community. And this, this right to the resources is called need. And as a society, we have to figure out how to meet those needs in a way that's fair to those who have need, but is also fair to the equal partners and is also fair to the contributors, the equity people, the people who are bringing, dragging the hairy woolly mammoth back to the fire. But if we don't take care of needs, then we risk the likelihood of becoming inhumane and we risk the long-term survival of our community because if we don't take care of our children, there won't be a future and if we don't take care of our elderly, when we become elderly, our wisdom is going to be lost very quickly because we will not be taken care of. So we have 3 basic legs to the distributive justice tool: equity, equality, and need. When any time, any time, any of those 3 legs gets out of balance, out of whack, we feel deep and abiding injustice. And the only way that we can feel like there is fairness again is is when those three legs—equity, equality, and need—are somehow balanced out. And you can see by understanding this formulation of distributive justice the tension between capitalism and socialism. Pure capitalism would say that there is no equality and there is no need. You get—you eat what you kill, whatever you can compete in the marketplace, and survive in the marketplace and whatever profits you can make are yours to keep and everybody else be damned. That's pure capitalism and we know from experience that pure capitalism is extremely dangerous and it's unhealthy for society. On the other hand, if you do away with equity and you do away with need and you go with pure socialism, or really the embodiment of communism as it was first thought about by Karl Marx back in the 19th century. The idea is that we're all equal partners, we're all equal in society, and everybody should be treated equally regardless of how intelligent you are, how hard you work, how educated you are. Um, it doesn't matter. We all get the same amount of distribution of wealth from our society. That is pure socialism, pure communism, and it doesn't work because it completely Stein's creativity and entrepreneurialism, which is necessary for the creation of wealth. So we can't have socialism purely, we can't have capitalism purely, and of course then we have need. Well, if we, if we look at need as the basis for society, one, it completely violates the idea of equity and completely violates the idea of equality, and pretty soon where's the wealth going to come from? We're going to eat everything that's been accumulated and then the people who have need aren't going to have anything anymore. Anymore, and we're all going to starve and die off and no longer thrive as a species. So the idea of distributive justice is how to balance equity, equality, and need in a way that honors positive law, social good, and natural rights theories of justice. And now you can see how complex this starts to become as we are getting into these very, very divisive social conflicts that we're dealing with today and economic conflicts we're dealing with.

When you are working with clients of any sort around a conflict that they have internally or with an external entity, is part of the process to help them decide what part of this conflict is about equity, equality, and need —yes— and to actually literally find the balance in the solution.

What I— yes, exactly correct. And so what I do as a mediator and peacemaker, especially when I'm dealing in business conflicts or family business conflicts between partners or members of the organization, most of the time the conflicts are around compensation. How much, or it's the equity problem. And so what I do is I take some time to explain distributive justice to people so that they can now have a framework within which to make their decisions. And I have found that once I explain equity, equality, and need, the light bulb goes on and people say, "Oh, I see what this conflict is about, and now I understand what we have to do and how we have to go about solving this conflict. I now understand." understand the issue. And so we take it from an inchoate feeling of frustration and anger and feeling unfairness to articulating the theory of justices, the theories of justice, or the ideas of distributive justice, so they can, so their prefrontal cortex can come online and process the information and then move them into a problem-solving mode. I find it to be extremely powerful in helping people understand this. And when I worked in community conflicts, where there have been deep-seated radical beliefs dividing a community, it's the same, the same thing. If we go, if we talk about distributive justice, everybody understands that all three legs have to be honored and balanced in order for there to be justice that everybody can accept. And once people realize that their particular view of justice, whether it be equity, equality, or need, is being respected and honored, it has to be equally balanced against the other two legs. People simmer down and problem-solve because now every— there's a place at the table for everybody. So it's a very, very useful scheme of justice in helping people understand deep— more deeply the conflict that they're experiencing. All right, we are not done with justice. There's a lot more to cover. So let's talk about procedural justice. The one thing that the law— when I say the law, I mean American Anglo-American law primarily, and to a lesser degree other forms of systems such as the Napoleonic Code in Europe. But the one thing that American law will try to guarantee, at least its aspiration, is procedural justice. And procedural justice basically is defined in our Constitution and in judicial decisions going all the way back to the beginning of our country as notice and opportunity to be heard. So we need to have notice that somebody's making a claim against us or is pursuing us for a criminal offense. We need to be notified. And then we have to have an opportunity to present ourselves and present our story in front of what is hopefully an impartial tribunal, whether it be a judge or a jury, and allow the judge or jury to hear our side of the story and make what will hopefully be an informed decision. Now, that's a very simplistic view of procedural justice, but at its essence, that's what the legal system is all about—notice and opportunity to be heard. And so when we say that there has been notice and opportunity opportunity to be heard, we satisfy the legal requirements of justice. The law guarantees no other justice other than procedural justice. It will never, ever, ever guarantee the outcome. And this is something that most people don't understand and why they get frustrated with lawyers and the court system is that they have this naive belief that the court system is going to do them justice when in fact all the legal system is, is a decision-making process. And the only justice that's there is a procedural justice so that the process itself is reasonably fair. But the outcome can be incredibly unfair to people. So there are psychologists have studied this idea of procedural justice and looking at what are some of the things that people need in order to feel like there is procedural justice, not just notice and opportunity to agree, but what are the psychological attributes. And this is really useful to know because when we are facilitating groups as either a mediator or a peacemaker or group facilitator, understanding what people need in order to feel like there's been a fair process is extremely useful. So there are a couple of different psychologists that over the years that have developed fundamental theories. One is Thibault and Walker's control theory, which is process control. If the parties have the ability to define for themselves the process they're going to engage in, so they have process choice, which should really be process choice control, then they feel like they have some control over justice. This is also the classical notice and opportunity to be heard that I was talking about that's embodied in our constitutional law. So it's the opportunity to tell their story and be heard. Many, many psychological experiments have shown that when people have a sense of process control and when they have a sense that they've been heard, regardless of the result, they feel like the process has been fair, which is really important. The Tyler and Lind relational model— Tyler and Lind were students of DeBow and Walker, and their students are now professors at places like UCLA— their relational model is a little different. What people report in terms of just procedure is: 1, that the process itself is neutral and doesn't favor one side over the other. It's neutral, so there's a neutrality of procedure. 2, the authority figure has integrity. That is, the authority figure, whether it's a mediator or arbitrator or judge or even jury, is, is going to follow the rules, follow the law, and again, not interject his or her own opinions or belief structures into the process and is basically going to have high integrity. They're going to do what they say they're going to do. And finally, and this is really interesting, to the degree that people feel like they've been treated with politeness and respect by the authority figure, the decision maker, or the mediator, or the arbitrator, judge, or whatever, they feel like they've had justice.. And so people who have dealt with a really harsh judge who's very mean come away saying, "That was really unfair." People who lose but are in the presence of a decision maker, a judge or an arbitrator, who is kind and considerate and polite and respectful feel like they've gotten justice. They can accept the decision even though it goes against them. Because they feel like they've been treated fairly. So this idea of procedural justice becomes very important in helping people understand what process to choose and then helping them get a sense of justice regardless of what the outcome is. Question?

What are your thoughts on the very specific type of crimes of sexual assault when you think about control theory and relational theory? Because when I look on this slide, based on the research, I notice that opportunity to tell story and be heard is a major problem in processing sexual assault crimes, right? The voice of victims— That's right. —are in a lot of ways muted. And then also under relational model, the experience of neutrality and integrity is absent in a lot of sexual assault cases in terms of investigation and courtroom proceedings, right? So it's really interesting to look at these two models in this situation.

And wait and watch what happens when we start talking about retributive justice and restorative justice. And we'll come back to these ideas and see how, for example, the retributive justice system does not meet any of the Taboan Walker or Tyler Lynn theories of justice. Right. Right. It's all positive law. A lot, and it has a lot of limits. It has some benefits, but it also has some extreme limitations, especially in sexual assault crimes. So we'll get there. And so the idea here is by now you should be recognizing that this idea of justice is quite complex, and all these different theories intertwine with each other in very— and can create some really, really interesting problems. For us to sort through when we're dealing with conflicts.

And being willing to, at the local level, state, nationally, being willing to have conversations to unravel these things. That's right. Is really, you know, a direction I hope that I'll see in my lifetime. That's right.

And I will say that the challenge is engaging people to come to the table and talk about this stuff. Because this is confusing, difficult stuff, and when people have deep-seated beliefs, they often don't want to examine their own belief structures. I mean, some of the great resistance that we have today in this radical time that we live in is regardless of political persuasion, you take a person on the far right or a person on the far left and sit down with them and say, "Well, tell me about your beliefs." They will get angry at you because just because you're asking them to tell you about their beliefs, to them is a challenge. And that's because they don't know what their own beliefs are, and so they're feeling challenged, like, "Why do I have to explain myself?" And they feel completely self-justified in having a belief structure but not being able to articulate exactly what it is that they believe. And that's part of the problem we have, is people have lost the ability to critically think about what their beliefs are and explain them in a way that makes sense to other people. And so that means that as facilitators and peacemakers, we have to start off with really gentle questions. For example, a question that I might ask to somebody who's politically polarized is, "Tell me about all the life experiences that have led you to the beliefs that you have today." So I ask them to get biographical and see if out of their oral history we can begin to find out what has caused them to come to the beliefs they have today, even though they couldn't articulate today what their beliefs really are. All they know is that they're alt-right conservatives, for example, or far-left liberal progressives. It doesn't matter, it doesn't matter what the political beliefs are, they're all basically all the same in terms of how they process their information. Okay, let's move on. Justice and law. Well, we talked about the three classical theories. Due process is the idea of procedural justice, notice and opportunity to be heard. And so that is enshrined in our Constitution. Let's talk about retributive justice, another form of justice. Retributive justice is the word that I use for the kind of justice that meets out punishment. Other people would call it our criminal justice system or our juvenile justice system. It's When we talk about criminal justice, whether we're talking about adults or juveniles, we are talking about punishment, pure and simple. And so in this model, as you will see, justice equals punishment. And for many people, the more we punish, the harder we punish, the harsher the punishment, the more justice people think has been meted out. And that turns out to be a complete fallacy. So justice equals punishment, and the question then becomes, why should we punish people? What are the reasons in our society that we should punish people for wrongdoing? And there's a whole bunch of different reasons that people come up with. One is deterrence. If we punish people, maybe they won't do it again, or it'll stop other people from committing crime. One is community safety. If we punish people, we will increase community safety. Safety. Another is to maintain public order, which is very similar to public safety. If we punish, we can maintain public order. Another is victim justice, which is another way of saying vengeance and revenge. A third is to legitimate state power. In other words, if the state has the power to punish, then we are legitimizing the power of the government over the individual, which is a Hobbesian view of how government should work, the idea of the Leviathan that he wrote about. We want to teach the offender a lesson, so we punish. The idea is like a 2-year-old, go to your room and you'll learn. We want to, we need to justify the prison industrial complex, which is a huge reason why we punish. In California, we spend $13 billion a year on prisons and $9 billion a year on education. So there are a lot of jobs out there. That are dependent upon the retributive justice system. So there's a huge economic argument for this. We also give politicians a campaign platform. In any given local election, you will see stuff like, "I'm running for the dog catcher of the city of Clovis, and the Fresno County Deputy Sheriffs Association endorses me." Well, You know, that's ridiculous because the dog catcher has nothing to do with criminal justice. But the idea is that if I'm tough on crime, even though I'm out there catching dogs and cats, the people will elect me because politicians run on fear. They don't run on peace, they run on fear. And so people are inclined to vote for politicians who they think are going to be tough on crime because it makes the voter feel safer. So giving politicians a campaign platform with retributive justice becomes a very powerful motivator. Then we have, of course, positive law theory. If we punish people, we're compelling obedience to law, going back to one of our classical theories. And we are going to be demonstrating the superior power of the state. If the state has the power over all of us, then, you know, we do not have anarchy, we have order. Again, it's a positive law concept. So this idea of retributive justice really revolves, in my view, around vengeance. I'm going to go back to that. Let's go back to this slide. So what is vengeance? Vengeance is what we call an anticipatory emotion. And in our brain, whenever we have anticipatory emotions that are positive or pleasurable, we have to talk about dopamine. Dopamine is the brain chemical that's released in the striatum and the ventral tegmental area of the brains. And when dopamine is released, we feel pleasure. Dopamine is associated with memory formation. It's associated with learning. It's associated with pleasure. It turn— it's also associated with addiction. Heroin, cocaine, alcohol all interfere with the dopamine system. And that's why it'd be addictive. It turns out that when we think about punishing another person for a harm they've caused us, we get a dopamine squirt. We feel pleasure, and so it's an anticipatory emotion. When we anticipate hurting somebody, we get a big squirt of dopamine and it propels us into action. Probably the reason that this evolved in us is to protect us, to take action so that we would would not be hurt by other people again. But here's the really perverse part of our brain: if we are able to exact vengeance, only a very tiny squirt of dopamine is released. So the amount of pleasure that we get in actually exacting revenge is very, very small compared to the pleasure that we get thinking about dumping the other person. And the result is we feel depressed, and disappointed when we get revenge because we don't think we punished enough. The satisfaction and the high and the euphoria and the release that we thought we were going to get doesn't manifest in our brains. And so now we feel let down. And so what happens? We go out and we want to become harder and we want to become harder. And so the whole— I would argue that the whole mass incarceration movement of the 1980s was the vengeance cycle. Played out at a very large national level where people were not feeling safe. There was crime in the urban centers of our cities, and so we started punishing and punishing and punishing and punishing because the more we punished, we thought, the more vengeance we exacted, the better we would feel. But of course what happened was we didn't feel any better. So if we didn't feel better, well, we must not have pumped hard enough. So that means we got to have even tougher laws enacted. And we just got into this vicious cycle of passing these laws that just got tougher and tougher and tougher and tougher, and yet nobody was ever satisfied until we darn near bankrupted ourselves with prisons. And that's kind of where we are today. And the reason that everybody is now backing off of incarceration is because people are beginning to realize that we simply cannot afford to imprison our way out of crime. There have to be other ways ways of responding to crime. We can't, we can't, we can't prosecute our way out of the problem because the problem is a much deeper social problem than just one of offending. And it's taken 30 or 40 years for us to realize this, and as I said, bankrupting, almost bankrupting many, many states in the process. So retributive justice ultimately comes down to vengeance, and vengeance can never be satisfied. What's really interesting is is that when people come into a peacemaking process, they would rather shoot each other with AK-47s than sit across the table and talk to each other. But if you work them through the process and they end up coming up with a durable agreement about how to make things right, a huge amount of dopamine is released and they feel tremendous pleasure at having made peace. But the perversity of our brain is that we have no incentive for going into the peacemaking process. The only incentive we have is for vengeance. That's what we think is going to make us feel good. And the idea of going into peacemaking is completely antithematic to what we want to do. We think, see, peacemaking is being weak and wimpy and kumbaya and totally ineffective and will never work for me. And that's the way people feel. And yet we know if we can talk them into the process and they go through the process and they can make peace at the end, the high they get is a much greater high and much much longer-lasting dopamine high than they would ever get from vengeance because there's no relief given to them when they're able to actually exact revenge. So that gets us to the whole concept of restorative justice. Restorative justice is a lot more complex than retributive justice and it's a lot more powerful. Basically, restorative justice involves three stakeholders: all the people who have been affected by a conflict or a crime or an offense, and that would be the victim, of course, the community who's been affected, damaged by crime, and the offender. Most people don't realize it, but offenders are damaged by the harm they cause. And most offenders have been damaged before they commit crime. With all the lifers that I work with and have worked with over the past 7 years, every single one of them was deeply traumatized as a child. Emotionally and oftentimes physically. Many of them suffered concussions as 2- and 3-year-olds because they were beat, rattled. I mean, the horror stories they tell are awful. That doesn't excuse the crimes they committed, but it does give us understanding that they are victims just as much as anybody else in a very different way, and that the environment triggered them into making choices that oftentimes caused the loss of another not alive. But you see these same stories repeated over and over and over again. And as we, as you hear this and listen to these stories, you begin to wonder again whether or not retribution is really the best path for many of these people. There may be other paths that could be more effective for all three stakeholders, and one of those paths potentially is restorative justice.

And would you agree that ensuring that restorative justice is built into the juvenile justice system would be increasingly effective long-term in preventing young people from, you know, evolving along a criminal path.

All the research shows that restorative justice processes done in early interventions are far more effective at reducing recidivism, reducing crime, and increasing safety than any other process out there.. And there isn't a study that exists that I'm aware of that says the opposite. And yet our politicians and our prosecutors and to a certain degree our courts persist in believing that punishment is the only way. If we punish these juveniles hard and fast when they're young, we will change the way they behave. And the science shows us that that is completely wrong. And the restorative justice studies show that the more severe the offense, the more effective restorative justice is. So we don't relegate restorative justice to graffiti or vandalism. It should be utilized in sexual assault and homicide and aggravated assault with personal injury. The most serious crimes should be dealt with restoratively as much as possible. So we measure restorative justice by saying that there has been dialogue and mutual And what that basically means is the victim, the offender, their support groups, and members of the community come together to talk about what happened, to share their stories, to gain understanding about what happened, to negotiate and talk about how to make things as right as possible, recognizing that there are unrightable wrongs, but there can still be symbolic reparation, and then talk about how to prevent these kinds of offenses from occurring again. And when the community and the victim and the offender reach agreement on this, we say that there has been dialogue and mutual agreement, and that is restorative justice. If any of those three aspects are missing, then it's less restorative. So people can come and talk about crime, but unless they actually come to agreement on these three issues, it's really not purely restorative. They can do restitution ordered by the court, and that might be restorative in a way, but because the victim and community are not involved in the process of deciding what the restitution should be, it's not restorative. You have to have involvement of the victim, the community, and the offender. You have to have dialogue, and you have to have mutual agreement on these three things in order for it to be truly called restorative. And so a lot of people throw around the term restorative justice justice. They love the term restorative justice because it sounds so good without really understanding, again, what restorative justice really is. And what's really interesting in the work that I've done over the years in restorative justice is criminal defense lawyers find restorative justice difficult to accept because it oftentimes imposes more stringent requirements in an agreement on the offender than what the court might impose. And so they're opposed to restorative justice because why should my client go through all this process when the court's only going to make him do X and he's going to get off. So the lawyers, the lawyers have kind of a perverse view of all of this, and their job is to get the lightest sentence possible for their client without thinking about what might be best for their offender client.

Can you help further explain or reflect on The part of restorative justice when it's part of a court practice where there's this coercive dynamic, right? The offender, the person, is given the option— often I've seen this in our region— the court gives the option, "Person X, you can either go with our trial or the judge's decision, or you can go into this restorative justice program." So there's this coercive coercive dynamic of punish this way or punish this way. That's how it's often framed. What are your thoughts on each?

So I don't think that is coercive. I think that's really about giving a person choices about how they want to process the conflict. Because remember, even if an offender chooses to attempt a restorative justice process, that doesn't mean that it's going to happen because the victim has to agree to it too. And the mediator who's going to be running the process has to find community representatives so that you have the community, the victim, and the offender all in the same room with their support groups. So choosing, being given a choice, is— even though the two choices, it's a two-choice dilemma, I don't think it's coercive. What would be coercive is if you got into a restorative justice process and people started telling the offender what he or she had to do. That would be coercive and inappropriate. But making the choice, I don't think is coercive at all. And I think it's— because we only have 4 ways of resolving conflict, and all that's happening there is that the court or the prosecutor or the probation officer is simply saying, okay, of the 4 choices, only 2 are available. Here they are: mediation or outside authority. Which one do you want to do? There's nothing wrong with giving people choices and having them make their decision. And they could say, I don't want to do restorative justice, I want to go through a court trial, or I want to go to prison, or I want to do that. And offenders could say that because they don't have the courage necessary to meet and dialogue and negotiate with their offender. So when we talk about the roles of the community and government, we're talking about this kind of justice. When we talk, basically the way I like to Framing is that the community is responsible for establishing peace. So that means that the community has to have the ability, the capacity, which many communities don't have, the capacity for mediating, facilitating, negotiating, negotiating conflicts amongst themselves and setting up norms of behavior and norms of justice that allow them to maintain peace, for establishing peaceful relationships between one another. And of course, that's a great aspiration, but in a modern urban and suburban setting, it's very difficult to do. But that is what we should be doing. The government is responsible for maintaining order. So if there's a crime committed, what the government should be responsible for doing is securing the scene, protecting people, making sure that, that there is no more damage, and then stepping back and handing the problem back to the community to solve. Of course, what happens in our system is that if the crime is sufficiently egregious, it's going to get referred to the district attorney, who will then make a decision about whether or not to prosecute or not, and it's completely taken out of the community's hands. The idea is that in the retributive system that everything is symbolic of the community. It's state versus Smith, for example. And so the state is taking over the role of the victim and taking over the role of the community. And there is— there are some advantages to that, but as we have seen over the last 100 years, there's— there are some really not good things that come out of that as well. Mainly recidivism, extreme cost to taxpayers. It's interesting to me that conservatives scream about the size of big government, but the cost of our prison system exceeds the cost of just about every other social system we have in California. And yet you don't hear conservatives talking about how much money we're wasting in our prison system. All they want are more prisons because they think that that's law and order. But they really don't think logically through to say, wait, if I want small government, that means I gotta have less prosecutors, less prisons, less jails, less sheriffs, stuff like that. So there's— it's an interesting conflict that people get into, and when you point it out to them, of course, they get very upset very quickly. So you have to be careful how you dance around the problem. So I was talking about studies. Here's a study that was done back in the late 1990s, early 2000s, and this is a study conducted by the California Judicial Council at the at the request of the legislature under direction from then-Governor, I think it was Doug Majan, not sure who the governor was at that time, but basically the legislature passed a law mandating that all juvenile cases go through restorative justice. It was either Wilson or Doug Majan vetoed it on a law and order platform, then directed the California Judicial Council, which is the administrative arm of the courts, to conduct a study of existing victim-offender programs in California. And they, they studied 6 programs. They excluded Fresno, which is the birthplace of restorative justice, but they looked at 6 other programs, and this is what they found, among other things, that cases that went through the victim-offender reconciliation process exceeded the benchmark standards set forth by the legislature. Literature and this was to be the study by thousands of percentage points. I mean, the differential in performance between outcomes between restorative justice and retributive justice was just absolutely incredible. For example, victims collected between 158% and 1,000% more dollars in restorative justice cases than they did in retributive cases. They got, just got tons more money. Reoffending was 21% to 105% less when juveniles went through a restorative process as opposed to going through a retributive process. Agreements were reached in almost all cases, 98% of the cases agreements were reached. Agreements were kept in 70 to 93% of the cases, and in the cases where they weren't reached, it was because they didn't have had good restitution follow-up. That was the only reason. Victim satisfaction ran about 90% in restorative justice cases, and most amazingly, offender satisfaction was about 90% as well. And considerably more of work offenders performed their community service than non-work restorative justice offenders. What happened to this study? It came out and it was immediately buried. Today you can find the study on the Judicial Council website if you know where to look for it, but it is buried deep, deep, deep, deep inside the Judicial Council website because nobody wants to look at the facts. Nobody— everybody is so frightened that a restorative justice process would be perceived as soft on crime which means judges don't get reelected, prosecutors don't get reelected, and legislators don't get reelected, that nobody wants to look at the evidence to say that, you know, if we— to your point you made earlier, Morgan— that if we had a restorative justice process mandated and only 50% of the cases or even 30% of the cases went through it, are the outcomes of these for our community and our state, our fiscal budget would be so much better than what we have right now. It's incredible. But again, people lack the courage to take the big step because it flies in the face of fear and the reasons why we punish, which is because it gives us a platform, politicians a platform upon which to get reelected. And as long as that exists, it's going to be very, very, very difficult to get restorative justice into mainstream processes for dealing with these kinds of crimes and offenses. So that is pretty much the end of my talk on justice, and if you have any other questions, I'm happy to answer them. If people have more information or want to get more information about my work and what I think about, go to DougNoll.com.