La justicia restaurativa en la ejecución penal: la capacidad empática de las personas presas

What this is about

The article examines whether convicted persons serving sentences in Spanish prisons can take responsibility for the offense and put themselves in the victim's place. It starts from a critical view of the suffering generated by the criminal justice system and presents restorative justice as a path that completes the punitive response at the sentence enforcement stage. The empirical core comes from a study by the Universidad Pontificia Comillas, with a questionnaire sent to five thousand incarcerated persons, from which two open-ended questions are analyzed: about their feelings toward the victim and about what they would say to the victim if they were face to face. The author classifies the answers into feelings of regret, indifference, and exculpatory mechanisms, and compares the results of both questions. It is addressed to legal professionals, prison-sector professionals, and facilitators who work with restorative encounters in serious crimes.

Annotated table of contents

• 1. Introduction. Argues that restorative encounters during sentence enforcement can address the victim's needs and foster accountability on the part of the person who committed the offense. Anticipates the analysis of incarcerated persons' answers about their capacity to put themselves in the victim's place.
• 2. The need for a critical view of the criminal justice system. The author situates his reflection in his career as a defense lawyer, adviser to persons deprived of liberty, and teacher. He argues that knowing the dysfunctions of the system and listening to those who go through it is necessary to assess its legitimacy.
• 3. Broadening perspectives: Restorative justice. Drawing on his experience in criminal mediation and in meetings connected with ETA, the GAL, and the March 11 (11-M) attack, he describes the bond that crime creates between victim and offender. Presents restorative justice as a second step, after the criminal response, that makes it possible to recognize the humanity of both parties.
• 4. The voice of the prisoners: do they take responsibility? Explains the Comillas study on the enforcement of sentences after the 2003 reforms, the questionnaire, and the sample obtained. Details the two questions analyzed and the number of answers to each.
• 5. Prisoners and empathy. Analyzes the answers about feelings toward the victim, grouped into regret or closeness (5.1), absence of feelings or indifference (5.2), and exculpatory mechanisms (5.3). Within each group it distinguishes subcategories such as shame, guilt, remorse, the need to ask for forgiveness, victimless crime, or the person who perceives themselves as a victim.
• 6. The empathy of prisoners confronted face to face with the victim. Examines what convicted persons would say if the victim were in front of them, with sections on regret and closeness (6.1) and lack of feelings (6.2). Compares the percentages with the previous question and notes a marked drop in exculpation.
• 7. Conclusions. Summarizes eight conclusions on the emotional capacity of incarcerated persons, the little room the criminal process gives to feelings, and the need for restorative programs. It also warns about judicial errors and the excessive use of prison.
• 8. Bibliography. Gathers the works cited on criminal law, prison, and restorative justice.
• 9. Press. Lists an interview and a newspaper article cited in the text.

Key ideas

• Both crime and the State's management of crime involve violence, and a critical view of the criminal justice system is a condition for assessing its legitimacy.
• Crime leaves the victim and the offender bound together; restorative justice offers a space where both can recognize each other and then part ways.
• The criminal response is a necessary but insufficient first step; the search for peace and meaning requires other instruments.
• In the study, 46% of respondents expressed regret or closeness toward the victim, 40% resorted to exculpations, and 12% showed indifference.
• In crimes against public health, many convicted persons do not recognize a specific victim, except when they think of their children or see the harm of drugs in prison.
• When imagining the victim in front of them, regret stays at similar levels, but exculpation falls from 40% to 15.5% and indifference also decreases.
• The criminal process and prison life leave almost no room to express guilt, ask for forgiveness, or make amends, so mechanisms are needed to channel those emotions.
• Fostering empathy benefits the victim, the offender, and society, and should guide the review of laws and of police, judicial, and prison practices.

Practical uses

• What feelings toward the victim may appear in persons serving sentences, and how can they be told apart?
• What forms of exculpation tend to appear, and what should be kept in mind when preparing a restorative meeting with someone who expresses them?
• How does the disposition of a convicted person change when invited to think of the victim as a concrete person?
• How should accountability be approached in crimes without an identifiable victim, such as crimes against public health?
• What arguments does the research offer for promoting restorative programs at the sentence enforcement stage?

Key terms

restorative justice, sentence enforcement, incarcerated persons, empathy, accountability, remorse, guilt, request for forgiveness, reparation of harm, exculpatory mechanisms, victimless crime, restorative encounters, criminal mediation, social reintegration, prison system