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When Justice Fails the Innocent: The Missteps of Restorative Justice
Restorative justice, with its emphasis on rehabilitation and repairing harm, promises a more humane and equitable legal system. At its best, it fosters understanding, accountability, and healing for both victims and offenders. However, when misapplied, it can take a dangerous turn—defending criminals at the expense of those who act to protect themselves or others. Increasingly, we see cases where the rights of law-abiding citizens are overshadowed by misplaced compassion for offenders. This trend not only undermines justice but also erodes public trust in the legal system.
Take the case of Daniel Penny in New York City. Penny, a former Marine, intervened on a subway when Jordan Neely began threatening passengers. While Neely, a homeless man with a history of mental health struggles, was undoubtedly in crisis, the situation felt dangerous to many on board. Penny restrained Neely, leading to his death, and is now being prosecuted for manslaughter.
The narrative surrounding the case has focused on Neely’s troubled life and the systemic failures that left him without support. Yet little attention has been given to Penny’s intentions: to protect others in a moment of perceived danger. Prosecutors like Manhattan District Attorney Alvin Bragg have chosen to frame Penny’s actions as criminal, prioritizing the circumstances of the aggressor over the safety of the public.
Restorative Justice or Legal Distortion?
Restorative justice is not justice. It is distorting the legal system to punish people who find themselves in circumstances that challenge its narrative. Two well-known constitutional analysts have argued that the actions taken by Alvin Bragg and Judge Wiley in the Daniel Penny trial are extraordinary maneuverings designed to compel the jury to find Penny guilty, regardless of the evidence:
1. Anna Commander in Newsweek:
Commander noted that the decision to drop one of the charges against Penny was “exactly what Bragg wanted,” as it sets the stage for a compromise verdict on a lesser charge of negligent homicide. This strategic maneuver, according to her, distorts the justice process by leading the jury toward a specific outcome. Read more.
2. Gregg Jarrett:
Jarrett criticized the judge’s decision to allow the jury to reach a verdict on a charge initially deemed unsupported. He described the move as “coercive” and legally unorthodox, effectively forcing the jury to convict by changing the rules mid-trial. Jarrett argued that this undermines the principles of a fair trial. Read more.
When Restorative Justice Misfires
Restorative justice aims to rehabilitate offenders and address systemic issues such as poverty, addiction, and mental health. While this is laudable, it risks creating a narrative where criminals are seen primarily as victims of circumstance, while their actions are minimized or excused. Meanwhile, the real victims—those who were harmed or those who acted to prevent harm—are left feeling abandoned by a system that should protect them.
Is restorative justice turning a blind eye to blind justice? Blind justice, symbolized by the blindfolded Lady Justice, signifies impartiality—treating all equally under the law, regardless of their background or circumstances. However, restorative justice, when misapplied, risks replacing this principle with a focus on identity and systemic factors. In doing so, it can veer dangerously close to becoming the diversity, equity, and inclusion (DEI) framework of justice: prioritizing perceived systemic imbalances over the fundamental fairness of individual actions.
