Restorative Justice in the Gilded Age: Shared Principles Underlying Two Movements in Criminal Justice

Ali M. Abid, John Marshall Law School

Abstract

Two very different approaches to Criminal Justice have developed in recent years suggesting systemic reforms that would reduce rates of crime and incarceration and lessen the disproportionate effect on minority groups and other suspect classes.

The first of these is the Restorative Justice movement, which has programs operating in most US states and many countries around the world. The Restorative Justice movement focuses on reintegrating offenders with the community and having them repair the damage directly to their victims. The movement describes itself as based on the systems of indigenous and pre-modern societies and as wholly distinct from the conventional justice system. Enacting this new system, however, has presented many problems for its proponents, including fears that it may not comport with constitutional protections and human rights.

The second approach comprises the work of a group of legal conservatives and historians who would like to see a return to the criminal justice mechanisms that existed in the urban centers of the United States during the late 19th and early 20th centuries. During this time, the Gilded Age, the cities of the Northeast and Midwest had, by our standards today, small inmate populations, low levels of crime, and—perhaps most surprisingly—less discriminatory treatment of suspect classes. They argue that the loss of local democratic control over criminal justice mechanisms coupled with the introduction of more procedure and abstraction in substantive criminal law led to the ‘tough on crime’ movement that has fueled the rise in incarceration.

Proponents of Restorative Justice and the proponents of a return to the Gilded Age system use different terminology, suggest different reforms, and draw their movements from different origins. Yet this article argues that these movements share key principles of communitarianism and flexibility in the administration of justice. Specifically, this article argues that the mechanisms used by urban centers in the Gilded Age and their success can provide new tools for the Restorative Justice movement and answer many of its critics.