9 Wake Forest L. Rev. Online 53
Lynn S. Branham*
This Essay enumerates three reasons for abandoning the prevailing
practice of utilizing the label “offender” when referring to a person who has
committed a crime. The Essay next
identifies and debunks reasons that have been cited for persisting in referring
to a person as an “offender.” The Essay
then explores the question of what term or terms could supplant this label and
profiles signs of emerging support for desisting from the convention of calling
people “offenders.” One of the themes
that permeates this Essay is that the language we use when referring to people
can thwart systemic and cultural change – in this context, a change in how
people who have committed a crime are viewed and treated, both within the
criminal-justice system and by society at large.
For years, I had no compunction about calling people in the
criminal-justice system “offenders.”
References to “offenders” were sprinkled throughout my writings, both my
books and articles. Then my world
changed.
Embarking on studies for a Master of Science in Restorative
Practices, I began delving deeply into a construct unlike any typically
encountered in the world of law, policy, procedures, and programs in which I
have been immersed throughout my career as a law professor and criminal-justice
reformer. In this new construct marked
by what are termed “restorative practices,”[1]
a person who causes harm to someone else can learn about the depth and breadth
of that harm during a facilitated dialogue with the person harmed and others
who offer insights and feedback about the nature and gravity of the harm. The group of people gathered together then
identifies what steps the person responsible for the harm needs to take to help
remedy it. “Restorative justice” is the
term used when referring to this reparative function of restorative practices.[2] Often, though, restorative practices are
utilized proactively – to avert conflict and harm and build and strengthen
relationships.[3] In sum, whether implanted in criminal-justice
systems, juvenile-justice systems, schools, workplaces, or other realms of
human activity and interaction, restorative practices offer the mesmerizing
possibility of prioritizing harm reduction and repair, relationships,
reconciliation, and healing.
In exploring the far-reaching potential of restorative
practices, I have come to recognize the discordance, though, between its aims
and some of the terminology employed by those of us in the field of restorative
practices. While all people share a responsibility
to refrain from using words that inflict harm on others, those who endorse
restorative practices would, one would think, more readily and intentionally
model how to carry out that responsibility.
Instead, we continue to employ a harm-inflicting label when referring to
a person who has committed a crime. We
choose to follow the convention of calling that person an “offender” instead of
choosing to lead by our example.
Part I of this Essay enumerates three of the principal
reasons for abandoning the prevailing practice of labelling people as
“offenders.” First, the practice harms
those who are the object of this label.
Second, pigeonholing someone as the “offender” contravenes values that
lie at the core of restorative practices.
And third, the onus cast by this stigmatizing label is an impediment to
the systemic and cultural change for which the proponents of restorative
practices are advocating and striving.
These reasons not only counsel the abandonment of this terminology by
those whose work centers on restorative practices but also support the
jettisoning of this label across society, including by judges, criminal-justice
officials, and members of the media.
Part II of the Essay identifies and then debunks what some
restorative practitioners have espoused as reasons why they persist in
referring to a person as an “offender.”
Part III then explores the question of what term or terms could supplant
the term “offender.” After profiling in
Part IV the decisions of what, at this point, is a small cadre of
criminal-justice officials to abandon the practice of calling people
“offenders,” the Essay concludes with an invitation to join those of us
choosing to desist from calling people a name that is injurious, the verbal
equivalent of a scarlet letter, and antithetical to core restorative values.
I. REASONS TO DISCARD
THE TERM “OFFENDER”
A. Reason #1: Halting the Harmful Impact on Those Referred to as “Offenders”
When trying to ascertain whether a term we use when referring
to someone is injurious, the starting point is the people subject to that
term. When grappling after the
commencement of my restorative-practices studies with the implications and
effects of my own and others’ use of the term “offender,” I spoke to two of
those individuals.[4] Both are in higher education, one at a
university and the other at a law school.
Both work extensively with, and on behalf of, people within the
criminal-justice system. And both have
homicide convictions for which they were previously imprisoned. These two men, whose identities I will keep
confidential, were in unison in describing how denigrating – how dehumanizing –
it feels to be referred to as “offender” or “ex-offender.” One reported that these words made him feel
like an “inanimate object.” The other
confided: “The label is like the ‘N’ word.
It impacts you negatively.” He
added that being typecast as an “offender” imparted the message that he
“deserved the condemnation of society no matter what he did” now.
Stigmatizing labels can also have pernicious effects on
others, negatively altering how they perceive and treat people who are the
objects of the labels. For example, when
undergraduate students, professional counselors, and counselors-in-training
were surveyed in one study, they were more likely to support isolating those
alluded to as “the mentally ill” from others in the community than they were
when these individuals were referred to as “people with mental illnesses.”[5] A concern emanating from studies like this
one is that the pejorative label “offender” will trigger the proverbial
“vicious cycle” in which condemnatory attitudes and pariah-like treatment fostered
by that label propel some of those labeled “offender” to act in conformance
with it, further fueling reliance on the opprobrium-casting label.
Most of the
criminal-justice and restorative-practices experts from whom I also elicited
feedback about the term “offender” during my graduate studies mirrored these
concerns. A common theme that suffused
this feedback aligned with what one of the individuals who has been on the
receiving end of this label had said to me earlier: “People are more than
whatever they did.” For example, the
director of a nonprofit legal organization in Illinois that represents people
in prison decried the denomination of people as “offenders,” calling this label
“offensive as it defines people by the worst day of their lives, rather than as
whole people.”[6]
A Research Scholar at Yale Law School
(now a federal public defender) also objected to the debasement of others
through what she considered “dehumanizing” and “reductive” language that
suggests that they are “inherently bad.”[7] The terms “offender” and “ex-offender,” she
noted, “define an entire human being by a single bad act.”[8]
Research has
confirmed what others have experienced, witnessed, or intuited about
stigmatizing labels – that they have harmful effects on those who are their
objects. They evoke shame and color the
labeled individuals’ self-perceptions.[9] The people subject to a negative label begin
to perceive themselves in ways that accord with that label.
The corrosive effects
of stigmatizing labels are not solely internal, however, as concerning as those
internal effects might be. The
cultivation of negative stereotypes through the aspersions cast by stigmatizing
labels also has overt, discernible adverse impacts. The labels heighten the risk, for example,
that people will act in accordance with those stereotypes about them, a
phenomenon psychologists refer to as a “self-fulfilling prophecy.”[10] Thus, when females take a math test in a
setting in which they know they are perceived by others as less competent in
this subject, they will not perform as well as they do in an environment not
pervaded by this stereotype.[11]
Against the backdrop
of such research, hearing others banter about “offenders” might, one would think,
trigger not just cringes, but alarm.
Calling people by a name that, they report, makes them feel “subhuman”
and like “an animal” might lead some of them, one might reasonably postulate,
to behave in ways that correspond with others’ conveyed perception of them –
that their past crime has made them, forever, a beast in society’s eyes. As a former judge with expertise in
restorative practices said to me about the parallel label “criminal,” “If we
call them criminals long enough, they will believe it.”[12] And, I might add, they may act like it. Researchers have found that the labeling of a
person as a delinquent or criminal increases the risk of reoffending.[13]
B. Reason #2: Acting in Accord with the Values Embedded in Restorative Practices
In a world in which cost-benefit analyses abound, invoking
values as a touchstone for decision-making might seem, to some, a bit
touchy-feely. But restorative
practitioners have unabashedly acknowledged that values provide the bedrock –
the underpinning – for restorative practices and justice.[14] New Zealand’s Ministry of Justice, for
example, considers the recognition of the values and virtues underlying
restorative justice to be a “best practice.”[15] The alignment of “standards of practice” with
those values constitutes another best practice.[16]
Examining what are touted as restorative values, though,
reveals a great disconnect between many of those values and the practice of
calling someone “offender.” For example,
according respect to others is a value that the restorative community trumpets.[17] Criminologist Howard Zehr, considered one of
the pioneers of restorative justice, has, in fact, singled out “respect for
all” as the premier restorative value, one that transcends all others.[18] Explaining that without respect, justice
cannot be restorative, Zehr cites not only the need to view people with respect
but to also treat them with respect.[19] And therein is the rub. Calling people with criminal convictions a
name they find “deeply offensive”[20] –
a verbal branding of sorts from their perspective – is the antithesis of the
respect that, we are told, undergirds restorative practices.
Experts in restorative practices describe
“interconnectedness” as another foundational value underpinning restorative
practices.[21] This value reflects the recognition that, as
Zehr has noted, “we are all connected to each other” and are adversely affected
by disruptions in this “web of relationships.”[22] This value propels restorative practices
towards inclusion. Due to our
interconnectedness, excluding others is considered “literally throwing away a
part of ourselves.”[23] Yet by using the derisive label “offender”
when speaking to or about another person, our speech becomes a means of
exclusion, in derogation of restorative precepts. This process of viewing and labelling a
category of individuals as different in a way that makes them inferior to
ourselves is known as “othering.”[24] By exerting what has been termed “stigma
power,”[25]
we are, though perhaps unwittingly, helping to keep those pegged as “offenders”
down and away rather than fully connected with us and others.[26]
Categorizing people as “offenders” abridges other values
identified as bedrocks of restorative practices. To cite but one more example here,
restorative practices is grounded on a value that some in the field of
restorative practices describe as “hope”[27]
and others as “transformation.”[28] Whatever the name ascribed to this value, the
premise is that we can all grow, heal, and change for the better. A label like “offender” that suggests, to
some and likely many people, that a person is “inherently bad” is at odds with
this premise.[29]
C. Reason #3: Removing an Impediment to Systemic and Cultural Change
The words we utter, sometimes none too carefully, make a
difference. They can have an impact,
either positive or negative, on the individuals with whom we are
conversing. They can affect the dynamic
within our families and workplaces, fueling discord or fostering harmony. And they can have culture-producing and
culture-changing effects, affecting not only the tenor of our conversations but
how we view and treat others within our society.
Research, including in the fields of neurophysiology and
cognitive neuroscience, points to a linkage between the language we employ and
our thoughts – how we perceive and categorize other people or things.[30] In short, “the words we use to describe what
we see . . . actually determine what we see.”[31] If anyone doubts this truth, consider how
likely it would be that people with intellectual disabilities – people who are
“differently-abled” – would be integrated and welcomed into classrooms,
workplaces, sports, and elsewhere were they still called, as they once were,
“imbeciles” and “retards.”[32]
I shared my view, born of experience and buttressed by
research, about the power of words when speaking with one of the persons
mentioned earlier who has a criminal conviction about what it feels like to be
called “offender.” His concurring
response captured that power: “We can’t change systems without changing our
language.”
The proponents of restorative practices, of which I am one,
profess that we are striving to create a “new reality,”[33]
one no longer marked by fractured relationships, unrepaired harm, and barriers
that divide and injure us all. We are
seeking, in short, nothing less than systemic and cultural change. If we and others who decide to join in this
endeavor are serious about effectuating this change and not just posturing, the
words we use will, as has occurred when referring to people with disabilities,
need to match our vision.
II. RATIONALES FOR THE
LABEL “OFFENDER”
One of the reasons why the use of the term “offender” remains
so prevalent in the field of restorative practices, as well as within
criminal-justice systems and in general conversations, is that it has become an
entrenched practice – a norm. As the International
Institute for Restorative Practices noted when explaining why its books and
training materials are replete with references to “offender,” the term
“offender” is “simply the language that has been traditionally used in
restorative justice.”[34] That is true.
But, of course, that leaves open the question of why those who subscribe
to restorative precepts continue to follow this tradition. The “this is the way we have always done it”
argument for continuing to employ anti-restorative language seems incongruent
for those on the frontlines of working to uproot the status quo in
criminal-justice systems through the importation of restorative practices into
them.
So behind the citation to tradition as the reason for
continuing to call people “offenders” must lurk some other explanation for the
reticence to abandon what many consider a disparaging term. One reason asserted for utilizing the word
“offender” as a descriptor in the criminal-justice context is the ease of using
that term.[35] Personal convenience, though, is hardly the
end-all of linguistic practices. Thus,
in other instances, the ease of attaching a certain label to a category of
individuals has given way to the transcendent values served when declining to
call people a name they consider debasing.
“African American” and “person of color” are, for example, more unwieldy
terms than “Negro,” yet they have largely supplanted this simpler term
considered offensive by many.
Those inured to the term “offender” have also remonstrated
that the word is not intended as “a label” and that they would never call
someone “offender” to his or her face.[36] Why this latter argument could have any force
eludes me. If the convention today was
still to follow the opprobrious past practice of referring to people with
intellectual disabilities as – it gives me pause to even utter this word –
“retards,” the damaging effects of this terminology would not hinge on whether
we called people “retards” to their faces or behind their backs. Regardless of to whom we uttered this
disparaging word, referring to people as “retards” would harm both we, the
speakers, and our audience, detracting from the ability of all of us to
recognize, respect, and embrace the full humanity of the people we have
typecast in such a derogatory way. And
if, as occurs with the word “offender,” our writings, speeches, media
interviews, and conversations were littered with the denigrating descriptor
“retard,” we would be deluding ourselves in pretending that those who are the
object of our derogatory label are unaware of, and not harmed by, it.
A final reason, shared with me by a fellow graduate student, for
continuing to refer to someone who caused harm or committed a crime as the
“offender” is that this label is “accurate.”[37] However, one of the credos of restorative
practices belies the verity of this point.
Those who work in the field of restorative practices underscore that it
is important to “separate the deed from the doer.”[38] This maxim reflects the conviction that while
our actions at times warrant condemnation, we remain human beings, albeit
imperfect ones. Contrary to the
aspersions cast by the label “offender,” we remain more – much more – than just
the sum of our misdeeds.
III. REPLACEMENT TERMS
FOR THE LABEL “OFFENDER”
Abandoning the pejorative label “offender” leaves unresolved
what the replacement term or terms would be.
One formerly incarcerated person, Eddie Ellis, has entreated us to call
individuals like him what they are – people: “[W]e are asking everyone to stop
using these negative terms and to simply refer to us as PEOPLE. PEOPLE currently or formerly incarcerated, PEOPLE on parole, PEOPLE
recently released from prison, PEOPLE
in prison, PEOPLE with criminal
convictions, but PEOPLE.”[39]
Other variants with a personhood focus abound, such as, on the aggregate level,
“people who caused the harm” and, on the individual level, “the person who
caused the harm.”
I once thought that it was incumbent on me to find “the term”
to recommend for infusion into restorative practices, criminal-justice systems,
and everyday parlance. But I have since realized
that there is not just a single suitable replacement term for the label
“offender.” As Ellis’s fervent plea
illustrates, a replacement term may be, or need to be, contextually based. When referencing a restorative-justice
conference, the “person who caused the harm” might be most apropos. When discussing the challenges faced when
returning to a community after confinement in prison, on the other hand, the
appropriate phraseology might be a “person formerly incarcerated,” “returning
citizen,”[40]
or some other term that does not, unlike the words “offender” or “ex-offender,”
depreciate or abnegate someone’s humanness.
And when discussing the loss of voting and other rights triggered by a
criminal conviction, the discussion might center on the curtailment of the
rights of “people convicted of a crime.”
There remains, though, the anticipated objection that all
these replacement terms are more cumbersome than the pat term “offender” or its
derivative “ex-offender.” One rejoinder,
mentioned earlier, to this objection is that the lure of simplicity, while understandable,
should not usurp more fundamental interests and needs, such as the need to
avoid inflicting harm through one’s words.
A second counterpoint to this objection is that the concern
that replacement terms for “offender” are too long, unwieldy, and impractical
is exaggerated. One of the touted
replacement terms, “person who caused harm,” has, for example, only two more
syllables than the word “offender.” Those
two syllables are, in the words of a fellow law professor with expertise in
restorative practices, “worth it.”[41]
For me personally, though, the most persuasive refutation of
the verity of the assertion that using a word other than “offender” will unduly
cramp our writings and conversations has been my own experience. After beginning to be dogged several years
ago by concerns about the dissonance between, on the one hand, the objectives
of, and values underlying, restorative practices and, on the other, adherence
to the tradition of calling a person the “offender,” I decided to purge this
word from my speeches, conversations, and writings, including the most recent
edition of two of my books.[42] What I discovered, as have others who have
striven to desist from using the “o-word,”[43]
is that using replacement terms for “offender” is quite doable.[44]
IV. LEADING THE WAY: EMERGING SUPPORT FOR ABANDONING THE LABEL “OFFENDER”
I am not the only one discomfited by the practice of alluding
to someone as the or an “offender.” In
2016, the U.S. Department of Justice’s Office of Justice Programs announced a
new policy: to dispense with what Assistant Attorney General Karol Mason
described as “useless and demeaning labels,” like “offender” and “felon,” that
“freeze people in a single moment of time,” “drain their sense of self-worth,”
and “perpetuate a cycle of crime.”[45] Under this policy, phrases like “person who
committed a crime” and “individual who was incarcerated” have supplanted the
repudiated terminology.
The state of Washington’s Department of Corrections has
followed suit, announcing its plan to phase out the word “offender” and instead
refer to “individuals” or, depending on the context, “students,” “patients,” or
other names that avoid shackling a person to a past misdeed.[46] Secretary John Wetzel, the head of
Pennsylvania’s Department of Corrections, has also issued a statewide directive
to eliminate the word “offender” from agency discourse.[47] In his view, the adoption of new vocabulary
when referring to people convicted of crimes is a “value shift” without which
“corrections reform will always come up short.”[48] Secretary Wetzel explained: “Words count. . . They count when we say ‘You’re a failure’ or
‘I love you’ or ‘You are smart’ or ‘You are worthless.’ They also count when we say ‘I respect your
humanity, and I believe in your capacity to change.’”[49]
When issuing the name-changing directive, Secretary Wetzel
acknowledged that we need not, and should not, ignore the pain a crime has
caused. But he challenged those who are
wedded to calling people “offenders” to deepen their perspective: “[M]ustn’t we
also acknowledge the path to less communal pain is the transformation of these
same individuals? If labels don’t
further THAT goal, then we have no business using them.”[50]
Other government officials and entities have joined in
voicing their opposition to referring to a person as “offender.” For example, the Board of Supervisors for the
City and County of San Francisco recently adopted a resolution calling for a
halt to this labeling practice.[51] In lieu of what the Board termed “pejorative
language” that has “harmful impacts,” the Board endorsed “person-first
language,” such as “formerly incarcerated person” or person who was or is
“justice involved.”[52]
V. CONCLUSION
I remember puffing up my chest when I was a child after
someone said something hurtful to me. “Sticks
and stones can hurt my bones, but words can never hurt me,” I resolutely
announced. This statement may have been
a valiant effort to muster and display inner strength, but it was a canard,
devoid of any truth. Words can and do hurt. Badly.
The label “offender” is one of these words, inflicting injury
on those who are denominated, through this appellation, as incorrigible
miscreants. Using depreciating and
derogatory terms when referring to another human being is also at odds with
core values that are the foundation of restorative practices – values such as
respect, interconnectedness, hope, and transformation. These values are not the sole province of
restorative practices but transcendent values that most people would likely say
they endorse and hope to personify.
A third ill effect of the convention of typecasting people as
“offenders” is that it helps thwart systemic and cultural change – an
alteration in how people who have committed a crime are viewed and treated,
both within the criminal-justice system and by society at large. Referring to people in ways that denude them
of their humanness makes it difficult, if not impossible, to fuel and foster
widespread receptivity to restorative processes that, at their core, are founded
on an unflagging commitment to accord respect to every human being.
So what do we do? And
who are “we”?
“We” are each of us.
Those of us who tout the value and benefits of restorative practices
must commit to becoming better role models.
We must recognize and admit the incongruity between, on the one hand,
being in a field whose raison d’être is, in part, to prevent and remedy harm
and, on the other hand, blithely referring to people with a term that causes
harm. We must decide, individually (as I
have done) as well as collectively, to abandon what has become the rote
practice of labelling a person “offender.”
We must instead commit to using humanizing language when referring to
people who have caused harm, such as opting to call them as much as possible
what they are – “people.”
Court and criminal-justice officials, members of the media,
academics, and others, many of whom may not yet even be conversant with
restorative practices, should likewise embark on a critical examination of the
words they employ when describing people who are in, or once were in, the
criminal-justice system. A litmus test
to apply when conducting this examination is whether a term “offers dignity,
humanity as well as hope.”[53] The label “offender” does not meet this test.
It never has.
* Visiting Professor of Law, Saint Louis University School of Law. B.A., University of Illinois; J.D., University of Chicago Law School; M.S., International Institute for Restorative Practices (IIRP). I would like to thank Professor Molly Walker Wilson for her feedback on this Essay and IIRP faculty members, Dr. Craig Adamson, Dr. John Bailie, and Mary Jo Hebling, as well as fellow attorneys and IIRP students, Tina Murua and Professor Emily Scivoletto, for their comments on course-related papers that were the prelude to the Essay. I would also like to extend my gratitude to the people from whom I obtained qualitative data, integrated into this Essay, about the term “offender” during an action-research project I conducted under IIRP’s auspices. Finally, I am indebted to the students at the Wake Forest Law Review whose work has made it possible for me to share information and ideas that can impact how we think and talk about those who have committed crimes.
[1]. For a synopsis of the history of restorative practices, the conceptual framework and research in which restorative practices are rooted, and examples of prototypical restorative processes, see Ted Wachtel, Defining Restorative, Int’l Institute for Restorative Practices (2016), https://www.iirp.edu/images/pdf/Defining-Restorative_Nov-2016.pdf.
[2]. For a succinct overview of the theoretical
underpinnings of restorative justice and its purposes, see Howard Zehr, The Little Book of Restorative Justice (rev. & updated
ed. 2015). For details on how to
structure restorative-justice conferences, one of the mechanisms for
implementing restorative justice, see
Ted Wachtel et al., Restorative Justice
Conferencing (2010).
[3]. Wachtel, supra
note 1, at 1. For details about
peacemaking circles, one of the classic means for effectuating the proactive
aims of restorative practices, see Carolyn
Boyes-Watson & Kay Pranis, Heart
of Hope Resource Guide (2010); Kay
Pranis, The Little Book of Circle Processes (2005).
[4]. This outreach was part of an action-research
project undertaken during one of my graduate courses on restorative
practices. The focus of action research
is on the researcher’s own practices and how they can be improved. For additional information about action
research, see Jean McNiff & Jack
Whitehead, All You Need to Know About Action Research (2d ed. 2011).
[5]. Darcy Haag Granello & Todd A. Gibbs, The Power of Language and Labels: “The
Mentally Ill” Versus “People with Mental Illnesses,” 94 J. Counseling & Dev. 31, 34–36
(2016). When “the mentally ill”
terminology was used, the survey respondents were also more likely to espouse
the view that those with mental illnesses “need the same kind of control and
discipline as a young child.” Id. at 34.
[6]. Posting of Alan Mills, Exec. Dir., Uptown
People’s Law Ctr., to prison-law-and@googlegroups.com (Feb. 26, 2016, 1:02 PM
CST) (on file with author).
[7]. Posting of Sarah Baumgartel, Senior Liman
Fellow, Yale Law Sch., to prison-law-and@googlegroups.com (Feb. 26, 2016, 8:43 AM
EST) (on file with author).
[8]. Id.
[9]. See
Rebecca Gray, Shame, Labeling and Stigma:
Challenges to Counseling Clients in Alcohol and Other Drug Settings, 37 Contemp. Drug Probs. 685, 686, 688
(2010); Stephanie Madon et al., The
Accumulation of Stereotype-Based Self-Fulfilling Prophecies, 115 J. Personality & Soc. Psychol.:
Interpersonal Rel. & Group Processes 825, 841 (2018).
[10]. See,
e.g., Madon et al., supra note 9,
at 826 (referring to “good evidence” stereotypes can have “self-fulfilling
effects” on those subject to them); see
also id. at 843 (noting the abundant research on the “power of beliefs to
create reality”).
[11]. Belle Derks et al., The Neuroscience of Stigma and Stereotype Threat, 11 Group Processes & Intergroup Rels. 163,
165, 169 (2008); see also id. at 169
(discussing fMRI (functional magnetic resonance imaging) studies revealing
differences in brain activity in women reminded, before taking math tests, of
the stereotypical view that women have inferior math skills).
[12]. Telephone Interview with Sheila Murphy,
Co-Dir., Restorative Justice Project, John Marshall Law Sch. (Feb. 15, 2016).
[13]. Gwenda M. Willis, Why Call Someone by What We Don’t Want Them to Be? The Ethics of
Labeling in Forensic/Correctional Psychology, 24 Psychol., Crime & L. 727, 728 (2018).
[14]. See,
e.g., Ministry of Justice, Restorative
Justice: Best Practice In New Zealand 30 (2011), , https://www.justice.govt.nz/assets/Documents/Publications/RJ-Best-practice.pdf
(“It cannot be emphasized too strongly that process and values are inseparable
in restorative justice. For it is the
values that determine the process, and the process that makes visible the
values.”); Zehr, supra note 2, at 46 (“The principles of
restorative justice are useful only if they are rooted in a number of
underlying values. . . . [T]o apply restorative justice principles in
a way that is true to their spirit and intent, we must be explicit about these
values.”).
[15]. Ministry
of Justice, supra note 14, at
31.
[16]. Id.
[17]. See,
e.g., Corr. Serv. Can., Restorative
Justice Principles and Values (2012), https://www.csc-scc.gc.ca/restorative-justice/003005-0006-eng.shtml;
Ministry of Justice, supra note 14, at 32; Office on Drugs & Crime, U.N., Handbook on
Restorative Justice Programmes 8 (2006), https://www.unodc.org/pdf/criminal_justice/Handbook_on_Restorative_Justice_Programmes.pdf.
[18]. Zehr,
supra note 2, at 47 (“[O]ne basic
value is supremely important:
respect. If I had to put
restorative justice into one word, I would choose respect: respect for all –
even those who are different from us, even those who seem to be our enemies.”).
[19]. Id.
[20]. Charlie Ryder, Why Are the Labels “Offender” and “Ex-Offender” So Offensive?, Discovering Desistance (Stephen Farrall
ed., Feb. 11, 2013) https://blogs.iriss.org.uk/discoveringdesistance/2013/02/11/820/
(reporting what it feels like to be the object of a “permanent label based
purely on the worst thing you have ever done”).
[21]. See,
e.g., Ministry of Justice, supra note 14, at 33; Zehr, supra note 2, at 46.
[22]. Zehr,
supra note 2, at 46.
[23]. Boyes-Watson
& Pranis, supra note 3, at
17 (“[T]his principle reminds us that there are no throw-away kids or
people. We cannot drop out, kick out, or
get rid of anything without literally throwing away a part of ourselves.”).
[24]. Susan J. Stabile, Othering and the Law, U. St.
Thomas L.J. 381, 382–83 (2016); see
also Jonathan Todres, Law, Otherness,
and Human Trafficking, 49 Santa Clara
L. Rev. 605, 607 (2009) (describing the “Self/Other dichotomy” as
fostering the “conception of a virtuous ‘Self’ and a lesser ‘Other’”).
[25]. Bruce G. Link & Jo Phelan, Stigma Power, 103 Soc. Sci. & Med. 24, 24 (2014).
[26]. See
id. at 24–25 (describing two of the aims of stigma as “keeping people down”
and “keeping people away”).
[27]. See,
e.g., Ministry of Justice, supra note 14, at 33.
[28]. See,
e.g., Corr. Serv. Can., supra note 17.
[29]. See
supra Subpart I.A.
[30]. In addition to studies cited earlier in this
essay, see Guillaume Thierry, Neurolinguistic
Relativity: How Language Flexes Human Perception and Cognition, 66 Language Learning
690, 694 (2016).
[31]. Adam Alter, Why It’s Dangerous to Label People, Psychol. Today (May 17, 2010), https://www.psychologytoday.com/us/blog/alternative-truths/201005/why-its-dangerous-label-people.
[32]. Words
Can Hurt, Global
Down Syndrome Found., https://www.globaldownsyndrome.org/about-down-syndrome/words-can-hurt
(last visited Aug. 14, 2019).
[33]. See Ted Wachtel, Dreaming
of a New Reality 3–5 (2013).
[34]. Int’l
Institute for Restorative Practices, IIRP Training Script: 2-Day Facilitating
Restorative Conferences, Day 1, at
15 (Mar. 4, 2019) (on file with author).
[35]. See,
e.g.,Zehr, supra note
2, at 12 (describing the label as “simple” to use).
[36]. See,
e.g., Int’l Institute for Restorative Practices, supra note 34, at 15 (cautioning
that the word “offender” should not be used when meeting with people who may
participate in a restorative-justice conference and should only be used “to
identify,” “not label.”).
[37]. See
Lynn S. Branham, Changing My Vocabulary: The Word “Offender” and Its Infliction
of Harm 7 (Mar. 28, 2016) (unpublished M.S. course paper, International
Institute for Restorative Practices) (on file with author).
[38]. Marian
Liebmann, Restorative Justice: How
It Works 326 (2007).
[39]. McGregor Smyth, Holistic is Not a Bad Word: A Criminal Defense Attorney’s Guide to
Using Invisible Punishments as an Advocacy Strategy, 36 U. Toledo L. Rev. 479, 479 n.1 (2005)
(quoting Eddie Ellis).
[40]. Michael J. Newman & Matthew C.
Moschella, The Benefits and Operations of
Federal Reentry Courts, 64 Fed. Law.,
Dec. 2017, at 26, 27. Judge Newman is a
magistrate judge in the Southern District of Ohio.
[41]. See
Branham, supra note 37, at 18
(quoting Prof. Emily Scivoletto). Professor
Scivoletto is also Senior Assistant Dean for Student Affairs at UC-Davis School
of Law.
[42]. See
Lynn S. Branham, The Law and Policy of
Sentencing (10th ed. 2018); Lynn
S. Branham, The Law and Policy of Sentencing and Corrections in a Nutshell
(10th ed. 2017).
[43]. Nancy G. La Vigne, People First: Changing the Way We Talk About Those Touched by the
Criminal Justice System, Urban Wire:
Crime and Just. (Apr.
4, 2016), https://www.urban.org/urban-wire/people-first-changing-way-we-talk-about-those-touched-criminal-justice-system.
[44]. See
id. (reporting that writing a research brief for the Urban Institute’s
Justice Policy Center and the report of the Charles Colson Task Force on
Federal Corrections revealed that eliminating the word “offender” from
discourse is feasible); Willis, supra
note 13, at 736 (reporting that writing and talking without using denigrating
labels like “offender” has become “habitual and effortless”).
[45]. Karol Mason, Guest Post: Justice Dept. Agency to Alter Its Terminology for Released
Convicts, to Ease Reentry, Wash. Post
(May 4, 2016), https://www.washingtonpost.com/news/true-crime/wp/2016/05/04/guest-post-justice-dept-to-alter-its-terminology-for-released-convicts-to-ease-reentry/.
[46]. Loretta Rafay, Washington’s DOC Ends the Use of the Word “Offender,” Prison Voice Wash. (Nov. 3, 2016), https://prisonvoicewa.org/washingtons-doc-ends-the-use-of-the-word-offender.
[47]. John E. Wetzel, Pennsylvania Dept. of Corrections to Discard Terms “Offender,” “Felon”
in Describing Ex-Prisoners, Wash.
Post (May 25, 2016), https://www.washingtonpost.com/news/true-crime/wp/2016/05/25/pennsylvania-dept-of-corrections-to-discard-terms-offender-felon-in-describing-ex-prisoners/.
[48]. Id.
[49]. Id.
[50]. Id.
[51]. S.F., Cal., Res. 336-19 (July 26, 2019), https://sfbos.org/sites/default/files/r0336-19.pdf.
[52]. Id.
at 1, 3.
[53]. This test emanates from feedback I received
during my action-research project from a law-enforcement official regarding my
decision to abandon use of the term “offender,” supplanting it as much as
possible with references to a “person” (such as “person with a criminal
conviction”) or “people” (such as “people confined in jail”). This official commented that the replacement
terms “offer dignity, humanity as well as hope.”
