Sorry, Restorative Justice Doesn’t Work With Fascists

As I write this, supporters of recently-defeated Brazilian president Jair Bolsonaro have finally been removed from that nation’s Congress building, Supreme Court, and Presidential palace.

They had to be removed because over the weekend they decided to storm all three.

Of course they did.

As with their ideological contemporaries in the United States — Trump’s MAGA minions — fascists only have one move when they lose at the ballot box: violence.

They reject democracy if it fails to produce their desired outcome, which is to say they reject democracy altogether, as it never promises a particular result. This is precisely what happened here on January 6, 2021.

Speaking of which.

Though it is uncertain how the Brazilian legal system will deal with insurrectionists there, here each week brings more trials and handed-down sentences for some among the hundreds who stormed the Capitol, hoping to block the certification of the 2020 election.

Though most have received sentences well below what prosecutors have asked for and often below the recommended sentencing guidelines, a goodly number of the most violent insurrectionists will be doing time, or already are.

As well they should.

Indeed, I wish they were going away for much longer.

As for those found guilty of insurrection or sedition, like Oath Keeper Stewart Rhodes and his colleagues, and hopefully, soon, the Proud Boys?

I sincerely hope they are locked up for decades.

It wouldn’t bother me one bit were they reduced to three hots and a cot until they were old enough for hip replacements and Social Security, at which point perhaps compassionate release would be justified.

For saying this, some of my compatriots on the left will no doubt seek to pull my card as a member of the club. We are the ones typically calling for prison abolition, after all. We abhor the carceral state. How can I support prison for the 1/6 defendants, even the most violent of them, and still call myself progressive or left?

It’s easy, actually.

Among the things the left has always been, anti-fascist ranks at or near the very top. So calling for the imprisonment of violent fascists — not for being fascists but for acting to overthrow democracy — is entirely in keeping with a left politic.

Indeed it was January 6 that ultimately made clear to me why I cannot support prison abolition.

A massive reduction in the use of incarceration as a tool of criminal punishment? Of course.

But complete abolition in the name of an all-encompassing Restorative Justice? No.

Here’s why.

The premises of Restorative Justice and prison abolition don’t apply to fascist insurrectionists

The logic of prison abolition and Restorative Justice (RJ) stems from a couple of key recognitions, neither of which apply in cases like this.

First is the recognition that our carceral system primarily serves to reinforce class inequity and racial injustice rather than to make people safe. In short, RJ and abolition start with the idea that prisons have mostly been about social control for the benefit of the powerful.

Obviously, to arrest and punish insurrection by white people whose median incomes are comfortably above the national norm — as the median for the insurrectionists was — is not about controlling the have-nots for the sake of the haves. As such, it doesn’t fall into the kind of category for which either abolition or Restorative Justice were devised.

That’s not to say that a violent insurrection by the poor or Black folks seeking to overthrow the government would be acceptable. Trying to overthrow a democratic election is wrong, no matter who does it. It’s simply that insurrectionary violence is not the kind of criminality abolitionists or RJ advocates envisioned while developing their concepts.

Second, prison abolition and Restorative Justice are based on the recognition that most people locked up, even for serious violent crimes, committed offenses that were matters of inadequate impulse control or social conditions highly correlated with violence.

Thus, punishment without attending to those underlying issues (be they emotional, psychological, or sociological) is unethical and impractical.

For most offenses, there are methods other than incarceration to address them and to deter their re-occurrence, either in those who have already offended or others who might.

But those who seek to overthrow democracy through violent insurrection, terrorism, or abetting either through obstruction of justice or an attempt to overturn elections via unconstitutional fraud are different.

Those are not matters of oppressive economic conditions, being abused as kids, or anything related to impulsivity.

They are the most premeditated of crimes.

These are crimes of fascist sociopathy. They are crimes by people who cannot be dealt with via Restorative Justice because RJ only works when offenders are willing to accept responsibility for the harm they’ve caused and make amends to the injured.

But seditious terrorists can never admit their actions have injured anyone, or at least not anyone who, in their minds, didn’t deserve it.

Treating them with Restorative Justice is like saying the Nazis were no different than your average German street criminal at the time of the failed Beer Hall Putsch. But they were. Very different.

How does one apply Restorative Justice to Steve Bannon, Donald Trump, and Mike Flynn? With the Oath Keepers? With the Charlottesville Nazis?

You can’t. And those who say we can are living in a utopian world that doesn’t exist. Crimes like that are about a deep contempt for large swaths of humanity. By the time people get to that point, nothing but their removal from society can protect that society.

The abolition of prisons can only work, even in theory, when feasible alternatives exist.

For most criminal offenders, such alternatives exist because most offenders are not motivated by terroristic impulses to impose their views on the rest of us.

But these people are.

They aren’t going to be fixed with a seminar, counseling, and a listening session with their victims. Especially because, in this case, their biggest victim is the Constitution itself.

Only the force of the state can break fascists

As hard as it may be for the left to admit, some folks simply have to be put away for a long time. The Proud Boys, the Three Percent Militia folks, and the Atomwaffen Nazis won’t be kept at bay by your mutual aid committee, your local Food Not Bombs chapter, or your Bakunin book circle.

And although I too mistrust police and prosecutors when it comes to steadily fighting fascism — especially because so many of their ranks evince a fascist mentality themselves — there are no practicable alternatives.

All the inspired rhetoric about how “We protect us!” won’t work here because we are in no position to stop terroristic fascists when they turn to violence. Black Bloc anarchists with balaclava, bricks, and spray paint are no match for right-wing snipers on rooftops.

The only thing that has slowed these folks down since Charlottesville has been the legal system — the state — by jailing and suing them. It has been law enforcement, civil and criminal, which has done the job.

Law enforcement: meaning, yes, cops, DAs, judges, courts, and jails.

Sure, citizen researchers and activists have exposed many of these people and even tracked many of them down after “Unite the Right” and 1/6. But to what end? Arrest and legal sanction.

Without the reality of legal sanctions, fines, and prison time hanging over them, they wouldn’t have been derailed nearly as much as they have been.

Only the force of the state can break them.

There are 21 million people who, according to the survey data, believe violence should be used to restore Trump to power. Although most won’t act on that belief, some are willing to.

If you think those folks shouldn’t be locked up when they try it, whether for Trump or some future candidate like him — and they will try it — you have a death wish.

. . .

Remember, the only thing that stopped the fascists in World War Two was force. Not persuasion. Not protests. Not civil disobedience. Force.

Violence, even.

To the extent we don’t want to go down that road — and seeing as how they have the lion’s share of the guns, trust me, we don’t — that leaves law enforcement, the courts, and incarceration.

Anything else is delaying the inevitable rise to power of those who will make Trump look tame.

These people do not respect your right to select your leaders if they aren’t the ones they prefer. They barely, if at all, respect your right to live.

The violent and seditious among them must be stopped before they get power. At the very least this is true of their leadership.

If that means prison, fine. Break them. Mercilessly.

Or else be prepared for them to break you.

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This post was previously published on Tim Wise’s blog.

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