Restorative Justice: Don’t Presume “We’re Better Than This”

By MIKE MAGEE

“We’re better than this” is the common refrain heard from many political leaders following the deadly assault on our democracy on January 6th. We hear empty appeals for blind appeasement from the likes of Kevin McCarthy in the interest of “bringing our country together.” But for those of us who study medical history, pursuing this course takes our nation in exactly the wrong direction.

Rather, the model we must follow is the model of Germany in 1945, or South Africa in 1995. In both cases, strict legal and public accountability (retributive justice) were married with fundamental expansion of universal social services to rebuild confidence and trust in their government’s ability to assure safety and security, and an equal playing field for all of their citizens (restorative justice).

In sorting through the legacy of Hitler’s regime in Germany, the Allied forces established the International Military Tribunal.  One of the series of trials, opened on November 19, 1945 in the Palace of Justice in Nuremberg, delved into egregious examples of medical criminality, including Nazi experimentation on human subjects. These trials are often cited as an example of “retributive justice.” Of 23 defendants, 7 were hanged, 7 acquitted, and the rest given sentences of from 10 years to life in prison.

These judgments were conducted under the direction of U.S. judges and prosecutors and fully compliant with U.S. standards of criminal procedure. Yet another 25 years would pass before any of the 10 agreed-upon medical ethics research standards were integrated into US trial law.

Legal scholars such as Michelle Miller at Cornell Law School attribute this lapse to the self-regarding biases of leaders within the Medical Industrial Complex. As Jay Katz, a physician and professor of law at Yale wrote in 1992 of the Nuremberg directives, “It was a good code for barbarians, but an unnecessary code for ordinary physician-scientists.”In other words, it was assumed that American medicine’s noble professionalism was adequate to ensure appropriate ethical standards.

Adding to the irony, at the very same moment that the leaders of the Medical Industrial Complex were rejecting President’s Truman’s 1946 call for a national health plan as “socialized medicine”, our military under the Marshall Plan was fast at work creating highly successful national health plans for our two main vanquished archenemies, Germany and Japan. We were willing to allocate precious taxpayer resources to assure this expression of “restorative justice.”

An analysis of the German and Japanese programs made some years later by the Rand Corporation summed up the Marshall Plan’s rationale: “Nation-building efforts cannot be successful unless adequate attention is paid to the health of the population. The health status of those living in the country has a direct impact on the nation’s construction and development, and history teaches us it can be a tool in capturing goodwill of the nation’s residents.”

A similar restorative approach was utilized in South Africa in 1995. Nelson Mandela’s Truth and Reconciliation Commission conducted over 1000 public hearings on their road to a free democracy, offering amnesty to those who publicly admitted past crimes of sectarian violence and asked for forgiveness. Less recognized, Mandela simultaneously instituted fundamental social service reform, including free primary level public health care for all in 1996 serviced in over 350 newly constructed health clinics by 1997.

The crimes of Donald Trump, his followers and enablers, are now fully exposed. Their failures include the mismanagement of the Covid-19 pandemic, likely to claim more than a half million Americans by April, 2021. As with Germany in 1945, and South Africa in 1995, these crimes involve racism, disinformation, and erosion of public trust. They are egregious and deep-seated.

To address them, and move our nation forward, we must openly and honestly embrace both retributive and restorative justice. Impeachment of Donald Trump, criminal investigations of his legislative co-conspirators, and movement toward universal health care in America are now important next steps if we truly wish to “bring our nation together.”

Mike Magee MD if a Medical Historian at the Presidents College at the University of Hartford and the author of “Code Blue: Inside the Medical Industrial Complex” (Grove Atlantic/2020)

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