While the words are mostly familiar to those dedicated to criminal law reform, Lara Bazelon and Aya Gruber argue that they should be embraced by the many women who have taken up the cry of #MeToo as an “alternative to prison.” It’s time, they write, to consider “restorative justice.”

For decades, victims’ rights advocates, including many feminists, have stood behind the promise prosecutors routinely make to victims: We will absolve your pain by prosecuting your offender to the maximum possible extent. But for many, it is an empty promise. A vast majority of sexual assault cases never see the inside of a courtroom. Some victims, like Ms. Judd, seek restorative justice, a remedy intended to heal victims and prevent reoffending through accountability and restoration — not incarceration.

Knowing where they’re coming from, this should best be understood as assuaging the fury and prison-lust as reflected by the incoherently outraged Michelle Daubers of the Legal Academy, and offering a better alternative that serves to heal the trauma, whether real or imagined, without cries of life plus cancer, if not Lorena Bobbit-type self-help.

It’s a curious foundation for their position, given that #MeToo bears none of the indicia of criminal law. No courts. No evidence. No conviction and absolutely no appeal. There is only one sentence: cancellation. There is no parole. There may come a time when women deem the debt to society to be paid, but it hasn’t happened yet. And nobody, but nobody, gives a damn whether the guy is innocent and the woman is, well, less than accurate or truthful.

In support of their position, Lara and Aya offer the views of some women who claim victimhood but do not seek prison as their solution. For the purpose of this post, their conclusions will be accepted without question; there is neither basis nor reason to dispute the assumptions, as it doesn’t matter. No doubt there are women who are, indeed, victims. No doubt there are women who are, indeed, of the view that incarceration is not their desired outcome. No doubt there are women, indeed, for whom “healing” is their goal rather than vengeance.

But is this what victims writ large really want? No doubt there are people of gracious spirit who do, and some who say they do until afterward, when they change their minds and want blood. Confess and repent may not prove sufficient when they find their anger still boiling.

Then again, the trend of viewing criminal law as merely a reflection of an individual’s vindication, no matter what a prosecutor promises, fails to reflect the fact that crimes are punished for the sake of society, not the victim. Civil actions are for damages, to compensate victims. Crimes are an affront to society; it’s not about what the victim wants, whether it’s less prison or more. Sure, we’ll argue it because we will argue whatever serves our goal, but we know better.

Yet, there is another problem with restorative justice.

Defendant: But I didn’t do it. It never happened.
Attorney: If you admit you did it and apologize, you’ll get probation. You won’t see a day in prison.
Defendant: But I didn’t do it.
Attorney: If you go to trial, you could be sentenced to decades in prison.
Defendant: But I didn’t do it. But I’ll do it.

Much like the fundamental problem with progressive ideas like Drug Courts, where treatment is available but only for those who waive their rights, forego challenging illegal searches and seizures, the trade-off is the right to defend for the need for treatment. Here, the trade-off is prison for confession and repentance, and what defendant would be foolish enough not to make that deal? Innocence? Get real.

In the #MeToo era, there is a widespread presumption that the best way to reckon with sexual misconduct and serve victims’ interests is through the criminal system. #MeToo has done away with the risible idea that some level of unwanted sexual touching must be tolerated because it is simply not “serious enough” to report. But as more people have been prosecuted for an array of sexually inappropriate conduct, the criminal justice system’s shortcomings have become more pronounced.

Does this reflect an accurate understanding of #MeToo, that its presumed that the criminal system best serves the “victims'” interest? The crux of #MeToo is exactly the opposite, that its sole purpose is to circumvent the criminal system, where evidence is needed, where defendants are presumed innocent, where “victims” are challenged on cross-examination, where the burden of proof is beyond a reasonable doubt. The core of #MeToo is any woman can accuse any man of any impropriety and the woman must be believed and the man punished.

But worse, the law doesn’t support that it’s a “risible idea” that “some level of unwanted sexual touching” is sufficient to establish a crime. Crimes have elements, and some putative victim’s feelings that a hand on a shoulder is “sexual” doesn’t make someone a rapist. It’s not, and it doesn’t become a crime because women feel that the touching is “sexual” or inappropriate. Sexual assault is not whatever feelings pop into a woman’s head.

Does restorative justice mean that the putative victim gets to invent the offense she suffered and demand her offender acquiesce to her cries to be party to her healing or else? Unfortunately, it does. It may be the easy way out, and beat the hell out of imprisonment for life plus cancer, but the feelings of women are inadequate to serve as a principled foundation for a legal system. And let’s not forget, a handful of gracious spirited “victims” is hardly a basis to contend that restorative justice will empty the prisons. Just as Dauber got enough of the unduly passionate to oust Judge Persky, the carceral lust shows no signs of letting up.

It’s not that ideas to reduce the calls for incarceration aren’t welcome, or that consideration of restorative justice as an alternative shouldn’t be considered. But will it work? Can it? Should it? These questions exist in the real world, where fear and loathing remain a far stronger driver of incarceration than good will and healing.