13. Theology and Restorative Justice

Theology and Restorative Justice[1]

“The whole trouble,” Leo Tolstoy wrote about the criminal justice system, “is that people think there are circumstances when one may deal with human beings without love, but no such circumstances ever exist. Human beings cannot be handled without love. It cannot be otherwise, because mutual love is the fundamental law of human life.”[2]

Our criminal justice system certainly is troubled by tendencies to treat some people (whether offenders or victims) without love, and the consequences are costly.[3] From a Christian perspective, and simply for the sake of social well-being in our society, we need to challenge those tendencies.

Concepts of God and retributive justice

In the criminal justice tradition of the Western world, the overriding justifications given for violently punishing offenders, even to the point of death, have and continue to be tied to a certain understanding of ultimate reality. In this view, ultimate reality requires retributive justice when fundamental natural or divine laws are violated. Such “retributive justice” is seen to restore the moral balance.

“Retributive justice” has theological roots going far back in the history of Western civilization. Part of the theology underlying retributive justice speaks to how God is understood. Key aspects of the view of God generally characteristic of medieval Europe shaped (and were also shaped by) the emerging punitive practices of criminal justice. These continue to be basic in practices of retributive justice.

While recognizing older antecedents, we will focus on the Middle Ages in sketching the impact of retributive theology on the criminal justice practices of the West.[4] In the early Middle Ages, the church, as it struggled with the state for dominance of European society, found it helpful to utilize the law of the later Roman empire as an instrument for solidifying its authority. It merged its theology with the newly rediscovered legal system to create canon law. Secular authorities, in their turn, followed suit.

This theology provided a notion of God’s impersonal holiness and retributive response to violations of that holiness. The Roman legal philosophy also centered on impersonal principles. Instead of being based on custom and history, law in this perspective stood alone. Roman law assumed a central authority, thus providing a basis for “legitimate” initiation of action by a “neutral” centralized dispenser of justice. In the medieval worldview, this centralized authority (church or state) was God’s direct agent.

Roman law was written law, based on principles that were independent of specific customs (“transcendent,” to use theological language). As embraced by the medieval church in its canon law, it had an accompanying method for testing and developing law. Roman law therefore could not only be systematized and expanded but could be studied and taught transnationally by professionals. This universal character helps explain its appeal and almost immediate spread to universities throughout most of Western Europe.

From the base of Roman law, the church built the elaborate structure of canon law, the first modern legal system. This was a revolutionary development. It provided the papacy with an important weapon in its struggle for supremacy both within the church and in its relationship to secular political authorities.

By providing for prosecution by a central authority, it established a basis for attacking both heresy and clerical abuse within the church. The most extreme expression of this new approach was the Inquisition in which representatives of the pope ferreted out heretics and tortured them both to obtain evidence and to settle accounts.

No longer was the individual the primary victim. In the Inquisition, it was a whole moral order that was the victim, and the central authority was its guardian. Wrongs were no longer simple harms requiring redress. They were sins requiring retribution. God’s holiness understood in terms of retributive theology, necessitates punishment, carried out by the human agents of God’s will.

These retributive practices actually diverged greatly from the approach of the earliest Christians. In the early church wrongs were seen as against people. In Matthew 18, for instance, wrongdoers are to make it right to the victim, then the obligation is loosened in heaven. But in the new medieval understanding, wrongs came to be seen as against God, against moral order. The wrong was seen to be against the sovereign, the overall authority, and that figure was a legalistic, punishing figure. God took the place of the victim, and salvation became appeasing an angry God.[5] God’s punishment was portrayed as so awful that complete attention must be paid to saving the sinner from punishment, ignoring the obligation to the victim. This theology, as did the emerging legal system, focused on dealing with the offender.

Justice became a matter of applying rules, establishing guilt, and fixing penalties without reference to needs of the victim or the relationship between victim and offender. Crime was a sin, not just against a person but against God and it was the church’s business to purge the world of this transgression. From this it was a short step to the assumption that the social order is willed by God, that crime is also a sin against this social order. The church (and later the state) must therefore enforce that order. Increasingly, focus centered on punishment by established authorities as a way of doing justice.

By the end of the sixteenth century, the cornerstones of state justice were in place. They drew deeply from retributive theology. Enlightenment thought and post-Enlightenment practice increased the tendency to define offenses in terms of lawbreaking rather than actual harms. If the state represented the will and interests of the public, it was easier to justify defining the state as a victim and giving to the state a monopoly on intervention. Most importantly, the Enlightenment provided new objectivity in the practice of punishment.

Enlightenment thinkers offered new justifications for state-initiated punishment, instituting rational guidelines for administering pain. And they introduced new mechanisms for applying punishment. The primary instrument for applying pain came to be the prison. Prisons made it possible to calibrate punishments in units of time, providing an appearance of rationality and even science in the application of pain.

Retributive theology deeply influenced western culture through rituals, hymns, symbols. An image “of judicial murder, the cross, bestrode Western culture from the 11th to the 18th century,” with huge impact on the western psyche. It entered the “structures of affect” of Western Europe and “in doing so, …pumped retributivism into the legal bloodstream, reinforcing the retributive tendencies of the law.”[6]

The result was an obsession with retributive themes in the Bible. Certain concepts were taken from their biblical context, interpreted through the lens of Roman law, then used to interpret the biblical text. The result was obsession with the retributive themes of the Bible and neglect of the restorative ones—a basic theology of a retributive God who desires violence.

This view is embedded in Western criminal justice system through our modern paradigm of “retributive justice,” which might be characterized like this:

(1) Crime is understood primarily as a violation of the law (unchanging, impersonal), and the state is the victim.

(2) Offenders must get what they deserve: The aim of justice is to establish blame and administer pain to satisfy the demands of the moral balance in which the violation is countered by the punishment.

(3) The process of justice finds expression as a conflict between adversaries in which the offender is pitted against state rules and intentions outweigh outcomes and one side wins while the other side loses.

This paradigm of retributive justice that dominates Western criminal justice is a recipe for alienation, as is readily apparent today. By making the “satisfaction” of impersonal justice the focus of our response to criminal activity, the personal human beings involved—victims, offenders, community members—rarely find wholeness. The larger community’s suffering often only increases.

Instead of healing the brokenness caused by the offense, we usually find ourselves with an increasing spiral of brokenness. Many victims speak of being victimized again by the impersonal criminal justice system. Offenders, often alienated people already, become more deeply alienated by the punitive practices and person-destroying experiences of prisons—which are most certainly not systems built upon anything resembling Tolstoy’s law of love.

Crucial for breaking free from the destructive dynamics of the cycle of violence is to recognize that the notion of ultimate reality (drawing from a particular notion of God), that underlies the retributive justice paradigm is a human construct.

As Gordon Kaufman writes, all theology, in the broad sense of our views of ultimate reality, is a human construct: “All understandings of the world and of human existence are human imaginative constructions, grown up in a particular historical stream to provide orientation in life for those living in that history. But at any given time it is always an open question whether the conceptions and values and perspectives inherited from the past remain suitable for orienting human existence in the new present: this is a question to be investigated, never a position which can simply be taken for granted.”[7]

The notions of God and ultimate reality that underlie the retributive paradigm outlined above are not set in concrete. They are the result of human reflection and human application. If these constructs contribute to brokenness instead of healing, furthering the spiral of violence instead of fostering genuine peace, they need to be deconstructed and replaced.

The law of love and restorative justice

To read the Bible as pointing toward restorative justice rather than retributive theology reveals a remarkably different portrayal of God and justice. From start to finish, we find in the Bible a “logic of salvation” fundamentally counter to salvation based on satisfying an impersonal principle of retributive justice. Biblical teaching redefines justice. In changing the definition of justice, the biblical perspective changes the definition of the ultimate character of God.

The Bible identifies God’s love with God’s justice. This inextricable connection guards against rationalizing the treatment of some people as objects instead of as human beings in the name of “justice”. Such “justice” becomes a dehumanizing power-struggle with winners and losers. And because losers are so seldom content with being losers, the battle never ends.

Holding love and justice together also guards against thinking of justice as an abstraction, separate from its function as a relationship-building, life-sustaining force. The concern for justice is people, much more than “fairness,” “liberty,” or “entitlements.” Biblical justice focuses on right relationships, not right rules.
Biblical justice, thus, is primarily corrective or restorative. Justice seeks reconciliation and reparation. Injustice must be opposed and resisted—but only in ways that hold open the possibility of reconciliation. What happens to the offenders matters, too, if justice is the goal. Corrective justice rules out death-dealing acts, such as capital punishment, as tools of justice.

This understanding of biblical justice (and the biblical God) places a high priority on restoring relationships and social wholeness in the face of brokenness and alienation (e.g., crime). Hence, we might call it restorative justice.

We may contrast the contrast between biblical, restorative justice and retributive justice as follows:

Retributive Justice
(1)Rule-focused (break law)
(2)Focus on infliction of pain
(3)Rewards based on just deserts
(4)Separate from mercy
(5)Seek to maintain status quo
(6)Central actors: state vs. individual
(7)State (or God) as victim
(8)Goal is offender paying debt to society (God); victim is ignored

Restorative, Biblical Justice
(1)People-focused (cause harm)
(2)Focus on making right
(3)Rewards based on need
(4)Based on mercy and love
(5)Transforms status quo
(6)Central actors: entire community
(7)People (shalom/peace) as victims
(8)Goal is restoration of relationships, healing for all parties

Restorative justice is personal, relational, social, and dynamic. It stands in stark contrast with the Western retributive justice that characterizes our criminal justice practices. The contrast may be said, by some, to be so great that restorative justice is essentially irrelevant to the “real world” we now live in.

We propose, to the contrary, that restorative justice offers tremendous possibilities for “healing” even in the brokenness and alienation of today’s criminal justice world. Hundreds of programs in many parts of the world demonstrate that restorative justice is not only relevant but essential. Without doubt, healing is needed.

Putting restorative justice into practice

What would a concept of justice look like if it were based on respect and concern for the people involved, on a commitment to respond constructively? Could such a relational or restorative approach to justice not only be articulated but actually implemented?

Since the 1970s, a growing movement has sought to do just this. Eduardo Barajas, Jr., a program specialist for the National Institute of Corrections, has characterized it like this: “A revolution is occurring in criminal justice. A quiet, grassroots, seemingly unobtrusive, but truly revolutionary movement is changing the nature, the very fabric of our work.” He argues that it extends beyond most reforms in the history of criminal justice: “What is occurring now is more than innovative, it is truly inventive, … a ‘paradigm shift’.”[8]

In contrast to the “retributive” paradigm of justice, the concept of restorative justice underlying these approaches might be summarized like this:

(1) Crime is primarily a violation of, or harm to, people and relationships.

(2) Violations create obligations. The aim of justice is to identify needs and obligations so that things can be “made right” to the extent possible.

(3) The process of justice should, to the extent possible, involve victims, offenders and community members in an effort to mutually identify needs, obligations and solutions.

The restorative justice concept can be framed in a variety of ways, but two ideas are fundamental: restorative justice is harm-focused and it promotes the engagement of an enlarged set of stakeholders. Most restorative justice can be seen as following from these two concepts.

Restorative justice views crime first as harm done to people and communities. Our legal system, with its focus on rules and laws, often loses sight crime as essentially causing harm; consequently, it makes victims at best a secondary concern of justice. A harm focus, however, implies a central concern for victims’ needs and roles. Restorative justice, then, begins with a concern for victims and how to meet their needs, for repairing the harm as much as possible.

A focus on harm also implies an emphasis on offender accountability and responsibility—in concrete, not abstract, terms. Too often we have thought of accountability as punishment, that is, pain administered to offenders for they pain have caused. In reality, this has very little to do with actual accountability.

If crime is essentially about harm, accountability means being encouraged to understand that harm and to comprehend the consequences of one’s behavior. It means taking responsibility to make things right in so far as possible.

In simplistic form, the three central questions of the retributive justice paradigm might be characterized like this: “What laws have been broken? Who ‘done’ it? What do they deserve? The comparable questions for a restorative approach then might be these: “Who has been hurt? What are their needs? Whose obligations are they?”

Out of the traumas of victims’ experiences come many needs. Some of these have to be met by victims themselves and their intimates. But some of their needs are best addressed by the larger society, especially the justice process.

Victims badly need what might be called somewhat ambiguously “an experience of justice.” This has many dimensions. Often it is assumed that vengeance is part of this need but various studies suggest that this is not necessarily so. The need for vengeance often may mostly be simply the result of justice denied.

The experience of justice seems to include public assurance that what happened to the victim was wrong, that it was unfair, that it was undeserved. Victims need to know that something is being done to make sure that the offense does not happen again. Often they feel the need for some repayment of losses, in part because of the statement of responsibility that is implied. So restitution and apologies from an offender can play an important role in the experience of justice.

Victims also need answers; in fact, crime victims often rate the need for answers above needs for compensation. Why me? What could I have done differently? What kind of person did this and why? These are just a few of the questions that haunt victims. Without answers, it can be very difficult to restore a sense of order and therefore to heal.

Another area is sometimes termed “truth-telling”—opportunities to tell their stories and to vent their feelings, often repeatedly, to people that matter: to friends, to law enforcement people, perhaps even to those who caused this pain. Only by expressing their anger and by repeatedly telling their stories can many victims integrate this terrible experience into their own stories, their own identities.

Also important is the need for empowerment. In the crime, an offender has taken power over victims’ lives—not only of their body and or property during the incident itself, but over their subsequent emotions, dreams and reality. Indeed, many victims find that, at least for awhile, the offense and the offender are in control of their psyche. That is profoundly unnerving. Without an experience of justice and healing, this too can last a lifetime.

Although retributive justice is done in the name of the “community” (which actually means the state), in actuality the actual human community of those affected by the crime is left out of this process and its needs addressed only abstractly, if at all. Fears and stereotypes are heightened rather than addressed. People are encouraged to view things in simple dichotomies—them and us, guilty or innocent—rather than appreciate the rich nuances of real-life people and situations. Worst of all, perhaps, when the community is left out of the justice process, important opportunities for growth and community building are missed.

When conflicts are processed appropriately, they provide the means to build relationships between people and within communities; take this away, and you take away a fundamental building block of community and of crime prevention. Communities have needs well as responsibilities that must be addressed.

Three examples of restorative-oriented alternatives that have emerged include the following: (1) the Victim Offender Reconciliation Program (VORP); (2) Family Group Conferences (FGC); and (3) Sentencing Circles (SC).

(1) Victim Offender Reconciliation Program. In North America, a leading form of victim-offender conferencing has been called the Victim Offender Reconciliation Program. In its “classic” form, it is operated in cooperation with the courts. Upon referral of a case by the court or probation service, trained volunteers separately contact victim and offender to explore what happened and determine their willingness to proceed. If they agree, victim and offender are brought together in a meeting facilitated by the volunteer mediator who serves as a neutral third-party. In this meeting, the facts of the offense are fully explored, feelings are expressed, and a written restitution contract worked out.

(2) Family Group Conferences. These emerged in New Zealand (and soon in Australia) in the late 1980s as a response, in part, to the concerns and traditions of the indigenous Maori population. In the new juvenile system adopted in 1989, all juvenile cases with the exception of a few very violent crimes are diverted from police or court into FGCs. Instead of court hearings, youth justice coordinators facilitate conferences including victims and offenders, though families of the offender are also an essential ingredient. Not only do families help to provide accountability and support but advocates argue that it empowers the family as well.

(3) Sentencing Circles. These have developed as an effort to take seriously traditions and concerns of indigenous peoples. They take a variety of forms. Usually, though, they work with the formal legal process to provide forums for developing sentencing plans while at the same time addressing community-wide causes and problems. SCs bring together offenders, victims (or their representatives), support groups and interested community people to discuss what happened, why it happened, and what should be done about it. Discussions are apparently wide-ranging and aim toward a full airing of facts and feelings and consensus about solutions.

Tolstoy’s assertion about the treatment of offenders suggests that justice needs to be redefined in new terms. Criminologists Richard Quinney and John Wildeman, set the context like this: “From its earliest beginnings…the primary focus of criminology has been on retribution, punishment, and vengeance in the cause of an existing social order…rather than a criminology of peace, justice and liberation.…If crime is violent and wreaks violence on our fellows and our social relations, then the effort to understand and control crime must be violent and repressive.”[9]

However, such an approach only intensifies the spiral of violence leading to greater violence. What is needed is something which breaks the cycle of violence. Quinney and Wildeman suggest that finally peacemaking school of criminology is beginning to emerge.

Such a peacemaking approach to criminal justice is indeed needed. This peacemaking approach must take seriously (and vigorously critique) the philosophical and theological roots to retributive criminology. However, we are suggesting that the deepest roots of Western theology, found in the Bible, are indeed fully compatible with new, peacemaking approaches to criminal justice.

_________________

1. This essay is adapted from Ted Grimsrud and Howard Zehr, “Rethinking God, Justice, and the Treatment of Offenders,” Journal of Offender Rehabilitation 35.3/4 (Fall 2002), 259-285.

2. Quoted in Timothy Gorringe, God’s Just Vengeance: Crime, Violence, and the Rhetoric of Salvation (New York: Cambridge University Press, 1996), 266.

3. Howard Zehr, Changing Lenses: A New Focus for Crime and Justice, second edition (Scottdale, PA: Herald Press, 1995).

4. See Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983); Herman Bianchi, Justice as Sanctuary: Toward a New System of Crime Control (Bloomington, IN: Indiana University Press, 1994); and Zehr, Changing Lenses.

5. Julian Pleasants, “Religion That Restores Victims,” New Theology Review 9.3 (1996), 41-63.

6. Gorringe, God’s Just Vengeance, 224.

7. Gordon D. Kaufman, In Face of Mystery: A Constructive Theology (Cambridge, MA: Harvard University Press, 1993), 43.

8. Eduardo Barajas, “Moving Toward Community Justice,” in Community Justice: Striving for Safe, Secure, and Just Communities (Washington, DC: National Institute of Corrections, 1996), 1-7.

9. Richard Quinney and John Wildeman, The Problem of Crime: A Peace and Social Justice Perspective (Mountain View, CA: Mayfield Publishing Company, 1991), 40-41.

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