Published in The Mennonite 12.19 (October 20, 2009), 8-10.
In July, 1997, the state of Virginia executed Joseph O’Dell. According to Helen Prajean’s book, The Death of Innocents, Joseph O’Dell was almost certainly innocent of the crime for which he was killed.
When O’Dell was on trial, he realized that the court-appointed lawyer had no interest in defending him, so out of desperation he defended himself—inevitably ineffectively.
After O’Dell’s conviction and death-sentence, he did get help—including a DNA test that undermined the state’s scanty evidence linking him to the crime. But this new evidence was not allowed to be considered. The state and the courts clearly were not interested in truly determining what happened; they wanted a conviction and an execution.
Our system rewards prosecutors who gain capital convictions; people in power are impatient with what they see as inefficient delays in the exercise of the machinery of punishment, so they make it harder and harder for those convicted of crimes to gain a new hearing. This is true even as dozens upon dozens of convicted people have been shown to be innocent due to DNA testing in recent years.
There is something that undergirds these dynamics of state-sponsored killing. A general sensibility in our society that “justice” requires vengeance, punishment, pain for pain. People feel an urgency that makes them impatient with anything that delays the “gratification” that comes from the exercise of retribution. This urgency that almost guarantees the kinds of abuse that happened with Joseph O’Dell.
After O’Dell’s death, the people in Palermo, Italy, requested that he be buried there. His gravestone says this: “Joseph Roger O’Dell, honorary citizen of Palermo, killed by Virginia, USA, in a brutal and merciless justice system.”
“Criminal injustice system”: “Brutal and merciless” do not actually belong together with “justice.” Certainly what we call our “criminal justice system” is to an unconscionable degree “brutal and merciless.” To the extent this is so, though, we have a system not of genuine justice but rather a “criminal injustice system.”
Recent years have seen an expansion of the destructive dynamics of retribution. Forty years ago, our rate of imprisonment was about 100 prisoners per 100,000 people in the general population—one of the highest in the world, but in the same general ballpark as most other countries in the West. But now, our rate is off the charts in relation to these other countries—over 700 prisoners per 100,000 and still growing rapidly.
Not only has it become good politics to send people to prison, it has also become big, big business. More and more prison systems are being privatized. This provides great incentive to build more prisons, send more people to jail, make it harder to get out and the prison experience more and more devastating. When more prisoners mean more profits, why should the prison-industrial complex seek to rehabilitate and restore?
Now, this is crazy. We have this incredible public expense of tax monies for the building and sustaining of prisons. At the same time, the prison system actually profoundly undermines public safety. Even with our ever-harsher sentencing, most convicts are released at some point, and most commit crimes again and end up back in prison. Prisons teach violence. Good for business but not good for the health of our society.
Why do we put up with this? There is much public ignorance and many behind the scenes decisions made by people in power. But we also have a retributive mindset in our culture. This mindset makes people want offenders to be convicted of crimes so that those convicts will suffer.
This retributive mindset has some roots in Christian theology. This is how the logic of retribution works: God is understood in terms of impersonal, inflexible holiness. God’s law is seen to be the unchanging standard by which sin is measured. God’s response to sin is punitive. God simply cannot countenance any kind of sin.
God is not free to act with unconditional mercy and compassion toward rebellious human beings. Simply to forgive would violate God’s holiness. Compassion without satisfaction is not possible for God. As theologian Millard Erickson writes, “For God to remove or ignore the guilt of sin without requiring a payment would in effect destroy the very moral fiber of the universe, the distinction between right and wrong.”
Retributive violence: In this understanding of the nature of God, the logic of retribution indeed leads to acceptance of “justifiable violence.” Retributive violence is required in response to wrongdoing.
This dynamic actually only reinforces the spiral of violence. The logic of retribution feeds the spiral: violence leading to more violence leading to more violence. The logic of retribution blinds us Americans to how our criminal justice system has become so unjust.
Here is where restorative justice enters—as a breath of hope and fresh air. It started as a practical exercise, on the ground, trying to find a way to help victims and offenders find a measure of healing. Now it becomes a theological challenge: Can we reformulate our understanding of justice (our theology) and free ourselves from the straitjacket of the logic of retribution?
In a word, yes. And it won’t be that difficult—at least on an intellectual level. We have strong evidence from the Bible itself in favor of a theology of justice that is clearly and strongly restorative. Let me illustrate by looking briefly at only a few scripture texts.
In the western world, we tend to set impersonal justice over against more relational concepts, such as love and peace and compassion. However, in biblical Hebrew, you have terms such as “shalom” (peace, wholeness) and “chesed” (steadfast love, compassion) linked together with “mispat” (justice).
“Justice and peace will kiss”: Psalm 85 expresses this beautifully: God will speak peace to God’s people; to those who are faithful, salvation is at hand; “steadfast love and faithfulness will meet; justice and peace will kiss each other” (85:10)—another translation reads “justice and peace shall embrace.” This picture of wholeness presents justice, love, and peace as being together, different terms for the one reality of salvation. So, our first point about biblical justice is that it complements love, compassion, shalom, forgiveness, and salvation.
But what about judgment, justice as retribution? Certainly the Bible (and not only the Old Testament) tells about judgment, about consequences for violating shalom. But notice something from Amos. Amos certainly does threaten judgment, but this judgment does not define justice. It is something different.
Justice, in Amos, is the solution; it is what the community should (must) seek. Justice is about life. Let justice roll down like waters, like an ever-flowing stream (5:24). Water is the basis for life. Injustice is like wormwood; it is a poison. Justice is like water; it is a life-giving force. Judgment is not “justice”—it is what happens when there is no justice. Justice is about healing; justice is about transformation, not about punishing.
The key to the book of Amos is its final few verses, which portray restoration and healing. Many scholars see this vision as something added on to the book later, arguing that it contradicts the earlier message of punitive judgment. I would say actually this final vision tells us what the purpose of justice is—restoration, not punishment. By taking this vision of healing seriously, we can see that the message of the book as a whole is not a punitive message but a one of hope—justice as restoration.
The second point is that biblical justice is distinct from biblical punitive judgment; it is the antidote for judgment not the fuel for judgment. Justice seeks restoration, not condemnation.
The New Testament reinforces this message. Romans 3:21-25 tells us that justice is linked very closely with salvation. The justice of God has been disclosed as the power for salvation for all people. Paul has demonstrated in Romans that all types of people are sinful and need God’s mercy. Now he insists that indeed God has shown us this mercy.
Power for life: God’s justice remains a power for life. We see that in the most powerful way possible in the life and teaching of Jesus—and if we truly see Jesus, we will be freed from (redeemed from) the powers of injustice, idolatry, and violence that Paul describes earlier in Romans.
So a third point about biblical justice is that it is the power of salvation. We see saving justice most clearly in the life of Jesus. When we truly trust in and seek to embody God’s justice disclosed in Jesus we will be freed from our sinful practices of injustice (just as those Amos spoke to would be were they to let justice roll down like water).
True justice, according to the Bible, is not about retribution and punishment but about restoration of relationships and finding healing. Restorative justice heals our brokenness and heals our understandings of justice.