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Restorative or Retributive Justice?

Transforming the US Criminal Justice System

by Harmon Wray

New World Outlook: July - August, 1999.
| Criminal-Justice Trends | Controversial Issues | Restorative Ministries |

Soon after Jesus entered Jerusalem to face execution at the hands of the legal, political, and religious establishments of the time, he entered the temple. There, angered by the idolatry of Mammon, he overturned the tables of the moneychangers and denounced those who had turned God's sacred place into "a den of thieves." It was a prophetic act of indignant, righteous anger on Jesus' part. Some biblical scholars believe that it was the final straw that led Jesus' enemies to decide, once and for all, that he must be done away with as an enemy of the state and the religious institutions.

Shortly thereafter, Jesus again "turned the tables" on the powerful class of his time and place when he made the distinction between that which is Caesar's (the state's) and that which is God's. Earlier, as recounted in the Gospel of John, Jesus had turned the tables on those who would have him give his blessing to the legal execution of a woman caught in adultery. He had reframed the question from "Does she deserve to be killed?" to "Which of you deserves to kill her?"

While he was being executed, Jesus asked God to forgive his executioners and promised the repentant thief beside him that they would be together in paradise, regardless of what Caesar and Pilate were doing to them both. Jesus had also told his followers that they were to forgive their enemies, turn the other cheek when assaulted, refrain from judging others, minister to crime victims, visit prisoners, and follow him in the Jubilee tradition of proclaiming release to the captives and liberty to the oppressed (Luke 4: 18-19).

In all these examples, Jesus was challenging what Paul calls the "principalities and powers" dominant in his religious, political, and legal culture. He was taking on the system, as he did in numerous other ways throughout his life. He was engaging in prophetic politics, embodying the linkage between spirituality and political action. And he was redefining the terms of what we mean by "criminal justice."

Criminal-Justice Trends

Refer to caption for description of photo.

In this issue, New World Outlook is looking at the concept of restorative justice. It may help to use this perspective to zero in on current trends in the criminal-justice system of the United States. In the spirit of Jesus' prophetic engagement with the dominant powers of his time, what might a restorative-justice critique of today's retributive criminal-justice system look like?

To begin with, the present boom in incarceration should be brought to a screeching halt. Policymakers ought to declare a moratorium on prison construction and a diversion of funds into probation and parole programs. They should sharply reduce caseloads and greatly increase the level of supervision and support of those on probation and parole. Other government revenues presently eaten up by prison building and operating budgets should be diverted to public education, drug and alcohol treatment and education, affordable housing, early intervention with struggling families and at-risk children, and living-wage job development. Adequate funding for such programs would greatly reduce the factors that contribute to crime. Poor and remote counties should refuse to let state and federal governments and private companies persuade them that prison construction somehow is community economic development. Prisons are damaging to the spirit and gradually destroy community.

From a restorative-justice perspective, the victims' rights movement is a good thing since it insists on fair and respectful treatment of crime victims by the agents of the criminal-justice system. But it often fails to go far enough, sometimes running the risk of being so revenge-oriented that it does not consider the option of victim- offender engagement. Thus it loses the possibility for the kind of restitution and healing that can come from this sort of encounter. A group called Murder Victims' Families for Reconciliation is an example of what can happen when victims' family members focus more on healing than on retribution.

Examples of policing policies that are consistent with restorative-justice values are block-by-block community policing, in which officers walk the streets and develop relationships with ordinary folks in the neighborhood, and increasing racial and ethnic diversity within police forces, so that community police officers can better reflect the makeup of the neighborhoods they serve. Non-restorative law- enforcement practices include zero-tolerance, stop-and-frisk, and racial profiling. Civilian review boards that truly reflect the community and have sufficient power to adjudicate disputes between police and citizens are basically restorative. They would go a long way toward reducing police brutality and fostering better police- community relations.

For-profit prison privatization is rapidly growing in the United States and elsewhere. Because of its built-in incentive to lock up more prisoners, keep them longer, and reduce rehabilitation programs to save money, this trend is anti- restorative. Criminal justice policy will be increasingly driven by the profit motive and political conflicts of interest if the privatization trend continues. The sense of community and accountability in our society will be reduced as well.

The current, ongoing erosion of our distinctive juvenile-justice system is fraught with peril for our society. Using an adversarial, adult-court system to try more and more children--and using adult prisons to incarcerate them--is likely to ensure that more of them will become habitual and violent adult criminals. A juvenile-court system with a variety of mid-range sanctions--one not so dependent on either incarceration or a slap-on-the-wrist probation--would be more humane, restorative, and effective.

The use of mandatory minimum sentences for certain crimes and the use of rigid sentencing guidelines is largely responsible for the rapid increase in incarceration, especially of low-level drug offenders. Laws with huge discrepancies in punishment for different kinds of drugs, coupled with racial discrimination in law enforcement, are responsible for much of the disproportionate confinement of people of color in both juvenile and adult prison systems. The US war on drugs actually amounts to a war on the poor, especially on young Black and Latino inner- city residents, even though these Black and Latino groups are statistically no more likely than middle-class Whites to use illegal drugs.

Shifting toward a harm-reduction or damage-control model makes more sense as a strategy to address drug abuse and the crime associated with it. The focus would be less on punishment and more on treatment and education. Decriminalization and tight regulation of adult drug use should be considered.

Finally, we should focus more on asking: Why are so many people in our society--of all classes, races, and ages--so miserable that they feel compelled to alter their reality by using substances that are so dangerous to their physical, emotional, mental, and spiritual well-being? If we could answer that question, we would know what to do, and it would involve something much different from "just say no" or "lock-'em-up-and-throw-away-the-key."

Controversial Issues

Since lethal violence has increased as a result of ever more powerful high-tech weapons, tightening up on the easy accessibility of guns and ammunition must be high on our national agenda. Federal control is necessary, since different state laws make it easy to buy guns in states with weak controls and to transport them across state lines. Given the number of weapons already dispersed throughout the population, it probably makes more sense to focus on sharply limiting the manufacture, import, and sale of ammunition.

Like gun control, the death penalty is a highly emotional and controversial issue. There are many reasons for being against state killing-- its inherent racism and classism, the execution of innocent persons, the high financial cost (several times greater than life in prison), and the harm it does to the grieving and healing process for murder victims'and prisoners' families. But for those who would follow Jesus-- himself a victim of both crime and capital punishment--there need be only one reason: that we cannot honestly imagine Jesus participating in an execution.

Another controversial issue is hate crimes. Many who are properly outraged by crimes that are motivated by hatred for a person's race, religion, ethnicity, sexual orientation, or the like assume that such crimes will be deterred if the level of punishment is increased. While such moral outrage is understandable and should be encouraged, it is unreasonable to believe that a would-be hate criminal who is undeterred by a possible 30-year prison sentence would be deterred by an even longer sentence or that shifting from a life sentence to the death penalty would increase the deterrence factor. Many such offenders are so full of revenge or the desire for notoriety and fame that no punishment would make them turn back.

Second, hate-crime legislation operates within the retributive-justice paradigm, which holds that the way we attribute value to a victim is by intentionally inflicting great pain upon a perpetrator. A restorative-justice scenario suggests that we give greater value to the victims' lives by inviting them or their survivors to hold their violators accountable and to participate in struggling to determine what kind of restitution (not retribution) is appropriate. Such an approach is likely to be more healing for both victims and offenders.

It has been difficult for the restorative-justice movement to grapple with the issues of domestic violence and sexual abuse. Too many Christian pastors and preachers, usually men, have encouraged vulnerable victims of domestic violence and sexual abuse, usually women, to forgive their abusers prematurely. Similarly, too many naive advocates of restorative justice assume that any case can be resolved through victim-offender mediation. Cases of domestic violence and sexual abuse, however, are notoriously resistant to successful mediation because of complex interpersonal dynamics under the surface and the vast power differential typically at work in these relationships. Usually long-term treatment and ongoing education of abusers--and sometimes treatment of the victims--is necessary if the behavior is ever to change.

Restorative Ministries

How can involvement in restorative-justice ministries help transform the criminal- justice system into a restorative-justice system? For many, the first step is to donate money to a prison ministry, victim ministry, or criminal-justice-related cause. For others, the first step may be praying for the crime victims, the prisoners, or their families. Sometimes, a second step may be providing some kind of service to a crime victim, a prisoner, or the family of a victim or prisoner. Such ministries of financial stewardship, intercessory prayer, and direct service can lead to more deeply engaged restorative-justice work.

When support, prayer, or service leads to the development of an ongoing, mutual relationship with someone affected by the justice system, then a decisive step has been taken. Abstractions, such as crime, incarceration, and the death penalty become concrete when we are talking about my friend the crime victim, the bereaved spouse or parent, the prisoner, or the death-row resident At this point, I may become a personal advocate as an outgrowth of my friendship with one who has no voice..

Sometimes, when I converse with colleagues in criminal-justice ministry, we begin to discover patterns and similarities. For example, if several folks in a local church are visiting individuals in the county jail and they discover that as many as four or five prisoners have trouble communicating with their lawyers, this problem becomes an issue. If we have the courage and the commitment, we may now begin to work together as issue advocates, taking collective action. In this particular case, it is time to go together to see the public defender or the president of the county bar association.

Some systematic changes in the direction of restorative justice for victims, offenders, and the community are possible through this kind of sustained issue advocacy. But the deepest and most transformative changes can only be achieved when we cross over yet another line and move from being advocates to being allies, working together for greater fairness, justice, and reconciliation in the criminal- justice system for victims, offenders, and the larger community. This represents a move from ministry to or for others to ministry with others. This is a move from charity to a kind of justice that incorporates love into itself: restorative justice.

Harmon Wray is executive director of Restorative Justice Ministries for The United Methodist Church.

Text and photographs copyright 1999 by New World Outlook: The Mission Magazine of The United Methodist Church. Used by Permission. Visit New World Outlook Online at http://gbgm-umc.org/nwo/.

For reprint permission, contact New World Outlook by E-mail at nwo@gbgm-umc.org.

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