By Harmon Wray
Vol. 22, No. 3, 2000 pp. 31-32
In recent years many faith-based and secular criminal justice activists and scholars have developed a practical and theoretical perspective which offers both a critique of the prevailing criminal justice system and a paradigm of what an alternative system might look like. Usually called “restorative justice,” this model has perhaps been most fully articulated by Howard Zehr in his seminal book Changing Lenses (Herald Press, 1995). Presently a number of religious organizations and some state corrections departments are tweaking and experimenting with restorative justice principles and methodologies. This is a promising development but at the same time it runs the risk of co-opting or watering down the radical vision of true restorative justice.
The distinctiveness of the restorative justice approach can best be understood by contrast with the criminal justice system in the U.S. Our current system, based on the concept of retribution or revenge, defines crime as primarily an offense against the laws of the state. The state, in turn, assumes the power to pick out a likely offender and to process this person through an adversarial drama in which the major actors are lawyers. Through either a plea-bargaining process or a trial in open court, played according to rules established by the state and enforced by the judge, the opposing attorneys fight it out in a sort of war game. Eventually the accused is declared either guilty or not guilty. If the person is found to be, or pleads, guilty, a sentence is imposed, which may amount to a symbolic slap on the wrist, a highly punitive prison term, ritual killing by the state, or something in between.
The focus is on offender and his/her past behavior. The real victim of the crime, if there is one, is treated as marginal, as is the community–except insofar as they can be manipulated into lobbying for vengeance–and the offender is treated as passive. The process is geared toward fixing blame, not solving problems. The relationship between the victim and the offender is ignored. Both repentance and forgiveness are discouraged. Accountability is defined strictly as the offender taking his/her punishment, which–to call it by its real name–is the intentional infliction of pain on a human being by other human beings.
The whole process encourages competitive and individualistic values, assumes a win-lose outcome, and ignores the social, economic, political, cultural, and moral context of the crime and of the appropriate response to it. It is based on a commitment to retribution by the state against the offender, not on the principle of restitution of the victim by the offender. Opportunities for abuse of discretion and for corruption, racism, sexism, and class discrimination–personal and institutional–abound.
Rooted in older, indigenous, tribal traditions of community justice and in biblical traditions of shalom (peace with justice). Jubilee economics, and the Sermon on the Mount, restorative justice refocuses our gaze and reshapes the questions and assumptions underlying the retributive criminal justice system. It seeks to deinstitutionalize abstract systems of jurisprudence and replace them with action by concrete, grassroots communities.
Rather than continuing and escalating the cycle of violence and coercion by both individuals and institutions, restorative justice tries to stop it in its tracks. Rather than separating legal or criminal justice from the larger picture of distributive justice–that is, how wealth, power, and
status are apportioned out in the society-restorative justice looks at the whole social, historical, and political context to determine how the law ought to be most fairly applied. At its best, restorative justice methodology is alert for patterns and systemic issues affecting the community–which often function as root causes of crime–that might emerge in the course of doing restorative justice in particular cases.
Restorative justice reverses the retributive justice system at almost every point. Crime is understood primarily as the violation of one person by another, or–by extension–as the violation of one person or group by an institution or a system. The real victim, the offender, and the local community are all seen as the principal stakeholders and therefore are principally involved in deciding what it will take to “make it right.” Their relationships and feelings are closely attended to. A future, problem-solving, healing orientation is predominant. Accountability is understood as taking responsibility for what one has done by repenting of it, trying to make it right (typically through restitution by the offender to the victim), and not doing it again. Dialogue, not an adversarial battle, is normative.
The community takes responsibility for helping the offender and the victim “work it out” and holds the offender responsible for following through with whatever that entails. As the community seeks to support the victim, it also seeks to help the offender get what he/she needs and to integrate the offender further into the community, not cast him/her out of it.
A restorative justice process considers the total context of the situation, not just the “crime” as an isolated event. Just as it seeks to empower victims, it also seeks to empower offenders by fostering in them remorse over having violated others,rather than regret at having been caught, and internal self-discipline, instead of the passive bearing up under externally imposed punishment. It teaches victim, offender, and community new ways of dealing with conflict.
A restorative approach to justice encourages values of mutuality and cooperation and makes possible win-win outcomes. Instead of the unrealistic “forgive and forget” model, or the vengeful “remember and punish” model, restorative justice offers a healing vision of “remember, restore, and reconcile” for all the principal, parties: victim, offender, and community.
A justice system based on restoration would look very different from our current system. Such a system would not be “warm and fuzzy,” characterized by an ‘I’m okay, you’re okay” attitude. Nor would it be “soft on crime.” But it would be more just in responding to crime, more preventive in its long-term outcomes, and more effective in educating and empowering all parties to analyze and transform the forces acting upon them.
There would be a lot more offenders and victims struggling face-to-face with each other in the presence of community mediators, over what one has done to the other, and why, and what they now need to do about it, with the support of the community. And a lot less under-the-table deal making courtroom theatrics, and gamesmanship by lawyers and judges, and “quick-fix” law-and-order rhetoric by politicians looking for easy votes.
We would have fewer courtrooms, and more neighborhood-based dispute mediation centers. Fewer cops, and more local volunteer mediators. Fewer guns and bullets, more talk. Drug education and treatment programs instead of a war on some of the people (i.e. young, poor, urban, African-American) who use drugs. No private, for-profit prisons, and better publicly operated prisons. No more prison building boom, but more community-based alternative programs. No death penalty, more victim restitution. Less crime, more dialogue. More victims’ rights, but not the right to revenge, and not at the expense of defendants’ rights. No more sentence enhancement hate crime legislation, but less hate.
To be sure, not every criminal case lends itself to resolution by mediation, and the legal system needs to remain in place as back-up when mediation fails and to handle cases for which it is not appropriate (for example, most domestic violence cases and most rape and sexual abuse cases). The legal structure also must continue to play the critical role of monitoring the more informal, restorative efforts to do justice to insure the protection of the constitutional rights of all parties and guard against the specter of vigilante justice. But the focus of any justice system needs to be on the primary stakeholders themselves, not the professionals acting as their proxies.
Piecemeal efforts at criminal justice reform have usually backfired and been easily co -opted. This could happen to restorative justice, too, but it is clear that only a theory and practice as bold and visionary as that offered by restorative justice has the potential to turn around the vicious, costly, unjust, and ineffective criminal justice system presently in place.
Harmon Wray is executive director of Restorative Justice Ministries of the United Methodist Church and is based in Nashville, Tennessee.