Genesis of retributive justice
Modelling this aspect of the Hammurabi Babylonian code, the Bible recognizes that human acts have inescapable consequences. It is as if a law of reciprocation was embedded in the universe that says people reap what they sow (Galatians 6:7). The basic retributive concepts of guilt, atonement and proportionality of penalty are widely attested both in the Old and the New Testaments.
In fact, the Bible even ends with an affirmation of retributive principle of justice: “See, I am coming soon; my reward is with me, to repay according to everyone’s work” (Revelation 22:12). Therefore biblical justice is retributive insofar as it revolves around the concepts of moral guilt, reward and respect for the Law.
It would be, however, an error to conclude that the concept of retributive justice exhausts or encompasses the whole idea of justice in the Bible. Justice in the ancient Israel involved everything that was needed to create, maintain and restore healthy relationships at the heart of the community.
A criminal offense was considered wrong, firstly because it violated the relational commitments that the society upheld. Secondly, because the criminal acts in themselves could lead to a chain reaction of ruin and disaster if they were not stopped. Already in the Old Testament, but especially in the New, believers were exhorted to give up retribution or retaliation by relegating it to God and in its place to embrace the principles of forgiveness and reconciliation (Matthew 5:38-48, Romans 12:17-21, 1Peter 2:21-23)
Retributive justice, as it works today, came about in the thirteenth century. With the implementation of the Social Contract, the King, the State or the Law confiscates the conflicts. From that moment on, the offenses are no longer made against concrete persons of flesh and bone, but against the State by the transgression of its laws. Therefore the real victims disappear and in their place the State stands as the injured party. Whereas the real victim could even forgive, the penal system does not forgive because the crime is now committed against a collective society, the State.
In countries where there is still the death penalty or life imprisonment, the crime that the justice system commits is far worse than the one committed by the criminal; who, incidentally, acted under the influence of some volatile strong emotion or passion in a reactive moment, moved, as we know, by his lower reptilian brain more than by his rational neocortex. Whereas the crime of the penal system is premeditated and not only by one person, but by a large number of people; what is even more cruel, nefarious and barbaric, are the years between the pronouncement of the death sentence and its execution.
By carrying out the punishments, allegedly proportional to the crime, the penal system exists to protect the society from crimes, but what it really hides is the fact that it is articulated as an instrument of domination of one class over another. We just need to take a look at our prisons to realize that they are full of people from the lower class who committed petty crimes, when compared to people of the upper class who commit far worse crimes and yet live in freedom.
The purpose of retributive justice
Retributive justice is the type of criminal justice that is practiced in the entire world; it consists of handing out in kind, to a delinquent or offender, a punishment or penalty deserved for a wrongdoing committed on another person (the real victim), this punishment is imposed by a legislator to compensate for the damage done to the victim, in the majority of cases the penalty is the deprivation of freedom.
For retributive justice, an offence is an act of violation of the laws of the State by an individual; the responsibility must be borne by the offender. The crime is a matter between the State and the offender, neither the victim, who is truly the injured party, nor the people indirectly involved, nor the community that has somehow been harmed, is taken into account.
In retributive justice there are only two instances: the State that presents itself and assumes at the same time the role of the victim of the crime, the legislative, executive and coercive power, and the offender who suffers the consequences of his infraction of the law.
The duty of the State is to capture the accused, charge him, prove his guilt, and hand out an adequate sentence for his crime.
The task of the offender is to comply with the sentence and passively suffer the penalty that was imposed on him without any saying in the process.
The victim too has no saying in this process, the one who truly suffered the crime, as well as the families of both the victim and the offender and the local community; none of these groups of people exists in the retributive justice penal system.
The objective of the retributive system is for the offender to suffer in his skin and bone the damage he caused to the State; that he be punished according to the seriousness of his act. The society is protected from him by depriving him of the ability to commit new crimes; finally, that everyone in general, by virtue of this punishment, be dissuaded from committing that or similar crimes. Deterrence was, in fact, the motive behind the Roman crucifixions at the roadside.
Restorative justice in the Bible
Have I any pleasure in the death of the wicked, says the Lord God, and not rather that they should turn from their ways and live? Ezekiel 18:23
The restorative character of biblical justice is already evident at the macro-theological level of the Bible from the beginning to the end. In the Bible, human being was created in the image and likeness of God; with the offense of our parents Adam and Eve, we lost the likeness while retaining the image. The sole subject of the Bible is the story of salvation or redemption, or the restoration of the human race to the dignity it once possessed, the likeness of God.
As we have seen in retributive justice, the victim, his family as well as the family of the offender and the local community, disappear, whereas in restorative justice they gain prominence. In the story of salvation, God is the victim who undertakes to do all that is necessary to restore humanity to its former dignity, as the parable of the prodigal son suggests, and to repair the damage done.
In addition to the macro-history of salvation, already in the Old Testament we find elements of restorative justice: in Numbers 5:6-7 and Leviticus 6:1-7 those who offend should acknowledge error, feel remorse, confess the sin, and restitute to the victim adding compensation.
Now before faith came, we were imprisoned and guarded under the law until faith would be revealed. Therefore the law was our disciplinarian until Christ came, so that we might be justified by faith. But now that faith has come, we are no longer subject to a disciplinarian… Galatians 3:23-25
If Cain was avenged sevenfold, truly Lamech seventy-sevenfold (Genesis 4:24) – The objective of the law is to prevent the out of control escalation of violence. But it was not God’s intention that the law should be a permanent solution. For this very reason Jesus, in Matthew (5:38-48), revokes and replaces the law of an eye for an eye with a superior system of unconditional forgiveness and love of enemy, also replacing Lamech’s declaration of extreme violence with forgiving seventy times seven (Matthew 18:22).
Is the law then opposed to the promises of God? Certainly not! For if a law had been given that could make alive, then righteousness would indeed come through the law. Galatians 3:21
For Paul, it is Jesus who gives life; retribution and punishment are not transmitters of life because they only have negative consequences for offensive acts, but they have no power to change hearts, to heal. Only restorative justice, heals and cures, and, in union with Christ transforms us. Retributive justice has no capacity to make us saints so it is not, nor can it be, God’s last plan. In fact, after the coming of Jesus to continue to be guided by the law is counterproductive and can only be bad.
I was once alive apart from the law, but when the commandment came, sin revived and I died, and the very commandment that promised life proved to be death to me. For sin, seizing an opportunity in the commandment, deceived me and through it killed me. Romans 7:9-11
Anything good can become bad; the family is supposed to be a place where we feel safe and loved, but also can be deeply abusive and leave devastating scars. The Religion and the Law are, “per se”, also good, but, like the family, they can also become abusive. In the gospel, we witness this sort of abuse by the Pharisees whom Jesus repeatedly confronts. Paul was also himself a Pharisee until he converted and took the way of Christ.
In conclusion, retributive justice has always existed; the Law came in to prevent the escalation of violence, however as Paul tells us, the Law was only a disciplinarian. God’s definitive plan is the restorative justice in Christ. Jesus does not accuse nor condemn, he restores the spiritual, moral and physical health of the people he meets on the way; like he did with Zacchaeus, the woman caught in adultery, the paralytic, the lepers, and so on.
How does restorative justice work?
Howard Zehr’s 1990 book titled “A New Focus for Crime and Justice”, is considered to be the first to articulate this theory in a systematic way. It is true that this concept trails behind and, as Zehr acknowledges, due credit should be given to the practice of justice in some indigenous tribes in Canada, United States and New Zealand.
The penal system does not solve any problems and in fact, creates others. It fills prisons, creating outcasts and “personas non-grata” in society who sooner or later, given the opportunity, transgress again. The penal system is a system that produces much more pain and suffering than the violence it pretends to fight. Revenge is not justice and the punishment of the offender, however hard it may be, brings no satisfaction to the victim; to impose pain on another person does not make our pain disappear, nor does it diminish.
For restorative justice crime is any action that damages a person. It is an interpersonal conflict, and more than a transgression of the law, it is a wrong done to the victim and to the community at large. If the crime was committed against the community and a concrete person within that community, and not against an abstract entity like the State, it is in the community that the problem needs to be resolved. As the saying goes, “Don’t wash your dirty laundry in public.”
The place where retributive justice is carried out is in the courtroom and in prison; for restorative justice, the place is in the community center where the offender, his family and friends meet with the victim, along with his family and friends, and other relevant people of the community to which both belong. Interestingly, in places where the death penalty is carried out, these meetings also take place, when the victim’s next of kin will watch the macabre liturgy of the execution of the criminal, but here the purpose of the meetings is very different and very sad…
The meetings of restorative justice are voluntary, they must take place in mutual respect, in a climate of honesty and humility. The mediator or facilitator should meet with the parties separately first to prepare and coach them for the meeting.
Restorative justice aims to help in the recovery of the victim and the reintegration of the offender into the society taking into account community participation and mediation; dialogues and meetings are used as tools directly or indirectly between the parties involved. For retributive justice there were only two instances, the State and the offender; for restorative justice there are three instances: the victim, the offender and the community.
The Victim – The State ceases to usurp the role of the victim; the victim returns to the center stage, expresses the pain that the crime caused him or her, seeks to have the damage repaired and that the crime does not happen again. The victim has a voice, the person who really suffered, was injured and is still in pain; the State, on the other hand, was not really affronted and does not suffer like the real victim because pain cannot be delegated. The victim speaks, face to face, on how the crime affected his life and shows the damage it caused him.
The purpose is to repair the evil done, giving voice to the victim who expresses his or her feelings and needs, making the offender recognize the evil that he did and do something for the victim so not to reoffend. The objective is to achieve reconciliation and decide on what the offender must do to recompense the victim.
Let us see how the role of the victim works in the context of restorative justice in the following example:
A child who smells bad becomes the victim of bullying by his peers in school. In the field of retributive justice, these classmates will be punished, which probably solves nothing, and after some time, they go back to bullying or others copy what they do.
In the field of restorative justice, on the other hand, the bully and his victim, plus the people in their families and the school, as well as community leaders, will be summoned to a meeting. The offender learns the reason why his victim smells bad; he is a poor boy living in subsidized housing, where there is no electricity or running water.
The offender and his family will have a deeper understanding of the problem that lies behind this conflicting situation, so that from this meeting the possibility of mobilizing social forces to seek a solution at the root of the problem can come out. In the field of retributive justice, we would not get so far; it does not solve anything and can create more problems such as increasing violence if it has been exaggerated in the carrying out of the punishment.
The Offender – He now understands the victim, reconciles with him and repairs the damage. The wrongdoer learns the real impact of his action, something that he would not have known in the retributive justice system. In this setting, it is more likely that the offender would be ready to accept the responsibility of his actions, something that rarely happens in the retributive system where he looks to prove his innocence, or to escape justice.
The restorative justice system places great hope in the meeting between the victim and the offender; a crime is always an inhuman and dehumanizing encounter between two persons because they are superficially decontextualized. The meeting seeks to place the people in their living environment with their relationships. Let us look at the following example how the offender can change before a deeper awareness of his victim and how his crime has negatively affected the lives of many people:
A young man who killed a taxi driver was tried under the retributive justice system; in this context, he never knew, nor would ever know his victim and his life, and will be punished, nothing more. In restorative justice system, on the other hand, he will know better the dimension of his crime. In fact, he killed a taxi driver who was married and left behind a widow to raise their 8 children by herself. The clear perception of suffering, which the criminal has inflicted, has an internal effect of transformation because it will likely appeal to his compassion, to his humanity, that surely, he must possess.
Unlike retributive justice, where he did not even know the magnitude of suffering he enacted nor was asked to repair the damage he caused, in restorative justice, he can actively participate in helping to solve the problem his act has created and even change his life in this process. In the field of retributive justice he would remain in prison meddling on what went wrong, on the execution of the crime that he had devised as perfect, how he let himself be caught or what he could have done to escape justice.
The Community – It accompanies and facilitates the process and ensures the fulfillment of the conditions agreed between the defendant and the victim. In retributive justice, the State usurps the role of the victim and the community, only it acts, only it plays an active role in solving the problem. In restorative justice, the problem is resolved where it arose and by those who created it and those who suffered it. In dialogue between the parties, the community mediates the reconciliation and facilitates the process.
In conclusion, in retributive justice the State assumes the role of an abstract victim and punishes the offender. In restorative justice there is an interaction between the real victim disclosing her pain and hurt suffered and the offender coming to know the magnitude of his actions; the end result is healing for both.
A movie called “Conversas” (Dialogues)
The facilitator, through two prior meetings with each party, succeeds in getting the family of the victim and the family of the offender to come to a meeting. Based on a true story, the movie tells the story of a man who rapes and kills a girl while on probation. The criminal is in prison serving his sentence, but sends a videotape to the meeting in which he apologizes for the crime and says that he did not intend to kill the victim and assured that he had left her alive, only that he exceeded the sexual violence and she ended up dying.
The most important thing that came out of the dialogue is how the guilt is diluted and shared by both the criminal’s family and the victim’s family. The mother of the criminal feels guilty for being condescending in the upbringing of her son who was her favorite. His brother confesses that he could have helped the victim and that he tried to speak her and warn her, but she thought that he was making advances at her, so she threw him looks of disdain that froze him in his intent of warning her of the danger.
The father of the victim confessed that his daughter inherited from him her arrogance and snobbery and that he had failed to give her the security device that he had long promised his daughter, because she had already had other incidents of potential danger.
The criminal’s maternal uncle had fired his nephew and gave him the impression that violence is sometimes part of sex; the criminal’s psychotherapist naively believed in his conversion and admitted that she was even infatuated with him. The two families ended up reconciled because both have suffered from the crime and everyone accepts some of the guilt.
In his life as a psychotherapist, Rosenberg gives success of using the NVC philosophy in the area of restorative justice, in a case similar to that of the movie “Dialogues”, he placed face to face a father and the daughter whom he had molested.
Step 1 – Rosenberg begins his mediation by asking the daughter to tell her father how her life was affected by his rape. Without any training in NVC, she accuses her father of what he did:
- How could you do this, you my own father, you have destroyed my life! You should rot in prison.
At this point the process requires that the father empathizes with his daughter. The normal thing is that he apologizes, but in NVC there are no apologies, but a mourning process. When with the help of the facilitator or mediator, the father can empathize with his daughter of her pain, he feels a great sadness.
Step 2 – The father now enters a process of mourning that is far more important than a formal request for apology.
Step 3 – It is then the father’s turn to expose to his daughter what was happening to him at the level of feelings and needs, and how the act was an inadequate and cruel way of seeking the fulfillment of his needs; a selfish satisfaction that only took into account his needs and not those of others.
The objective of this step is to lead the victim to empathize with the perpetrator. It is not easy in this case for the daughter to empathize with her father, but when it does happen the healing is done without needing to ask for forgiveness nor to grant pardon. Empathy, by itself, has the power to heal both the perpetrator and the victim.
Whenever the offender manages to empathise with the victim and the victim manages to empathise with the offender forgiveness is automatic; it goes without saying. On the contrary, if there is no empathy between the parties, the offender may even ask for forgiveness and the victim grant it formally, but since it is not from the heart, it is not real forgiveness. There won’t be healing without true forgiveness and vice versa; both can only happen with empathy.
Fr. Jorge Amaro, IMC
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