Two years ago, when we spoke about the Non-Violent Communication, we addressed these two concepts of justice in an article. We repeat here much of what we said at the time about these concepts because it is not possible to talk about one without also talking about the other. After distinguishing one concept of justice from the other, the aim of this text is to show how restorative justice works in contrast to retributive justice.
As a rule, retributive justice is dual because it admits only two instances: the State and the offender. Among those who are not considered nor found in the process are, firstly, the victim, the person who was assaulted, injured, and secondly, her family. We are not islands, we live in an intimate relationship with our family, therefore when something serious happens to one of the members, everyone suffers in some way out of solidarity.
"One for all, all for one" states the motto of the three Musketeers. In addition to the victim's family, the offender's family is also victimized by him and consequently also suffers, sometimes bearing part of the blame. Finally, we have the community to which the victim belongs with her family and the offender belongs with his.
Comparatively, restorative justice does not separate the individual, be it the victim or the offender, from their family and community environment. The crime takes place within a concrete community, with its social and structural problems. Neither the victim nor the offender parachuted into this world - they are children of families who contributed in some way to what they were at the time of the crime.
Unlike retributive justice, restorative justice is trinitarian or three-dimensional. It puts the victim with her family face-to-face with the offender and his family, within the community to which they all belong. The ultimate purpose is to repair the wrong done, to put an end to the violence. In other words, to reconcile the offender with his own family, with the victim and her family, and finally, with the community within which the offense was committed.
In full contrast to restorative justice, retributive justice does not repair nor restore because it pays someone back in their own coin: it is vindictive, answers back an illegal crime with a legal one, and perpetuates violence. After exercising the legal revenge, the victim feels a certain satisfaction, but does not feel healed or reconciled. The injury does not disappear but turns into a trauma that acts on the survivor’s psyche, as if the crime continues to be committed. Only forgiveness can heal, whereas revenge makes things worse as it turns a wound into a chronic infection. The following story of someone who is held hostage by a past event illustrates this issue well.
A former prisoner of a Nazi concentration camp went to visit a friend who had shared with him the same painful experience. "Have you forgiven the Nazis for all that they did to us?" asked his friend. “No,” was the answer, "l will never forgive them, I still hate them with all my soul." Upon hearing this, the one who asked quietly said, "If that's the case, if you still hate them, then you are still there in the concentration camp, and the Nazis are still holding you prisoner."
Something similar also happens to the offender. At the moment he becomes aware of the wrong he committed, he too will never find peace again, and he will not forgive himself if the victim does not forgive him. The guilt will pursue him all the time, even after serving the sentence prescribed by law. Only the victim's forgiveness will give him health, lead him to reconcile with his past and with himself.
Genesis of retributive justice
Modeled on this aspect of the Babylonian Code of Hammurabi, the Bible recognizes that human acts have inevitable consequences. There is a kind of reciprocation law implicit in the universe that says that people reap what they sow (Galatians 6:7). The basic retributive concepts of guilt, expiation 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 the principle of retributive 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 of the Law.
It would be a mistake, however, to conclude that the concept of retributive justice exhausts or encompasses all the idea of justice in the Bible. Justice in the ancient Israel encompassed everything necessary to create, maintain and restore healthy relationships at the heart of the community.
A criminal act was considered wrong, in the first place, because it violated the relational commitments that the society upheld. And secondly, because the criminal acts themselves could lead to a chain reaction of ruins and disasters if they were not stopped. Already in the Old Testament, but especially in the New, believers were urged 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 blood, 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: the society, the State.
In countries where the death penalty or life imprisonment still exists, the crime that the justice system commits is far worse than the one committed by the criminal, who perhaps acted under the influence of some temporary and volatile strong emotion or passion in a reactive moment, moved, as we know, by his lower reptilian brain more than by his rational neocortex. In comparison, the crime of the criminal system is totally 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 spent by the offender between the pronouncement of the death sentence and his execution.
By carrying out the sentence, allegedly proportional to the crime, the penal system exists to protect 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 have committed petty crimes, compared to people from the upper class who have committed far worse crimes and yet live in freedom.
How does retributive justice work?
Retributive justice is the type of criminal justice that is practiced throughout the world which consists of paying back to a delinquent or offender, through punishment or sentence, the harm done to another person (the victim). This punishment is imposed by a legislator to compensate for the damage inflicted on the victim and, in most cases, the penalty is the deprivation of freedom.
For retributive justice, an offense 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 delinquent, not taking into account the victim who is truly the injured party, or the people indirectly involved, not even the community that has somehow also been harmed.
Again, in retributive justice there exist only two instances: the State that presents itself and assumes at the same time the role of the victim, the legislative, executive and coercive power, and the offender who suffers the consequences of his breach of the law.
The duty of the State is to capture the defendant, charge him, prove his guilt, and apply a sentence appropriate to his crime. The offender’s role is to passively accept and suffer the penalty imposed on him, without a voice in the process. The victim too has no voice in this process, the one who truly suffered the crime, as well as her family, and also the offender’s family and the local community; none of these groups of people exists in the penal system of retributive justice.
The objective of the retributive justice is for the offender to suffer in the flesh the damage he has done to the State; that he is punished according to the seriousness of his act, that the society is protected against him by depriving him the occasion to reoffend, and, finally, that everyone in general, by virtue of this punishment, is deterred from committing that or similar crime. This deterrence was, in fact, the motive behind the Roman crucifixions by 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, the 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 still retaining the image. The sole subject of the Bible is the story of salvation or redemption or, rather, the restoration of the human race to the dignity it once possessed, to the likeness of God.
As we saw in retributive justice, the victim, her family as well as the family of the offender and the local community, all disappear, whereas in restorative justice they gain prominence. In the story of salvation, God is the victim who pledges to do whatever 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 make restitution 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 be a permanent solution; for this very reason, Jesus, in Matthew (5:38-48), repeals and replaces the law of an eye for an eye with a superior system of unconditional forgiveness and love for the enemy, also replacing Lamech’s declaration of extreme violence, by 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 life giving because they only offer negative consequences to offensive acts, and they have no power to change hearts, to heal. Restorative justice heals and cures, because in union with Christ, it has the power to transform 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, continuing to be guided by the Law is counterproductive and can only hurt.
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 has the potential to become bad; the family is supposed to be a place where we feel safe and loved, but it can also be deeply abusive and leave devastating scars. The Religion and the Law by themselves are also good, but, like the family, they can also become abusive. In the gospel, we witness this sort of abuse in the Pharisees whom Jesus repeatedly confronts. Paul was himself a Pharisee until he converted and followed the way of Christ.
In conclusion: retributive justice has always existed; the Law appeared to prevent the escalation of violence. However, as Paul tells us, the Law was only a disciplinarian. God’s definitive plan is 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, 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 resolve problems and in fact, creates others. It fills prisons, creating outcasts and “personas non-grata” in society who, sooner or later, given the opportunity, offend again. The penal system is a system that produces far more pain, suffering, and even violence, than the violence it seeks to combat. Revenge is not justice and the punishment of the offender, however tough it may be, brings no lasting satisfaction to the victim; imposing pain on another person does not make our pain go away, nor does it lessen it.
In restorative justice, crime is any action that causes harm to a person. It is an interpersonal conflict and, more than the breaking of laws, it is a wrong done to the victim and the community at large. If the crime has been committed against the community and a specific person within that community, and not against an abstract entity like the State, it is within the community that the problem must 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 court and in the prison; whereas in restorative justice, the place is in the community center where the offender, his family and friends meet with the victim, along with her family and friends, and other relevant people of the community to which they both belong. Interestingly, in places where the death penalty is carried out, these meetings also take place, when the victim’s next of kin attend 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 the restorative justice process are voluntary, and 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 victim’s recovery and to reintegrate the offender into the society, taking into account the community’s participation and mediation. Dialogues and meetings are used as tools between the parties directly or indirectly involved. In retributive justice, there are only two instances, the State and the offender; in contrast, in restorative justice, there are three instances: the victim, the offender and the community.
THE VICTIM
The State ceases to usurp the victim’s role. The victim returns to the center stage, expresses the pain that the crime caused her, and seeks that the damage be repaired and that the crime does not happen again. The victim, the person who really suffered, was injured and is still in pain, has a voice; the State, on the other hand, was not offended and did not really suffer like the victim because pain cannot be delegated. The victim explains, face to face, how the crime impacted her and shows the damage caused.
The aim is to repair the wrong done, giving the victim a voice that expresses her feelings and needs, leading the offender to recognize the evil that he did and to do something for the victim, so as not to reoffend. The objective is to achieve reconciliation and specify what the offender must do to recompense the victim.
Let us see how the victim’s role works in the context of restorative justice in the following example: a child who smells bad becomes the victim of bullying by his peers at school. In the context of retributive justice, these classmates will be punished, which probably will not solve anything, and after some time, they will do it again or others will do it in their place.
Comparatively, in restorative justice, the bully and his victim, as well as other people from their families and the school, and community leaders, will be summoned to a meeting. The offender learns why his victim smells bad; he is a poor boy, from a slum, and there is no electricity or running water at his home.
The offender and his family will gain a deeper understanding of the problem behind this conflict, and from this meeting the possibility of mobilizing social forces to seek a solution, at the root of the problem, may arise. In the scope of retributive justice, we would not get so far; it does not solve anything and can create more problems, such as increased violence if there has been an exaggeration in the carrying out of punishment.
In restorative justice, the victim is the central figure in the process and not a mere spectator or witness to the prosecution. If she played a leading role in the crime she suffered, she should then be able to assume the leading role in resolving the conflict or in healing the harm that was inflicted on her. In this process, she has the opportunity to reveal her pain, her suffering, the damage done to her; in other words, she achieves validation.
In the meeting between the victim and the offender within the community, the two have the chance of seeing and acknowledging each other as human persons and not just as a victim and an offender. In this human encounter, the crime is seen in a new light by both the offender and the victim. This new light, which is the crime committed by the offender in the context of his life and suffered by the victim in the context of hers, will lead to the psyche and emotional healing of both.
In retributive system, the victim is ignored, her pain and suffering are contained, repressed, and the wound hidden. In contrast, restorative process is therapeutic for the victim, as well as for the offender – the victim has the opportunity to voice her pain, in a protected space, in front of significant people and not curious strangers. She has the opportunity to express her fear, anguish, malaise, suffering and anger, as well as feelings and questions related to the offender.
THE OFFENDER
In restorative process, the offender has the chance to understand the victim, reconcile with her and repair the harm he caused. The defendant learns the real impact of his action, which does not happen in the retributive justice system. Therefore, he is more easily held accountable, something that rarely happens in the retributive system where he tries to deny his culpability, or to escape justice.
The restorative justice process places great hope in the meeting between the victim and the offender. A crime is always an inhuman and dehumanizing encounter between two people because these are superficially out of context. The meeting seeks to place the people in their vital environment with their relationships. Let us look at the following example of how the offender can change in the face of a deeper awareness of his victim and how his crime has negatively impacted the lives of many people.
A young man who kills a taxi driver is tried under the retributive justice system, never gets to know about his victim and his life, he will just be punished and sent to prison, the end of story. Under the restorative justice system, on the other hand, he gets to know the magnitude of his crime: in fact, he killed a husband and a father, who left behind a widow to raise eight children by herself. The clear perception of the suffering that the criminal caused, has an internal effect of transformation because it obligatorily appeals to his compassion, to the humanity that he surely must possess.
Contrary to retributive justice, in which he neither knew the immensity of suffering caused nor was asked to repair the harm done, in restorative justice, he can actively participate in helping to solve the problem his act created and even change his life in this process. Within the scope of retributive justice, he would have taken an adversarial attitude, spending his time in prison wondering what went wrong in the execution of the crime that he idealized as perfect, how he let himself get caught or what he could have done to escape justice.
In restorative justice, the offender has the chance to get to know the victim, to look her in the eyes and understand the full impact of his crime, and to evaluate her in light of the circumstances - both his as the offender, and hers as the victim. He has the opportunity to repent, to reconcile with the victim and with himself, and to repair the harm he caused.
In retributive justice, the crime is a breach of the law, and responsibility is exclusively individual. The leading participants are the offender who broke the law and the State that judges and applies the corresponding punishment. The whole procedure is adversarial, that is, the offender seeks to defend himself and prove his innocence, all the while knowing he is guilty, so that the Prosecutor cannot find any evidence to incriminate him. The entire process takes place outside the community, in an artificial environment, referring to something that happened in the past; the present and the future do not count.
In restorative justice, however, the crime is not a breach of the law, but rather a conflict between two people. The responsibility is not only individual, but also social, because the offender is not an island but lives in relationship with his family and friends, within a concrete community. The leading participants are the victim, the offender and the community, and the methodology followed is by way of dialogue and meeting between people. The aim is to resolve the conflict, ascertain and take responsibility, and repair the damage. The place where this process takes place is in the community centre and not in the courtroom, and takes into account that the human person is not only about the past, but also about the present and the future.
THE COMMUNITY
It accompanies and facilitates the process, and ensures compliance of the conditions agreed upon between the defendant and the victim. In retributive justice, the State usurps the role of the victim and the community. Only the State acts, only the State plays an active role in the solution of the problem. In restorative justice, the problem is resolved where it arose and by those who created it together with those who suffered it. In dialogue between the parties, the community is the mediator in the reconciliation and facilitates the process.
Put in another way, 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 victim, who discloses his pain and harm suffered, the offender, who comes to know the magnitude of his act and undertakes to repair it, and the community, that arbitrates, mediates and facilitates the interaction so that at the end there is healing for both the victim and the offender.
The community is made up of the families of both the victim and the offender, their friends and all those who make up their circles of coexistence because they have all contributed directly to the education of the victim and the offender, and are often, albeit very indirectly, involved in the conflict. In other words, the community is formed by all who share the same geographical space with both the victim and the offender -- work, church, neighbors, service network, doctors and others.
A new social contract
It was said earlier that retributive justice, as we know it, began to work in as early as the 13th century with the social contract which confiscated conflicts by handing them over to the King or the State, who then assumes the role of the victim, the body of the crime being the breaking of a law.
Restorative justice requires a new social contract in which the people, the community, does not give up its right to judge the crimes committed in its midst. In all tribal cultures, there is a council of elders that decides on the conflicts that arise within the community, so that they do not have to reach the courts that are overwhelmed with cases, which makes justice delayed and, consequently, unfair.
Fundamentally, it is about making use of the principle of subsidiarity which is the 14th Amendment to the United States Constitution and one of the rules of the European Union enshrined in Article 5 of the Maastricht Treaty. The Principle of Subsidiarity was not born out of politics; it was modeled on the social doctrine of the Church and appeared for the first time in Pope Pius XI's 1931 encyclical “Quadragesimo Anno”.
This principle basically stipulates that problems should be resolved where they arise, that is, at the local level, by local authorities, and that the State should only intervene when solutions have been exhausted at the local level. Restorative justice which is inspired by the practice of indigenous tribes, in Canada as well as in other countries, is an application of this principle and underlies a new social contract: returning conflicts to the principal participants, within the community where they both live.
"Sexual assault survivors must take the front seat" are the words of Marlee Liss, a victim of rape, whose case we report below. Liss found recovery and healing in the restorative justice process, after experiencing the shortcomings of the conventional retributive criminal system, in which the victim has neither a voice nor a vote on a matter that is entirely hers and no one else's.
The case of Marlee Liss
On November 11, 2019, 24-year-old Marlee Liss gave an interview on CTV News about her organization, Re-Humanize, which she founded to educate people of the benefits of the restorative justice process after having gone through the trauma of being raped and not finding remedy in the retributive criminal justice system.
Liss states that, in her case, the criminal trial process in court was almost as bad and as traumatic as the rape itself. This is what she said:
"It’s so traumatizing to sit on the stand in front of strangers who expressed a morbid curiosity regarding the details of the rape and to be drilled with questions that are so deeply invasive and personal to me. It is a torture that I do not wish on anybody. I felt naked before the inquisitive eyes of so many people and to be met with disbelief and skepticism, and at the end, forcing me to reveal increasingly more intimate details.”
“I think the fact that we’ve equated justice with punishment is a huge disservice to us and I would really like to make [justice] synonymous with healing,” Liss added. In the process of restorative justice, the offender remains free, he is not sent to prison, which leads many people to think that, on the one hand, justice has not been carried out, and on the other hand, it is not safe that the offender goes free because he can reoffend.
To these two questions, Liss answers candidly and definitively, “I doubt that all survivors of sexual assault feel healed by the fact that their abusers were condemned to years in prison.” As we have said before, revenge does not equate to health, nor does it give health. With the incarceration of the offender, the victim feels avenged; however, after this initial feeling of satisfaction has passed, the victim continues to be unwell, and the trauma persists.
To this trauma is added the anxiety about the future, when the offender gets out of prison. Revenge is violent and as such, it incites more violence. The victim took revenge, incarcerating the offender, and the latter, after years of imprisonment, can now consider himself a victim of the unjust system and take revenge on the person he violated or on someone else.
Therefore, regarding the safety of the community from the offender, Liss says that "restorative justice, far from being dangerous, it actually enhances public safety, I think there are many statistics that show that incarceration leads to recidivism, more violence and re-offense." In fact, Liss was a victim of recidivism since her rapist had already served time in prison for a previous rape.
If the restorative justice process is well conducted, especially if the offender can empathize with the victim’s suffering and pain, if he can see her as a person, as one of his sister and not as an object of pleasure and violence, and if he is minimally human, that is, if he does not have any serious psychological deficiencies, then he will certainly feel regret and compassion.
When the victim before the community feels heard and understood in her pain, and when part of that pain is shared by the offender, who is genuinely sorry there in front of her, and willingly offer to compensate for the damage inflicted, the victim experiences healing and a great inner peace, so that forgiving the offender is the most natural thing in the world to her. Furthermore, it is this forgiveness that will make the offender forgive himself, close the case and not be pursued by guilt for the rest of his days.
Marlee Liss, in her restorative justice process, sat down before her rapist who looked her in the eyes and acknowledged his mistake. The moment he took responsibility for what had happened, Marlee says she broke down in tears and experienced a great inner peace. At one point, the offender even stated that he wanted to collaborate to end sexual violence in the world.
The restorative justice process for Marlee Liss took place in Toronto in 2019. The indigenous approach to restorative justice was used as an alternative to Canada’s criminal justice system, focusing on reparation rather than punishment. The process would begin with the offender going through months of therapy to ensure he understood the meaning of consent, accept responsibility for his actions, and be prepared to participate in the upcoming restorative circle where he will face the victim.
The circle was convened at a community center, which Liss called a sanctuary of healing, and was made up of those impacted by the crime. From Liss’ side, there were her mother and sister, her lawyer and herself; from the assailant’s side, his friend and himself; in addition, there were the Crown attorney and two trained, volunteer mediators. The circle process was 8 hours of intensive and extensive dialogue with a happy ending. In contrast, the legal criminal process would have taken many more hours and many more days.
Conclusion – The human encounter and dialogue between the victim and the offender, with the mediation of the community where the crime took place and where a conflict was created, are the only way to heal the past of both, reconciling themselves in the present so that they can look to the future with hope.
Fr. Jorge Amaro, IMC
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