|
Restorative Justice, a way out of the box of
criminal justice.
By Ken Hamilton, MD (April, 2001)
The present situation:
Today, the "box" of criminal justice is retribution, literally
"paying back," beginning with the classical .eye for an eye and
tooth for a tooth. retribution that matched the punishment to the
crime at an individual level involving victim and offender. Over
time, we have changed the object of the payback from the victim to
the state. Virtually every crime hurts an individual or a community,
but we have today made the state the victim instead of its people as
individuals or collections of individuals (communities). In today's
justice system, the injured party only serves the state in its need
for a payback. The perpetrator/offender also serves the state in its
need for a payback. Relatively little good comes from this system,
compared to the harm it perpetrates on its own victims in its need
to punish people for breaking the laws that it writes. A growing
consensus demands restoration of the wound, the hurt, to wholeness.
A new form of justice has begun to appear in our consciousness over
the last 25 years or so; a justice that will first involve the
persons and their communities in the search for answers that restore
relationships and only turns to the state for retribution in
specific cases.
The age of reason, now some 200 years old, has led us to
formularize reality as we seek the truth behind it. When it comes to
the studying the behavior of planets, formulas work, but the
behavior of people cannot be reduced to a formula. Our present
criminal justice system has tried to formularize crimes with
standard punishments administered by the state. Indeed, crime, which
used to be seen as something harmful that happened between people,
became an offense against the state. Punishment, which was once
meted out on a personal basis, has now become the province of the
state. The old personal way of taking an eye for an eye and a tooth
for a tooth to make retribution for the harm changed into making
retribution to the political and legal institution known as the
state. The working metaphor of the institution is "breaking." The
state makes laws that are intended to help its citizens, and these
laws are not meant to be "broken." When a law is "broken," we look
for the person who "broke" it, and figuratively "break" that person
in return. We used to break a person on the rack; we now break them
in prisons.
The institutional system of justice has serious flaws. It claims
to make individuals accountable for their actions by punishing them.
In reality accountability seldom results from the punishments used
today. In treating itself as the injured party, the institution of
the state neglects the personal injuries caused by the crime. It
seeks to punish ("break") the offender by marginalizing that person,
stripping him or her of feelings, and removing his or her
identity... all by incarcerating that person in close association
with others whom it has treated similarly (Zehr, pp 33-44). The
injured parties have no way of recovering their losses through the
institutionalized system of criminal courts. Ironically, the United
States citizenry has turned for retribution to the civil courts and
is having no small measure of success (witness the O. J. Simpson
civil trial and the successes of the Southern Poverty Law Center in
bringing the Ku Klux Klan and other hate groups to their knees).
However, these successes do not restore wounds to wholeness; the
offender remains in the situation out of which the offense came.
Compensation, education, and forgiveness are absent in both the
criminal and civil courts. Accountability and responsibility are
present in both forms of justice, but are qualitatively different,
affected by the presence of absence of guilt and shame. Powerful and
effective community functions of talking circles, dialogue, and
mentoring play no role in courtroom proceedings. The Restorative
Justice movement that began about 25 years ago has been able to
consistently demonstrate remarkable success in using these concepts
and methods in a wide variety of social situations in many areas of
the globe. It has qualities that challenge the thinking of the Age
of Reason, qualities of diversity, holism and integration,
compassion, forgiveness, and love. It is not a cure-all but a
powerful complement to the old system and institution of criminal
and civil law.
I will now develop these various concepts and themes.
State vs. Community:
State: a separate, self-serving institution treating
individuals as if they were all the same
The image of the state goes far back in human history. The
biblical expression, "powers and principalities" applies to the
state and the power we gave it. Individuals have always been
intimately involved with the functions of the state, but individual
strength fades progressively as we evolve through time with the
ultimate degradation of personality in the Russian and Chinese
Communist states. The institution of state is so powerful that
individual citizens have essentially no rights. Even in our country,
which espouses civil rights, there is an ongoing struggle between
the self-centered needs of the state and the individual, often
wildly disparate, needs of the citizens.
Aided by Freud's concept of the super-ego, the state seems to
want to take on a life of its own, regulating and controlling the
misdemeanors and misbehaviors of its population without any attempt
to come to an appreciative understanding of the motivation behind
these actions. Out of this situation one must expect that the state
would take offense at any individual attempt to step outside its box
and challenge its authority. It writes laws and regulations that
give voice to its belief in this power. It creates a system to
assure the working of the laws and regulations. No matter how
evolved the state may claim to be, it still uses ancient methods to
achieve these ends.
It gives special people arms with which they enforce the laws.
Using these arms, they capture individuals suspected of breaking
laws, incarcerate them in special buildings called prisons, and then
take them to a special room, a courtroom, for judging and
sentencing. In these rooms, the judge and sentencer sits behind a
large desk with wall-like properties that is usually elevated to
place the judge's eyes above the eyes of the accused. Everything
that takes place in this room is meant to be objective, impersonal,
and intimidating. The mindset of a courtroom is that someone is
guilty and shame on that person for her or his crime! That shaming
is supposed to be objective as well!
Once judged guilty and sentenced, the offender is taken away to
prison for a proscribed length of time that the system hopes will
change that person, but, as we have seen, it seldom seems to have
much, if any, beneficial effect at all.
Community: a collective of individuals working in
relationship with each other.
The root word for community is common. There are many kinds of
communities, the most common of which is the family. Family dynamics
have been studied and analyzed for years. The "dysfunctional" family
is a well-defined entity. The roles of the members of such a family
have been clearly defined and named. Everyone knows the roles of the
scapegoat, the rescuer, the joker, and the silent one. The
dysfunctional family is a perfect example of human beings working in
close relationship to each other. The relationships are clouded by a
hidden agenda, usually some form of addictive abuse. Nevertheless,
they are there, and make cohabitation possible.
Service organizations and clubs are communities. They are less
intimate than families, but are often effective in supporting
individual members. Some organizations are devoted to supporting
their members through all challenges of life.
Support groups are communities. There is a high level of intimacy
in support groups, sometimes to excess, but commonly in a truly
supportive way.
Towns and clusters of towns are communities. Towns that are well
established for long periods of time are generally very supportive
of their citizenry. They have ways of coming together that help
resolve conflicts and restore harmony in the community.
Tribes of Original People are communities. They generally have
the patience to be able to work together to solve their problems and
overcome their challenges.
People can come together to create communities for short terms
and special reasons. Today, there is a broad interest in our ability
to come together for special reasons in community. Two such
gatherings occur commonly in Restorative Justice: community circles
and dialogue.
In Restorative Justice, communities have responsibilities of
directly confronting the problems of crime and mediating them. Crime
erodes the fabric of community and drains its resources. When a
community chooses to address the root causes of crime, it can take
on the responsibility of determining which causes it can deal with
and how.
Community conferencing:
Originally called "family group conferencing," community
conferencing is a return to an ancient wisdom of the Maori people.
In 1989, the model became the standard way of a New Zealand
community to respond to youthful criminal behavior. The Australians
began to adopt this model in 1991. Canada has now begun to develop
interest in this model that seems to give even greater power or
through dialogue between offender, community, and dictum.
Community circles:
Community conferencing recognized that both victim and offender
needed support and reintegration and that the reconciliation of the
offender depended a great deal on his or her own support circle. The
circles assume that the community must take responsibility for
dealing with crime and that this process of dealing with crime goes
beyond solving isolated criminal problems to actually building
community.
Talking in a circle destroys hierarchy; no one can lead. The
Original People of this continent new the value of gathering in
circles to discuss important affairs. Various forms of ritual became
associated with the circles, e.g. the peace pipe and the talking
stick. By agreement, the natural, ego-directed, human tendency to
crosstalk took second place to spirit that spoke through the
individual who held the pipe or stick. To hold the talking stick
demands responsibility for thought and action because the traditions
are that only that person holding the talking stick may speak. The
other members of the circle share an equal responsibility to
maintain respectful, listening silence.
The process is extremely powerful. Some communities use circles
for sentencing. In these communities, the criminal
justice/Retributive Justice system pays close attention to and
respects the sentences that these community circles hand down. These
sentences tend to keep offenders out of jail and to restore them to
an effective level of function within the community and to restore
the damage resulting from the offender's behavior.
Dialogue:
Going back to the Greek, dialogue means "through gathering or
speaking." As developed by David Bohm, dialogue is a process of
active listening that leads to the greater appreciation of all
participants in the process. This process is similar to the Quaker
practice of a "clearness committee," the purpose of which is to help
an individual address a concern and find the answers within him or
herself. The most profound implication in this process is that of
acknowledging the existence of the unconditional relationship of all
participating parties.
What is Restorative Justice?
Definition:
Restorative Justice is a value-based approach to criminal justice
that strives to repair the damage caused by criminal behavior to the
individual and community victims of crime[1]. It is fundamentally
different from retributive justice, focusing on what needs to be
healed; what needs to be repaid, and the degree to which repayment
is possible; and what needs to be learned in the wake of the crime.
This emphasis elevates the role of crime victims and community
members through more active involvement in the justice process,
holding offenders directly accountable to those who may have harmed,
restoring not only the material but the emotional losses of the
injured, and providing a range of opportunities for dialogue,
negotiation, and problem solving. Restorative Justice offers
offenders the opportunity to develop new skills and to become
integrated into a productive life in the community. It builds
communities and in so doing increases public safety. To achieve
these ends, it maintains a balanced focus on the victim, the
community, and the offender. The practice of Restorative Justice
leads to a greater sense of harmony, peace, and safety in the
community.
The fundamental concern of Restorative Justice is "restoration:"
restoration of victim, offender, all forms of damage, and community.
In this context, restoration is as much if not more concerned with
the future than the past. In this same context, retributive justice
focuses more on what was done in the past rather that what can be
done to create a meaningful future.
Purpose:
Through restorative justice, victims, communities, and offenders
are placed in active roles to work together to... * Empower victims
in their search for closure * Impress upon offenders the real human
impact of their behavior * Promote restitution to victims and
communities (Umbright et al.).
Principles:
Restorative Justice seeks balance between the legitimate needs of
the victim, the community, and the offender. In this way, it
enhances community protection, competency development in the
offender, and direct accountability of the offender to the victim
and victimized community.
Rather than punishing an offender to make his or her act
unacceptable, or looking past that act in order to support the
offender in counseling and treatment, the Restorative Justice
approach sense of the clear message that the act is unacceptable and
that the offender can be supported in a healing practice. This
balance of justice and care create a whole new ethic based on
balance.
Restorative Justice, regardless of the way in which it may be
practiced reflects a belief that justice should, to the greatest
degree possible, do five things: (Sharpe, page 7)
- Invite full participation and consensus through inclusive
dialogue about what happened in the incident and why, and about
what is needed to make things right. Victims must be able to speak
for themselves, not as witnesses for the prosecution. The
offenders must be able to explain their behavior and apologize
for, not stand mute the sake of legal defense. Community members
must say how they have been affected and how they can help, not
just decide whether guilt has been proved.
- Heal what has been broken because crime causes harm to its
victims. The victim's needs must be acknowledged and met. This
means reparation. Everyone affected must be included in the
reparation.
- Seek full and direct accountability. Sentencing, alone, does
not create accountability; it does not bring the offender into a
face-to-face meeting with the victim. Restorative Justice asks
offenders to face those whom they have hurt and hear about the
harm they have caused.
- Reunite what has been divided. Crime separates and divides.
Community is broken, causing its members pain. Reparation
reunites.
- Strengthen the community to prevent further harms. To the
Mohawk, law means "the way to live most nicely together."
Restorative Justice seeks those ways that restore our ability to
live nicely together -- indeed an onerous standard (Patricia
Monture-Okanee).
Historical perspectives:
Restorative Justice as a concept was first introduced in the
journal, Ethics, in 1977 by R. Barnett. He used it to refer to
certain principles that could be found in American experiments that
used mediation between victims and offenders. The idea caught on
because many in the field of criminal justice or expressing deep
frustrations with the traditional methods of criminal justice. These
people, practitioners all, took the concepts and created a practical
experience out of it. Out of this experience in turn have come
further developments of the concepts of Restorative Justice. In
other words, Restorative Justice is experience-based rather than
theory-based. In this respect it follows the precedent of the system
of instrument flight rules that the Federal Aviation Administration
uses to move blind aircraft and crews through the weather systems of
our nation and land them safely... imagine what it would be like if
the system had been dreamed up by a bureaucrat sitting at a desk! In
Restorative Justice, people are using their minds and their hearts
to effective profound changes in the criminal justice system.
Because of the apparent revolutionary nature of its approach to
justice, there are those who would like to make Restorative Justice
a separate system. Most seem to fear that the retributive justice
system would undermine and subvert Restorative Justice's aims and
purposes. However, most practitioners and developers of the whole
field see that the two systems must work together because they
complement each other and are necessary approaches to the management
of crime.
Objectives:
- To attend to the needs of the victim: financial, material,
social, and emotional.
- To facilitate dialogue among all persons and communities
involved.
- To prevent offenders from becoming repeat offenders by
reintegrating them into the community
- To encourage, permit, and enable offenders to assume active
responsibility for their actions.
- To empower the community to come together supporting the
healing of victims' wounds, rehabilitating offenders, and
preventing crime.
- To provide a means of avoiding escalation of legal justice and
the associated costs and delays. (Marshall)
Assumptions:
- Crime has its origins in social conditions and relationships
in the community.
- Crime prevention is dependent on communities taking some
responsibility for correcting those conditions that cause crime.
- The aftermath of crime cannot be fully resolved for all
parties without allowing them to become personally involved.
- Justice measures must be flexible enough to be able to respond
to the unique, particular human circumstances at work in each
case.
- Partnership and sharing objectives among justice agencies
themselves and between them and the community they serve are
essential to Restorative Justice's success.
- Justice consists of a balanced approach in which a single
objective is not allowed to dominate the others.
- Restorative Justice, by its own design, can not be expected to
completely replace retributive justice. (Marshall)
Prevalence:
Restorative Justice policies and programs can be found in almost
every state and in numerous European countries, South Africa,
Australia, and New Zealand. Currently, hundreds of programs exist in
the United States and in Europe.
Pitfalls:
- Widening the Criminal Net: Restorative Justice has the
potential to bring more people into the criminal justice system
rather than keeping them out. It could preoccupy itself with cases
that would likely not be in the system at all because restorative
practices are appropriate to cases in which courtroom proceedings
are not. The practice must be expanded without widening the
criminal net. To avoid this pitfall, Restorative Justice must be
held in the same light as other conflict resolution or
community-building practices. It is also inappropriate to assume
the Restorative Justice applies only to minor cases.
- Shaming the offender must come from an inner choice of the
offender to be accountable and not from the outside, which would
have the same effect as a group of citizens choosing to stone an
adulteress to death. Restorative Justice should not stigmatize an
individual; this is disintegrative shaming -- and effective
banishment. Shaming fosters recidivism, marginalizes offenders and
distances them from victims, and it drives them away from the
community into the criminal subculture.
- Domination by professionals: Though professional expertise can
at times improve understanding, the professional is at risk of
becoming an authority to and for whom the community abrogates its
responsibility of authority. Professionals are prone to dominate a
process that lies in their field of expertise. Professionals must
assume roles of facilitators, not experts.
- Routinization is a natural tendency in any repetitive
function. Restorative Justice is not free of that risk.
Facilitators are at risk of the tendency to anticipate a given
result. This places them at risk of superficial responses to
situations that might contain truly beneficial creative choices.
- Overreaching the skill base: Stretching in striving is good
for programs, but situations in Restorative Justice may lead to
overextension. Premature offerings are risky as are any steps that
increase the range of service or add special projects without
increasing resources of support. The risk of taking on cases that
require more specialization of knowledge and skill that is
available is always real.
- Sustaining Injustice -- the enemy within: A program can
provide uneven access to Restorative Justice by limiting the type
of cases with which it works, limiting itself to special
geographical or ethnic areas, or excluding clients who require
extra time and energy. It may discriminate against participants by
choosing vocabulary and procedures that are more comfortable to
one or the other party. It may get into a type of vigilantism of
that finds "justice" for a specific criminal incident while
ignoring the injustices that may have helped create it.
Limitations:
Restorative Justice depends entirely upon voluntary cooperation
of all parties involved. Clearly, should this not take place, the
case must be remanded to the more traditional system of justice.
Communities are not as uniform and integrated as they once were so
their resources and skills may be more sorely tested by the burden
imposed by Restorative Justice, but once people begin to perceive
the effectiveness of Restorative Justice both socially and
economically, it is certain that any community will be willing to
commit more resources to Restorative Justice. Finally, social
injustice and inequality in and between communities create
significant challenges to Restorative Justice's effectiveness.
However, these are challenges, and it is in the nature of human
beings to overcome them. Carefully expressed concerns for
Restorative Justice's effectiveness in capital crimes and adult
felony crimes point at another limitation, but even there the
methodology has proven effective. Because of the strictness of its
standards, Restorative Justice today certainly has a lower incidence
of application in these crime areas. Who can tell what the future
holds here?
Results:
Early studies have showed in many locations that victims would
like to have the opportunity to meet their offender. Over 80 percent
of the victims look back on the meeting experience as well
worthwhile. There is a greater than 75 percent level of victim
satisfaction with mediation of all kinds. Because of mediation,
victims tend to feel less angry and fearful, feel personally
vindicated, and experience a degree of emotional healing. They also
come to appreciate that the offender has not been left off to
lightly.
In two significant studies, victims who took part in mediation
were only half as likely to fear re-victimization as those not doing
so. Other studies show that where reparation is decided on in the
Restorative Justice process the completion rate for reparation is
very high, ranging from 70 to 100 percent, compared to completion of
court-mandated reparation, which is effective only from 40 to 60
percent of the time.
Restorative Justice affects the rate of recidivism positively,
especially in first-time convictions. Offenders claimed that the
meetings with the community and the victim considerably affected
them. They said that this was harder than going to court and,
paradoxically, they also felt more positive about themselves for
having participated in the Restorative Justice process. Concerns
persist about the effectiveness of Restorative Justice when
offenders return to the environment out of which the harm arose. It
is my sense that the more a community is involved in the Restorative
Justice process, the more likely it is to begin to design physical
environments and nurture social environments that support healthy
behavior. This is an holistic aspect of Restorative Justice that I
found scattered throughout my readings, and one that can probably
not be well measured today.
Restorative Justice is cost-effective. With costs approaching
$40,000 a year for each prison inmate in this country, it is hard to
imagine that Restorative Justice would not be cost-effective. An
audit of Restorative Justice mediation in England showed that each
case cost less than 10 percent of the cost of prosecution in the
traditional courts.
Examples:
The oldest and most widely developed forms of Restorative Justice
comprise victim offender mediation and dialogue programs. Other
examples of Restorative Justice include: crime repair crews, victim
intervention programs, family group conferencing, victim offender
mediation and dialogue, peacemaking circles, victim panels speaking
to offenders, sentencing circles, community reparative boards,
offender competency development programs, victim empathy classes for
offenders, victim directed and citizen involved community service by
the offender, community-based support groups for crime victims, and
community-based support groups for offenders.many names, a few basic
principles.
Three words crop up again and again: community, victim, and
offender. A fundamental universal concept ties them together: all
three are caught up in the travails of life as individuals in
relationship with each other. The concept has two subsets: the
travails are simply lessons to be learned, and compassion transforms
judgment into forgiveness.
The need for confession:
For Restorative Justice to work at all, the offender must confess
to having caused the harm, for the next step in the process is to
bring the aggrieved party together with the offender. If the
offender has not accepted the fact that he or she harmed the other,
no dialogue can ever ensue. Restorative Justice only works through
dialogue.
If a person confesses to doing harm in the retributive justice
system, then punishment must follow. In the Restorative Justice
system, punishment is not the end result of the process, so
confession is the opening to restoration of normal human
relationships and correction of the harm.
Examining behavior:
In the Restrictive Justice system, the offender, as an
individual, is under judgment. In the Restorative Justice system,
the offender's behavior is under examination, and the offender is a
human being who is perceived as having made a mistake in behavior
rather than having a deficiency of personality.
Examples of this approach to helping people solve their problems
prevail in many fields of interaction and relationship in our
country today. As a matter of fact, the emphasis is on helping
people go into themselves for the answers to their problems,
trusting that they have them. Quakers have conducted their pastoral
affairs in this way for over 300 years. Original People have even
older experiences with this belief system, but such belief does not
belong to the Age of Reason or the mechanical problem solving that
came out of the Age of Reason. Mechanical problem solving is an
excellent way of dealing with most medical emergencies, but it
begins to lose its effectiveness in chronic illnesses. More and
more, those of us in the health professions are finding that the
chronic problems respond better to relationships that explore those
qualities and aspects of life that provide meaning to life. Such
explorations help people find insights that reveal mistakes in their
belief systems and provide encouragement for learning the lessons
implied in the mistakes.
Indeed, what is at stake here is our ability to change an old
belief that we are inherently flawed into a belief that we have the
inherent ability to stride toward perfection and that every mistake
is a lesson that helps us find perfection. We are at the threshold
of a change in consciousness marked by a willingness to be in
unconditional, positive, passionate, and forgiving relationships
with each other
Marginalizing and Recidivism:
Everybody wants to be "normal." After all, we know that to be
normal is to belong to a very large percentage of any given
population. The frequencies of any quality of a population follow
(mathematically) a Gaussian distribution looking like a bell when
laid out on a graph. What Carl Friedrich Gauss called "normal" was
the central seventy-four percent of the population, leaving 13
percent at either side representing those who one the one hand had
virtually all of the qualities and those who on the other had
virtually none of the qualities. These two groups are at the margins
of the population and it is the classical tendency to look askance
at the members of the margins and to judge them as being deficient
or abnormal. In old ways of thinking, society looked at qualities in
the margins and placed an individual who exhibited these qualities
in the margin with them. Criminal behavior was clearly marginal and
so was the individual who caused it. Recidivism comes from an old
Latin route that means a falling back. Released felons tend to fall
back into prison at an extraordinary rate. For many years now, the
rate of recidivism has been close to 80 percent for all felonies.
The term "revolving door" has been commonly used to describe the
criminal justice system. But a lot of effort has been put into
rehabilitating prisoners in present and preparing them for their
ultimate release at the end of the prison term. However, the
ex-convict returns to the environment that nurtured the crime in the
first place. That nurturance can't help but stimulate the growth of
the same noxious weed.
The environment of which I speak is the environment of
marginalized people. The marginalizing starts early in life because
the individual has been judged inadequate by his or her immediate
community. Virtually all roles in the so-called dysfunctional family
are pejorative labels that marginalized people. Everyone wants to be
loved, so a marginalized person will scoot around the margins of
society looking for other marginalized people with whom she or he
can identify and receive love. Consider this in the relationship of
a prostitute to a pimp, the relationships of IV heroin users, the
structure of neo-Nazi communities, hate groups of other kinds like
the Ku Klux Klan, and last but not least, the populations of our
prisons.
All of these communities have cult-like features-- extremely
rigid hierarchical structures. Pimps dominate prostitutes; drug
dealers dominate drug users; Hitlers rule neo-Nazi communities; the
Ku Klux Klan creates feudal hierarchies, and every prison has its
"boss con.. Cults do not like their members to leave, so they create
enticements that attract and threats that restrict in order to keep
their members and keep them in line. Any repetition of the
marginalized behavior that drew the individual to be cult in the
first place is respected and encouraged by the cult. The challenge
is clearly one of how to break the rule of hierarchy that identifies
a cult. Part of the answer lies in rehabilitation.
Rehabilitation:
The Latin root of rehabilitation means to enable again. To
rehabilitate a criminal is certainly not to make it possible for him
or her through repeat the injury; rather it is to enable an older
practice within the individual. This implies a spiritual quality,
for the older practice may have been put aside in early childhood
due to childhood traumas. Nature abhors a vacuum, so if we want to
stop the harmful behavior, we must find one that satisfactorily
replaces it. As the Tibetan Buddhist nun, Pema Chödrön, puts it:
"First, do no harm. Second, do some good; benefit someone."
A story:
The following appeared on the morning news of Wednesday, Feb. 7th
2001: About three years previously, an American Native in Florida
drove his SUV into a deep swamp. He got out but his two sons did
not. He was in an estranged relationship with the boys' mother; it
was night; he said that he "missed a turn;" and he claimed that he
did not know that the two boys were in the car. In the three years
that elapsed since this tragic incident took place, the State of
Florida built a case for murder and they wanted to send this man to
prison. In the meantime, the tribal community came together in their
traditional ways of resolving such problems, and told the state to
drop their case because they, the tribal community, had forgiven
him, and appropriate corrective measures were in place. The state,
bound by the laws of retributive justice, refused to accede to
tribal, restorative justice customs.
It is still not clear (on May 18, 2001) how the Florida Bush is
going to respond to this one. As our awareness of the effectiveness
of the tribal customs grows, how deeply will the old institution dig
in its heels in the face of the wisdom of an even older institution?
How deeply will punishment-thinking dig in its heels in the face of
forgiveness-thinking? Restorative Justice today turns to the older
institutions for their wisdom and experience with this kind of
justice and for their understanding and appreciation of the meaning
of forgiveness.
Forgiveness:
The practice of forgiveness is ancient. It is implied in Buddhism
and frankly applied in Christianity. However, it remains a conundrum
because of implications of condoning harmful behavior. Indeed, one
of the meanings of forgiveness is to excuse or pardon. However,
another meaning of forgiveness is to renounce anger or resentment
against someone or something. In any case, forgiveness is not
possible without judgment coming before it. Its deepest meaning is
to let go of judgment.
The physiologic effects of forgiveness have been measured and
found to be beneficial. When a subject even thinks of a harm done to
him or her, the stress response factors build up in the body.
Nursing a grudge against the offender aggravates the stress response
and empathizing with the offender by the use of a simple phrase that
wishes that person "well" produced a significant reduction in the
stress response. Furthermore, the empathizing effect of forgiveness
gave the subjects a sense of greater control, power, well-being, and
resolution.
I think it is appropriate to consider that forgiveness is the key
to the difference between Restorative Justice and Retributive
Justice. In the example I give above the potential for conflict
between the two forms of justice is clear. The irony is that those
who would practice forgiveness do not see themselves in conflict
with those who practice judgment. The reverse is not true, nor is it
likely to be.
Forgiveness is never easy. The physiologic change that I referred
to above causes a flood of challenging feelings. Old habits die
hard, and this flood can seem overwhelming. In the face of the flood
one may choose to return to the old pattern of retributive justice.
Obviously, the work requires trained facilitators. A lot of this
work takes place throughout this country and many other places in
the world today, and there is an excellent body of experience in
training facilitators in the process. The facilitation required by
this process is qualitatively no different than most other kinds of
facilitation. Quantitatively, however, the demands can be far more
challenging, especially when a one considers that the process must
bring offender and victim together and that the two may come from
markedly different ethnic backgrounds with widely varying non-verbal
means of communication.
Summary:
Restorative Justice is not "new." It is a form of justice that
has been used in certain old societies that have been put down by
societies that consider themselves "more advanced." The advancement
of which we are so proud began around 200 years ago with the
revolution in thinking that we call today the Age of Reason. Reason
attempted to make the universe and objective phenomenon. Its tools
are analysis and logic. Living systems defy logic. They suffer from
analysis because they are, by nature, whole.they are the result of
synthesis.
The modern criminal justice system is an example of rationalism
and objectivism. Newtonian physics is an example of rationalism and
objectivism. When quantum physics opened new vistas in science, the
old rules did not work any longer. They created two problems for
every question they answered. The present system of justice seems to
be in the same quandary. Out of the confusion of a plethora of laws,
courtroom conduct, and sentencing rules that deny the victim a
restoration of healing, we have become aware that we must return to
the subjective immeasurables of compassion, forgiveness, and
community and bring victim and offender together in a safe community
of people that nurtures their relationship and fosters the healing
of the wounds of both.
Restorative Justice has caught on slowly and steadily. It is an
experience-based, value-based system of restoring human
relationships. It works human-to-human. It recognizes the need for
judge-jury-accused relationships. It offers a cost-effective way of
resolving a significant number of cases that fill our courts today.
The results of Restorative Justice are consistently better than the
results of retributive justice. It has limited application in
capital crimes and in cases of repeat offenders. A significant
effect of Restorative Justice may be that of having a favorable
impact on the incidence of capital crimes and recidivism. That
remains to be seen. Time will tell whether the last 25 years of
experience will last another century or not.
Acknowledgments and References:
I would like to acknowledge my various sources for learning about
Restorative Justice (Restorative Justice). The Maine Council of
Churches (Maine Council of
Churches), directed by Tom Ewell and his extremely competent and
passionately committed staff person, Suzanne Rudalevige introduced
me to the topic. Suzanne loaned me a copy of Suzanne Sharpe's
Restorative Justice: A Vision for Healing and Change, published by
the Edmonton Victim Offender Mediation Society in 1998, and that led
to me to a Web search where I found the work of Gordon Bazemore of
Florida Atlantic University and his colleague, Mark S. Umbreit,
Ph.D., of the University of Minnesota School of Social Work (http://ssw.che.umn.edu/rjp);
Tony F. Marshall (http://ssw.che.umn.edu/ctr4rjm);
Howard Zehr and Harry Mika of the Mennonite Central Committee (http://www.mennonitecc.ca/whatsnew/fp/fp004/index.html),
and programs of the Office of Juvenile Justice and Delinquency
Prevention. These resources have introduced me to twenty or more
other individuals and organizations working with Restorative
Justice. As it is a relatively new field, a great deal of the
references to it is on the World Wide Web accessed through such
search engines as www.yahoo.com, searching for "restorative
justice".
Reference: Zehr, H. Changing Lenses. Waterloo (Ont.): Herald
Press, 1995
|
-------Original
Message-------
Date:
Tuesday, November 05, 2002 09:33:24
Subject:
More Questions for Tony Brown
Tony:
When I asked where the values you
are promoting come from, you replied, "The values of
restorative justice can be found in most of the major
religions and traditions of the world including: Native
American practices; Buddhism; Chinese Culture; Christianity;
Hinduism; Islam; Judahism and Sikhism."
In your most recent post, you
state, "Some of the identified values of restorative justice
to date have been: reparation, restitution, accountability,
blanced focus on victim and offender; comptency development,
apologies, forgiveness, restoration, reconciliation,
reintegration into the community for victims and offenders;
spirituality, peace, justice, cultural diversity, equity,
mercy, atonement, inclusion and love. Many of these values are
in the eye of the beholder. Some are more defined than others.
Several are difficult to measure, yet are infinetly more
related to the new paradigm of resotrative justice than are
tools that measure retribution and criminal
justice."
So what we have here is more
relativism. Since there is no standard, justice is
whatever you say it is, and who is to say it isn't? But why
that standard, and not another one?
By the way, Tom, it really was me
who wrote that post.
Cheers,
Gregory C. Dickison
Lawyer
& Counselor at Law
Post Office Box 8846
312 South
Main Street
Moscow, Idaho 83843
(208)
882-4009
|
---------- |
