Reframing Justice

By Howard Zehr

Editor’s Note: Dr. Zehr is the 2006 Recipient of the Community of Christ International Peace Award and keynote speaker at this year’s Peace Colloquy. He has prepared this primer on restorative justice for KC Olive Branch.

“A revolution is occurring in criminal justice. A quiet, grassroots, seemingly unobtrusive, but truly revolutionary movement is changing the nature, the very fabric of our work.” These were the opening words in a publication of the National Institute of Corrections some years ago. Characterizing the combined community and restorative justice movements, author Eduardo Barajas, Jr., a program specialist for the NIC, went on to observe that the changes extend beyond most reforms in the history of criminal justice: “What is occurring now is more than innovative, it is truly inventive, … a ‘paradigm shift’.”

Today restorative justice is even more widely known that it was when Barajas wrote these words. But is it another passing fancy in a field known for its many fads?

The restorative justice movement has come a long way since probation officer Mark Yantzi and co-worker Dave Worth first pushed two shaking offenders toward their victims’ homes in Elmira, Ontario, in 1974. Who could have imagined, when we began our version of victim/offender mediation in Elkhart, Indiana, several years later, that we were at the vanguard of a movement with the potential to revolutionize justice?

Today’s interest at the national level follows three decades of innovation and experimentation on community and state levels. Victim/offender conferencing programs have sprung up in hundreds U.S. and Canadian communities. Peacemaking circles, first introduced into the field by Native American and Canadian communities, are finding application in many communities and situations not only as a way to respond to crime but as an approach to addressing conflict and solving problems. Increasing numbers of states offer victim-offender dialogue programs in cases of severe violence. And the field has expanded far beyond the area of crime; many schools, for example, have implemented restorative disciplinary and problem-solving approaches, some churches have applied restorative processes for issues such as clergy abuse and restorative justice is informing efforts at “transitional justice” in societal-level conflict and wrongdoing.

This interest in restorative justice is certainly not limited to North America. Many programs have developed in European countries; Germany and Finland, England, Ukraine and Russia are just a few examples. In New Zealand restorative justice has served to guide and help shape the family group conference approach which is now the bases of their entire juvenile justice system. Later adapted in Australia as well, family or “community” group conferencing is now attracting considerable attention here in North America. On a recent speaking tour in Japan, I found a substantial dialogue occurring and pilot projects operating as well.

As Barajas’ observation above implies, genuine restorative justice is not a matter of adding some new programs or tinkering with old ones. Instead, restorative justice involves a reorientation of how we think about crime and justice, about wrongdoing in general. The problem with past reform efforts – which have so often gone astray – is that they have not challenged us to look at our problems and our solutions through a new “lens.”

The Bible is often cited to justify our usual lens for viewing justice: “an eye for an eye, a tooth for a tooth,” sayeth the Lord. But there is more to “an eye for an eye” than meets the eye. It was not intended as a command to do vengeance, but as limitation on vengeance: “Do this much, but only this much.” Moreover, it was not the governing principle of the Old Testament. In fact, the phrase only occurs three times there. Then, in the New Testament, Christ specifically rejects this theme: “You have heard it said, ‘an eye for an eye,’… but I tell you, love your enemy.” So the Bible actually points toward a different “lens” than is normal in our society.

An important clue to Old Testament justice is found in how God responds to wrongdoing. When confronted by sin, God is described as full of wrath, with words that connote heat, heavy breathing; like crime victims, God is understood to be angry. But the real story is that in spite of this wrongdoing, and in spite of the resulting anger, God never gives up. A place is recognized for anger in the face of wrongdoing, but God does not remain there: God moves through wrath to restoration. Restoration, not retribution, is the primary theme of biblical justice.

The key is in God’s intent for God’s people, captured in the word “shalom.” Shalom means peace, but much more than what we normally mean by peace. It means people living in right relationship with one another, their Creator and the creation. The essence of wrongdoing is that it upsets shalom, making right relationships impossible. Crime, in the biblical view, is a wound that needs healing. That is why restitution, making things right, is found so often there. In fact, the word for making things right is the root word for shalom.

Christ’s focus on forgiveness, restoration and reconciliation rather than retribution is thus quite logical, and not a rejection of the overall thrust of the Old Testament.

Clarence Jordon of the Koinonia community in Georgia has pointed out that throughout the Bible is a kind of progression, an unfolding of understanding. It begins, in Genesis, with recognition that unlimited retaliation is a normal response to wrongdoing: the “law of Lemach,” it is called, and in Genesis is graphically characterized as “70×7” – almost without end. But very soon revenge is limited: an eye for an eye ONLY, the Israelites are told. Following that comes another limitation: love your kind, your people.

Christ pursues this direction. Love not only your kind but your enemy, he says; do good to those who harm you. Instead of unlimited retaliation or even limited retaliation, he calls for unlimited love – and it is no accident, perhaps, that he graphically calls for forgiveness to 70×7.

The biblical view suggests a way of viewing crime which is closer to the way we actually experience it. Crime is a violation of people and of their relationships. Justice, then, ought to seek first of all to repair, to make right.

Restorative justice actually has roots in many cultural and religious traditions. However, the formulation of restorative justice that is getting so much attention today looks remarkably like the biblical view. It might be boiled down two fundamental ideas: restorative justice is harm-focused and it promotes the engagement of an enlarged set of stakeholders. Most of restorative justice can be seen as following from these two concepts.

Restorative justice views crime and wrongdoing in general first of all as harm done to people and communities. Our legal system, with its focus on rules and laws, often loses sight of this reality, i.e. that crime is essentially harm; consequently, it makes victims at best a secondary concern of justice. A harm focus, however, implies a central concern for victims’ needs and roles. Restorative justice, then, begins with a concern for victims and how to meet their needs, for repairing the harm as much as possible, both concretely and symbolically.

A focus on harm also implies an emphasis on offender accountability and responsibility – in concrete, not abstract, terms. Too often we have thought of accountability as punishment, pain administered to offenders for the pain they have caused. This has very little to do with real accountability. Little in the justice process encourages offenders to understand the consequences of their actions or to empathize with victims. On the contrary, the adversarial game requires offenders to look out for themselves. Offenders are discouraged from acknowledging their responsibility and are given little opportunity to act on this responsibility in concrete ways. The “neutralizing strategies” – the stereotypes and rationalizations that offenders use to distance themselves from the people they hurt – are never challenged. So the sense of alienation from society felt by many offenders is only heightened by the legal process and the prison experience.

If crime is essentially about harm, accountability means being encouraged to understand that harm, to begin to comprehend the consequences of one’s behavior. Moreover, it means taking responsibility to make things right in so far as possible, both concretely and symbolically. As our foreparents knew well, wrongs create obligations; taking responsibility for those obligations is the beginning of genuine accountability. But offenders also need support for carrying out their obligations, and they have needs that must be met as well.

The principle of engagement suggests that the primary parties affected by crime – victims, offenders, members of the community – are given significant roles in the justice process. They need to be given information about each other and to be involved in deciding what justice in this case requires. In some cases, this may mean actual dialogue between these parties, as happens in victim/offender mediation or family group conferences, to come to a consensus about what should be done. In others it may involve indirect exchange or the use of surrogates. In any case, engagement implies involvement of an enlarged circle of parties as compared to the traditional justice process.

At the risk of oversimplifying, the restorative justice and the usual traditional justice approach (for the sake of alliteration, it might be called retributive justice although that characterization is not totally fair) might be summarized like this:

 

Retributive Justice

Crime

is a violation of the law,

and the state is the victim.

The aim of justice

is to establish blame (guilt)

and administer pain (punishment).

The process of justice

is a conflict between adversaries

in which offender is pitted against state

rules and intentions outweigh outcomes

and one side wins while the other loses.

 

Restorative Justice

Crime

is a violation or harm to people and relationships.

The aim of justice

is to identify obligations,

to meet needs and to promote healing.

The process of justice

involves victims, offenders and community in an effort to identify obligations and solutions,

maximizing the exchange of information (dialogue, mutual agreement) between them.

 

To put restorative justice in its simplest form: Crime violates people. Violations always create obligations. Justice should involve victims, offenders and community members in a search to identify needs and obligations so that things can be made right so far as possible.

Restorative justice is a term which intuitively connects for many people and therein lies both its strength and weakness. Many professionals as well as lay people are frustrated with justice as it is commonly practiced and are immediately attracted to the idea of restoration. “Restorative justice” intuitively suggests a reparative, person-centered, common sense approach. For many of us, it reflects values with which we were raised. As a result, the term has been widely embraced and used, in many contexts.

But what do we mean by the term? Will it be used simply as a new way to name and justify the same old programs and goals? There are many programs – such as community service – which can be compatible with restorative justice if they are reshaped to fully account for restorative principles. Will we take the effort to do the re-examination necessary, or will we simply give the new jazzy title to the same old thing?

Already we are seeing programs which are not truly grounded in restorative justice but operating with that name. When they are unsuccessful, they may give restorative justice a bad name.

Restorative justice will be simply one more in a long line of fads if we do not think carefully about its principles and their interrelationship. This means attention to values. The following “restorative justice signposts” are intended to serve as a check list:

 

RESTORATIVE JUSTICE SIGNPOSTS

We are working toward restorative justice when we …

I. … focus on the harms of wrongdoing more than the rules that have been broken,

II. … show equal concern and commitment to victims and offenders, involving both in the process of justice,

III. … work toward the restoration of victims, empowering them and responding to their needs as they see them,

IV. … support offenders while encouraging them to understand, accept and carry out their obligations,

V. … recognize that while obligations may be difficult for offenders, they should not be intended as harms and they must be achievable,

VI. … provide opportunities for dialogue, direct or indirect, between victims and offenders as appropriate,

VII. … involve and empower the affected community through the justice process, and increase its capacity to recognize and respond to community bases of crime.

VIII. … encourage collaboration and reintegration rather than coercion and isolation,

IX. … give attention to the unintended consequences of our actions and programs,

X. … show respect to all parties including victims, offenders, justice colleagues.

-Harry Mika and Howard

 

All this is not to say that there is such a thing as “pure” restorative or retributive justice; in fact, the term “retributive” may be somewhat unfortunate.* Rather, justice may be seen as a continuum between two “ideal types.” On the one end is our western legal system. Its strengths – such as the encouragement of due process and human rights – are substantial. Yet it has important weaknesses. Criminal justice tends to be punitive, conflictual, impersonal and state-centered. It encourages the denial of responsibility and empathy on the part of offenders. It leaves victims out, ignoring their needs. Instead of discouraging wrongdoing, it often encourages it. It exacerbates rather than heals wounds.

At the other end is the restorative alternative. Victims’ needs and rights are central, not peripheral. Offenders are encouraged to understand the harm they have caused and to take responsibility for it. Dialogue – direct or indirect – is encouraged and communities play important roles. Restorative justice assumes that justice can and should promote healing, both individual and societal.

Criminal justice is usually not purely retributive. On the other hand, we will achieve justice that is fully restorative. A realistic goal, however, is to move as far as we can – and it will vary with each program and case – toward a process that puts victims and offenders – their needs, their roles – at the center of our search for a justice that heals.

Perhaps in the long run we can change the criminal justice system so that it will be more restorative. Whether that happens or not, however, each of us can, in communities, in our workplaces, in our personal lives begin to think and act more restoratively.

Two stories illustrate what I mean. This year I was asked to facilitate a circle at the wedding of one of my students. As we went around the circle, speaking to the bride and groom, another of my former students offered this advice: “I wish for you a restorative marriage. This simply means that when we do something wrong, we acknowledge it and work to make it right.” That’s it, I thought, in a nutshell.

Last spring I took my graduate class to visit a group of women lifers who have been together studying and discussing restorative justice and how it applies to their lives and situations. We were moved to find that they were using a simple phrase to support and hold each other accountable. They would simply ask, “Is that the RJ way?”

If restorative justice as a movement does nothing more than encourage us to ask that question – what is the restorative way? – then it will have been worthwhile.

 

Criminal Justice

What laws have been broken?

Who done it?

What do they deserve?

 

Restorative Justice

Who has been hurt by this event?

What are their needs?

What are the obligations, and whose are they?

 

* In The Little Book of Restorative Justice (Intercourse, PA: Good Books, 2002.) I briefly explore misunderstandings caused by characterizing the philosophy underlying the legal system as “retributive” and contrasting it sharply to restorative justice.

 

For more information, see The Little Books of Justice and Peacebuilding published by Good Books at $4.95 each (http://www.goodbks.com). These include:

The Little Book of Restorative Justice (Zehr)

The Little Book of Biblical Justice (Marshall)

The Little Book of Family Group Conferencing, New Zealand Style (MacRae & Zehr)

The Little Book of Circle Processes (Pranis)

The Little Book of Restorative Discipline for Schools (Amstutz & Mullet)

The Little Book of Restorative Justice for People in Prison (Toews)

Return to www.kcolivebranch.org

 

 

 

 

 

 

 

 

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