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Contents © 1997
by Jim Holman.
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Restoration or Retribution?

AN ALTERNATIVE TO OUR JUSTICE SYSTEM

By Christopher Zehnder

How do we protect ourselves from crime? Many are the suggestions, from an extra dead-bolt on the front door to elaborate alarm systems, to mace, to concealed weapons. Yet, since these only stop criminals and not limit their number, we look to the law. Construction of ever more prisons, enactment of more stringent laws and enforcement of the death penalty become our salvation. But do theses really address the problem? Are they truly the right responses?

There are those who say they are not-- Christians of various denominations, and Catholics, who offer what they deem a more biblically based and more effective way of dealing with crime--what they call "restorative justice."

Jerry D. Hill is Arizona and California Field Director for Justice Fellowship, an organization which seeks to introduce concepts of restorative justice into California State law. Justice Fellowship, says Hill, "is a national criminal justice organization promoting biblically-based principles of restorative justice. We are a policy development branch of Chuck Colson's Prison Fellowship Ministries." Justice Fellowship has sponsored a bill based on the concepts of restorative justice, now on Governor Wilson's desk, that would establish a three-county pilot project for non-violent juvenile offender.

Hill says that restorative justice differs from our current system of justice in that the latter "is a retributive or just-deserts based system that moves rapidly to an emphasis only on punishment. The punishment of choice is incarceration in jails and prisons. Restorative justice looks at the fact that crime injures victims and their families, offenders and their families, and communities."

The principles of restorative justice, says Hill, "are God's guidance for us in responding to those things which break relationships--and crime breaks relationships among individuals, families and communities. Restorative justice is concerned about the injuries and harm that crime causes these parties. The focus, rather than just punishing the offender, should be on how can those injuries and harm can be repaired, how can the broken relationships be restored? The victims, the offender, and the community should be involved as participants in the justice process. In our current retributive system victims and the community are excluded from the system. Victims sometimes are nothing more than just a piece of evidence in the case, and the community's only involvement is in being called as a juror. When victims describe how the system served them, the most common response is that they were victimized a second time."

Hill serves on the Citizens Advisory Committee for the California State Prison, Solano, and the California Medical Facility in Vacaville, and from 1962-1989 worked as a chief probation officer in Madeira, Solano and San Bernardino counties. Since 1984, says Hill, the State of California has adopted a punishment model of justice. We have taken, he says, "the most serious cases, violent offenders, and held them up as in need of harsher punishment. The concept is extended to a far larger population. Violent offenders constitute no more than five to eight percent of the total offender population."

The justice system, says Hill, is too harsh on juveniles. "In addition to not having access to jury trials, juveniles do not have access to bail, and the result is that, when you really examine the data, with the exception of the death penalty and life sentences, juvenile offenders are detained more frequently and for longer periods of time than the common adult offender. Yet we have still have this distorted opinion that children are being treated leniently."

Hill rejects the common view that the prison system is lenient. "Though there are many conscientious correctional officers," he says, "a custody situation brings out the worst in inmates and guards. There are many opportunities to abuse inmates trough restrictions of commissaries, restrictions of visitation, by simply filing a report alleging that the offender said something abusive to the correctional officer. I know that those kinds of incidents occur." However, information about the frequency of those incidents "I don't think is available."

One aspect of prison life that is greatly underreported, says Hill, is the incidence of same-sex rape. "Men," he says, "in particular, are reluctant to report that they have been sexually abused." The number of rapes a year in prison, says Hill, is estimated at one-million.

But perhaps more relevant to proponents of restorative justice is the negative social conditioning that goes on in prisons, especially among juveniles. Prison exacerbates criminal tendencies. "As we began to overcrowd our prisons," says Hill, "gangs began to pop up. Because of overcrowding, guards were unable to protect prisoners, and so gangs were formed, who, when released back into the community, began recruiting members."

Ron Claasen, co-director of the Center for Peacemaking and Conflict Studies at Fresno Pacific University (affiliated with the Mennonite Brethren Church) and director of the Victim Offender Reconciliation Program in the Central Valley, says that in the current system we "take an offender who has made a bad choice, and we put them with all the other people who have made bad or worse choices, and we take away all decision making, and when they come out, we expect them to make good choices. It doesn't make sense."

What does make sense, say both Hill and Claasen, is a justice ordered to restoring the victim, the offender and the community. At the heart of this "restorative justice" is the imperative, that to restore justice, the offender must make some act of restitution, first to the victim, then to the community, and that this restitutionary act help the offender to better himself.

In a victim offender reconciliation program, as Hill describes it, "the victim has an opportunity to meet with the offender, with a mediator, a trained community volunteer who, ideally, all come from the same community. [In this process] the victim gets the opportunity to face the offender, to tell him what the offense did in terms of [the victim's] family. It's an opportunity for the victim to take responsibility for what they did, admit that responsibility, to apologize and agree to make restitution. The mediator has the responsibility of monitoring the agreement and, a lot of times, in addition to monitoring the agreement, becomes the offender's mentor. One of the unintended consequences is, when you bring those parties together, the victim's fear of crime is reduced, their anger toward the offender is reduced, and oftentimes the recommended agreement is far more reasonable and rational than you would find going through a retributive system."

Ron Claasen emphasizes that restoration includes more than simply restitution; restoration means that the victim "recognizes the violation and makes some commitments, together with the victim, their family, and the broader community about how they plan to conduct themselves in the future." When the parties make such commitments, usually a follow-up person--say, the offender's pastor or a probation officer--is assigned to verify that the offender fulfills the agreement.

One of the goals of restorative justice is to keep the first-time offender from the corrupting influences of prison." Early intervention," says Hill, "is, sometimes, more than monitoring; it is mentoring. You have an opportunity to introduce a youngster to other young people who are not gang members, and an opportunity to reinforce that. One of the by-products of the restoration process is that offenders are restored as members of the community, rather than as members of the neighborhood gang."

A Catholic who works with first-time offenders is Scott Mather, program manager for the Institute for Conflict Management, headquartered at the St. Vincent de Paul Center for Community Reconciliation in Orange. "We're a mediation program rooted in restorative justice," says Mather. "We have a victim offender reconciliation program. We bring victims and offenders together and then we have trained volunteers who are listeners, basically, and help the two parties work out contracts for whatever they might need, specifically, in criminal cases."

Mather says that though his organization works only with first-time offenders, it deals with with a wide variety of crime -- misdemeanors, assault and battery, inappropriate sexual touching, vandalism. According to Mather, his institute is doing a recidivism study (to have been completed by October) to determine how effective their program is. Anecdotally, he says, he thinks it is effective. "When we mediate, we'll go to the fulfillment of the contract," he says. "There might be monetary restitution; there might be a letter written to the victim; the victim might want the offender to attend an anger management [program] or community service hours, whatever. Let's say we've taken 1,100 cases in a year, what we call 'intakes', and out of those we'll mediate 65 percent; out of that 65 percent, we'll have a 40 to 50 percent non-reoffending rate. Since we get a lot of first-time offenders, with that first taste of the system, they've had enough. We model for them through the mediation process a way in which to deal with issues in a less violent or confrontational manner."

Mather says that, to some degree, subsequent offenses, when they occur, are less serious after the mediation process. "That's one of the things were looking at in the study. We're looking to see what the second offense is, and how serious it is, where it is going. The re-offense might simply be that they are on probation and they were caught drinking, or they were caught with the wrong crowd."

Ron Claasen says that out of the thousands of cases his program has worked with, he has no reports of offenders violating the same victims again. "Does the offender ever get in trouble with the law again?" he asks. "Yes. That does happen. What we don't have is the research to determine whether they are actually doing lesser crimes."

Victim offender reconciliation programs are spreading. Here, in California, says Jerry Hill, the County of San Bernardino has established at least over 15 youth accountability boards, "and other probation departments throughout the state have established similar programs; they've started within the last year."

Other places than California are using victim-offender reconciliation programs. A sheriff in Genesee County, New York, established such a program in the early 1980s. Canada and New Zealand are also using restorative justice techniques among their native populations. A program in British Columbia illustrates how restorative justice can deal with more serious crimes, such as rape. The British Columbia program, says Claasen, operates out of a prison-based organization--evidence that restorative justice does not ignore ongoing safety risks. "If a person needs to be incarcerated," says Claasen, "for the purpose of keeping themselves and others safe, then that needs to be addressed."

Claasen thinks a victim of a violent crime needs restorative justice more than a victim of a property crime "because they've sustained more personal harm. Those who have participated in this process say that it is extremely helpful to them when they hear the offender's acknowledgement that what they did was wrong, and that they recognized it as a violation. It is also helpful for the victim to hear that the offender is doing something to turn their lives around so that they won't do it again to somebody else."

Scott Mather believes restorative justice "empowers" the victim of a violent crime: "It's an emotional restoration. Seeing the person, they can dissipate a lot of rage and anger; it puts a face on who the person is; they get to know them a little bit. That doesn't mean they necessarily forgive them, but then they are not dominated by the activity. They can deal with it. On the other side, for the offender, the same thing is true. Often times they carry a lot of guilt and anger, rage, and so [mediation] puts a face on the victim. It's not just a car or a person they don't know; [they see] the family, all the ramifications."

Two questions that arise in regard to restorative justice are: is it a deterrent? Does it fulfill justice? Ron Claasen admits that "it's hard to measure whether it's a deterrent or not."

Scott Mather thinks restorative justice is a deterrent because it teaches offenders a different way to act. "We're teaching people how to deal with situations otherwise than by resorting to violence."

But, since restorative justice is not punitive, is it just? Yes, says Ron Claasen, because restorative justice seeks to rectify the harm done by the offender to the victim and the community. Mere punishment, says Claasen, "really doesn't require anything on the part of the offender--it's really not even accountability. A person can be punished without even accepting that they are responsible for anything. The one thing it does is that it tells them that the community thinks that what they are doing is wrong. But what I'm suggesting also tells them that the community thinks what they are doing is wrong, because this whole process starts by recognizing the violation."

Furthermore, says Scott Mather, restorative justice expedites matters for the victim, "so he gets his day in court much more quickly. He has a much better chance of getting restitution."

Claasen, Hill and Mather see restorative justice rooted in scripture and Christian tradition. Christians, says Mather, believe that "people need to make amends to the community; that is something that is very scripturally based. I think we believe that oftentimes the evil in society [results] from how we interact with each other--I do something to you, you do something to me; it goes on like that. People need a way to break that; to make amends."

"Biblical justice, as I see it administered by Jesus, is a process of making things as right as possible," says Claasen. "Jesus rejected the eye for an eye as a way doing things. Jesus did not reject responsibility, Jesus did not reject the idea that people should turn their lives around; but Jesus did reject retribution as a way of dealing with that. Jesus is not opposed to justice; Jesus helped us to find what God really meant by justice--making things as right a possible."

Asked whether his view contradicts St. Paul's dictum that the King bears the sword by God's ordination, Claasen responded that ruling authorities have the responsibility to prevent chaos, "so that when systems of cooperation have broken down, or essentially when the church is not effective in helping people deal with their conflicts in ways that are more redemptive, the state has a responsibility in an authority/coercive way to prevent chaos. But, even when we move to coercion, it must be tested by whether it is respectful, whether the things that we do promote both safety and restoration. Coercion that meets the criteria of respect and restoration will look different from coercion that does not meet that criteria."

The key here, of course, is the Church, the Body of Christ; when the Church is in order, and ordering society, then true restoration is possible. "This is what I believe God is calling the Church to," says Jerry Hill. "What God intended for us is to live in harmony. Shalom in the community, is more than just being free from crime; it's where everybody knows your name, it's where you have shelter, food, the opportunity for education, access to health care, as well as freedom from crime. Part of involving the community is helping members of the community establish a community or a neighborhood.

"There are so many by-products of what God intends for us. What we've done, in justice, for example, is break it down into criminal justice, social justice, economic justice, racial justice... You know, God's justice is holistic. It's not being free from crime. While we're focusing on the criminal aspect, with the community involved, there are many aspects of need that are being considered and taken care of."

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