A Brief Look at Restorative Justice (1)
In 1974 two youths who had been drinking and had been “talked to” by
the police already, took out their frustrations on the small community
of Elmira, Ontario, by doing damage to twenty-two different vehicles
and homes. Several months later the youths pleaded guilty to the
charges, and Judge Gordon McConnell in Kitchener ordered a Pre-Sentence
Report. Mark Yantzi, the Mennonite Probation Officer writing up the
report, discussed the case with the local Mennonite Central Committee
court volunteer, Dave Worth. Both had been reading recent publications
by the Law Reform Commission of Canada in which it had been stated that
reconciliation played an important role in criminal justice. They also
knew that reconciliation was the central concept of their Christian
faith.
Yantzi
proposed in his Pre-Sentence Report that the youths would benefit from
meeting face-to-face with their victims and making amends. Judge
McConnell was intrigued by the idea, and discussed it with the
probation officer. The Judge indicated that the notion had lots of
merit, but it was simply not done in Western jurisprudence. He made a
fateful choice nonetheless when he decided “Why not?,” and put the
sentencing over until Yantzi and Worth could take the youths to meet
each of the victims. They did and out of that experience arose the
first ever “Victim Offender Reconciliation Project (VORP)”.
The above story, known in the Restorative Justice movement as “The
Elmira Case” (2) became a kind of proverbial shot that echoed around
the world. Over 200 mediation programs in North America alone trace
their origins to the program that came into existence as a joint
venture between Ontario Correctional Services and the Mennonite Central
Committee. Several hundred similar programs now exist in Europe and
elsewhere.
A Little Bit of History and Anthropology (3)
To set a context for the programmatic emergence of Restorative Justice
late in the twentieth century some historical and anthropological
comments would be helpful.
Almost a millennium ago, in the late 11th century, European
history underwent a significant upheaval some call “The Papal
Revolution”. During this time, the Church moved to consolidate its
power over all souls and kings of Europe, the great universities began
to emerge, and the Western legal tradition started to take shape, as
new law codes were formulated for study and promulgation throughout the
Western world.
In a fateful interplay between Church and Society far too complex to
describe in a short article, secular states began to follow the lead of
how the Church dealt with its religious heretics. These “social
heretics” began to emerge under new state law codes as “criminals”
whose victims were no longer the actual victims, but “Rex” or “Regina”,
or later “We the People” under the United States Constitution.
So the evolution of the criminal justice system in the West was away
from community and victim centred justice towards state and offender
centred justice. The former had been a dominant approach in the ancient
Hebrew culture, in Roman society when applied to its own citizens, and
in many pre-colonial African and North American and worldwide
indigenous cultures. In the Reconstruction of Japan following the
Second World War, the Japanese became the first industrialized country
nationally to embrace this more restoratively oriented way of justice.
(4)
A shift away from this approach for common law Western jurisdictions
began with the Norman Conquest of Britain in 1066. The state began, as
a criminologist said provocatively this century, to steal the criminal
conflict from the community. (5) It is still a shock for some victims
to discover that they are not even named on the court docket, having a
millennium ago been displaced by Rex, Regina or “We the People”. One
victim of rape describes a fantasy of phoning the Queen in Buckingham
Palace on each anniversary of the assault to ask her how she is doing!
The purpose of the law shifted dramatically as well. Earlier, the
emphasis had been upon making the victim whole again, what in the
ancient Hebrew culture was called “restoring shalom”. With the rise of
the king’s power, the purpose became to uphold the authority of the
state.
There was dominant Western religious undergirding of this approach
which led to a marriage of law and religion that placed, on the one
hand, primary emphasis upon the offender’s violation of the law while
dropping any concern for rehabilitation of the victim. On the other
hand, it drew on Roman slave law as a model for meting out the worst of
punishments imaginable upon the offender. (6) This form of response to
crime is known as “retributive justice”, and has dominated Western
jurisprudence for a millennium.
Where did such violent notions of punishment originate?
That is an anthropological question. Anthropology is the science or
study of cultures which presupposes taking at least one step back from
culture to look at it somewhat as an outsider. When we ask that
question generically of all cultures, René Girard argues that the
founding moment of culture is in fact violence, which then scapegoats
in order to bring social cohesion.
A “scapegoat mechanism” as described earlier arises to siphon the
violence away from the community, thereby creating peace for a time for
the rest of society. In religious cultures, this kind of violence
invariably took the form of myths, rituals, and prohibitions
legitimizing the violence against the victim or victims. In Christian
cultures, this form of violence was supported and spread by the
“satisfaction theory” of the atonement . (7) In the secular West, the
ultimate non-religious instance of the same dynamic is the Holocaust.
It was precisely over against the excesses of various forms of
scapegoating violence that some well-meaning Christian philanthropists
tried in 1790, in Philadelphia, Pennsylvania, to move away from
physical punishments towards an emphasis upon reformation of the
criminal. If only they could lock each individual into a jail cell with
a Bible and a rule of silence, surely the violence would cease, and the
criminal would become “penitent”! The new name for this form of
response to crime was the penitentiary. The new motive was
rehabilitation, not retribution. The idea caught on like wildfire, and
continues to spread like no other around the globe to this day. But, it
soon became evident that, whereas former means of scapegoating
administered physical wounds that eventually healed, the penitentiary
began to inflict psychic harms that rarely ever healed. Though not the
intent, a new scapegoat mechanism arose in the form of the penitentiary
that destroyed the very psyche of the convicted criminal. Then where
did that lost soul fit into society? (8)
In this context of scapegoating, Restorative Justice poses perhaps the
most troubling question: “Why harm people who harm people to teach
people that harming people is wrong?” The Restorative Justice vision
moves away from a warmaking, “stigmatizing shaming” scapegoat mechanism
to a “reintegrative shaming” , (9) peacemaking way of nonviolence in a
bid to break definitively with the endless cycles of violence in our
culture.
Footnotes:
1. A massive body of literature has grown up in the past fifteen
years. The best study on the topic is Restoring Justice (Strong and Van
Ness, 1997). The best overview of the wider context is The Expanding
Prison (Cayley, 1998). The first major study was Changing Lenses (Zehr,
1990) – considered a classic. The best Christian theological study is
Chris Marshall’s Beyond Retribution: A New Testament Vision for
Justice, Crime, and Punishment (Eerdmans, Grand Rapids, 2001.) An
excellent annotated bibliography has also been produced (McCold, 1997).
Updates on this bibliography may be found at:
http://www.restorativejustice.org/ (by Prison Fellowship,
International; also one of the best websites). Another excellent
website is: http://www.sfu.ca/cfrj/cresources.html (Simon Fraser
University’s Restorative Justice Centre). One may also consult our
website: www.m2w2.com .
2. See a fuller account in Dean Peachey’s “The Kitchener Experiment” (1989).
3. I am drawing on the work of Berman (1983/1997), Strong and Van Ness
(1997), and Girard, in particular: (1977); (1986); (1987) and (2001).
4. John Haley is the expert on this. Of his many publications, see for instance Haley (1989).
5. Nils Christie writes: “The victim in a criminal case is a sort of
double loser in our society… He is excluded from any participation in
his own conflict. His conflict is stolen by the state, a theft which in
particular is carried out by professionals (1981, p. 93).” He draws
upon an earlier classic essay he wrote entitled “Conflicts as property”
(1977). Christie’s book and article are rewarding reading!
6. Herman Bianchi explicates this in Justice as Sanctuary (1994).
7. See Gorringe (1996).
8. Michel Foucault’s Discipline and Punish: The Birth of the Modern Prison (1978) demonstrates this well.
9. The classic book on this idea is Braithwaite (1989).
Bibliography
Berman, Harold J. (1983/1997). Law and Revolution: The Formation of the
Western Legal Tradition, Cambridge: Harvard University Press.
Bianchi, Herman (1994). Justice as Sanctuary: Toward a New System of Crime Control. Bloomington: Indiana University Press.
Braithwaite, John (1989). Crime, Shame and Reintegration, New York: Cambridge University Press.
Cayley, David (1998). The Expanding Prison: The Crisis in Crime and
Punishment and the Search for Alternatives, Toronto: Anansi Press.
Christie, Nils (1977). “Conflicts as Property”, British Journal of Criminology, 17, 1 – 19.
Christie, Nils (1981). Limits to Pain, Oxford: Martin Robertson.
Foucault, Michel (1977). Discipline and Punish: The Birth of the Modern Prison, Hammondsworth: Penguin.
Girard, René (1977) Violence and the Sacred. Baltimore: Johns Hopkins University;
___________(1986) The Scapegoat, Baltimore: The Johns Hopkins University Press
___________(1987); Things Hidden since the Foundation of the World:
Research Undertaken in Collaboration with Jean-Michel Oughourlian and
Guy Lefort, Stanford: Stanford University Press.
__________ (2001) I See Satan Fall Like Lightning, New York: Orbis.
Gorringe, Timothy (1996). God’s Just Vengeance: Crime,Violence and the
Rhetoric of Salvation, Cambridge: Cambridge University Press.
Haley, John (1989). “Confessions, Repentance, and Absolution,” Martin
Wright and Burt Galaway, eds., Mediation and Criminal Justice: Victims,
Community, and Offenders, Newbury Park, CA: Sage Publications.
McCold, Paul (1997). Restorative Justice: An Annotated Bibliography, Monsey: Criminal Justice Press.
Peachey, Dean (1989). “The Kitchener Experiment”, Martin Wright and
Burt Galaway, eds., Mediation and Criminal Justice: Victims, Community,
and Offenders, Newbury Park, CA: Sage Publications.
Strong, Karen Heetderks and Dan Van Ness (1997). Restoring Justice, Cincinnati: Anderson Publishing Company.
Zehr, Howard (1990). Changing Lenses: A New Focus for Crime and Justice, Scottdale: Herald Press.
WAYNE NORTHEY is a prolific writer and advocate for restorative justice and nonviolent resistance.