DOING JUSTICE
VIRGINIA MACKEY
The Christian faith is best lived out among those who see us without pretensions,
in the day-to-day circumstances of life...the Bible's story is about the relationship
of God to human beings, and of human beings to one another, and this means that
our friendships, marriages, families and even church congregations best reveal
what kind of theology we have, who our God is.
Kathleen
Norris
In the "day-to-day circumstances" of conflict and crime, what do we reveal about who our God is? In our scriptures, Micah (6:8) asks: "Only this, that we act justly, love tenderly and walk humbly with our God." What do we tend to reveal? It's hard to "walk humbly" and we've always had difficulty loving strangers tenderly. That's why Micah reminds us. In legal matters, we're often confused about what it means to "act justly."
Yet, there is no question that in matters of justice, expectations are high for persons of faith and for our institutions. In 1983, at a National Interreligious Task Force on Criminal Justice conference, Temple University law professor Kay Harris told conferees:
We need you to help change the terms of the debate, from the repressive and pessimistic context in which we now are forced to operate. We need your help so that the moral turf is not left to the protagonists for law and order and severe penal sanctions. The way we are treating people is wrong and must be stopped. Please...assert the values and the means you believe should underlie and permeate our responses to conflict, to what we call crime and to the hurts we don't call crimes.
So, it is time for some serious introspection on what our faith tradition says about how to respond to those who have been hurt and to those who are alleged to have caused the hurt.
SCRIPTURAL PERSPECTIVES ON JUSTICE - SOME VISUAL IMAGES
Our ancestors in Hebrew/Christian tradition told stories as a way of helping to form their identity, their sense of values and integrity. These are exceptional stories, rich in metaphor and fraught with hidden meanings. They are told to people moving from belief in multiple gods to one God, describing what it would mean to be faithful to that God, to justice and to nonviolence.
These are OUR stories. But our Western minds, literally and scientifically bent, are often challenged when the meaning is hidden in story. Thus it may be helpful to recall visual images to capture the intent of particular stories.
SCALES - Scales have long symbolized attempts to achieve justice. "Lady justice," the standard bearer, wears a blindfold to suggest that each person stands before the court with equal status. Both in Greek mythology and in the Judaic/Christian Book of Proverbs, a false measure was seen as an abomination.
Unfortunately, a false conception about what would be required to balance the scales has emerged over time. Currently, dominant thinking indicates that punishment for the person responsible for the harm (offender) will satisfy the needs of the person harmed (victim).
Justification for this understanding all too frequently, is based both within and without religious groups on a literal interpretation of the scriptural maxim of "an eye for an eye." This is unfortunate for two reasons. First, because the context for this phrase was meant to be a limit on punishment. The authors of its numerous references were calling for an end of tribal revenge or for an individual's demanding reparation of more than actual loss of damages. For example, don't demand five cows as restitution if only one was stolen. This understanding should raise questions about our current eagerness for punitive as well as actual costs in damage suits.
Secondly, a literal interpretation gives the impression of a punitive God, whereas the entirety of Judaism, Christianity and Islam seeks to portray a loving, redemptive God and for human beings, an ethic of shalom, salaam, well-being, making right.
The Hebrew tsedeqah, equivalent of the words we translate as justice is actually righteousness or making-right. This means that we are to think of equity (relative needs) rather than equality in balancing the scales of justice. What does each affected person require in order to achieve well-being and health to the greatest extent possible? What do affected communities require to achieve the greatest degree of safety and well-being possible?
Here is a way to visualize God's balance beam of scales spoken of in Isaiah 40. Restorative justice begins with victims and so should we. When encountering a crime scene the first question to ask is a crime scene the first question to ask is not “Who done it?” but “How are you hurt, how can we help?'
Then, visualize the drama of the Good Samaritan (Luke 10) in which Jesus contends that no victim can be neglected. It is our responsibility to add to the scales what is needed: a listening ear, attention to physical needs, financial assistance, a sense of worth, and a path to healing and closure from a bad experience.
RODS - In moving to the scale of the one who caused the harm, envision a rod as a measuring stick in biblical times rather than as an instrument of punishment. Not that rods and rulers haven't been used as instruments of punishment. But should they be? And was that the intent of the stories of scripture? The definition of punishment is "to deliberately inflict pain." Thus, it is more about relieving our own anger or frustration rather than balancing the scales by addressing the life situation and the needs of the person who caused harm.
Punishment for the sake of general deterrence is morally objectionable. In 1973 the U.S. Catholic Conference said, "It is necessary in any case to raise serious moral objection to tormenting one person unjustly in order to instruct or caution another." And punishing one in order to deter others is a scapegoating process. Societies then extend scapegoating from individuals to groups who become expendable people. In the U.S. correctional system, scapegoating applies to the poor and people of color.
Using punishment to deter an individual from causing further harm assumes rational thinking, which is seldom present in an act of violence. Punishment is flawed psychology. In all the scriptural references to "spare the rod and spoil the child," think of a rod as the way God wants us to name limits and boundaries of values and behavior. Visualize it as a standard by which parents or justice workers expect accountability and responsibility.
In the offender's scale our goal is to teach or discipline, not punish. This perspective is validated by looking at words in Hebrew scripture that we translate as punishment. Some original meanings: chasah, to keep back, restrain; yasar, to chasten, instruct, teach; paqad, to inspect, look after (Restorative Justice: Toward Nonviolence, p. 23). Does it not seem more accurate to say that God disciplines those who go astray? The emphasis in punishment is on past behavior; in discipline, it is on expected behavior. Punishment puts down; discipline calls forth. Punishment models the violent; discipline models the behavior it expects.
Support without accountability leads to moral weakness. Accountability without support is a form of cruelty.
Stan Basler, Director of Criminal Justice & Mercy Ministries, United Methodist Church
The U.S. Department of Justice's guide on "Implementing the Balanced and Restorative Justice Model" describes the goals as accountability and competency development for offenders toward the end of community safety.
COMPASSIONATE INTERVENTION - Visualize the way Jesus intervened in the lives of Zaccheus or the woman caught in adultery. Or his depiction of the father's (God's) action in the story of the Prodigal Son.
Or picture God putting a mark of protection on Cain. And, instead of the death penalty for murderers Moses, David and Saul (Paul), they become leaders of their people. These are remarkable images of radical acceptance, compassion and opportunities for redemption even for those who cause deadly harm. Our scriptures do not assume that the hurts we call crimes are an unalterable state. The redemption of persons should always be seen as a potential.
Indeed, an ethic of forgiveness may not even entail restitution. Persons of faith are urged to be agents of reconciliation, to exhibit a spirit of grace that surprises those who have done wrong and induces a change of heart and behavior. In Luke 19, Zaccheus responded to Jesus' graciousness by pledging that he would make restitution to those he had cheated.
PREVENTION OF VIOLENCE - Then we turn to our responsibility to build the base for safe and just communities. Picture yourself listening to a Hebrew prophet or to Jesus advocating concern for all those in need. They told us that their God was concerned for economic and social justice; that each person matters and deserves respect and dignity.
In Violence: A National Epidemic James Gilligan quotes Gandhi's statement that "The deadliest form of violence is poverty." Then Gilligan notes that the relative poverty of millions of Americans is not only painful in itself "...but it is particularly hurtful in regard to the shame it carries in a setting where large numbers of fellow citizens are prosperous." Then Gilligan makes his most critical observation about both the individual and societal roots of violence: "I have yet to see a serious act of violence that was not provoked by the experience of feeling ashamed and humiliated, disrespected and ridiculed, and that did not represent the attempt to prevent or undo this loss of face"1
SCRIPTURAL PERSPECTIVES ON JUSTICE - RESTORATIVE VALUES
Does the term restorative justice encompass the values we have been picturing -- compassion, supportive care, unconditional love, radical acceptance, patience (mercy), equity, accountability, discipline, mutual responsibility?
Words and our translations can be inadequate. We believe that restorative justice represents our best understanding at present. It has become an accepted alternative to the concept of retribution/punitiveness that now dominates criminal justice. In 1975 Methodist theologian L. Harold DeWolf concluded that the goal of criminal justice should be social defense and restoration.2
In a study of punishment in the scripture and tradition of Judaism, Christianity and Islam (1980), I found that within each of the three religions, it is possible to form a theology of retribution by reading scriptural stories literally and selectively. But study of contexts and original meanings pointed to a theology of restorative justice as best portraying what we interpret as God's ethic of shalom. By the late 1980's a number of religiously-based criminal justice activists had adopted the term. It is a centerpiece of Howard Zehr's Changing Lenses (1990), the Presbyterian Restorative Justice: Toward Non-violence (1990) and VanNess/Strong's Restoring Justice (1997).3
There is evidence of a resurgence of energy and involvement on the part of religious groups in criminal justice issues and growing interest in the concept of restorative justice. Restorative justice is being implemented by national, state and local justice agencies and community groups. Through diversion, which can occur at any point from law enforcement to post-sentencing, models of mediation, family group conferencing, peacemaking circles and community accountability boards are being used to resolve specific incidents of harm.
The traditional models of Indian Americans, Aboriginals of Australia and Maori of New Zealand are being adapted. We are trying to emulate their spirit of redemptive community. More communities are expanding Mennonite victim-offender mediation, initiated in Canada in the early 1970's, and including conferencing models of bringing together not only victim and offender but families and members of the community.
The most effective interventions occur when victim and offender agree to meet. The victim has an opportunity to express the impact of the harm; the offender begins to understand the effect of his or her actions, expresses remorse and suggests ways to make amends. Community members facilitate the dialogue and agreement between victim and offender and offer ways to be involved in follow-up.
The satisfaction expressed by participants is significant. One volunteer facilitator identified the theological shift from an "I-It" to an "I-Thou" relationship:
After the opening remarks... the facilitator asked one of the juveniles charged with vandalism to describe what had happened, and he did... His tone was flat, unemotional, remote. It was about things. I-It...
And then it happened. He was asked: Since the events you described, has your own life been affected? And if so, how has it changed? At this point the boy's voice softened and he became introspective. He said yes, his life had changed. In preparation for the conference he found himself thinking a lot about the older woman and her husband whose motor home they vandalized. He felt regret, and was sorry, and he could not understand now how they could have done all that....
The transformation was like magic. It stopped being abstract and remote. The events were about the relationship among us, particular people, all present in the circle. ...the tone in the circle seemed to have changed, and the relationships became closer, person to person, heart to heart. I-Thou.
Meir Carasso, Longmont Colorado Community Justice, 1999
RESTORATIVE JUSTICE - OUR ROLES AS PERSONS OF FAITH
Scripture tells us that it takes transformed people to transform society. Thus, restorative justice is about us and our integrity. When Micah admonishes us to walk humbly, one implications is that we should be less prone to separate people into "good guys" and "bad guys." Restorative justice begins at home--in our families, at school, at work where we can make a commitment to nonviolence and using conflict resolution skills.
"Loving tenderly" suggests that in our congregations we can:
- better minister to our members who have been harmed or caused the harms we call crimes; make it safe for them and their families to talk about their pain and needs and to be assured that we are their congregational home and a support base,
- better support our chaplains; our members who work in criminal justice or in social service agencies and schools. Their work can be stressful. Many feel that they are asked to do difficult jobs and transform lives while receiving inadequate understanding and support. We can urge seminaries to include redemptive theology in their curricula. Their clinical pastoral courses need to address the trauma of crime victimization and to note that most "offenders" have been victimized.
- sponsor or help fund nonprofit agencies providing services.
"Doing justice" includes public policy initiatives. If we disavow that the God we worship is punitive, then we must not affirm criminal justice policies that are obviously not working; we must urge political candidates not to exploit "tough on crime" positions. In partnership with government and nonprofit personnel, our goal needs to be building safe and just communities.
DEVELOPING CLARITY ABOUT BASIC ISSUES
How do core values of faith communities inform our work in policy arenas? What would contribute to balancing the scales of justice? What will nurture and support well-being? What would stunt or negate it? Legislators and criminal justice personnel are between a rock and a hard place. Too often they address the symptoms rather than the roots of violence. Fear of crime drives us to want safety now. Prevention of crime demands long term solutions. Here are some perspectives gleaned from a commitment to restorative justice and some issues facing us.
1) THE DEATH PENALTY - We believe that persons of faith should oppose the death penalty. Until it is abolished by the United States, it is important to support the American Bar Association's call for a moratorium on executions.4
For the first time since New York State has convicted a person under its renewed death penalty statute and may be preparing for an execution. There are practical objections to this ultimate punishment. Among them:
- innocent persons have been executed. Since 1972, 73 men and 2 women who had been sentenced to death row were found innocent, and released.
- historical patterns reveal that application of the death penalty has been discriminatory toward persons of color and those in poverty. Prejudicial factors and lack of adequate defense counsel contribute to these patterns.
- states performing executions tend to have higher murder rates than those that do not execute.
- the U.S. is one of few democracies to retain the death penalty. 54 countries have abolished it for every crime; 15 provide for it under extraordinary circumstances only; another 27 have death penalty legislation but have executed no one in ten years or more.5
A Gallup poll found support for the death penalty higher (75%) for those who say religion is very important than for those who don't (60%) (quoted in May 8, 1996 Christian Century) — an interesting paradox considering the many moral, religious grounds for opposition:
- human life is sacred. No one is categorically beyond redemption. We do not want the state to kill in our name.
- "The need for revenge and the anger that accompanies it are a sickness of the soul that ultimately destroys the one who harbors them. Those who thirst for revenge may experience the illusion of satisfaction but this never lasts long....Eventually, it leaves us more insensitive, losing our sense of human compassion."6 Families of murder victims who are able to forgive testify that it brings them indescribable peace.
2) VICTIMS ISSUES - Victims need compensation for losses and injuries. State funding may be required. Court-ordered full financial restitution by offenders in most cases is unrealistic. In victim-offender agreements, emphasis is on what is feasible and on completion of the contract.
Victim rights legislation should include the right to be heard, to have needs affirmed and to be informed about legal procedures. Victims have the right not to be blamed for harm done to them. Violence is any unjust use of power and is never acceptable. Restorative justice advocates that expression of how victims have been hurt should occur as soon as possible. Postponing that testimony until a trial date can mean delaying healing and closure.
It is important to have a realistic picture of who/what groups of people are most victimized. The infliction of harm to any person is tragic. But our policies must not feed unnecessary fear. Most of us are safe. Crime is highly concentrated. It may not be possible to live beyond fear but it is possible to live beyond the paralysis of fear. Henri Nouwen contends that spirituality and community can show us the way.7
3) EXPANSION OF PRISONS - Residential facilities--not prisons as we know them--may be a necessary but very small part of a restorative justice system.8 They should not be constructed or operated by for-profit corporations. They may be nonprofit facilities that can receive state funding on a per diem basis.
During the past two decades roughly a thousand prisons and jails have been built. We have created a prison-industrial complex which has given construction a seemingly unstoppable momentum; created corporations trading in the stock market; and profit for those investing in warehousing of the poor and persons of color. In an upcoming book The Race to Incarcerate,9 Marc Mauer of The Sentencing Project states: "No other society in human history has ever imprisoned so many of its own citizens for the purpose of crime control."
Read the December 1998 issue of Atlantic Monthly for an account of the political and economic factors that contributed to New York State's prison expansion which was considered a boon for rural areas with sagging economies.
It was people of faith who first proposed the penitentiary as an alternative to corporal punishment in the late 1700's. Auburn Correctional Facility in New York was a first model. Now it is time to call for a moratorium on construction so resources can be devoted to less costly, more effective and humane interventions.
4) SENTENCING ISSUES - We call for repeal of Rockefeller Drug Laws and all mandatory-minimums, three-strikes-and-you're- out legislation. We advocate prevention of harsher sentences for juveniles and sentencing as adults; alternative sentences for women with dependent children; and treatment of drug addiction--which includes alcoholism--as a public health problem.
When the Rockefeller Drug Laws were enacted in 1972, they were meant to put big drug dealers behind bars. "Instead, they have fallen largely on low-level offenders..." (Albany Times-Union editorial Jan. 7, 1999) Residential treatment, not prison, should be funded for addicts. Faith communities can help to name the health problems associated with drugs — realistically rather than moralistically. The public is educable, as demonstrated by increased use of seat belts and decreasing DUI's with use of designated drivers.
Mandatory sentences have increased imprisonment in many states. Families Against Mandatory Minimums and a coalition of groups spearheaded by churches has been successful in modifying Michigan's "650-Lifer" law.10 Supreme Court justices Stephen Breyer and William Rehnquist oppose mandatory sentences as "a good example of the law of unintended consequences."
5) PRISON CONDITIONS - It is a misconception to describe prison conditions as luxurious. Four out of every five dollars of prison operating costs go for salaries and maintenance. Prison costs have grown substantially due to health-care needs of an aging and AIDS or tuberculosis-inflicted population. In 1992 about 14% of New York prisoners were HIV positive.11
Loss of privacy, double-bunking, cutbacks in health and education programs make for loss of dignity and ill prepare prisoners for return to community. Nils Christie asks: "When a crime has been committed, has not enough pain already been inflicted? Is the victim's pain lessened or is society's fear diminished by inflicting pain on the offender? ...I see no other defensible position than to strive for pain-reduction. ...social systems ought to be constructed in ways that reduce to a minimum the perceived need for infliction of pain for the purpose of social control. Sorrow is inevitable, but not hell created by human beings."12
6) REPEAL OF PAROLE - In his 1999 State of the State address, Governor Pataki recommended reduction of parole functions. (Albany Times-Union, Jan. 7, 1999) While the caseloads of parole staff have been too high and services not always effective, there is absolute need for support as prisoners return to the community. The John Howard Society of Manitoba, Canada is proposing Restorative Parole. It would be concerned with both safety concerns of victims and competency/ accountability skills of the prisoner to be released. The community would assist in both areas and help to provide opportunities for prisoners to make amends. Philosophical and process changes should be attempted before parole is repealed.
7) LAW ENFORCEMENT - We should be wary of rescinding constitutional rights in seeking protection against crime. Let's not give up protection against unreasonable search and seizure and the right to protest one's innocence in an adversarial process. These rights were hard won. We should question the use of provocateurs and snitches (leniency or rewards granted to one suspect in order to convict another) by law enforcement and prosecutorial personnel. The gist of these cautions is that the end does not justify the means.
Law enforcement is an arena to strive for reduction of racial disparity. Poor and minority communities experience more surveillance, arrest and confinement. We tend to overlook crimes of the system and of the powerful. Why do we forget that scripture tells us that God is most upset by injustice?
8) SEXUAL ABUSE - The typical sexual abuser seldom fits the image formed in minds of the public as media describes the most serious offenders, who have murdered their victims. In reality, abusers differ greatly in age, impulsiveness, history of offending, desire to change their behavior and risks they pose to society. Research shows that an abuser is known to the victim or family in eighty to ninety-five percent of cases.
Effective public policy needs to recognize the differences. Research on sexual abuse and treatment needs to be encouraged and funded at the same time steps are taken to reduce risks posed to the community. It is important to not use a "one size fits all" approach.13
9) PRIORITIES - In both responses and preventive measures, we need to strive for transformation of communities and social justice. Criminal justice personnel say, "What we are doing isn't working. We must change directions." National media and academics are beginning to do critical analysis. Dennis Sullivan of the Institute for Economic and Restorative Justice in Voorheesville, NY has been a pioneer in this effort. The work of the University of Colorado at Boulder Center for the Study and Prevention of Violence on "What Works?" is being published by the U.S. Department of Justice.
WHAT WORKS? Prenatal care and parenting-skills counseling; mentoring and role models; preventing child abuse and neglect; Head Start, school and afterschool programs; job skills and opportunities. What works? Education and effective early intervention.
All criminal justice issues are complicated and most are controversial. Many legislators and agency staff yearn for citizen involvement and support. Faith communities can make a difference and hopefully help us move out of the quagmire of failing policies and fear.
SUSTAINING HOPE
Optimists among us are suggesting that the new millennium will be distinguished by paradigm shifts in our national character. They predict that we will move from rugged individualism to recognition of our hunger and deep need for connectedness and community; that we will recognize our mutuality; that we will shift from callousness to an ethic of compassion and care.
Does this appear to be an agenda for doing justice? The Rev. Jean Greenwood of the Minneapolis Council of Churches contends that:
Restorative justice moves to the heart of religious experience. ...One could speak of the responsibility of the faith community and one can speak of the opportunity. Engagement in restorative justice allows people of faith to move from preaching reconciliation to participating.... Restorative justice is a gift to people of faith. It transforms us as it invites others to experience the gift of restoration.
Full Circle newsletter of the Restorative Justice Institute, April 1998
FOOTNOTES
1) James Gilligan, Violence: Reflections on a National Epidemic New York: Vintage Press 1997. Pages 101, 201, 110
2) L. Harold DeWolf, What Americans Should Do About Crime. New York: Harper & Row 1976. Page 102
3) Howard Zehr, Changing Lenses: A New Focus for Crime and Justice. Scottdale, PA: Herald Press 1990 Virginia Mackey, Restorative Justice: Toward Nonviolence. Presbyterian Criminal Justice Program: 3rd printing 1997 Dan VanNess and Karen Strong, Restoring Justice. Cincinnati: Anderson Publishing 1997.
4) American Bar Association call for a moratorium on executions, adopted February 3, 1997
5) Presbyterian Criminal Justice Program, Young People and the Death Penalty. A Study/Action Resource, 1995
6) Brother Bernie Spitzley, quoted in Inside Information, news-letter of Archdiocese of St. Louis, Fall 1998
7) Henri Nouwen address to Presbyterian General Assembly, 1985. Quoted in "Beyond Fear Workshop", Presbyterian Criminal Justice Program 1986
8) Bo Lozoff. Excerpted from a printed address in Winter/Spring 1998 issue of Chicago Theological Seminary Register
9) Marc Mauer, The Race to Incarcerate. Available from New Press, August 1999.
10) Families Against Mandatory Minimums (FAMM) 1612 K Street NW, Suite 1400, Washington D.C. 20006. New York Chapter: Susan Stonner, P.O. Box 908, Averill Park 12018
11) An excellent resource on imprisonment issues is "Seeking Justice," 1997. Available from Edna McConnell Clark Foundation, 250 Park Avenue, New York NY 10177.
12) Nils Christie, Limits to Pain. Oslo: Universitetsforlaget, 1981. Page 11
13) Association for the Treatment of Sexual Abusers policy statement adopted November 6, 1996.
ABOUT THE AUTHOR
In Rochester, Church Women United and the Rochester Area Council of Churches responded to concerns about racism in criminal justice because of riots in Rochester in 1964 and 1967 and to prevent another in 1969. Virginia Mackey was coordinator of The Task Force on Courts initiated in 1967 and of Genesee Ecumenical Ministries' Judicial Process Commission, initiated in 1972.
She was both chair of and consultant to the New York State Council of Churches' Task Force on Criminal Justice and to the National Interreligious Task Force on Criminal Justice sponsored by the Joint Strategy and Action Committee and the National Council of Churches.
Among her publications are Punishment in the Scripture and Tradition of Judaism and Islam (1980) and Restorative Justice: Toward Nonviolence. Before her death she lived in retirement in Colorado. She represented faith communities on the Steering Committee of the Forum on Restorative Justice which sponsored Colorado's first conference on this topic in September 1998.
Her degrees are from Blackburn College, University of Illinois, and Colgate-Rochester Divinity School. She was ordained by the United Church of Christ in 1975.