Saturday, June 26, 2010

Restorative Justice

I was able to meet with a Restorative Justice group recently—sponsored by the Diocese—and was surprised at how deeply this mantra has apparently penetrated the detention ministry efforts of many in the Church.

While appreciating the deeper discussion the concept of restorative justice has brought to the criminal justice dialogue, its utility with the people to whom our work is addressed—professional criminals who commit crimes as a profession, for the money, and who have served time in maximum security prisons, comprising approximately 50% of the prison population, and are the dominant group defining and shaping criminal/carceral world culture—is much too limited.

With this population, the salvific tool with the most potency is the classical Catholic teaching of punishment, penance, and redemption.

Restorative justice is addressed in a seminal article by Fr. Andrew Skotnicki, Ph.D., the foremost Catholic criminal justice thinker currently writing about criminal justice issues from a Catholic perspective:

“Can justice be restored? In short, the Christian ethical response I am suggesting would be yes. Restoration is a principal component of justice; but it is not the only component. Justice also requires punishment. The schema for restoration suggested by contemporary philosophers and criminologists would require a thicker description of the nature and meaning of criminal offences, as well as a more substantial role for the state as representative of the body politic.

“One of the more contentious figures in theology and ethics, perhaps more now than in his own day, has been Anselm. His doctrine of the atonement, while written as a theological treatise to explain why Christ had to undergo suffering and death, has had substantial repercussions in the area of criminal justice. In brief, Anselm argued that the wilful disobedience of humans to the order established by God was of such magnitude that any human expression of remorse would be futile. Human beings sinned and thus only a human being could make restitution and effect reconciliation. Therefore, God became human in Jesus to shoulder the burden of our infidelity. The doctrine has been attacked by critics as suggesting everything from divine pettiness and hubris to a case in cosmic child abuse.

“While by no means the first to do so in the Christian tradition, Anselm is a representative figure in a long line of arguments that maintain that punishment and reconciliation, like justice and mercy, find their most creative expression when held in tension with one another. Punishment is not absolute, as the theory of penal retribution claims, because justice is improperly served solely by looking backward at the offence. However, neither is justice fulfilled in theories such as rehabilitation or deterrence whose sole concern is future-oriented, that offenders amend their behaviour whether through treatment or out of calculated self-interest.

“The answer is that justice demands both punishment and re-integration. The offence against God’s commandments, against the harmony of the universe and the sanctity of creation must be addressed. To put it in legal terminology, transgressions of the law itself must be punished independent of the specific harm caused to humans. However, paralleling the theology of the atonement, although punishment can be just, punishment in itself does not produce justice. Justice also must embrace equity, mercy and reconciliation. (pp. 192-193)

“Restorative justice has done society the service of reinvigorating in a provocative way the ancient human questions of our debts to one another and how we are to address those who honour those debts badly or not at all. It is not so much a novel innovation as it is a renewing of the primordial search to restore fractured social harmony through communication and accountability. Despite the shortcomings documented in this paper, its advocates are right that justice should aim at restoration; and they are particularly right, as Braithwaite claims, that crime is far more than a violation; it is an invitation to build a more loving community. What I have argued in this paper is that a loving community is one that is also just; and that justice in its desire to restore must not fail to punish. (p. 204)

Skotnicki, A. (2006). How is Justice Restored?, Studies in Christian Ethics, Vol. 19, No. 2, 187-204