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May 21, 2013 | Ed Davis

Restorative vs. Retributive

Much of crime is an act of premeditated selfishness, like burglary and auto theft. Some crime is spontaneous, where opportunity and poor judgment collide, like shop lifting. In either case, the act is driven by an “I want” or “I deserve” mentality.


Crime can also be the product of hate, fear, greed or poor decision making. Physical assault, murder and white collar crime fit the first three motivations. The latter, poor decision making virtually guarantees a string of poor decisions. Alcohol and drugs that “fog” the mind often lead to poor decisions. In most cases--with the possible exception of murder--consideration of the damage the act will bring to the victim’s psyche and/or body is not usually a part of the decision process. Neither are the consequences for self and those the perpetrator loves. The question that has plagued God and man since man’s expulsion from the Garden is, “What should be done about sin, a.k.a. crime?” What processes need to be devised to deal with it? What outcome does God and society--or the state--seek from these processes?


God says: “vengeance is mine.” Therefore, what man does in response to sin and crime must have restoration of body, mind and peace as a goal, not vengeance. Scripture tells us that Christ came into the world to save sinners and that all have sinned and fallen short of the glory of God. Paul tells us that Christ came into the world to reconcile it to God. To do that, neighbor must love neighbor as much as self.


While there’s no news in the story of man and sin, perhaps there is news buried in the history of how societies have dealt with sin and crime. Ancient peoples especially, tribes from the earliest days of history employed “talking circles” to make decisions. The leader or chief called together the elders and community leaders, often including women, to confer and make decisions applicable to all and make judgments about a member’s conduct. As tribes gave way to the state, decision making slowly became centralized into the person of the king. In the modern nation-state, “justice” became centralized and eventually professionalized in the government’s officers: shire reeve (sheriff), justice of the peace, and later a hierarchy of judges, all appointed by the highest central authority.


Along the way crime became an offense against the “king’s peace” and not an act of wrongdoing by one human being against another. That is how it is today in criminal law. Talking circles--where those most affected by harmful behavior dialoged and decided what to do--died out except among native peoples.


Rediscovery of the past has led to a revival of mechanisms to deal with crime. The term most associated with this is “restorative justice.” The focus of this global movement is healing, accountability, and restoration of affected parties.


There are many ways to heal the victims of crime, the community harmed and traumatized by it, and the offender. Some are restorative justice methods, some are medical and psychological, and others are simply forms of agape love and compassion.


Restorative justice per se can be either a substitute for traditional legal and judicial processes or a supplement to them. A primary goal is to restore--to the extent possible--the condition of the victim and community prior to the commission of the crime.


Another goal is to impact the offender, by focusing on the harm caused by the offender. This can only take place when both the victim and offender agree to dialog or in cases where the offender is ready to take responsibility for his or her actions.


Restorative justice and the current retributive justice approach have different points of view on crime and justice. Restorative justice sees crime as a violation of relationships that creates obligations. Resolution requires victim, offender and community participation. Restorative justice asks who has been hurt, what are their needs, and who has the obligation to address these needs. Obviously both parties must understand the process and have trained facilitators to manage the process and any outcome.


Retributive justice views crime as a violation of law that requires the establishment of blame and the imposition of pain. This process asks: What law was violated? Who did it? What punishment should be imposed?


Punishment is not accountability, and generally, it is not transformative. Change in behavior is a function of understanding the harm done, repenting, and committing to a more constructive behavior. Having to sit down with a person who has been harmed, hearing their very emotional story and pain, and having to take responsibility for it, is much more difficult than the normal path to “justice.” That path is a plea bargain, avoidance of testifying, freedom from being confronted by the victim and the ability to say you have been convicted of a crime you did not commit. What would Jesus do?