Restorative Justice vs. Retributive Justice


[1] "Restorative justice" is a concept that has been written about, talked about, and argued about.  However, only a few people have actually been engaged in the practice of "restorative justice."  Fortunately, the number of such practitioners is growing, and the faith community is discovering that restorative justice is closely related to such biblical truths as redemption, reconciliation and healing.

[2] I have had the privilege of representing the community on three restorative justice panels dealing with three situations in which individuals had committed crimes, had been arrested, had admitted their breaking of the law, and were at the point of being sentenced by a judge.  One case involved shoplifting at a store.  A second case involved theft of valuable equipment by an employee at his place of work.  A third case had to do with a nephew who had been hired to repair the house of his aunt.  He was given several months of free rent and some monetary payment, but never performed the work.

[3] In all three cases, the normal judicial procedure would have been for the judge to hand down "retributive justice," some form of punishment-a fine, probation, and/or some time in jail.  However, because of a '"restorative justice" program in Milwaukee County, the judge decided to refer these persons to restorative justice panels, in which the perpetrator, the victim, and two representatives of the community sat in a circle, along with a trained facilitator, to give those persons who had been hurt by the crime an opportunity to talk "eyeball to eyeball" with the person who had caused the hurt.

[4] Under the retributive form of justice, the perpetrator of the crime would not really have talked to the persons he/she had hurt-the victim and the community.  Instead it would have been the perpetrator's lawyer (public defender or defense attorney) who would have talked to the attorney representing the state-the district attorney-not primarily to bring healing to the aggrieved persons and community who had been hurt by the crime, but to determine according to the laws of the state, the technical seriousness of the crime and the level of punishment to be meted out, once guilt had been determined.

[5] A case could also be made that the aggrieved person and community are not the only persons hurt by a crime.  The perpetrator of a crime is likewise damaged by the crime.  The one who commits a crime usually goes away from the scene of the crime thinking that they have never been in better shape in their lives.  After all, they have just succeeded in their enterprise and are feeling pretty good about themselves.  However, they have just shattered their own integrity and broken the trust of the victim and the community-all of which is needed to live a healthy life from day to day.

[6] The courtroom model of retributive justice does at times result in restoring wholeness and healing, if restitution is made and if the perpetrator comes to grips with himself/herself and works to restore integrity and relationships.  However, under this model, seldom does the perpetrator approach the victim directly, to make amends and to restore the relationship, and more often than not, returns from incarceration embittered and more broken than ever.

[7] If offenders do not have their integrity and their relationships restored, the victims and all of society suffer.  Half of the 22,000 persons incarcerated in the state of Wisconsin are offenders who have served time in prison, were released, and then returned to prison because their integrity and their relationships with the community were not restored.

[8] Longer sentences and harsher treatment do not bring healing and wholeness.  These are elements in the retributive justice system that are designed for punishment, not for wholeness.

[9] The restorative justice model, as the name itself indicates, is designed to "restore" what is hurting and broken.  This is not minimizing the seriousness of the crime or "going soft on crime," as politicians and others put it today.  The restorative justice model insists that crime is much deeper than simply breaking a law.  It is breaking relationships and shattering the lives of human beings and of the entire community.  Justice therefore requires that these relationships be restored and that these lives be healed.  That is not being "soft on crime."  That is being "tough on crime."  That is getting at the roots of crime.

[10] Let me share the story of one of the three restorative justice panels that I participated in, to show how this model actually works.

[11] A 17-year-old young man had stolen some sound equipment from his place of work, worth $25,000.  The value of the equipment lifted this crime to the level of a felony-a crime the district attorney was obliged to take very seriously.  The guilty employee was tracked down within 48 hours and the equipment was retrieved.  Neither the company nor the DA were about to drop the charges in such a serious theft.

[12] Because the perpetrator of the crime was a first-time offender and 17 years old, and because there is a restorative justice program and structure in place in Milwaukee County, the DA was willing to refer the case to a restorative justice panel.

[13] So the perpetrator of the crime, a representative of the company for whom the offender worked, two representatives from the community (trained in restorative justice principles) and a facilitator came together for the express purpose of dealing with the serious nature of the crime and for the purpose of restoring the brokenness caused by the crime.  I was one of the two community representatives.

[14] The facilitator first stated the purpose of the panel.  The very words we all heard are seldom heard in a courtroom:  "We want to deal with the seriousness of this crime, what happened, why it happened, how it negatively impacted the workplace and the community, and how we can heal the brokenness in the offender, the workplace, and in the community. "

[15] As the young offender haltingly described how he managed to remove $25,000 worth of equipment from his place of employment, he was not facing a judge or a jury that held the power of punishment over his head.  He was forced to tell "the community" about a deed that he figured he would get by with and would never have to talk about to anyone.  Telling the community what he did was the beginning of the long healing process.

[16] Then when he was asked to dig deep into his psyche and soul to tell why he did it, it became infinitely more difficult.  He was forced to reach into spaces he was not that familiar with himself.  Clearly this struggle with the root causes of an offender's criminal actions is essential for any healing process.

[17] Then it came time for the offender to hear the hurt that he had created at his workplace-the broken relationships with his supervisors, his fellow employees and with the company who had placed trust in him.  There was also the difficulty of getting a job recommendation from his supervisors, when he applies for his next job.

[18] Beyond the workplace, the offender heard from the two of us from the community that stealing from a company, especially by a teenager, has its ripple effect on the whole community, creating anti-youth attitudes, growing fear of crime, and less and less sense of trust and neighborliness in the community.

[19] In place of incarceration, the panel agreed that the young offender should carry out some community service that would help him confront his wrong and hurtful choice and would at the same time serve a real need in the community.  Consequently he was required to go to a weekly gathering of at-risk youth to share his story and to tell them it is in their self-interest not to steal on the job or in the community.  He was to do this with me being present, and then he was to meet with me in a pastoral setting to discuss the experience, and, since he had expressed a faith in God, he was to discuss with me the moral and theological aspects of stealing, as well as his journey of confession, repentance and God's forgiveness.

[20] He did carry out the prescribed steps of testifying, sharing, and dealing with his criminal action.  Not only did he honestly talk about his own bad choice with these toughened youth from his peer group, warning them not to follow in his footsteps, but he even went back to the group on his own, just to continue the relationship.

[21] Only time will tell whether this face-to-face interaction between offender, victim, and community was sufficient to heal the broken integrity and relationships.  However, this authentic process of seeking to go beyond punishment for breaking a law, to a deeper restoration of the brokenness and healing of the wounds that always happen when a crime is committed against a person/community, stands a better chance of healing and restoring than sending, especially a first-time offender, to incarceration, where criminality is taught and nurtured daily by professional criminals.

[22] The national movement toward restorative justice in all its expressions (including community-based mental health and drug treatment for persons so afflicted) warrants deep scrutiny and serious implementation by people of faith everywhere.


© March 2004
Journal of Lutheran Ethics
Volume 4, Issue 3