Restorative Justice: The Long Struggle

"In secular Western courts," the author writes, "theological argument is not especially welcome." Credit: Creative Commons/ Vectorportal.

The Winter 2012 issue of Tikkun contains a rich collection of articles on the theme of restorative justice, a long-time interest of mine and a focus of my recent month of travel and interviews in New Zealand, the country that has been a pioneer in the practical ways of restorative justice in law and its enforcement. Two web articles associated with Tikkun’s Winter 2012 issue raise important issues for Americans: “Twenty Years of Restorative Justice in New Zealand” by District Judge Fred McElrea and “After Twenty-Six Years in Prison: Reflections on Healing” by Jerry Elster.

My interview of McElrea in Auckland and his essay prompt me to assess the question of how religion and politics have, or have not, helped to develop restorative justice in New Zealand. McElrea, an Anglican layman grounded in theology, asserts that restorative justice principles are profoundly congenial with Christian ethics. But he is aware that in secular Western courts, theological argument is not especially welcome, and he knows that the church-related citizens of his country do not necessarily support justice-as-healing versus justice-as-punishment.

He speaks of how in New Zealand “an unholy alliance between the media and most politicians promoted the illusion that punitive reactions promote community safety” from crime. The statistics belie that opinion in New Zealand and the United States. In either country, putting a sixteen-year-old thief in prison will teach the young person how to commit more thefts, for, as we know, prisons are great schools for crime. McElrea and many church leaders in New Zealand are weary hearing Exodus 21:24 quoted ad infinitum as the one authoritative principle of criminal justice: “An eye for an eye, and a tooth for a tooth.” Little recognized by people who quote this passage is that, in context, the text was directed at the limitation of revenge in the community life of Israel. The implication is: “If revenge is your game, no more than one eye for one eye. Tame your impulse to take two eyes ‘for good measure.’” Most scholars agree that limitation is the keynote of this famous passage. Further, to read Exodus 20-22 is to be impressed with the theme of restoration of damages in Israel’s criminal law. Jewish legal scholar David Llewellyn notes, “Fewer people would be convicted under the Mosaic code than under the penal codes of any of our fifty states.”

There is more mercy in that ancient Hebrew law than Christians often discern. But with Jesus’ teaching in Matthew 5:38-39 in mind, judges like McElrea are sure that Christians should be in the forefront of advocacy for restorative justice. It seems that McElrea’s door to restorative justice appeared one day twenty years ago when his conscience was pulling him back from sending a young purse-snatcher to jail. The victim of the crime, a Quaker woman, declined to press charges. In court McElrea wondered out loud, “Is there an alternative? Would anyone be able to pay attention to this young man in ways that would keep him from repeating this crime?” At that, a Presbyterian minister, from whose Auckland neighborhood the offender came, stood and volunteered. His name was Douglas Mansil, a “street wise” urban pastor who was ready to partner with the legal system to keep the young man from the deadly effects of imprisonment. It worked. McElrea’s court did not see that young man again. In 1989, on grounds of this thinking, the New Zealand legislature established a youth court system whose purpose was to diminish trials and imprisonment of offenders under age 17. It did diminish—by 80%.

If not Matthew 5, then Luke 15 should decisively equip Christians with precedent for support of restorative justice. When that purse-snatcher appeared before McElrea’s bench, he was a standing for the Prodigal Son, who needed a restoration of his place in his family. Finding a way to welcome offenders back into a human family is the essence of restorative justice. How is it that so few of my fellow Christians quote this great parable as applicable to our society’s treatment of young lawbreakers?

After his account of the young offender and Doug Mansil, I asked McElrea, “Does theological argument get public expression in either church or secular circles in New Zealand?” The church side did receive exposition in an Anglican synod study in 2010, “Incarceration in New Zealand,” which appropriated government statistics on the fiscal and moral failures of prisons. But such church studies are rare, and there is always the doubt that what synods and presbyteries say publicly gets little heeded by people in the pews. Judges such as McElrea are prompt to say that the public case for restorative justice can be framed in secular terms as strongly as in religious terms. The arguments that appeal to the legislatures include the saving of tax monies, the rescue of citizen lives from the corruptions of prison, and the human satisfactions of police and judges as they direct their energies away from punishment to the rehabilitation of victims and offenders.

Nonetheless, the future of restorative justice in every country will depend critically on a struggle with two resistances: the popularity of punishment among voters and the blunt fact that some crimes are historical-social, not merely cases of individuals breaking the law. The latter is the strong final point in the article by Jerry Elster, “After 26 Years in Prison.” A restorative justice procedure, he writes, can “help individuals move forward with accepting their accountability, but it doesn’t help the system or society move forward with theirs.”

Large, organized, collective interests are at odds with the future of restorative justice: unions of prison guards, economic benefits to communities from prisons, and then—perhaps the most difficult injustice of all—historical crimes whose legacies subject whole groups of people to continuing injustice. Like the Maori, indigenous peoples in the United States and Canada are waiting for healings that exceed any form of individual therapy for crime’s victims and offenders: the land stolen by European colonists from the indigenous, the treaties broken, the genocide, intended or not, that devastated them. Perhaps, speculates Elster, the restorative experience of individuals in procedures like family group conferences and victim compensations will prepare people to see their duties to work as citizens for restorative remedies for these huge historical injustices.

The kinship between the individual and collective levels of crime was frequently on display in the work of South Africa’s Truth and Reconciliation Commission in the 1990s. There, police who beat black protesters frequently pleaded, “We were just obeying the law,” as must have been said by U.S. soldiers who enforced Andrew Jackson’s order for all American Indians to relocate west of the Mississippi in the 1830s. What remedy does an American government still owe for that Trail of Tears? In her Tikkun article “Decolonizing Restorative Justice,” Denise Breton asked the same question of her own Minnesota history: “Here in Minnesota we colonizers have not been held accountable at all for state-sanctioned, citizen-supported crimes against humanity,” namely the humanity of the Lakota peoples. She goes on to the radical suggestion that, by restorative principles, “every Minnesota realtor should be imprisoned for dealing in stolen property gained through murder.”

In their final report, leaders of the Truth and Reconciliation Commission confessed that they might have called political and judicial leaders to account for their support of apartheid law, but they failed to do so. Calling institutions and political organizations to account for crimes remains on the still-pending agenda of the restorative justice movement. Whether its advocates will ever be able to extend their philosophy of healing to the vast wounds of our national and global histories remains to be seen.