...a lot of people think this is just a job that you go to.....take a lunch hour, the job’s over, something like that. But...it's a 24 hour deal...no two ways about it....and what most people don't see: Just How Hard It Is To Do The Right Thing. People think if I make a judgment call that it's a judgment on them...but that's not what I do and that's not what should be done...I have to take everything and play it as it lays.
Sometimes people need a little help. Sometimes people need to be forgiven and sometimes they need to go to jail. And that's a very tricky thing on my part...making that call...the law is the law and heck if I'm gonna break it...but you can forgive someone....? Well, that's the tough part....What Do We Forgive? Tough part of the job.....tough part of walking down the street...
-Police officer, Jim Kurring, from the movie Magnolia
A while back, a married couple in my church became acquainted with the local courts. Both of them agreed—and knowing the couple, I can believe it—the man had hit his wife as he tried to get her to stop hitting him. His defensive blow was more powerful than her many, and left a mark on her face. Still upset from the initial point of the confrontation, she called the police to report the incident. He was arrested and several days later handed a restraining order.
Being a pastor in such a situation proved difficult, because not only did the ruling state that the couple was not to be within 100 yards of each other, they could not have interaction through any third party. It was frustrating that the ruling made it practically impossible to seek reconciliation, let alone restoration. Certainly, I am well aware that there are irreparable situations, but I do believe in the way of Jesus, in the way of forgiveness and reconciliation. As a church community that seeks to restore broken relationships, the courts’ retributive practices stood in the way.
In
Beyond Retribution: A New Testament Vision for Justice, Crime, and Punishment, Christopher Marshall explains that retributive justice is the dominant theory shaping our present criminal justice system (BR, 112). As such, its practices and rulings will oftentimes stand in contrast to the reconciliatory goals of the church. So then, if the church could reform the current system (and Marshall discusses whether or not a Christian should be concerned with such an endeavor), what type of system or position ought it present based on the teachings of the Bible and, more specifically, the New Testament?
Through exploration of the teachings of Jesus and Paul, Christopher Marshall offers insight into thinking what the purposes of a criminal justice system should be given the New Testament witness. He argues that a biblically informed criminal justice system would have a primary purpose of seeking justice that “heals, restores, and reconciles rather than hurts, punishes, and kills” (BR 33). This is because he comes to understand that biblical, or divine, justice is restorative at its core. Informed by the biblical teachings of forgiveness (BR, 72-77), non-retaliation (BR, 77-78), and love of enemies (BR, 89-92), Marshall appropriately presents a position called restorative justice. Restorative justice is a radical challenge to the current mode of retributive justice, “since it is concerned primarily with reconceptualizing justice, not justifying punishment” (BR, 141).
In developing a clear argument for the reconceptualization of justice based on thorough biblical exegesis, Marshall’s second chapter offers an important clarification. I believe that Marshall also adds one more helpful clarification: all criminal justice theories hold that a crime does damage to something and thus that something needs to be restored. The focus then becomes what is damaged and thus what needs to be restored. What is broken, damaged, injured, stolen, or thrown off kilter when someone commits a crime (the words used to describe the injustice reveal much about one’s perspective)?
Retributive theory relies on the understanding that a moral code, the law, has been broken when there is a crime committed, so the “moral balance” is what needs to be “restored” (BR, 110). “Crime upsets the moral or social order, and punishment is required to
restore the balance” (BR, 98, emphasis mine). The weight is on the “giving back to someone [the criminal] what he or she merits or deserves” (BR, 109) so as to “nullify the crime” (BR, 110). As such, the victim of the actual crime is not really the victim; the victim is the authority or stature of the law. In retributivism “there is no need to refer to the real victim at all, particularly when the system redefines the victim as the impersonal state” (BR, 119).
In contrast, the focus of restorative justice is the restoring not of a moral order but of those very relationships impacted by the crime. Restorative justice understands that a crime, or any sin for that matter (and I’ll leave alone the conversation about whether all crimes are sins), creates a situation in which “repair” is needed at three levels:
It is partly a matter of restitution and/or compensation by the offender to the victim, which brings with it a sense of vindication as well as a contribution to restoring what has been forcibly taken away by the crime. It is partly a matter of resolution, if not reconciliation, between victim and offender, as well as between the offender and the wider community – that is, the resolving of what has distorted the appropriate relationship between them as fellow citizens and as human beings. And it is partly a matter of promoting restoration or healing within the offender’s own character by clarifying the moral wrong that has been done and that a change in the offender’s behavior and disposition is necessary. (BR, 133)
If what needs repair is relationships, then it is relationships that are damaged in the aftermath of a crime.
The understanding of what response to a crime is just is shaped by the belief about what has been negatively altered by the crime. This is exactly what Jim Kurring, the police officer in the movie Magnolia, faces everyday when he has to decide on the spot the full ramifications of the crime committed and the necessary judgment call he must make regarding whether “they need a little help…need to be forgiven…[or] need to go to jail.”
This shift from focusing on restoring a moral order to restoring relationships is profound. Applying it would produce a completely different structure within the criminal justice system. Even at the level of police officers, the framework of judgment would shift. The couple in my church might have had an earlier chance at reconciliation, but instead the division has grown so deep during the distance that they may never live together again. Jesus’ teaching to “go and be reconciled…settle matters quickly with your adversary” was not allowed to be obeyed legally, because what needed to be reconciled was the man’s understanding that the law rules.
Though I greatly appreciate and can wholeheartedly accept Marshall’s argument that a biblical understanding of justice is centered on the restoration of relationships (with humans and God), and would more than welcome reformation of the criminal justice system to pursue such restorative justice, I am left wanting with regards to applicability. Given how the book ends, his insights taste more like “high ideals” or “hard sayings” that cannot be implemented on large scale. I believe it is much easier to put the concept of restorative justice into practice in a community of faith, which sits within a larger secular culture, but I am doubtful that it can be implemented at a national level as presented over a long period of time for one specific reason.
First, forgiveness is a necessary component of complete restoration. “Forgiveness deals with this distortion [the rupture of the relationship] and clears the way for the recovery or repair of the relationship. Reconciliation thus represents the culmination of the forgiveness process” (BR, 269). Though Marshall clarifies what happens on a cosmic level when the forgiveness that is extended by God to sinful humans is rejected due to human refusal to acknowledge the need for forgiveness (“alienation and death”), he does not offer, in my memory, an understanding of the societal equivalent. What happens when an offender does not recognize his or her need for forgiveness from the victim or the wider community? What sentence awaits such a person? Further, how could a judge ever know if someone truly accepted forgiveness? Criminals just might learn to act repentant, which happens today. That would leave us in the same position where Officer Jim Kurring finds himself today.
In conclusion, though the implementation of long-term, society-wide program of restorative justice is not something my mind can grasp, Marshall’s study and analysis are transformative. I am more convinced that these concepts are easier to implement in a local church, where if the “brother” who has sinned does not listen to the one or to the two or to the church, there is a practical equivalent to the “alienation and death” on the cosmic level.
Where do you think restorative justice could be best implemented? Have you experienced a situation when someone sought retribution but not restoration? How might the situation have been different if he or she had sought restoration instead?
Comments (3)
Restorative justice is obviously the option that will lead to rehabilitation which I think should be the ultimate outcome of the system. Restoration is fine, but there is no real progress unless the offender is rehabilitated. These two seem to go hand in hand sometimes, but not all of the time.
The issue is that an adamantly unwilling offender can't be rehabilitated and can't be forced to restore justice either. You have to have intention for that. It seems that we would have to have two systems because it is not safe to put an unwilling offender into the kind of program that is meant to bring them into contact with the victim.
In the case you described, think about this situation on a national scale. How many couples are going through this right now? How many of these couples really need to be separated because still plans to be abusive? Maybe it hinders reconciliation in your case, but I'd be willing to bet that for every one of your cases there is a case where there needs to be mandatory separation so that someone doesn't get hurt again. The law can't be sensitive to special cases and be safe so it seems to err on the side of caution.
What I am saying is that, like all things, there is no clear-cut answer. Our best hope is to implement a bunch of strategies on a small scale, test them, then try to put them on a larger scale.
Regardless of what legal actions are taken in a given instance, our attitude should be mercy over justice. That is, we must love mercy more than justice.
Interesting post.
That would be a rough situation to be in as a pastor.