First in a series of papers on restorative justice by Ron Claassen, Director of the Center for Peacemaking and Conflict Studies at Fresno Pacific University and Founding Executive Director of Victim Offender Reconciliation Program of the Central Valley.
Is "Criminal Justice System" a good name? Does it describe the primary actors? Is it descriptive of what we do? I'm suggesting that the name is a problem, it is not helpful, and it is confusing. I am suggesting that we change from "Criminal Justice System" to "Restorative Justice System."
I think that just changing the name would have some impact. It would clarify the purpose of the system, how it should operate, and provide a measure for its success.
In informal conversations and in seminars and classes I have been making this suggestion and have had some very helpful and provocative questions and comments. One of the comments/questions in almost every setting is: "Surely you're not so naive as to think that the whole system could be a restorative system. What about serial killers or those who would bomb a federal building? Don't you mean that we should have a Restorative System that operates along side a Retributive System?"
No. I think our whole system could be a Restorative Justice System. In fact, I think that if we are ever going to turn the tide of fear and violence that seems to be increasing, we will need to change a lot of things in our society, and one of those will have to be how we respond when violence does occur.
The most influential moral teacher in the history of the world, Jesus, put it this way. (Read Matt. 5:38ff) "You have heard that it was said, 'an eye for an eye and a tooth for a tooth' (which, by the way is a great improvement already on the idea of unlimited revenge) but I say to you."
What Jesus says after that suggests another way of responding which is often discounted because on the surface it sounds like the responder becomes a "doormat" and it includes the ridiculous sounding idea "love your enemy." But it only sounds ridiculous in the English language where we only use one word, love, to cover the meaning of several Greek words. The Greek word in this text is from the root word "agape." It doesn't mean that Jesus expects one following his way to have warm and gushy feelings for the enemy. A more helpful translation of the word "agape" would be "to be constructive." So Jesus is suggesting that the response to an injustice should be one that is constructive.
Retribution leads to increased fear and threats and actions of retaliation which lead to more fear and threats and actions of retaliation.
I use the following model as a way of beginning to envision a restorative justice system.
|Cooperation Activity Goals|
|Recognize the injustice|
|Make Changes for future|
|Heal Individuals and relationships|
|Safety (based on voluntary changes)|
|Reintegration into community|
|Coercion Activity Goals|
|Safety (for duration of coercion)|
|Bring attention to problem|
|Impose logical consequences|
|Introduce/require listening to importance and way of civility|
|Restraint to prevent harm to others|
|Introduce/require listening to impact of crime on victims|
|Learn to handle conflict constructively|
I think that our whole system could be based on the purpose of restoration of victim, community, offender, families, friends, restorative justice officials and any other individuals or relationships that might have been damaged by the crime. In a restorative system, the primary focus would be on the human violations and need for healing and restoration of individuals and relationships. Focusing on the violation of law would be a backup for those unwilling to be cooperative.
In a restorative system, we would recognize that the ideal is when the offender recognizes the injustice, makes significant effort to restore damages where possible, makes the changes (perhaps with the help of others) to prevent injustice in the future, and is voluntarily accountable to others for keeping the agreements. When this would happen, it would address the restoration of others damaged by the crime. If it didn't, or if the size of the offense was very large, the community would have to help.
A Restorative Justice System would use cooperation as much as possible and coercion as little as possible. A goal of the use of coercion would always be to encourage the offender to decide voluntarily to become cooperative.
If/when the offender decides to be cooperative, s/he moves to a process on the cooperative side. If, on the cooperative side, the offender does not cooperate, s/he moves to the coercive side. When actions on both sides are tested by whether they are respectful, reasonable, and restorative, then the whole system (both sides of the figure below) will be restorative.
VORP is one example of an activity on the cooperative side. In most cases the offender has been on the coercive side and is sent to VORP to see if s/he is willing to be cooperative. VORP only works with offenders and victims who voluntarily decide to cooperate.
This VORP/System relationship is one example, and there are others, which demonstrate that some of what is currently being done in the Criminal Justice System is already restorative.
There is still much to be done.
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