Restorative Justice Revisits Punishment

justice, n. Etymology: < Old French justise, -ice (jostise) uprightness, equity, vindication of right, administration of law, jurisdiction, court of justice, infliction of punishment, gallows, judge, etc. —Oxford English Dictionary online

The customary way of thinking of justice – usually tied to determining what kind of punishment is appropriate for a particular wrongdoing – is not the way that justice is viewed at the Center for Justice and Peacebuilding. At CJP, many faculty, staff and students are advocates for “restorative justice.” In this essay, Brian Gumm explains the roots of restorative justice. Gumm is a licensed minister in the Church of the Brethren, who is in his final year of earning two master’s degrees at EMU: an MA in conflict transformation and a master’s of divinity. This paper is excerpted from a talk Gumm gave to the Student Learning and Global Justice Conference in the Washington D.C. area on April 8, 2011.

From humble origins

Restorative justice is a values- and principles-based framework that attempts to address incidents of wrongdoing by asking three questions: (1) Who has been hurt? (2) What are their needs? and (3) Whose obligations are these?¹ In its early days in the 1970s and ‘80s, before it was even called “restorative justice,” the field’s practitioners saw the Western criminal justice system as implicitly asking a very different set of questions when addressing wrongdoing: (1) What laws have been broken? (2) Who did it? and (3) What do they deserve?²

When contrasting these two sets of questions, it’s quickly seen that the starting points for restorative justice and the criminal justice system are fundamentally different. One assumes a powerful system where the other assumes relationship. One focuses on an individual, the other, a community. Finally, one prescribes punishment where the other seeks restoration. But these are boring, abstract ways to talk about restorative justice, so let me tell you a story. It’s a story first told to me by the “grandfather” of the restorative justice movement, my mentor, colleague, and friend, Dr. Howard Zehr. I lovingly call this the “creation story” of restorative justice.³

One night in in the spring of 1974, in a small town in central Ontario, two teenage boys got drunk and went on a vandalism spree throughout the town. The two 18-year-old boys smashed windows, damaged vehicles, defaced church signs, and even pulled a boat out of a driveway and into the middle of the street before going back home and passing out. They awoke the next morning to police knocking on their door. The boys were charged with vandalism of 22 properties.

Mark Yantzi, who had begun working with the local probation office as a Mennonite Central Committee (MCC) volunteer, and David Worth, another MCC volunteer involved with the justice system, ended up on the case. One of them suggested that it “would be neat” to have the offenders in this case meet the victims of their vandalism face to face instead of simply sending them both off to jail, to which the other replied “why not?”⁴ Along with their pre-sentence report to the judge in the case, the two Mennonite probation workers suggested their wild idea.

Much to everyone’s surprise, the judge accepted their suggestion. So the two Mennonite probation workers took the two young men around Elmira, Ontario, knocking on doors, meeting their victims face to face, and apologizing. Within three months the men paid back all their victims. This experience radically reoriented the life of one of the boys, Russell Kelly, who had lost both of his parents and was struggling with substance abuse issues before this. He eventually entered college to study law and security and became a volunteer mediator with Community Justice Initiatives in Kitchener, Ontario.⁵

Let’s explore our three restorative justice questions using this story. First: Who has been hurt? The obvious answer is the 22 people or families whose properties were vandalized. But wait a minute, we also heard that one of these boys, Russell, had lost both of his parents before he was even 18 years old, and was coping with drugs and alcohol. Does this not sound like someone who is hurting? So any justice process that is restorative will quickly show how easily lines are blurred when you shift from blame in an isolated incident to identifying pain and brokenness in a community that has experienced wrongdoing.

Once we have an idea who has been hurt in a situation, we ask: What are their needs? The people whose properties were vandalized had their sense of safety and security shattered, as were their plate glass windows from rocks thrown by the boys. These people needed to feel safe again in their own homes and neighborhoods. And what of the boys? We know from Russell’s experience of losing his parents that he likely needed the experience of a family which he’d since lost, the need to feel connected and supported.

Lastly, we’ll ask: Whose obligations are these? As members of the community, the boys had an obligation to help restore their victims’ sense of security and safety, but the victims and the wider community hopefully feels – even in the midst of their distress at the violation – a sense that these boys are one of their own and might be successfully brought back into relationship through the justice process. This last bit on community obligations is tricky business, as we are so conditioned to think of justice as a one-way street. But at the same time you can’t command someone to suddenly begin thinking and acting restoratively in this way.

Punitive “justice”

Through his survey of literature covering post-Enlightenment legal traditions and prison systems, David Cayley helps us see that the penitentiary system that developed in 18th and 19th century America had its roots in early modern European monastic orders that practiced particularly harsh forms of punishment, including solitary confinement and physical mutilation.⁶ But as even the word “penitentiary” shows us, it goes back further than that. What made such an idea conceivable in the first place? Cayley makes the claim that “the idea that crime demands prosecution and punishment seems no more than common sense to us today. But it cannot be found in Western society before the 12th century, when modern conceptions of law first made their appearance.”⁷

In early European society, law was “embedded in social life rather than embodied in special legal institutions.”⁸ If this sounds familiar, it should. Pre-modern practices of law and justice were inherently social. This sociality began to shift in Europe, however, in the 11th and 12th centuries when the Roman church began to assert itself over-against ruling authorities, resulting in a long and conflictual, often violent, social-economic-political battle.

Results of this power struggle produced among other things: the Inquisition in the 15th century; the Protestant Reformation in the 16th; and the so-called “Wars of Religion”⁹ in 17th century Europe. These helped give birth to the Enlightenment intellectual project and its political progeny, the powerful Western systems we inhabit today: the modern nation-state and democratic capitalism. Mixed up in all of this was the developing idea that crime is primarily an individual matter rather than social, and therefore the solution is also individual, namely punishment.

What I’ve just tried to do is to take a quick sprint through Western history from the medieval period into the early modern period in hopes that it can become at least conceivable that the whole cluster of thoughts and practices encapsulated in a phrase like “crime and punishment” or a word like “penitentiary” are not givens, but are rather products of messy history in which the church is very much enmeshed.

The Anabaptist angle

Before I start explaining what Anabaptism is, I want to recall that the two probation workers who had the crazy of idea of making the two boys apologize to the victims of their vandalization were Mennonites.

I think it’s no accident that these two Mennonite men would conceive of such a thing in this strange new work in which they found themselves, and that it didn’t just come out of the clear blue sky. Rather, this idea was the fruit of a peculiar strand of the Christian tradition.

The Anabaptist tradition, which eventually formed into groups including the Mennonites, began in 16th century Germany, roughly contemporary with the beginnings of the Protestant Reformation. While there is no single “myth of origin” for the Anabaptist movement,¹⁰ one of the more straightforward and observable dimensions was their dawning conviction – based on a deep engagement with the Bible – that the rite of baptism was to be a person’s own conviction discerned in the fellowship of believers. In other words, they became convinced and practiced adult baptism, which in that generation meant re-baptism, the source of the word “Anabaptism.” In Reformation- era Europe – the highly volatile climate described earlier – such a move as adult baptism was political from the word “go.” For both Catholic and Lutheran churches in Germany, hand in glove with provincial governments, the practice of infant baptism served not only a spiritual function but a civic one as well, namely being registered as a citizen to your territory and, if you were an able-bodied man, being subject to inscription into your prince’s wars.

Simply put, the Anabaptists were not only heretics but treasonous heretics at that, which earned them death by drowning, burning, hanging, and my favorite: being put in a cage and hung from a church steeple. My point is to underscore the importance of the martyr tradition in Anabaptism, especially among Mennonites even today, nearly 500 years later.¹¹

Early Anabaptist conflict within the fellowship was handled with deference to Jesus’ own instruction in Matthew’s gospel, namely Matthew 18:15-18, which for generations Anabaptists would call the “Rule of Christ.”¹² With the restorative justice creation story in view, let me offer you the first few sentences of the Rule of Christ: “If your brother or sister sins, go and point out their fault, just between the two of you. If they listen to you, you have won them over. But if they will not listen, take one or two others along, so that ‘every matter may be established by the testimony of two or three witnesses’” (NIV).

Is it too much of a stretch to suggest that this verse, so important to early Anabaptist experience, could have somehow helped spark the imaginations of the two Mennonite probation workers on another continent a few hundred years later?

Circling the globe

Let me make a few things clear as to what I am not trying to say in all that’s preceded. I am not trying to colonize restorative justice by claiming that it’s solely a “Mennonite thing.” Doing so would be ignorant and irresponsible considering the directions that the field has taken since the 1970s.

Another thing I am not trying to say is that the communal/relational attitudes inherent to restorative justice are necessarily new. In fact, if anything, I hope I have shown through my glimpses into history that they’re actually quite old. When my mentor, Howard Zehr, tells this creation story and his later work in articulating the field, he’s quick to point out that non-Western people who come to know restorative justice often say quite matter-of-factly, “Well, of course! That’s how we’ve handled wrongdoing all along!” or “That’s how our elders handled these situations!” Indeed, a communal awareness as it relates to handling wrongdoing is a very, very old impulse, and that it’s so surprising to Westerners only underscores how our societal imagination has been captivated by the habits of individualism.

In short, restorative justice is a “return to the teachings” approach for understanding and repairing harm in communities and societies. The movement has swept the globe, with unique and culturally sensitive applications being developed for criminal offenses, societies transitioning out of violent conflict, disciplinary matters in educational settings, and the lingering effects of historical harms, such as slavery.

Notes

1. Howard Zehr. The Little Book of Restorative Justice, Little Books of Justice & Peacebuilding. Intercourse, PA: Good Books, 2002, 21.
2. Ibid.
3. This story has been told by Howard Zehr countless times and has been recorded in a handful of restorative justice books. I’m drawing on the account from Gary Nyp. Pioneers of Peace: The History of Community Justice Initiatives in the Waterloo Region, 1974-2004. Kitchener, Ontario: Pandora Press, 2004, 13-15.
   
4. Ibid., 15.
5. Barb Toews, The Little Book of Restorative Justice for People in Prison, Little Books of Justice & Peacebuilding. Intercourse, PA: Good Books, 2006, 9.
6. David Cayley. The Expanding Prison : The Crisis in Crime and Punishment and the Search for Alternatives. Toronto: House of Anansi Press, 1998, 138.
7. Ibid., 123.
8. Ibid., 126, emphasis mine.
9. Cf. William T. Cavanaugh. The Myth of Religious Violence : Secular Ideology and the Roots of Modern Conflict. New York: Oxford University Press, 2009.
10. Cf. Thomas Heilke. “Theological and Secular Meta-Narratives of Politics: Anabaptist Origins Revisited (Again).” Modern Theology 13, no. 2 (1997): 227-52.
11. Cf. Thieleman Van Bragt. Martyrs Mirror: The Story of Seventeen Centuries of Christian Martyrdom from the Time of Christ to A.D. 1660. 2nd reprint ed. Scottdale, Pa.: Herald Press, 2001; and Tongue Screws and Testimonies: Poems, Stories, and Essays Inspired by the Martyrs Mirror. Edited by Kirsten Eve Beachy. Scottdale, Pa.: Herald Press, 2010.
12. Ervin A. Schlabach. “Rule of Christ among the Early Swiss Anabaptists.” Mennonite Quarterly Review 52, no. 3 (1978): 265.