Rethinking Punishment

Early in my career as prison chaplain, a prison guard patted me on the back and said, “It’s ok for you to care about them ‘preach,’ but it’s my job to put the boots to them!” The statement, perhaps tongue in cheek, reflects a persistent belief that prisons, the last door of the justice system, must “put the boots to,” or deliver the pain of punishment to, lawbreakers. We have seen it reflected in our current (Canadian) government passing repressive crime bills, and heard it spoken in the October 16, 2013 Throne Speech in the section entitled, “Supporting victims and punishing criminals.” The assumption is that proportionate punishment must be served: the more serious the crime, the more punishment is imposed. The question I ask is: “Is this justice? Is this even biblical?”

Many have called me a bleeding heart, too sensitive, a “con lover,” but after 25 years in the business, I still see all people as God’s image bearers. Even in jail they still count as worthy human beings, they are all precious in God’s sight, every one. Justice seeks to uphold the humanity of everyone—victims, offenders, and community. Human beings are the crown of creation. The rule of law is necessary but not sufficient; restorative justice expresses the missing people-focus.

Restorative justice seeks to address the harm done to people in a crime or offense and to establish obligations which seek to repair this harm. It is more like problem-solving than blaming. It addresses the causes, and re-establishes relational harmony to the extent possible by inclusive participation of the actual stakeholders of the offense. Traditional justice, on the other hand, regards crime primarily as law breaking, and the primary victim of the crime is the Queen. In a formal legal process, the Queen’s representative, the Crown (attorney), presses for conviction before the judge. If there is adequate evidence, beyond a shadow of a doubt, the lawbreaker is sentenced and punished. Our modern justice system is grounded largely in pragmatic, utilitarian, rationalist thought, a system arising out of the Enlightenment that did little to bring justice to those in society who most need it. Paradoxically, there is much evidence to suggest that a tough law-and-order stance, one that majors in punishment and deterrence, is actually dysfunctional; a war on crime becomes a criminogenic factor in itself. Durable public safety is not achieved, and the “victory” for victims is bitter-sweet.

Theoretical work in the restorative justice field has created an alternative paradigm which invites us to look more critically at what has become almost second-nature thinking: justice as primarily retributive punishment for law breakers. Punishment-and-reward thinking is so deeply entrenched in modern society and, I would suggest, in the church, that the first challenge is to step outside the box of punishment. Otherwise we will continually return to the assumption that pain application is a must; when no punishment is applied by the courts, the public will not perceive that justice has been done (Elliot, Security with care, 2011). Thus we must change our thinking about punishment if we are to come to a different understanding like that reflected in restorative justice practice.

In his latest book, Justice in Love (2011), Nicholas Wolterstorff points to the ancient reciprocity code as a stumbling block. He points out that the dominant understanding of justice in the West has been deeply affected by this code, which sees Justice as giving to each their due: good to those to whom good is due and evil to whom evil is due. Punishment then is due those who do evil. The negative side of the reciprocity code is known as lex talionis. Wolterstorff emphasizes that a close look at the New Testament will show that Jesus repudiated the reciprocity code, thereby repudiating punitive retribution, instructing us rather to return evil with good. Punishment must not be equated with retribution, Wolterstorff insists, nor does the state have a mandate for retributive punishment.

Correction and transformation for the good cannot be done retributively. Restorative justice implies that punishment should be understood as the painful hard work involved in making things right and working for reconciliation and transformation, looking ahead, instead of punishing past “sins.” Working as a victim-offender mediator, I saw clearly that explaining a crime to an actual victim and making things right were often hard, painful, but empowering processes for the offender, more effective and life changing for the good than a lecture and sentence imposed by a judge. Stepping outside of habitual thought patterns about crime and punishment, and focusing more on what shalom requires, will call for awareness-raising and public education. Perhaps we should ban the word “punishment” from our vocabularies for a while to force ourselves to use restorative words and actions, letting the biblical concept of shalom be our guide.

[Image: Flickr user Ecololo]