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RESTORATIVE JUSTICE
Roles for forgiveness and retribution
by Phil Bartle, PhD
Training Handout
The Justice System is Changing
Punishment, as practised by our formal corrections system, does not end (or even reduce) crime. It does not even result in a perpetrator stopping a life of crime. Resentment and hurt feelings by the punished are not conducive to ex-cons changing their life styles. Living in prison also provides a social environment of antagonism towards authority, as well as new skills for expanding their criminal careers. Vengeance and revenge do not stop crime, in contrast to forgiveness and allowing perpetrators to confess, express regret and make retribution.
While the general emphasis of formal legal sentences in Western societies has been on punishment, there have been exceptions and innovations.
Several attempts at rehabilitation, instead of punishment, have been made. It was recognized that imprisonment as punishment, or even as warehousing, 1 often provides a resocialisation environment where ex-cons graduate with more technical skills in committing more crimes and a greater antipathy towards society in general, the law, and law enforcement agencies and personnel.
The programme of education in penitentiaries,2 devised and operated by the University of Victoria, now run by Simon Fraser University, provides education ranging from basic literacy all the way to university courses.. Some inmates had earned degrees in penitentiaries. The reasoning behind this is that low self esteem and lack of skills and qualifications for obtaining legitimate employment contribute to recidivism. Getting an education helps overcome these two barriers to going straight. Research shows that these programs drastically reduce recidivism rates, so long as the participants are not addicted to addictive substances. For those the results are mixed.
Divorce is another area where norms are changing in the legal system. In the past, the legal process of marital dissolution was an adversarial process of litigation. Divorces have increasingly been seen as unfortunate but not requiring the application of blame or fault on at least one partner. Increasingly courts, judges and lawyers are available to seek amicable separation, fair negotiation or even reconciliation rather than bitter litigation and fault finding.
Perhaps the best known, world wide, alternative justice process had been the truth and Reconciliation Commission of South Africa. Many whites with privileged positions in Apartheid South Africa feared that there might be retribution against them if Apartheid 3 ended. The conflict to end (or to sustain) Apartheid was characterized by many criminal events perpetuated by both sides. Realizing that revenge and vengeance, even if it would be carried out within the legal system, and even if understandable, Nelson Mandela and Bishop Desmond Tutu created the Truth and Reconciliation Commission as an alternative.4
This began a public process wherein perpetrators of crimes could confess them (if they had a political motive), listen to the stories of the victims and their families, demonstrate regret, apologize, and be legally forgiven. This could be seen as a genuine legal process of applying Christian values of forgiveness (something rare in all legal systems). Observers see this as a way of keeping the country together and avoiding total anarchy.
In Canada, the legal system now has an element of First Nations restorative justice. 5 A healing circle includes both the perpetrators and the victims, and with the families of both. (Lawyers could attend but could not speak) Confession, demonstrated regret, review of the effects of the crime on the victims and their families, as with the south African process, are all parts of the healing circle process. 6
Footnotes
1. The idea of imprisonment as neither punishment nor rehabilitation stems from the idea of protecting society by removing the perpetrator from free movement in society.
2. The distinction between prison and penitentiary in Canada is between provincial and federal jurisdiction. Federal time consists of two years or more while provincial time is less than two years.
3. The Afrikaans (Dutch) word or suffix, “heid,” is like the English “hood,” as in “motherhood”, so “apartheid” is best translated as “apart-ness.” Do not run the “t” and “h” together as a diphthong (ie do not pronounce it as we pronounce “th” as in “thing.”)
4. See: http://www.doj.gov.za/trc/ the web site of the Truth and Reconciliation Commission.
5. First Nations persons are the victims of more bigotry and prejudice among all the visible minorities in Canada. The proportion of population of Canada’s prisons and penitentiaries who are First Nations, relative to their population in the country, is higher than for any other ethnic minority.
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