Monday, October 20, 2008

More on ‘restorative justice’

An article appeared in yesterday’s Sydney Catholic Weekly elaborating on the recent awarding of an honorary doctorate to Mr. Terry O’Connell for his work in ‘restorative justice’, so I thought I might elaborate a little on my own objections to this ideology. Now the article notes that

[Mr. O’Connell] has done extensive work in broadening focus for law enforcers by conferencing with all parties affected by crime: victims, perpetrators and their families, in order to achieve understanding and reconciliation on both sides.
Well and good. And the article notes further that

His work with criminal offenders has been accompanied by a remarkable decrease in repeat offences among those offenders.
Excellent. Deterrence, rehabilitation and ‘closure’ for victims are all laudable outcomes. But they are distinct from and subordinate to justice, with ‘justice’ essentially being that each person gets what he or she is owed, so that good deeds are appropriately rewarded and bad deeds are appropriately punished. There is a hierarchy of virtues, and all other natural virtues hinge on the cardinal virtues of justice, prudence, temperance and fortitude.

Now withholding adequate punishment from an offender would be an evil in itself. But we know that, as Pius XII taught in his allocution Ci Riesce, repression of evil is not the ultimate norm for the State; the State has the right to tolerate certain evils, subject to the norm that it only permit an evil in order to bring forth a greater good or avert a greater evil. So it can indeed be the case that the State might licitly forgo the satisfaction of justice through punishment, whether by incarceration or whatever, in order to rehabilitate an offender, if it judges that the value of rehabilitation would exceed the evil of the offender not receiving the punishment that he deserves.

So my problem is not necessarily with ‘restorative justice’ as a set of practices and policies, but as an ideology. That is because ‘restorative justice’ as an ideology dictates that rehabilitation always trumps retribution, so that if there is a conflict between the two, rehabilitation wins out. Yet at least in the case of pre-meditated murder, the value of rehabilitation cannot exceed the evil of withholding the death penalty, since it is a comparison of the value of one life with another life; what the offender took from the victim cannot be restored. Even as the offender might make some contribution to society through his rehabilitation, it is inconceivable that this contribution could outweigh the injustice of the offender’s on-going enjoyment of what he took from his victim. The only circumstances in which I could imagine the State licitly withholding the death penalty would be in the case of a dissident with a large number of supporters who would all rebel en masse if the dissident in question were put to death. But even in this case it is only a matter of delaying the execution until the situation has settled down. If justice is a cardinal virtue, on which both pagans and Christians should be able to agree, then the satisfaction of justice must take precedence over rehabilitation in the case of wanton murder.

(And MgS, you are most welcome to have your say here.)

Reginaldvs Cantvar
Feast of St. John Cantius, Confessor, 2008 A.D.

11 comments:

Pearce Richards said...

What appears to be blocking your acceptance of restorative justice is your concept of "justice" as inflicting retribution on the offender. Justice is not always the knee-jerk retributive violence mirrored on the offender in response to a crime. It should be subjectively appreciated by the victim and the community at large.

If said "justice" is the satisfaction of healing the harm caused by the crime, and this can be accomplished without inflicting retributive violence on the offender, should this not be the ultimate goal? The emphasis is on compassion and empathy for the victim, and instilling a sense of responsibility and accountability for ones actions in the offender. Our current justice system based on retribution fosters neither. Restorative justice programs, as you point out, show greater satisfaction with the justice system, decrease recidivism, and are able to instill a sense of accountability in the offender.

Restorative justice works only when it is adopted as an ideology and not merely a set of programs. It requires a paradigm shift away from retributive justice to a more compassionate way of dealing with crime: seeing crime as a violation of relationships, that can only be fostered by trying to bring the offender back into the community, not expelling them from it.

Your example of murder as being incompatible with RJ is somewhat of a red herring given murder is a tiny fraction of overall crime. I agree that no amount of rehabilitation or restoration of relationships can bring back a deceased person. However, retribution won't either.

An eye for an eye and everyone goes blind... and all that.

Louise said...

God's justice will mean that some people may end up in Hell. This is about punishment and it is just. I cannot see why such things as rehabilitation (which are certainly desirable) should cancel out punishment.

Nor can I see what is necessarily "knee-jerk" about punishment, given how slowly the justice system proceeds.

Cardinal Pole said...

Louise and Mr. Richards, thank you both for your comments.

Mr. Richards,

Firstly, I have to take issue with your idea of justice. The meaning of retribution as justice as applied to bad deeds is not "my" concept, but that of the great pagan and Catholic authors and even Enlightenment authors like Kant. The definition of justice that you propose:

"If said "justice" is the satisfaction of healing the harm caused by the crime"

seems to me very vague; justice properly so called isn't a matter of "healing the harm" but of 'balancing the scales'. The necessity of a due relation between crime and punishment is a metaphysical concept and need not be appreciated by the community, though certainly the offender must understand that he is receiving a punishment for an act for which he was responsible (though, as a matter of strict justice, he does not necessarily have to learn from this punishment).

Also, I find it curious that you say that

"The emphasis is on compassion and empathy for the victim, and instilling a sense of responsibility and accountability for ones actions in the offender"
(my emphasis)

when in fact punishment as an end in itself, rather than as a means to other ends such as rehabilitation or deterrence, is the best possible way to treat the offender as a responsible moral person.

I might add also that I disagree that the current justice system is based on retribution, when this is not the primary end that is evident in many legal decisions e.g. in a recent case of a man who shot his wife's adulterous lover and then himself (but survived), the sentencing judge spoke of the different ends of the justice system with retribution tacked on at the end as though it were an optional extra. The so-called 'humanitarian view of justice' is in fact in the ascendant.

Furthermore, your notion of

"seeing crime as a violation of relationships, that can only be fostered by trying to bring the offender back into the community, not expelling them from it"

is disturbingly subjective; a crime is a transgression of the eternal moral law, regardless of the relationships involved. Some things can and ought to be criminal offences even if both parties in a relationship agree to them e.g. sins against the Sixth Commandment.

Also, the punishment due to murder is not at all a red herring, since withholding the death penalty in favour of secondary ends overturns the hierarchy of virtues that I referred to in my post. It is the Western abandonment of the death penalty that proves that the judiciary is no longer interested in true justice; trying to include in the meaning of justice things that are distinct from and subordinate to it does not change this.

As for 'an eye for an eye', this is true in principle, it's just that if someone puts someone's eye out then it is not necessary to deprive the offender of his eye, since there are other temporal punishments that can balance the scales of justice without inflicting permanent disfigurement. In the case of murder though, there is clearly no other punishment but execution that can satisfy justice.

dudleysharp said...

"Capital Punishment: New Testament Teaching", Fr. John A. Hardon, S.J. Father Hardon, S.J. is considered one of the most prominent Roman Catholic theologians of (the 20th) century.

http://www.therealpresence.org/archives/Sacred_Scripture/Sacred_Scripture_014.htm

"There are certain moral norms that have always and everywhere been held by the successors of the Apostles in communion with the Bishop of Rome. Although never formally defined, they are irreversibly binding on the followers of Christ until the end of the world."
"Such moral truths are the grave sinfulness of contraception and direct abortion. Such, too, is the Catholic doctrine which defends the imposition of the death penalty."

"Most of the Church's teaching, especially in the moral order, is infallible doctrine because it belongs to what we call her ordinary universal magisterium."

"Equally important is the Pope's (Pius XII) insistence that capital punishment is morally defensible in every age and culture of Christianity." " . . . the Church's teaching on 'the coercive power of legitimate human authority' is based on 'the sources of revelation and traditional doctrine.' It is wrong, therefore 'to say that these sources only contain ideas which are conditioned by historical circumstances.' On the contrary, they have 'a general and abiding validity.' (Acta Apostolicae Sedis, 1955, pp 81-2)."

dudleysharp said...

Although not Catholic, this is an important writing.

Chapter V:The Sanctity of Life, "Principles of Conduct: Aspects of Biblical Ethics" By John Murray

http://tinyurl.com/3nhb7s

Terry said...

I am curious about whether or not justice is the primary virtue and how the other cardinal virtues would fit into a discussion a justice in this context (see quotation below); whether 'punishment' and 'desert' are necessarily the same thing; and how might we go about exploring these issues given the listed virtues.

"Excellent. Deterrence, rehabilitation and ‘closure’ for victims are all laudable outcomes. But they are distinct from and subordinate to justice, with ‘justice’ essentially being that each person gets what he or she is owed, so that good deeds are appropriately rewarded and bad deeds are appropriately punished. There is a hierarchy of virtues, and all other natural virtues hinge on the cardinal virtues of justice, prudence, temperance and fortitude."

Cardinal Pole said...

Terry,

thank you for your comment (and sorry for my belated response), and you raise some good points.

Firstly though, I have not and would not say that justice is "the" primary virtue, just that it is, with prudence, temperance and fortitude, a cardinal virtue, 'cardinal' meaning of course something on which other things hinge. (And clearly I am confining myself to the natural virtues, since of course the supernatural virtues outrank the natural ones, but are not directly in the competence of the State.) The fact that justice takes priority over rehabilitation is clear from the fact that, as Louise pointed out, the damned will never be rehabilitated.

As for how the other virtues fit into a discussion of justice, certainly we can say to start with that there is no conflict with the other virtues in the case of the death penalty, since there are, for instance, strong prudential reasons for enforcing it.

As for asking "whether 'punishment' and 'desert' are necessarily the same thing", I cannot imagine what, other than a proportionate punishment, would be owed for a bad deed. Could you elaborate?

Paul Redekop said...

Dear Sir,

Your argument that ‘justice’ essentially requires that each person gets what he or she is owed, so that good deeds are appropriately rewarded and bad deeds are appropriately punished has a certain appeal. However, there are problems with it as well. One as to do with the relationship between the condemned act and
the offender. With punishment, we move from a condemnation of the act to a denunciation of the person who has committed it. As soon as we do this, we begin to lose our moral ground, because we can never know if the person is as evil as the action we wish to condemn, or just confused, disturbed, or mistaken—in other words, just another flawed human being like the rest of us. We cannot say that any person is as evil as his worst action
Furthermore, how can we pretend to balance harms? Advocates of harsher punishment often raise the cry that the punishment is not proportional to the offense. For example, when the murderer receives a prison term of a certain number of years, it is argued that he has not been deprived of more years of life or comfort than his victim. However, we cannot know how many years that might have been. If we deprive the offender of his life, we have the equivalency of a life for a life, but if the offender is older than the victim,
establishing a balance becomes impossible. We should also ask how imprisonment can be equated
with other harms the offender may have caused. How can the loss of freedom be equated with the loss of property, for example? Arguably, even a brief loss of freedom is much more grievous than the loss of property. It is certainly treated that way in our criminal code, as judged, of course, by the severity of the punishment for depriving persons of their freedom. And if the person whose property was
stolen is relatively wealthy, is that person’s suffering therefore less?
We also cannot know the extent of harm done to the offender, given that this is our primary purpose. For example, imprisonment will probably do the least harm to the person whom we wish to punish the most severely—the hardened criminal who has been in prison before, can survive in a violent and brutal prison culture, and has fewer real connections or relationships in the outside world. Far more harm will be done to the youthful first-time offender or the committer of a lesser, nonviolent crime. For such
people, even a much shorter sentence would be far more harmful.
You suggest that justice must involve more than the mere administrative balancing of outcomes.
It must involve a balancing of wickedness and virtue. But how can we ever entirely know,
morally speaking, how bad or how good any particular individual is, whatever offense he or she may have committed, without knowing the true character of the person involved and also knowing the true virtue and happiness of all the other persons involved. This view sees the state as identified with the entire organization of the community. But the modern state, arguably any state, must have a more limited role. It has the primary responsibility to protect the rights of its citizens while leaving other institutions in society
to contribute to the happiness of citizens.
I should raise one more important question regarding the notion of balancing harms. That is, how can a second harm make up for the first? Or to use the old saying, How can two wrongs make a right? This reminds me of the story about a patient with a broken left arm who went to a retributive
doctor. The doctor promptly took the patient’s right arm and broke it as well. “There,” said the doctor, “now we have restored the balance!” To this the patient, who shared a retributive view, replied, “Sir, that is hardly fair, since I am right-handed, and therefore value my right arm is far more than my left!”
While the outcomes achieved through restorative justice may indeed seem vague to some, it is clear that efforts to define the right to punish in moral terms fail to identify clearly the criteria for this right. Absent such criteria, the right to punish is nothing more than a use (or abuse) of the power to punish.
How then can those who make use of that power provide assurance that the act of punishment is motivated by anything other than malice?
You make the claim that there is a moral right to punish as an end in itself. However, this assertion of the moral right to punish fails to address the fundamental moral issue of equity, arising from the fact that the relatively powerless are the ones more likely to be punished. These are the children, not their parents, members of the lower levels of a class structure, not those who have the power. The unstated assumptions here involve an understanding that human societies are of necessity made up of two kinds of people. The first are those who have authority—judges, police, parents, adults, religious leaders, educators, doctors, employers—and who have the right and responsibility to judge and control others’ behavior. The second kind of people are the rest, whose role is to comply with that control or be judged and suffer the consequences. This is still the way things are, perhaps, but there has been a growing awareness in recent decades that this is not necessarily the way things have to be or should be. This understanding is reflected in different ways, one of which is the restorative justice movement. This new paradigm has emerged within the context of the criminal justice system. It is also more broadly grounded in a fundamental movement toward genuinely democratic relationships among people in various aspects of life. This involves a shift in worldview from one in which it is the task of some people to command and others to comply or face punishment, to one whereby people from all walks of life can work together respectfully to achieve the best interests for all concerned.

Paul Redekop

Martin Wright said...

Do not return evil for evil. Condemn the sin, but love the sinner.
Of course wrongdoing should have consequences, but making reparation, especially after facing the person one has harmed, is a more constructive consequence than punishment It makes offenders accountable for what they have done, and benefits the victim and/or the community.
Punishment, and especially prison, makes people think of themselves, not their victims.
In restorative justice it is reparation, not rehabilitation, that trumps punishment, altough many offenders have themselves been victims. They need rehabilitation and integration into the community, not to be sitgmatized and outcast. Restorative justice enables them to earn redemption: isn't that what we want?
Most hardened criminals are hardened in prison.

Isn't healing what both individuals and society need, not to add to the amount of harm in the world and in people's lives?

'Primum non nocere': can the state be justified in causing deliberate harm to one of its members, even a wrongdoer, in the absence of evidence that this is *more* effective than any less oppressive sanction?

Please, Cardinal, find out more about restorative justice before condemning it, for example by reading Howard Zehr's 'Changing lenses' (from a Biblical perspective) or your fellow-Australian John Braithwaite's 'Restorative justice and responsive regulation.'

Yo0urs sinceely, Martin Wright

Cardinal Pole said...

Mr. Redekop and Mr. Wright,

Thank you both for your comments.

Firstly, to address your points, Mr. Redekop:

1) When I said that justice is essentially about getting what one is owed, that was not just ‘my argument’—that’s what justice is! The first problem with restorative justice is that it tries to include something in the meaning of justice that is really external to it. Given that, strictly speaking, justice is a matter of reward and punishment, it is clear that to withhold either a due reward or due punishment would be an injustice in itself. Such an injustice would be permissible according to the criterion I mentioned in the original post, namely, the injustice may be permitted if, by doing so, one expects to avert a greater evil or bring forth a greater good.

2) As to the relationship between offender and offence, the only relationship that is directly relevant is whether or not the offender was morally responsible for the offence. If the (alleged) offender were “confused, disturbed, or mistaken”, then these are clearly circumstances that excuse from culpability.

3) As to the case of murder, the amount of time that the victim might have had left to live is totally irrelevant; what matters is that his life was taken, not the quality or quantity of his life remaining. This is a most curious objection for you to raise.

4) The different circumstances that you enumerate for consideration in sentencing—whether the offender is a hardened criminal, or how wealthy he is if the penalty is to be financial—merely show that sentencing is difficult. But difficulty is no reason to abandon justice.

5) The case of a young offender is a case where I would not necessarily have a problem with imprisonment being commuted to some lesser sentence, for the reason I have mentioned already—namely, that a greater good could be procured. All I am asking is that people recognise that withholding the due punishment is, by definition, an injustice in itself.

6) You appear to hold to the ‘integral humanist’ view of the State, in which the State has a very limited role. I, however, adhere to the traditional view of the State as having the common good as its proper end, and is therefore entitled to investigate into what you call “the true virtue and happiness of all the other persons involved”.

7) This point is really the most important one: “how can a second harm make up for the first?” If one adheres to the restorative justice ideology, than retribution clearly makes no sense in itself. But justice is a metaphysical concept, not at all a utilitarian, pragmatic one. It is undeniable that, metaphysically, a second harm balances a first harm, just as a just wage metaphysically balances an hour’s work. Your example of the broken arm is completely inappropriate, since it deals with an accident, and with two harms being inflicted on the same victim.

8) Your charge that “it is clear that efforts to define the right to punish in moral terms fail to identify clearly the criteria for this right” is completely unfounded; the criterion is simply the due relation between crime and punishment.

9) Powerlessness, poverty, class structure and so on are quite secondary circumstances. The poor and powerless are still responsible moral persons, and moral responsibility is the key criterion for determining culpability.

Now Mr. Wright,

1) You say that “In restorative justice it is reparation, not rehabilitation, that trumps punishment, altough many offenders have themselves been victims”. But I have to ask then: what is your idea of reparation? Reparation means satisfaction, expiation, atonement, and so on. Punishment is an excellent form of reparation.

2) You ask: “can the state be justified in causing deliberate harm to one of its members, even a wrongdoer”? The answer is yes, of course, since this harm is due to the offender because of his transgression.

Paul Redekop said...

Thank you in turn for your response. I have just a few brief rejoinders:


1) When I said that justice is essentially about getting what one is owed, that was not just ‘my argument’—that’s what justice is! The first problem with restorative justice is that it tries to include something in the meaning of justice that is really external to it. Given that, strictly speaking, justice is a matter of reward and punishment, it is clear that to withhold either a due reward or due punishment would be an injustice in itself. Such an injustice would be permissible according to the criterion I mentioned in the original post, namely, the injustice may be permitted if, by doing so, one expects to avert a greater evil or bring forth a greater good.
Justice is first and foremost about fairness. Such an important concept should allow some room for discussion.

2) As to the relationship between offender and offence, the only relationship that is directly relevant is whether or not the offender was morally responsible for the offence. If the (alleged) offender were “confused, disturbed, or mistaken”, then these are clearly circumstances that excuse from culpability.
My point exactly. Restorative justice focuses very directly on the question of moral responsibility, defined in terms of an active acceptance of responsibility on the part of the offender for his actions, with appropriate reparations to victims; i.e., not only the submission to harm imposed by those who have the power to impose it.

3) As to the case of murder, the amount of time that the victim might have had left to live is totally irrelevant; what matters is that his life was taken, not the quality or quantity of his life remaining. This is a most curious objection for you to raise.
In fact we place differential values on life all the time. My statement was made, however, in response to your claim to equate ‘a life for a life,’ and to try to show it does not take into account all of the myriad circumstances that surround and qualify and complicate every actual offense.

4) The different circumstances that you enumerate for consideration in sentencing—whether the offender is a hardened criminal, or how wealthy he is if the penalty is to be financial—merely show that sentencing is difficult. But difficulty is no reason to abandon justice.
Not only difficult. It is impossible to be completely certain that justice or fairness has been achieved in any actual situation.

5) The case of a young offender is a case where I would not necessarily have a problem with imprisonment being commuted to some lesser sentence, for the reason I have mentioned already—namely, that a greater good could be procured. All I am asking is that people recognise that withholding the due punishment is, by definition, an injustice in itself.
Punishment has been be amply demonstrated to do only harm, so there is no basis for the claim that it can be used for a greater good. You in any case previously rejected utilitarian justifications.

6) You appear to hold to the ‘integral humanist’ view of the State, in which the State has a very limited role. I, however, adhere to the traditional view of the State as having the common good as its proper end, and is therefore entitled to investigate into what you call “the true virtue and happiness of all the other persons involved”.
I agree that the state should have the common good as its end. The point is that no state, even the most totalitarian can ensure that virtue is always rewarded.

7) This point is really the most important one: “how can a second harm make up for the first?” If one adheres to the restorative justice ideology, than retribution clearly makes no sense in itself. But justice is a metaphysical concept, not at all a utilitarian, pragmatic one. It is undeniable that, metaphysically, a second harm balances a first harm, just as a just wage metaphysically balances an hour’s work. Your example of the broken arm is completely inappropriate, since it deals with an accident, and with two harms being inflicted on the same victim.
While a second harm may metaphysically balance a first, it never can in the real world.

8) Your charge that “it is clear that efforts to define the right to punish in moral terms fail to identify clearly the criteria for this right” is completely unfounded; the criterion is simply the due relation between crime and punishment.
I’m not sure what you mean by “due relation,” given all of the complexities that surround this relationship.

9) Powerlessness, poverty, class structure and so on are quite secondary circumstances. The poor and powerless are still responsible moral persons, and moral responsibility is the key criterion for determining culpability.
I agree completely. The point was not that they should not be held responsible; only to point out again the difficulty of balancing harms.

Or we could, for example, just have the victim and offender sit down together, allow the victim to explain to the offender what harm has been done, allow the offender to apologize, take full responsibility for his actions, and make what reparations he can, to make things right.