Retribution in Criminal Justice Systems


Introduction

Criminal justice punishments in modern and moderate societies have both disciplinary and retributary aspects.   Just how much of each function criminal justice punishments should embody is eminently debatable.  This submission is a contribution to that debate from a social worker with 10 years experience in offender rehabilitation, who is also a long-time believer in Jesus Christ.   In it, I will give a personal view of the function and shortcomings of retribution and suggest that Jesus offers a different way.

Retribution defined

The Oxford English dictionary says the word “retribution” comes from the Latin retribuere, from re- ‘back’ + tribuere ‘assign’  and that it originally also encompassed positive retribution i.e. ‘recompense for merit or a service’.   These days its meaning is almost exclusively in regard to harm done.  Retribution is (from the same dictionary):

 

“punishment inflicted on someone as vengeance for a wrong or criminal act”

and

 

“punishment that is considered to be morally right and fully deserved.”

 

Of course, what is “morally right and fully deserved” depends on one’s point of view, and may be very different depending on one’s political and/or spiritual leanings.  For example,  when the harm occurs across nationalities and borders one country’s freedom fighter may be another country’s a terrorist, or just a common criminal.

 

What is essential about “retribution” therefore is not that some feel it was deserved but rather that is a “repaying” or “repeating back” of the harm caused by an offender.  As such, the aim of unfettered retribution – also known as revenge or vengeance – is to make the offender suffer as much as his/her victim – and then some.  The suffering would usually be physical but definitely always aims to induce psychological suffering also.  There is no suggestion here of the recipient benefitting from this punishment, and this is how retribution is absolutely distinct from “discipline.”

 

Retribution is a stark and shocking reality in all human societies, no less in our own.  In its aims it is the opposite of forgiveness, peace and love.  It deliberately and coldly aims to hurt.  As such, it is especially difficult for those who espouse forgiveness, peace and love to come to grips with the real meaning and impact of modern criminal justice.

 

The Draft Social Statement on Criminal Justice put out by the Evangelical Lutheran Church in America recently (see  http://www.ficprisonministry.com/wp-content/uploads/2012/03/Draft-Criminal-Justice1.pdf )   says,

 

“Retribution speaks to the re-balancing of a ruptured social order. In this way of thinking, if one has inflicted pain or gained an unfair advantage, then he or she should experience similar pain and have the advantage removed.”  (p13)

 

And

 

“Retribution seems to speak to an innate human desire to have the “punishment fit the crime,” but can easily devolve into mere vengeance”  (p14),

 

(In my view, the terms “revenge” or “vengeance” describe a situation where retribution is applied without the moderation of societal criminal justice processes.)

 

The function of retribution

A footnote on p14 of the ELCA’s Draft Statement says:

 

“Indeed, retributive punishment has historically functioned as a public proxy for private vengeance.  If one family has been wronged by another and wants to retaliate, they will be less likely to do so if they feel the other family has been appropriately punished by the state.”

 

 

I believe this latter paragraph is accurate as far as it goes but significantly understates the ongoing function of retribution.  Societies continue to practice “retributary justice” in order, I believe, to regulate and moderate personal vengeance on a very wide and constant scale.   The rationale for retribution here is completely pragmatic.

 

All violence is destructive of relationships.  Aside from the tremendous physical harm that can be done, psychologically, the threat of violence is tyrannical, in that fear for personal safety tends to overtake all other concerns.   This is true about any violence, but unregulated private violence also presents two other dangers which make preventing it a huge imperative for any society.   Firstly, unregulated private violence tends to be excessive – e.g. “you put gave me a broken nose while I was minding my own business!  So, to teach you a lesson you will never forget, I’m going to break your nose, your jaw, a rib or two.”   Secondly, unregulated private violence tends to be contagious – “no-one picks on my family and gets away with it – me and all my brothers are going to make sure you and your clan can never touch us again!”   Thus unregulated private violence threatens (even in our Police-controlled streets) to lead to long-running feuds of escalating violent acts, affecting and drawing in more and more stakeholders in a never-ending cycle of revenge.

 

Governments try to minimise private retributary violence by not accepting personal grief as a legal defence for violence, as well as by forbidding victims and offenders from having any direct contact with each other, thereby minimising opportunity for spontaneous rekindling of the conflict.

 

Despite governmental efforts to bring a nation’s whole population under the rule and rhetoric of law, there are sub-cultures of violence in many/most(?) modern societies.  Members of these sub-cultures believe running to the Police is weak and unmanly.  In such subcultures, a “real man” who wants respect is expected to show his grit by seeking his own private revenge.   If he limits his revenge to “an eye for an eye” he may obtain respect with closure i.e. the dispute is considered resolved and is allowed to rest, with parties now able to enjoy a shaky truce.

 

Most citizens, however, prefer to not engage in personal violence and they “stand up” for themselves (shoring up their self-respect) and bolstering their sense of safety by reporting the matter to police.   They hope that police will find the offender and prosecute them sufficiently to prevent to give them some sense of satisfaction – perhaps not to the degree of the victim who obtains personal revenge but a satisfaction that is less liable to result in reciprocal escalation of violence and retraumatisation.   However, it should be acknowledged that many highly traumatised victims do feel re-traumatised by court processes.

 

On the other hand, violent crime is hugely traumatic for victims and the effects can be long lasting.  From personal experience I know this to be true; I also know that road to recovery, while long,  can be very rewarding.  For many victims, “justice” (some state-mediated revenge) feels like very important step in their own ongoing battle to get past the trauma.    I explore why this might be so a little latter.

 

From the perspective of governments, however, the internal peace of the society as a whole, requires government to try to appease two sections of population – the victims of crime and their advocates on the one hand, and the offenders and their advocates on the other.   The arguments of each side are compelling and Government is in almost a non-win situation as it inflicts a limited measure of retribution, which disappoints both sides in the debate.

 

Seen in this light, the tension between government and lobby groups that call for heavier sentencing for crime is very understandable.  The government supports some right of retribution (calling it ‘justice’) to the victims, but tries to keep it to a minimum, mindful not just of the dollar cost to the society of retribution, but more importantly mindful of the imperative of minimising violence in society by minimising the degree of retribution.   The more retributary (rather than disciplinary) the punishment – i.e. the harsher the criminal sentence – harsher the offenders will likely be upon their release i.e. their attitudes and behaviour will likely become more antisocial and procriminal.  This has, I believe, been supported by social research.  (On the other hand, the more offenders consider their treatment “fair” and compassionate the less likely they are to feel justified in continuing in anti-social attitudes, lifestyles and behaviours.)

 

The wider community (all of whom have at times been primary, secondary and tertiary victims themselves) upon hearing or seeing that someone is being punished for their crime also draw comfort and reassurance concerning community safety.  The reasoning is that the Police are effective in tracking down wrong doers and the Courts in punishing them, and that punishment puts the brakes on wrongdoing if not solve the crime problem itself (which of course it doesn’t[1]).  Consequently, finding someone to blame and punish becomes a pressure on the criminal justice system and its personnel – one that can lead to an increase in abusive processes, mistaken convictions and arrogant and sloppy practice.

 

 

 

Mixing Discipline and Retribution

Discipline and retribution seem to me to serve quite different and mutually exclusive purposes.   Discipline attempts to serve the offender (and the community) by rehabilitating and reintegrating the offender back into society.  However, retribution attempts to serve the victim (and the community) by hurting the offender.

 

The Draft Social Statement on Criminal Justice by the ELCA mentions a number of functions of punishment for offenders.   Similarly, the following website lists a number of factors that magistrates must consider in determining criminal sentences in this writer’s home state – http://www.courts.sa.gov.au/sent_remarks/index.html.  All of which reflect our two categories – those designed to impact the offender positively (discipline) or those designed to impact the offender negatively (retribution).

 

Historically – and today around the world to varying degrees – criminal justice punishments often lacked any disciplinary aspect at all.  Retribution was the only goal and it fostered, in my view, illogical, individualistic and uncharitable philosophies in which criminals were viewed as free moral agents who could act outside the context of their own harsh life experiences and whose punishment outside the context of their harsh life experiences was therefore justified.   However, compare the Reformers extreme position of the absolute freedom of human will with Jesus’ parable of the prodigal son, in which the wayward son’s reckoning of self-interest – and his decision in regard to God (as represented by the loving father) – changes dramatically according to his life experiences/context.  Particularly enlightening is Jesus’ phrase “when he came to his senses” to describe the moment of his change in mind from rejection to a seeking, of his father.

 

I suppose there has always been tension in whether to treat wrong doers as needing discipline or as deserving retribution since all are someone’s children, siblings, partners, parents, etc.  And if some are not loved by any is it any wonder they offend?  For these, might not compassion and discipline be that different approach that leads them to change their decisions, since they are only too familiar with and resistant to the retribution and rejection that has bruised them too excessively in their lives to date?

 

From a pragmatic, secular view (outside the Kingdom of God) “Retribution or discipline?” is not a question of all-or-none.  Ideally, the best outcomes are for the offender to be reformed and never offend again (which requires discipline), and for the victims to be recovered and satisfied enough not stir up hornet’s nests by seeking personal revenge (which seems to require at least some retribution).

 

However, inside the Kingdom of God – and for all those willing to enter the process in good faith – there is an approach that does not rely on retribution which seems capable to achieve good outcomes for both offender and victim – Restorative Justice processes, which I’ll mention again shortly.

 

Hero Stories

The dilemma between discipline and revenge often comes out in fictional stories of the crime and war genres, including in children’s cartoons.    Sometimes, the hero hands over wrongdoers to state-run legal processes for “justice” and/or for rehabilitation efforts.  Often though, the hero is “forced” (for reasons of self-defence or other-defence) into carrying out a (delicious) retribution against the villain (who is painted as palpably evil) and the villain is destroyed.   (By the way, didn’t it used to be that one’s own western government was assumed to be just and honest? whereas in the last few decades it seems to me that more and more adult thrillers have corruption stemming from the highest offices in the land – a reflection of many writers and consumers’ disillusionment with worldly government.)

 

How does retribution help victims?

Given that revenge and retribution satisfies something in the victims, what is that something?   Can we be more specific about it?  What makes for a satisfying retribution?

 

Consider that discipline is dependant for its effectiveness on the offender adopting a responsible attitude towards his offense and a positive attitude toward the punishment and/or toward those handing out the punishment.  In contrast, retribution has little or no dependence or the offender adopting a positive attitude.   As mentioned previously, the effectiveness of retribution depends on how much the offender suffers.  The more the offender suffers – physically and/or psychologically – the more effective the retribution is because the greater the victim’s psychological recovery/satisfaction becomes.  There seem to me to be two main aspects of victim recovery through offender suffering – victim efficacy and restoration of dignity, both of which deserve to be discussed in more detail:

 

Victim Efficacy through Retribution

After experiencing or hearing of personal criminal violations, we typically feel saddened and aggrieved, and also fearful, unsafe and vulnerable, etc.  Where these reactions feel overwhelming, anger and an adrenalin response may be triggered.  There may typically also be a self-interrogation by the victim.  “Why did I put myself in such danger?”  “Why didn’t I react in some other, more protective way at the time?” “Why can’t I even now stop these flashbacks/other psychological reactions and go back to my normal confident relaxed self?”  “Am I so weak?”  Thus self-esteem suffers and the offender is blamed and hated for this.  Seeing the offender suffer for their crime, especially if they are seen to suffer even more than the victim did, may give a victim a sense of being, in the last analysis, more fortunate, stronger and more supported than the offender.

 

Victim Dignity through Retribution

Secondly, when the offender ends up being blamed, shamed and suffering, it reinforces the victim’s innocence and non-culpability.  If it was only the victim who suffered as a result of a crime, the victim might wonder if they somehow had deserved victimization.  On the other hand, seeing one’s community assist in ensuring the violator also suffers helps the victims feel validated, vindicated, respected and cared for by the wider community.

 

Efficacy, Dignity and Restorative Practices

Whilst retribution goes some way to bolster the victim’s self-esteem and confidence, unfortunately, it usually doesn’t do enough and victims’ acquired psychological disabilities persist.  I’ve heard that a survey of satisfaction with capital punishment by relatives of the people murdered, found that the relatives were generally disappointed that their profound sense of grief found little or no resolution or ‘closure’ by the execution (unreferenced[2]).  Restorative justice processes are not just a better way of engaging offenders to desist from offending, but are also a way for victims to become more fully accepting what has happened to them and of their own non-complicity in it and so to move on to psychological recovery and growth. E.g. the video “Facing the Demons” http://www.iirp.edu/pdf/FacingTheDemonsStudyGuide.pdf and http://www.youtube.com/watch?v=A1s6wKeGLQk .)

 

Jesus gives the basic principles of restorative practices in Matthew 18:15-18

“If your brother or sister sins, go and point out their fault, just between the two of you…”

This principle can be employed by victims where the offender is willing to respond in good faith as per the rest of the quoted passage.  (Also see my further commentary here –  http://www.jub.id.au/practicalities/restorative-practices-in-schools-a-christian-perspective-2/part-c-the-limitations-of-victim-offender-dialogue-guidelines-for-use-of-restorative-methods-in-schools/ ).  In Matthew 5:23,24 Jesus lays a reciprocal responsibility to alleged offenders to participate in face-to-face dialogue with alleged victims.

Jesus also advises us to use wherever possible direct dialogue to resolve issues in preference to going to court.  Matt 5:25:

Settle matters quickly with your adversary who is taking you to court.  Do it while you are still together on the way, or your adversary may hand you over to the judge, and the judge may hand you over to the officer, and you may be thrown into prison.

 

Victimization and Spirituality

I suggest that the effects of retribution on the victim around efficacy and dignity are important to victims’ wellbeing because they are related to the basic human fear around mortality and morbidity and to the basic human needs for significance and competence.  I postulate that the typical pattern of cause and effects is something like the following:  Firstly, victimization exacerbates fear of mortality and may present new psychological challenges due to loss of health.  Secondly, ongoing fear reactions/ post-traumatic stress (related to a loss of a sense of current/future security) interfere with the victims ability to function (sleep cycles, appetite, concentration, risk management, confidence, socializing, connectedness).  Thirdly, this reduction in the victim’s competency and efficacy result in diminished self-esteem and personal dignity.

 

These are tremendous psychological obstacles for victims who are trying to return to a before-the-crime state-of-being.  Anything that can help overcome these obstacles will be highly valued by the victim.  Revenge on the perpetrator of the crime is one of the easiest options to grasps at.   As stated already, co-operating with Police and Courts by reporting and testifying, etc  can give victims a sense of taking action, standing up for themselves and fighting back – of not being a “doormat” or a someone who is unable to reject bad treatment from others – thus combating the sense of being a helpless victim.

 

However, blaming the offender for triggering all these affects may also distract a victim from reflection on the extent of their own (natural, human) vulnerability and of their fear/loathing for their own fragility and mortality – things which really require a very spiritual view of life to be developed.

 

Forgiveness

In my view, restorative processes are always superior to retribution in helping victims recover, provided both parties enter those processes in good faith – meaning, that victims are not bent on retribution and offenders not intent on getting away without taking responsibility.   In situations of historical and national victimization, for example where one ethnic group has shockingly persecuted another, the scale of the aftermath overwhelms the country’s normal criminal justice processes.   Thus in South Africa (and quite a number of others in recent decades) restorative justice processes are employed via “truth commissions”  and amnesties are offered in exchange for full confessions.

 

Amnesty is another word for forgiveness, which brings us to a consideration of the Christian side of the issue.  Not surprisingly, Jesus’ teaching seems in complete harmony with the practical viewpoint I have outlined here regarding restorative processes.  In Mark 11:25-16 Jesus said,

 

“Whenever you stand up to pray, forgive whatever you have against anyone, so that your Father in heaven will forgive your sins.  But if you do not forgive, your Father in heaven will not forgive your sins.”

 

At first glance, this may seem not only impractical but harsh on victims.  This is not how the world believes society can operate or nor what the world believes “justice” demands.   Jesus is certainly trying to impress on us how important it is to God that we forgive each other.  I relate to it as a parent wanting peace between my children – not just for the latest victim but for all of them – since all are sometimes victims and sometimes perpetrators.  And whether in families or between nations it seems that enduring peace is just not possible without forgiveness.

 

Also consider that “forgiveness” translates the Greek word “aphesis” meaning “freedom” (Strong’s Concordance).  God’s forgiveness is about liberation.   How can we accept His liberation of our spirit while we want vengeance on others?  Freedom, with it’s delight and carefreeness, cannot co-exist with the brooding and bitterness underlying revenge – the two states are incompatible.  Hence, if we are not looking to be forgiving (free) in our attitude of mind, any talk about us being “forgiven (freed) by God” is meaningless.  On the other hand, when in this world everyone everywhere consistently practices forgiveness (still with the accountability and naked honesty implicit in restorative practices) the needs of all would be revealed and I believe, common empathy would mean people would be supported to have their needs met, including psychological needs for inclusion and personal expression.  Thus forgiveness brings peace and justice –not justice in the sense of merely punishing what is wrong, but justice in the sense of actually fixing the problem!

 

Forgiveness is the end of violence since it breaks the cycle of violent escalation.  The freedom from violence implied by forgiveness means the end of oppression for many disadvantaged and discriminated groups.  Practicing forgiveness at every human level – not just individually but nationally and internationally also – will, I believe, rid the world of all vengeful violence.

 

Belief in the Gospel – including the news that we need not be held in bondage to a fear of death anymore (“to live is Christ and to die gain”!  Phil 1:21)  – is what enables us to forgive, even whilst being persecuted.   But for the Gospel to be “the power of God for deliverance” (Rom 1:16) we need to have the right Gospel – not some ancient distortion – and we need to believe it.  Any version of the Gospel that does not enable us to share the faith of Jesus in a loving heavenly Father (Who is growing our ability to trust Him in – and for – intimate relationship and Who is planning resurrection for us) is a distorted gospel.

 

 

Conclusion

 

I have presented a personal view about why retribution is important in secular society but not in God’s economy: – retribution is ineffective in victim recovery, ineffective in reducing crime-rates and antithetical to love, justice and enduring peace in the world.  I have pointed out contradictions between secular notions of “justice” that are bound up with retribution versus Jesus’ emphasis on forgiveness, which requires an alternative notion of “justice”  – the putting of things right.

I wish to encourage all Christian denominations to adopt a more radical (“of the Root”) approach to justice and peace in the world.  I have tried to show in this essay that a critical step in that direction is to explore the meaning, practice and alternatives to retribution in our criminal justice systems.

I offer this reflection sincerely and, I pray, in a way that honours Jesus, the Saviour of the world.

Jub

September 2012

 

 


[1] In the western world, Japan is a leader in community safety and low crime rates, and they are heavily into rehabilitation and support for offenders not retribution.

[2] http://www.deathpenaltyinfo.org/node/1057 discusses similar notions.

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