Retribution or Restoration?
In a retributive punishment oriented legal system it is claimed that when justice is done, and seen to be done, it provides a catharsis and closure not just for those who were physically or psychologically scarred by crimes, but for society as a whole. When laws are transgressed people demand that the violation be censored and the violator denounced. The goal of such punitive measures is to restore moral balance or proportionality to the situation, protect society and preserve the peace by deterring future offenses. The assumption here is that justice as retribution is really what justice looks like.
I want to put this very notion into question. I want to say first that different societies and cultural groups do in fact have very different notions of what is fair and right—notions that are shaped by their cultural experiences, stories, beliefs and practices. Secondly I want to say that given the often deplorable reality of the reserve system in Canada justice as restoration where the emphasis is on healing rather than punishing, rebuilding moral and cultural identity and mending social, familial and community relationships is preferable to incarcerating law-breakers under a system of justice as retribution. Finally, I want to suggest that Canada’s criminal justice system is an obstacle to the goal of justice as reconciliation and restoration—a goal that has been underscored both in alternative sentencing measures and in the recent Truth and Reconciliation commission. What I am suggesting here is that the present retributive criminal justice system only serves to reinforce a system of injustice and discrimination towards indigenous people. How so?
Retributive justice realized through tough on crime policies, over-policing of indigenous peoples, mandatory minimum sentences, oppressive conditional sentences, cuts to rehabilitation services has resulted in the over-representation of indigenous peoples in the jail system. Instead of restoring a sense of justice this unilateral imposition of punishment contributes to an over-all sense of injustice that is the logical consequence of a discriminatory policing and justice system and a legacy of colonial attitudes towards indigenous groups. It should not be surprising then that many indigenous prisoners experience strong parallels between their time in prison and their time in residential schools.
The retributive, adversarial system of justice understands itself as a truth-disclosive—that the truth of what occurred can be uncovered through the adversarial system and due process of law. By contrast, truth under restorative justice is arrived at through dialogue in the attempt to reach a consensus about the meaning of the offense and how the victim, transgressor and community might go about addressing the transgression. Restorative justice would encourage the affected parties to engage in dialogue, persuade offenders to take responsibility for their actions and work toward the establishment of a consensus between all those who were affected. The effect would be to reaffirm the values that victim, offender and community hold in common repair an identity that was damaged by the transgression. In many ways a restorative approach has affiliation with the notion of reconciliation. But, what would a reconciliation dimension add to the restorative justice framework?
At an epistemological level, I think it would begin by recognizing that the truth-seeking process of the retributive, adversarial system obscures an obstinate blindness to deeper truths about distant and recent history—namely, that the Canadian settler nation committed transgressions and atrocities of its own on indigenous peoples. Coming to terms with this history opens up an interpretation of justice that is informed by an understanding of how racism and colonialism continue to prevail in the contemporary retributive systems. There are presently many underlying health, social, economic issues that continue to exist in indigenous communities. Communities where isolation, lack of nutritious food, decent housing, access to clean water, suicide, high infant mortality rates, diabetes are the norm rather than the exception.
At the level of human lived experience, the healing truths that are necessary for reconciliation to occur are unlikely to be produced by the trial process through the goals of retributive justice. Beyond merely factual or corroborated truths about what happened in any given criminal case, there is the personal or narrative truths of the perpetrator and victim, the cultural and social truth of everyday life on and off reserve, the healing and restorative truth which attempts to repair past damage and prevent future offences. All of these latter truths can only surface when the justice system is allowed to consider both restoration and reconciliation.
Perhaps then what justice as reconciliation calls for is something like the search for truth as a collective enterprise where all those affected have their truth heard and acknowledged. Acknowledging the reality of how indigenous peoples have been historically discriminated against provides the basis for a justice system based on respect and solidarity. Achieving such an end is possible only when we begin with the assumption that the criminal trial process does not exhaust the means of achieving justice.
We do in fact explicitly recognize in our own criminal code notions of justice that go beyond mere retribution—what is referred to as rehabilitation. But justice may also be understood in terms of restoration, recognition, healing, reparation, exoneration and reconciliation. In these cases justice serves not as mere punishment but as an affirmation of human dignity through notions of understanding and forgiveness that presupposes the possibility of transformation.
So what does a justice system look like from within a notion of reconciliation? Let me begin with the rather comprehensive definition put forward in a recent journal [Gilbert, M.J., & Settles, T.L. (2007).
“The next step: Indigenous development of neighbourhood-restorative community justice.” Criminal Justice Review, 32(5), 5–25.]
Restorative justice views crime as a harm to individuals, their neighbourhoods, the surrounding community, and even the offender. Crimes produce injuries that must be repaired by those who caused the injury. In this sense, crimes are more than a violation of law, and justice is more than punishment of the guilty. Restorative justice strives to promote healing through structured communication processes among victims, offenders, community representatives and government officials. It also strives to accomplish these goals in a manner that promotes peace and order for the community, vindication for the victim, and recompense for the offender. Under this restorative perspective, justice is not based on punishment inflicted but the extent to which harms have been repaired and future harms prevented.
Where retributive justice views crime as a violation of the law, and is primarily concerned with punishing those who transgress the law, a restorative perspective sees crime as a violation of people and relationships. Justice, therefore, does not entail punishment but ‘involves the victim, the offender and the community in a search for solutions which promote repair, reconciliation and reassurance.
In this sense reconciliation attempts to create a ‘sense of participation, responsibility and ownership in the process across a broader and more inclusive group. The latter would be difficult to accomplish within the confines of the criminal justice system where trials take place in the antiseptic and austere environment of the courtroom removed from the local community, and where victims and community members are treated as spectators rather than participants.
Reconciliation provides a space of possibility where individuals and community members can talk about and share their painful experiences. Rather than dividing individuals this approach helps individual community members reconnect with each other.
A justice system that upholds the values of peace, truth, justice and forgiveness simply cannot be confined to some symbolic realm removed from the everyday lived experience of people. Instead it must be embodied and lived out in new relationships between people and nations at all levels of society. Restorative justice initiatives combined with the goals of reconciliation has the greatest capacity to transform our current retributive criminal justice system into one that is oriented by solidarity and mutual respect through a process of dialogue and inclusion.