March 26, 2021 Wayne Northey

Restorative Justice: Peacemaking Not Warmaking; Transformative Justice: Penal Abolitionism Not Prison Reform

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by Wayne Northey for The Kenarchy Journal, Volume 2.

image above: cccu.org

PLEASE NOTE: Below are excerpts of my paper for the above-noted Journal. At the very end of this post, one may click on the highlighted text, and read the full article in PDF. And of course one may also read it on the Journal’s website. Sign-up is free.

I chose to add “Notes:” at the end of each excerpt, that match those in the excerpt.

I chose also not to make clickable the numerous books and articles cited.

I chose finally to include all the References at the end of this post.

excerpts:

NOTE: Appreciation goes to Dr. Brad Jersak, friend, encourager, mentor. In October 2020 at his invitation a Q & A format was adopted for a presentation on what most commonly is known as “Restorative Justice.”[1] What follows is a reworking of that material and addition of new. I decided to retain the Q & A format.

 Wayne, you claim that the modern nation-state is closer in origin to what was dramatized by Marlon Brando’s character in The Godfather: namely the modern Western nation-state originated and operates on similar principles to a criminal protection racket. Historian/theologian William Cavanaugh states:

The main difference between Uncle Sam and the Godfather is that the latter did not enjoy the peace of mind afforded by official government sanction.[2]

 I understand you to mean: the State vis à vis external enemies—of whatever in-the-moment flavour—and in its exercise of population control (that is control of its domestic enemies—criminals).

Yes. One could get at this in several ways, of which I’ll give three pointers:. . .

Notes:

[1] It can be found here: Northey, “Restorative.”

[2] Cavanaugh, “FIRE,” 413.

Noted 20th-century American sociologist Charles Tilly in “War Making and State Making as Organized Crime” posits an irrefutable maxim:

If protection rackets represent organised crime at its smoothest, then war risking and state making—quintessential protection rackets with the advantage of legitimacy—qualify as our largest examples of organised crime. [1]

Drawing mostly on Western European history, he continues:

This essay, then, concerns the place of organised means of violence [“protection rackets”] in the growth and change of those peculiar forms of government we call national states: relatively centralized, differentiated organizations the officials of which more or less successfully claim control over the chief concentrated means of violence within a population inhabiting a large, contiguous territory.[2]

Not unrelated, famed psychiatrist Karl Menninger in 1966 wrote The Crime of Punishment,[3] a book that has stood the test of time—claiming punishment in the United States is hugely disproportionately meted out by white élites to the poor (lower classes and minorities); and is greater annually in commission of crimes against prisoners than the sum total of crimes committed by all criminals in prison. Hence “the crime of punishment.”

Or in Jeffrey Reiman’s telling book title: The Rich Get Richer and the Poor Get Prison: Ideology, Class, and Criminal Justice.[4]

In 1993, activist, author, and theologian Lee Griffith published The Fall of the Prison: Biblical Perspectives on Prison Abolition. In it we read:

But prison abolitionists have always been a small minority. In the mainstream of Christendom, church and state have been and remain prison collaborators.[5]

To that he says by way of understatement:

‘Correctional’ management may be perfectly comfortable with the teachings of the contemporary church. But it is likely that the teachings of Jesus would wreak havoc.[6]

I shall return at length to Griffith’s theme, one seldom raised in the Restorative Justice field.

Notes:

[1] Tilly, “Organized,” 169, 170.

[2] Tilly, “Organized,” 170.

[3] Menninger, Crime.

[4] Reiman, Richer.

[5] Griffith, Fall, 175.

[6] Griffith, Fall, 176.

***

But I shall move on to his understanding of New Testament prison and justice. In biblical “principalities and powers” language, prison is ever associated with the power of death. He writes:

As such, the problem is not that prisons have failed to forestall violent criminality and violent rampages; the problem is that prisons are identical in spirit to the violence and murder that they pretend to combat . . . Whenever we cage people, we are in reality fueling and participating in the same spirit we claim to renounce.[1]

Therefore, when Jesus announced in Luke 4[2] “freedom to the prisoners,” it broadcasts a renunciation of  . . . the power of death, and it therefore points toward the resurrection itself.[3]

So when Peter was miraculously delivered from prison in the Book of Acts (the holiest jailbreak ever!), this is at once enacted parable of “freedom to the captives,” and descriptive of what the Spirit of God wants for all prisoners: their deliverance from the power of death—concomitantly the abolition of prisons. And as Karl Barth noted, the first true Christian community was composed entirely of prisoners—the three criminals on the crosses at Golgotha.[4] It should in this light never be lost that Jesus himself indeed was “numbered with the transgressors.”[5] Or, as theologian Mark Lewis Taylor puts it, Jesus was “the executed God.”[6]

Taylor also quotes the searing words of long-time Black (formerly) death-row prisoner Mumia Abu-Jamal1:

Isn’t it odd that Christendom—that huge body of humankind that claims spiritual descent from the Jewish carpenter of Nazareth—claims to pray to and adore a being who was prisoner of Roman power, an inmate of the empire’s death row? That the one it considers the personification of the Creator of the Universe was tortured, humiliated, beaten, and crucified on a barren scrap of land on the imperial periphery, at Golgotha, the place of the skull? That the majority of its adherents strenuously support the state’s execution of thousands of imprisoned citizens? That the overwhelming majority of its judges, prosecutors, and lawyers—those who condemn, prosecute, and sell out the condemned—claim to be followers of the fettered, spat-upon, naked God?[7]

In this light, it must never be forgotten that Jesus was executed by the best criminal justice system of the day (Roman—in the name of good government), and by the singular monotheistic faith of the day (Judaism—in the name of good religion).

There is a remarkably rich treasure-trove of reflections on prison abolition throughout the book. Its seams could be mined repeatedly. Near the end the writer declares:

We need to hear the Good News that Jesus is Victor. The prison is fallen. The kingdom of God is in our very midst, and we can no longer pretend that our human warehouses serve good or restrain evil. The power of the prison is the spirit of death, and death itself has been defeated by resurrection. These imprisoned people belong to God, not Caesar. In the name of Jesus, unlock the prisons![8]

My response is an ever so weak—still for me resounding—Amen!

Notes:

[1] Griffith, Fall, 106.

[2] The Spirit of the Lord is upon me.

Because he has anointed me to preach the gospel to the poor.

He has sent me to proclaim release to the captives,

And recovery of sight to the blind,

To set free those who are downtrodden,

To proclaim the favourable year of the Lord. (Luke 4:18-19)

[3] Griffith, Fall, 107.

[4] Griffith, Fall, 118.

[5] Isaiah 45:12.

[6] Taylor, Executed.

[7] Taylor, Executed, ix. My book review may be found here: https://waynenorthey.com/book-review/the-executed-god/; last accessed January 11, 2021.

[8] Griffith, Fall, 227; emphasis added.

Whatever else, this kind of justice is non-punitive, non-retributive. [Dr. Herman] Bianchi directly contrasts the “tsedeka” model with the conventional justice model. “Give everyone his due” in the latter leaves the status quo unchallenged, rank inequality the norm. Whereas in “tsedeka” there is a constant dynamic of change and equal treatment. Intention is paramount in the retributive system; results—a genuine experience of healing justice—vital in the other. “A tree is recognized by its fruit . . . (Matthew 12:33)” is the Judaeo-Christian wisdom about the primacy of the outcome of justice. Bianchi stated elsewhere[1] that, though the intention of prison reformers in initiating the “American penitentiary experiment” in 1790 was to better the lot of criminals, in fact, the results as earlier said were generally afterwards disastrous, a fact so thoroughly documented as not to need further repetition.

Moving on: in the eleventh to thirteenth centuries in Europe as one historian explains:

… the state began to replace the individual as the guiding force behind prosecutions… With the [eventual] appearance of the state as the sole source of prosecutorial energy, the criminal act could no longer be viewed as an attack by one person on another; it was now an offence committed against society at large.[2]

Regina versus the individual in British common law which Canada and the British Commonwealth inherited (we the people of whatever state versus the individual in the U.S.), gradually became the new state-centred justice system. I know for instance of a rape victim who fantasizes about calling the Queen (Regina versus the accused in Canada) on the anniversary of the rape to ask how the Queen is doing . . .

 The elements of this enduring move to state law in Western jurisprudence—this “stealing justice-making from the community” were:

  1. the separation of criminal and civil wrongs;
  2. the assumption of the centrality of the state, thus moving all criminality to the public realm;
  3. the assumption of harsh punishment as normative—i.e., “pain delivery,” as a distinguishing mark of criminal law;
  4. a move to formal rationalism and codification of law, displacing informal, relationship-oriented custom

Laws that allow us to diminish the humanity of anybody are not laws–they are frameworks for crime.from the movie Belle

In short: the developing Criminal Justice System in the West over the past millennium lost an earlier peacemaking orientation to crime; in its place became dominant what the Nixon administration in the 20th century declared to be a “War on Crime.” And prison populations have exploded in the United States ever since! Today, with over 2.1 million incarcerated,[3] it is the highest per capita prison population in the world. Land of the Free, indeed!

 Already alluded to, Nils Christie authored Crime Control as Industry: Towards Gulags Western Style?, which looked at the American system. When first published in 1994, there was a question mark after the last word: Style. In subsequent editions, the question mark was removed . . . The industrialization of punishment had arrived—indeed exploded! And Christie, like Karl Menninger in The Crime of Punishment, insisted that the true and present danger in Western society were not the criminals in their confines or at large, rather, the crime control industry itself, that in so many ways holds entire societies hostage behind prison walls of fear and neglect, imitators indeed of the very darkest urges of our collective human condition.

The United States has roughly 5 percent of the world’s population, and 25 percent of the world’s prisoners. In 1975, the combined state and federal prison population of the United States was 300,000 men and women. By 2006, in three decades, it had arisen to 2.3 million, and has remained so more or less since.  In other words, as social critic Ivan Illich also warned, the Western state, supremely modelled in the United States, had become in turn a state modelled after the notorious Russian gulag, in which we are all imprisoned.[4]

The third edition of Christie’s book was published before September 11, 2001. His forewarnings have been so much more profoundly the case ever since.

Notes:

[1] Keynote presentation at ICOPA II, 1985, Amsterdam. I was there.

[2] See Weisser, Early, 100; emphasis added. Compare also Berman, Revolution.

[3] At its lowest in 20 years! See: https://worldpopulationreview.com/state-rankings/prison-population-by-state.

[4] In a brilliant work by a friend, David Cayley, The Expanding Prison: The Crisis in Crime and Punishment and the Search for Alternatives, there is a section devoted to Ivan Illich’s understanding of prisons as characteristic of religious ceremonies. Imprisonment is thus, in Illich’s words,

A huge ritual which creates a scapegoat, which we can drive out into the desert, believing that by loading onto that scapegoat all that we experience we’ll get rid of it . . . Prisons are the place in which we can face horror too terrible for us to recognize that we are ourselves immersed in it . . ., 83.

Cayley’s entire book is a profound indictment of the “prison industrial complex” and pointer to how else crime might be addressed. It also brings Illich and René Girard together somewhat in their understanding of criminals as societal scapegoats. See also: Rempel, Life at the End of Us Versus Them that does the same more generically in a full monograph discussing both thinkers. Nils Christie whom Cayley counted as a good friend, is also discussed at length.

Both publications are exciting, insightful and disturbing reads!

So, where did such violent notions of punishment originate and become the norm in Criminal Justice in the West?

 Ubiquitous Cultural Scapegoating Violence and Criminal Justice

This gets us into sketching some of the intellectual developments of our Western System.

I’ve discussed already how the formation of Western Criminal Justice Systems were prima facie protection rackets akin to the Mob—only with societal legitimation.

When one goes back further and poses the above question generically, even of all cultures

past and present, anthropologist René Girard as stated earlier argues that the founding moment of every society known to history is in fact violence. All human societies then employ a scapegoat mechanism in order to contain the violence, in turn to restore social cohesion.

In Western Christian cultures, this form of scapegoating violence eventually was supportive of and spread by a highly retributive interpretation (many say wrongly) of Saint Anselm’s 11th-century satisfaction theory of the atonement.[1]

Early in the development of Restorative Justice in Canada, my friend Professor Vern Redekop[2] of St. Paul University, Ottawa Canada, authored a widely approved piece: Scapegoats, the Bible, and Criminal Justice: Interacting with René Girard.

In it Redekop posed the question:

Is it possible that what we call a Criminal Justice System is really a scapegoat mechanism?[3]

He then analysed Girard’s thesis about cultural scapegoat mechanisms found in all historical periods and cultures. He answered the question he posed affirmatively, writing:

It [is] possible to think of the Criminal Justice System as one gigantic scapegoat mechanism for society.[4]

He explained:

When one considers how much crime is unreported, how few crimes are brought to trial and among those how few result in conviction and prison sentences it turns out that we in Canada imprison on the order of 3% of criminals . . . This tiny percentage of offenders who are severely punished can be thought of as a collective scapegoat for society. Those individual criminals who warrant sensational news coverage, can function as scapegoats themselves.[5]/[6]

The case of Bobby Oatway was a classic Canadian example. You may read the paper Chaplain Hugh Kirkegaard and I did on my website,[7] and in Volume One of my publication series, Justice That Transforms, entitled: “The Sex Offender as Scapegoat: Vigilante Violence and a Faith Community Response.”[8]

In this context of criminal scapegoating, Restorative Justice poses perhaps the most troubling yet simple rhetorical question:

Why harm people who harm people to teach people that harming people is wrong?

The Restorative Justice vision moves away from a warmaking, scapegoat mechanism to a peacemaking way of nonviolence in a bid to break definitively with the endless cycles of recurrent scapegoating violence in Western Criminal Justice.

Thanks Wayne for this Q & A. Please now bring this all to a close.

Conclusion

I have used at times the term “Inclusive Justice” to capture the deep theology and practice of a peacemaking theory of the atonement.

For a millennium the Judaeo-Christian tradition has largely given the West a legacy of violence in response to crime. It need not have according to its original trajectory and its central protagonist, Jesus. We need to revisit the powerful dynamic of subversion of all violence in that tradition, in order for society to internalize deeply the very human story of Inclusive Justice, which is our cosmic destiny. Then we need to connect ourselves to it existentially with all the will, energy, and imagination we can muster.

And one day, according to the biblical image of the Peaceable Kingdom,

The wolf will live with the lamb, the leopard will lie down with the goat, the calf and the lion and the yearling together; and a little child will lead them… They will neither harm nor destroy on all my holy mountain, for the earth will be full of the knowledge of the LORD as the waters cover the sea.[9]

Transformative, Inclusive Justice that never excludes, and the promise of the Peaceable Kingdom are the (pace Justice Holmes’ “rules game”) endgame of Restorative Justice—hence the “only game in town,” to which I say resoundingly:

Amen!

References

 Armenic, Jerry. Victims, The Orphans of Justice, Toronto: McClelland and Stewart-Bantam, 1984.

Bailie, Gil. Violence Unveiled: Humanity at the Crossroads. New York: Crossroad, 1995.

Berman, Harold J., Law and Revolution: The Formation of the Western Legal Tradition, Cambridge: Harvard University Press, 1983/1997.

Bianchi, Herman. Justice as Sanctuary: Toward a New System of Crime Control, Bloomington: Indiana University Press 1994; Eugene: Wipf and Stock, 2010.

___ and René van Swaanigen, Eds., Abolitionism: Towards a Non-Repressive Approach to Crime, Amsterdam: Free University Press. 1986.

___ “Tsedeka-Justice”, in Review for Philosophy and Theology, September, 1973.

Cavanaugh, William.  “A FIRE STRONG ENOUGH TO CONSUME THE HOUSE:” THE WARS OF RELIGION AND THE RISE OF THE STATE, in Modern Theology 11:4 October, ISSN 0266-717, 1995.

Cayley, David, The Expanding Prison: The Crisis in Crime and Punishment and the Search for Alternatives, Toronto: Anansi, 1998.

Dickens, Charles American Notes, 1842; New York: Penguin ed., 1972.

Christie, Nils. Limits to Pain, Oxford: Martin Robertson, 1982.

___. Crime Control as Industry: Towards GULAGS, Western Style, London: Routledge, 1995.

Cleaver, Eldridge, Soul on Ice, New York: McGraw-Hill, 1968.

Foucault, Michel. Discipline and Punish: The Birth of the Modern Prison, New York:Vintage, 1975/1995.

Gatrell, V.A.C., Bruce Lenman, and Geoffrey Parker. “The State, the Community and the Criminal Law in Early Modern Europe” In Crime and the Law, The Social History of Crime in Western Europe since 1500, London: Europa Publications, 1980.

Gorringe, Timothy. God’s Just Vengeance: Crime, Violence and the Rhetoric of Salvation. Cambridge: Cambridge University Press, 1996.

Hari, Johann, Chasing the Scream: The First and Last Days of the War on Drugs, New York: Bloomsbury, 2015.

Herz, Michael. “ “Do Justice!”: Variations of a Thrice-Told Tale.” Virginia Law Review 82, no. 1: 111-61, 1996.

McCoy, Alfred W., The Politics of Heroin: CIA Complicity in the Global Drug Trade, New York: Lawrence Hill Books, 2003.

McMurtry, John. “Caging the Poor: The Case Against the Prison System.” In The Case for Penal Abolition, eds. W. Gordon West and Ruth Morris, 167 – 186. Toronto: Canadian Scholars’ Inc., 2000.

Menninger, Karl. The Crime of Punishment, New York: Penguin, 1966/1977.

Menzies, R. & Chunn, D. & Webster, C. D., “Risky business: The classification of dangerous people in the Canadian carceral enterprise.” In Canadian Penology: Advanced Perspectives and Research, K. R. E. McCormick & L. A.Visano, Eds, Toronto: Canadian Scholars’ Press, 1992.

Morris, Mark. Ed. Instead of Prisons: a Handbook for Abolitionists, Syracuse, New York: P.R.E.A.P. [PRISON RESEARCH EDUCATION ACTION PROJECT], 1976.

Northey, Wayne. “Call For a Church Apology”. https://waynenorthey.com/2015/03/12/call-for-a-church-apology-vis-a-vis-crime-and-punishment-2/ accessed January 11, 2021

___,  Justice That Transforms: Volume One. Eugene: Wipf and Stock, 2000.

___. Justice That Transforms: Volume Two. San Bernardino: Kindle Direct Publishing, 2018.

___. Justice That Transforms: Volume Three. San Bernardino: Kindle Direct Publishing, 2018.

___. “Restorative Justice: Peacemaking Not Warmaking”, interview by Brad Jersak, IRPJ.org (Institute for Religion, Peace & Justice), https://www.clarion-journal.com/clarion_journal_of_spirit/2020/10/restorative-justice-peacemaking-not-war-making-wayne-northey-interview-host-brad-jersak.html, 2021.

___. “Towards a New Paradigm of Justice”, in Bianchi, Herman, and René van Swaaningen, Editors . Abolitionism: Towards A Non-Repressive Approach to Crime, Amsterdam: Free University Press, 1986.

Peachey, Dean. “The Kitchener Experiment” In Martin Wright and Burt Galaway, Eds., Mediation and Criminal Justice: Victims, Community, and Offenders, 14-26, Newbury Park, CA: Sage Publications, 1989.

Redekop, Vern, “A Post-Genocidal Justice of Blessing as an Alternative to a Justice of Violence: The Case of Rwanda”, Barry Hart, Editor. In Peacebuilding in Traumatized Societies, Lanham: University Press of America, 2008.

___. From Violence to Blessing: How an Understanding of Deep-Rooted Conflict Can Open Paths to Reconciliation, Ottawa: Novalis, 2009.

Reiman, Jeffrey. The Rich Get Richer and the Poor Get Prison, New York: Routledge, 2016.

Rempel, Marcus Peter, Life at the End of Us Versus Them, Victoria: Friesen Press, 2017.

Schweizer, Eduard, The Church as the Body of Christ, Richmond: John Knox Press, 1964.

Taylor, Astra. Democracy May Not Exist, but We’ll Miss It When It’s Gone, New York: Metropolitan Books, 2020.

Taylor, Mark Lewis, The Executed God: The Way of the Cross in Lockdown America, Fortress Press, 2001.

Tilly, Charles. “War Making and State Making as Organized Crime,” In Bringing the State Back In, Peter Evans, Dietrich Rueschemeyer, and Theda Skocpol, Eds, 169– 87, Cambridge: Cambridge University Press, 1985.

Tutu, Archbishop Desmond, No Future Without Forgiveness. New York: Image Books, 2000.

Weisser, Michael R. Crime and Punishment in Early Modern Europe, Atlantic Highlands, N.J.: Humanities Press, 1979.

West, W. Gordon, The Case for Penal Abolition, eds., Toronto: Canadian Scholars’ Inc., 2000.

Wikipedia, “Transformative Justice,” https://en.wikipedia.org/wiki/Transformative_justice; last accessed January 12, 2021.

___, “Goethean Science,” https://en.wikipedia.org/wiki/Goethean_science; last accessed January 12, 2021.

Wilson R.J., F. Cortoni, & A.J. McWhinnie. “Circles of Support & Accountability: A Canadian national replication of outcome findings”,  Sexual Abuse: A Journal of Research & Treatment, 21, 412-430, 2009.

Wink, Walter. The Powers Trilogy:

___. Naming the Powers: The Language of Power in the New Testament, Philadelphia: Fortress Press, 1984.

___. Unmasking the Powers: The Invisible Forces That Determine Human Existence, Philadelphia: Fortress Press, 1986.

___. Engaging the Powers: Discernment and Resistance in a World of Domination, Minneapolis: Fortress Press, 1992.

Zehr, Howard. Changing Lenses: A New Focus for Crime and Justice, Scottdale: Herald Press, 1990.

Notes:

[1] See Gorringe, Vengeance.

[2] He has been working creatively in conflict studies for decades. You may see more of Professor Redekop’s work in relation to René Girard, here: https://ustpaul.ca/blog/post/28-celebrating-the-life-and-thought-of-rene-girard/—last accessed January 11, 2021.

[3] Redekop, Scapegoats, 1; emphasis in original.

[4] Redekop, Scapegoats, 33; emphasis in original.

[5] Bailie, Unveiled, supplies a particularly sinister example, the 1989 execution of serial killer Theodore Bundy, when hundreds of men, women and children camped outside the Florida prison in a festive spirit one reporter likened to a Mardi Gras. The same reporter described the event as:

… a brutal act… [done] in the name of civilization, 79.

Bailie reflects on that commentary thus:

It would be difficult to think of a more succinct summation of the underlying anthropological dynamic at work: a brutal act done in the name of civilization, an expulsion or execution that results in social harmony. Clearly, after the shaky justifications based on deterrence or retribution have fallen away, this is the stubborn fact that remains: a brutal act is done in the name of civilization. If we humans become too morally troubled by the brutality to revel in the glories of the civilization made possible by it, we will simply have to reinvent culture. This is what Nietzsche saw through a glass darkly. This is what Paul sensed when he declared the old order to be a dying one (I Cor. 7:31). This is the central anthropological issue of our age, 79; emphasis in original.

[6] Redekop, Scapegoats, 33–34; emphasis added.

[7] See: https://waynenorthey.com/2014/03/10/the-sex-offender-as-scapegoat/—last accessed January 12, 2021.

[8] Northey, Transforms, 159-175.

[9] Isaiah 11:6-9.

For the full PDF, please click on: The Kenarchy Journal, Volume 2, Article

Footnotes
  1. In March, 2021, Mr. Abu-Jamal contracted COVID-19. We can pray for his recovery.[]

Wayne Northey

Wayne Northey was Director of Man-to-Man/Woman-to-Woman – Restorative Christian Ministries (M2/W2) in British Columbia, Canada from 1998 to 2014, when he retired. He has been active in the criminal justice arena and a keen promoter of Restorative Justice since 1974. He has published widely on peacemaking and justice themes. You will find more about that on this website: a work in progress.

Always appreciate constructive feedback! Thanks.

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