OpEdNews - Page 2 of Article: Utter Failure; It's Time to Rethink the Prison System

When we declare, "We want justice!" it is often coded language for a forceful attack, getting even, in which two wrongs are needed to make things right. It's a demand for vengeance and retribution.

But remember in October 2006, when an Amish community in Pennsylvania captured our attention after a man murdered five of their young school girls and then killed himself? They didn't call for vengeance. Instead, they rushed to comfort the murderer's family and asked those of us outside their community to be forgiving. The power embodied in their compassion stunned the nation. Their defenselessness touched our hearts and brought honor upon their community. This is an example of another type of justice.

When a breach in a relationship or the violation of community norms occurs, we often fail to recognize that we react in one of two distinct ways. On the one hand, our goal can be to punish the guilty. This punitive type of justice inflicts punishment and seeks the imposition of control to enforce compliance; its answer to harm is more harm.

The other system of justice works according to an internal design that matches accountability with the harm or conflict being addressed. All participants treat one another with dignity and respect. All interested parties get to hear and be heard so all points of view are considered, enhancing the possibility of resolution and goodwill in their future relations. When forgiveness is achieved it is mutually beneficial, creating a future free of anyone's bondage. Compassion and loving kindness are at the heart of this form of justice, and the outcome is a benefit to all. I call this unitive justice.

Ancient tradition and modern cultural norms have sanctioned both the punitive and the unitive approach to justice, giving us contradictory and confusing moral guidance. In one instance, we are told justice is found in proportional revenge: the old law of an eye for an eye, a tooth for a tooth. In the other, it is aligned with the ancient teaching we often call the Golden Rule: do unto others as you would have them do unto you, a moral compass found in some form in every major religion and culture. These conflicting moral codes reflect the two distinct forms of justice. We may not realize that they are mutually exclusive, but when you choose one, the other is not possible.

Punitive Justice

Because punitive justice is most often the norm in modern culture, we are inclined to accept this response without asking whether it produces a value-added product or not. This eye-for-an-eye model takes retribution, revenge, and vindication for granted because it is grounded in the belief that our safety lies in controlling or defeating those whom we fear. It considers none of punishment's collateral damage that occurs within the larger community. Punitive justice fails to address how the infliction of further harm or the deprivation of liberty translates into taking responsibility or how it rights the wrong it seeks to address, beyond getting even.

Punitive justice relies on a double moral standard that permits us to project blame for our killing (in the case of capital punishment, for example), on those whom we kill. We say they are responsible for our harm, not us, because they are evil and deserve to die. We unburden ourselves of moral accountability by saying, "They make us do it." Thus, our killing is deemed moral, while we contend theirs is not.

As is often the case, when both sides view the other as wrong-doers or evil, the killing becomes endless, while all claim self-righteous innocence. We fail to note that having two standards of morality--one for us and one for them--provides a flawed moral compass, even when matters of simple justice are at stake.

The so-called justice in the punitive approach is seen to lie in its requirement that the harm we do be proportional to the harm done to us, i.e., the gouged eyes and teeth knocked out by our side must be approximately equal in measure to the gouged eyes and teeth knocked out by those deemed guilty. The scales of justice are an appropriate symbol for this system of proportional revenge. While this punitive form of justice requires a degree of restraint that definitely makes it superior to barbarism, we can do better.

Unitive Justice

Unitive justice is not an idealistic fantasy. As the old punitive system is imploding, unitive justice is taking root and growing. It is appearing in our institutions in the form of restorative justice in the criminal law system, in some social model programs designed for jails and prisons, in collaborative law now being used in the civil law system, in transformative mediation, in schools using restorative processes as the disciplinary policy, and in various circle processes being used in many settings, public and private.

The defining characteristic of unitive justice is its inclusiveness. Its goals are healing, restoration, and reconciliation, an approach aimed at producing relationships that are harmonious, equitable, and peaceful. This is not a new approach. Among aboriginal people on the continents of North America, Australia, and Africa, there were some who long ago found ways to hold an offender accountable in ways that do not involve the harm, humiliation or deprivation that characterize punitive justice.

When used in a specially designed system of conflict resolution that is guided by a trained facilitator, experience shows that unitive justice can achieve meaningful accountability to the victim and the community, and sometimes to forgiveness of the offender as well. We saw heartfelt examples of this during the Truth and Reconciliation Trials in South Africa after the abolition of apartheid.

Being inclusive, unitive justice involves the participation of all who are affected in assessing the harm done and forging both a remedy and preventive measures, thus avoiding the separation that the us-versus-them system causes. Those harmed may include not only the primary victim, but also members of the victim's family, members of the offender's family, and the community at large. At the appropriate time and in a safe setting, the offender hears the victim and these other voices describe the harm from their perspectives. This furthers the offender's understanding and results in the moral learning that can motivate a desire to repair the harm and to be restored to the community.

Unitive justice approaches the victim, the offender and the community as parts of a whole and no one is forced to lose. The victim feels heard and valued, as the offender is held accountable in ways that are meaningful and aid the victim's healing. The community is seen for what it is, the basic building block of a safe and secure nation.

1 | 2 | 3