Two Models of Justice
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.
An example of a unitive justice approach in a jail
setting is The Community Model in Corrections program
in Emporia, Virginia. Following a well-planned set of activities
that are consistent with unitive justice principles, such as respect,
accountability, honesty, and integrity, the inmates in the program
are largely responsible for helping one another recognize patterns
in their lives and figuring out how to change them.
The objectives of the community model program are
achieved at a fraction of the cost of traditional clinical treatment.
Most of the on-site supervision occurs during the launch of the
model. This stands in stark contrast to how traditional programs
are run, some of which may have a couple of full-time licensed
professionals serving as few as a dozen inmates at each institution.
On the average, a community model program costs approximately one-fourth
the cost of a traditional treatment program or therapeutic community.
A study of recidivism among those
who complete community model programs shows that their recidivism
rate in the three years after release is less than 10 percent.17
The track record for prisoners in traditional programs is dismal
in comparison. A fifteen-state study found that, in only three
years after release, more than two-thirds were rearrested.18 A
recidivism rate of over 60 percent is the punitive justice norm.
Unitive justice does not condone
or ignore wrongdoing. It is not a world of relative
values or slack morals where anything goes. On the contrary,
unitive justice reduces or eliminates wrongdoing by creating
and maintaining a culture in which wrongdoing by anyone is not
accepted behavior. One moral standard applies to all.
For example, in a prison in Virginia, when a guard
ransacked an inmate’s cell during an inspection, the guard
was reprimanded. In the culture the warden established and carefully
tended, the cells of inmates were seen as the inmates’ homes
and were to be treated accordingly. Inspections were to achieve
their legitimate goal, not to violate the inmates’ sense
of security and self-respect that the warden was trying to instill.
Misconduct among inmates in this particular prison were a rare
occurrence.
Being held to a common moral standard that
applies to and benefits everyone motivates members of the community
to measure up, accepting the standards of the environment they
are living in as their new norm. When shared community values do
not sanction hurting one another, and this standard is applied
to everyone, the need to use punishment to deter violence, to maintain
order and control, quickly diminishes.
As confidence grows in the capacity of the community
to provide for the safety of its citizens through peaceful means, trust
develops. This facilitates reflection upon the whole system,
including how the crime or breach arose and what can be done to
avoid such breakdown in the future. Thus, only unitive
justice has the power to restore balance and harmony among the
victim, offender and local community, and at the same time, enable
the root causes to surface and be dealt with.
The punishment-and-revenge approach does not restore
harmony and balance within the community, and the control needed
to constantly enforce compliance wastes resources. In contrast,
unitive justice supports fundamental, enduring change and costs
relatively little. As the accused is not pitted against the might
of the state, due process is simple. Rich or poor, unitive justice
provides a level playing field. Liberty and justice for all may
actually be within reach when justice beyond vengeance—unitive
justice—becomes the norm.
After several years as a trial lawyer, Sylvia Clute became disillusioned
with the legal system and began her search for a better way. She founded,
led, and served as an advisor to numerous community and statewide initiatives.
A pioneer in legal reform, she spearheaded changes in Virginia's laws
relating to women and children. Her new book, Beyond Vengeance, Beyond
Duality, is her first work of nonfiction. She lives with her family
in Richmond, Va. You can find her online at Sylvia
Chute
© 2010 Independent Media Institute. All rights
reserved.
