Post 6: Is Retributive Justice the Highest Form of Justice? Does Atonement Theology Impact Our Framework for Criminal Justice?
Mako A. Nagasawa
Photo Credit: Matthew Henry via Wunderstock (license)
Nineteen year old Ann Margarent Grosmaire was tragically shot and killed by her boyfriend and fiancée of three years, in a moment of his rage and sleep deprivation. Then:
‘At 2:15 in the afternoon on March 28, 2010, Conor McBride, a tall, sandy-haired 19-year-old wearing jeans, a T-shirt and New Balance sneakers, walked into the Tallahassee Police Department and approached the desk in the main lobby. Gina Maddox, the officer on duty, noticed that he looked upset and asked him how she could help. “You need to arrest me,” McBride answered. “I just shot my fiancée in the head.” When Maddox, taken aback, didn’t respond right away, McBride added, “This is not a joke.”
Maddox called Lt. Jim Montgomery, the watch commander, to her desk and told him what she had just heard. He asked McBride to sit in his office, where the young man began to weep.’[1]
As devout believers in Jesus, Ann’s parents Andy and Kate Grosmaire felt like Jesus was asking them to forgive Conor. Meanwhile, the State of Florida charged Conor with first degree murder. When the state prosecutor met with Andy and Kate, he was open to forty years, a life sentence, or even capital punishment. After a series of meetings, they eventually asked if he could charge Conor with second degree murder so he would get a twenty year sentence plus probation, instead of first degree murder which in Florida carried a life sentence. Remarkably, the Grosmaires continued meeting with Conor in prison, and with the McBrides. This was a path called restorative justice:
‘Most modern justice systems focus on a crime, a lawbreaker and a punishment. But a concept called “restorative justice” considers harm done and strives for agreement from all concerned — the victims, the offender and the community — on making amends. And it allows victims, who often feel shut out of the prosecutorial process, a way to be heard and participate. In this country, restorative justice takes a number of forms, but perhaps the most prominent is restorative-justice diversion. There are not many of these programs — a few exist on the margins of the justice system in communities like Baltimore, Minneapolis and Oakland, Calif. — but, according to a University of Pennsylvania study in 2007, they have been effective at reducing recidivism. Typically, a facilitator meets separately with the accused and the victim, and if both are willing to meet face to face without animosity and the offender is deemed willing and able to complete restitution, then the case shifts out of the adversarial legal system and into a parallel restorative-justice process. All parties — the offender, victim, facilitator and law enforcement — come together in a forum sometimes called a restorative-community conference. Each person speaks, one at a time and without interruption, about the crime and its effects, and the participants come to a consensus about how to repair the harm done.’[2]
Evangelicals tend to read the ‘eye for an eye’ principle of Jewish Law (Ex.21:23 – 24; Lev.24:17 – 22) as requiring strict proportional retribution for all bodily harm in all cases. But in the first major collection of laws given at Sinai, an offender must assist a victim ‘until he is completely healed’ (Ex.21:18 – 19). In cases of permanent damage, the victim names a compensation price instead of having the offender suffer bodily (Ex.21:22, 30). That is, the ‘eye for an eye’ principle provides a maximum outer limit of compensation. The victim can play a greater role in the process. Jewish tradition reasoned that the ‘eye for an eye’ principle must still be referring to assistance or financial compensation because they imagined a blind man blinding another man: In that situation, you cannot blind an already blind man! Therefore, the ‘eye for an eye’ principle must mean that the offender places his ‘eye’ in service to a blinded victim, his ‘hand’ in service to a maimed victim, etc. Mention of this principle in Ex.21:22 and 30 is intended to be carried over throughout the case law of the Pentateuch because Ex.21 serves as a hermeneutical control. This means that the phrase ‘an eye for an eye’ is subverted and changed in meaning as it moved from other ancient law codes (e.g. the Code of Hammurabi) into Jewish law. Jewish law, therefore, is what we call today ‘restorative justice,’ not retributive justice.
I can’t help but think that a restorative justice approach would have better served a Boston family when a troubled 14 year old boy (name not released due to his age) accidentally shot his 9 year old brother in their house. The older brother did have a history of physical violence, but was stunned by his own action and cooperated with police afterwards. He was arraigned on a charge of delinquency by reason of involuntary manslaughter and unlawful possession of a firearm, according to the District Attorney.[3] But does this really serve the family? Surely some consequence is in order, for the rehabilitation of the young man. But charging him with a manslaughter charge (up to 20 years in prison) comes from a retributive legal paradigm, not a restorative one, where the victims’ needs have more weight in the process of determining what needs to be done with the offender.
It’s not that people always reach agreement, nor do we abolish the need for prisons. But when restorative justice is tried, as it was in South Africa’s Truth and Reconciliation Commission, or post-genocide Rwanda, or post-civil war Uganda, there can be remarkable new possibilities that open up.
A new possibility opened up for youth in New Zealand. In 1989, New Zealand juvenile justice officials transitioned their whole system to a restorative justice paradigm. Youth crime has dropped since then; and the number of youth appearing in court has declined as 80% of child and youth cases are now handled prior to a court appearance.[4]
A new possibility opened up for Conor and the Grosmaires because the Grosmaires had heard about restorative justice and decided to try it. They had an emotional need as Ann’s parents to tell Conor how devastated they were. And as people who had known Conor for three years, and had appreciated him, they still wanted to have hope for him. Mind you, this happened in conservative Florida, where retributive justice tends to be the ethos.
Which brings us to the topic of atonement theology again. Writer and blogger Benjamin L. Corey, in a blog post provocatively titled, ‘Justice Broken: How A Poor Theology Of The Cross Created America’s Broken Justice System,’ writes:
‘For 500 years [since Calvin introduced penal substitutionary atonement] we have focused our understanding of God and God’s justice as the need for punishment instead of the need for reconciliation, and this has led to a broken framework in our country in regards to justice. When we allow this broken framework to influence the application of justice (as we have) we see criminal acts in terms of “need to punish as justice” instead of “need to restore as justice.” Yes, there are many criminal acts that require a person to be removed from society for their protection and for ours, but this theological framework has caused us to view “justice served” when a person receives what we feel is an appropriate sentence instead of seeing “justice served” when both the offender and the offended (even if that’s just society in general) have had their lives reconciled (perhaps not with each other, but in a general sense). Justice becomes punishment, not healing and restoration.’[5]
Is this claim justifiable? British theologian Timothy Gorringe, after carefully examining church history from the eleventh to the nineteenth centuries to observe the deeply interwoven personal and historical interactions between atonement theology and criminal justice paradigms, says succinctly:
‘Wherever Calvinism spread, punitive sentencing follows.’[6]
And by ‘Calvinism,’ Gorringe especially means penal substitutionary atonement which characterizes ‘high federal Calvinism.’ For example, John Owen (1616 – 1683), an English Puritan and Calvinist theologian, wrote that God must punish sin:
‘He who cannot but hate all sin cannot but punish sin; for to hate sin is, as to the affection, to will to punish it, and as to the effect, the punishment itself. And to be unable not to will the punishment of sin is the same with the necessity of punishing it.’[7]
Sociologist Kaia Stern agrees. In her book, Voices from American Prisons: Faith, Education, and Healing, Stern traces this problem to the major influence on John Calvin, Augustine of Hippo, who said that God gives grace to some and not others, for inscrutable and arbitrary reasons. Augustine broke with the Greek and Latin Christian tradition before him which understood God as giving grace to all, which thus enabled human free will. The division of humanity into two categories had this effect:
‘Augustine’s belief in the natural inequality of mankind and his notion of original sin [that we inherit the personal guilt of Adam and Eve, and not just their corrupted nature in what the Eastern Orthodox call “ancestral sin”] have been applied to validate oppressive and dehumanizing institutions (like chattel slavery) in an effort to preserve “social order” and promote the “human good.” More significantly, his view of original sin, which was central to the religious worldview of Protestant colonial America, profoundly shaped US attitudes and policies toward crime and punishment.’[8]
If retributive-meritocratic justice is the highest form of justice in God’s character, as penal substitution asserts, then rewarding good behavior and punishing the bad is the highest form of justice that we can maintain in human relations. I believe retributive justice is one of the strongest conceptual and emotional links between believing in penal substitution and being politically on the right in the United States today, all the way from its Calvinistic Puritan heritage. Appreciating God in a penal substitution framework seems to depend, psychologically and socially, on a human experience of ‘tough parenting,’ ‘getting what you deserve,’ ‘meritocracy’ and ‘working hard,’ ‘getting tough on crime,’ and ‘law and order.’ Those who seem most concerned that people have a spiritual experience of God’s mercy – defined primarily as judicial forgiveness – also seem most concerned that people have a socio-political experience of law, merit, reward, and punishment.
In the U.S., evangelicals favor capital punishment more than the overall population.[9] They are also more likely to justify torture. Regarding the controversial CIA treatment of men suspected of being terrorists and detained at Guantanamo Bay, 69% of white evangelicals believe it was justified; 20% who said it was not; that compares to 59% of the general population believing it was justified.[10]
Pastor Brian Zahnd points out in an essay:
There are three types of nations that actually practice capital punishment [today]: totalitarian states, Islamic states and the United States.
So who we’re in unison with is North Korea and Saudi Arabia in practicing capital punishment. Why is that so?
I think it’s because America has a rather peculiar obsession with retributive justice, and no doubt some of that is connected with our theology that goes back to colonial times, when it was Puritan revivalistic preaching, and some of that bitter fruit is still among us.
We seem to be suspicious as a nation: We’re suspicious of mercy. We’re suspicious of kindness as public policy. We don’t think that will work, and that seems to be very incompatible with what I see in Jesus Christ.
A contrast is helpful: When Prince Vladimir of Kiev was baptized in 988 AD, and embraced the Christian faith in its Eastern Orthodox expression, and its medical substitutionary atonement model, ‘among his first acts as a Christian ruler was were to tithe his wealth to the Church and the poor, and to outlaw capital punishment and torture.’[11]
The situation is particularly acute when we also consider the problem of mass incarceration of black men because of the so-called ‘war on drugs.’ Dr. Michelle Alexander, a civil rights lawyer, in her book The New Jim Crow: Mass Incarceration in the Age of Colorblindness, soberly describes how the criminal justice system has steadily eroded people’s Fourth, Eighth, and Fourteenth Amendment constitutional rights (respectively, unwarranted police searches and seizures; right to trial by jury and protection from cruel and unusual punishment; and equal protection under the law). Not to mention that federal prisons are currently operating at 40% overcapacity despite the strain on prisoners and correctional officers.
Then, when people get out of prison, they are often denied housing assistance, food stamps, voting rights, and jury service. This creates financial challenges if, for example, they want to reunite with a spouse or significant other who receives those benefits. They are also slapped with fines and fees related to their own prosecution, drug rehabilitation, and missed payments for child support while they were in prison. And they face discrimination in job hunting because of the box they must mark identifying them as having a felony record. These people never stop paying for their crimes. Wasn’t time in prison enough?
Now I think there are decent reasons for American Christians to be on either the right or the left, politically.[12] But I am troubled by evangelicals who make meritocratic-retributive justice a primary facet of law and institutions because they believe in penal substitutionary atonement theory. Once people cross a certain threshold of criminal behavior, it seems very easy to write them off as deserving of whatever punishment befalls them. The notorious Stanford prison experiment (though not an appropriate psychology experiment) suggests that once we put other people into the ‘criminal’ category, we can abuse or neglect them to frightening degrees.
But secular individualists lean towards retribution, too. The reason is because in order to practice restorative justice, you need to start with a compelling vision for relationship. Secular individualists tend to not have a vision for relationship. They have a vision for individual freedom – that is, freedom from unwanted relationship. In the absence of a relational vision, they resort to restricting freedom (imprisonment) or inflicting pain. Here is an example of a Facebook conversation I had with one such person after Norwegian mass murderer Anders Breivik received a 21 year sentence by the Norwegian justice system, which has restorative justice practices:[13]
[******] This really is an example of how values and cultural dissonance can affect people’s perceptions and reactions to certain effects. The article definitely has some good points about restorative justice, but what this man did was more akin to war crimes and whatnot. Twenty one years still seem a little too soft, in my opinion, even if we factor in Norwegian social/cultural values.
[Mako Nagasawa] Well, Anders Breivik cannot die 77 deaths. He can only be invited to feel regret and remorse for them. And maybe if he is still a danger to people after 21 years, they’d consider lengthening the sentence. But the article is also a comment on fundamentally different kinds of “justice” to begin with. In the U.S., we assume that retributive justice is supreme. That seems to be because we believe that the individual comes first, and all relationships are really just social constructs anyway. To practice restorative justice, you need to believe that the criminal should be brought into a certain kind of relationship with his victims. That exposes the deeper problem for individualists. For individualists, there *is no normative kind of relationship.* Therefore, the individualist can only practice retribution that inflicts pain, isolation, and inconvenience onto the criminal’s body for what he did to others. But that begs the question of which justice carries the most truth.
This particular conversation thread ended there. But with others, it’s continued in many forms. During the summer of 2015, at my church small group, I used a curriculum I wrote weaving Scripture and readings from Michelle Alexander’s The New Jim Crow. We learned about and acted on God’s heart to “restore the captives.” For seven weeks, new people came to my small group almost every week. The first week, a person who identifies as Jewish, who works for a major news media company, said she was really impressed that this Christian group is embarking on this study. Another week, two elderly folks who marched with Dr. Martin Luther King Jr. and now attend a Unitarian Universalist church came, and said how much they appreciated the group. Another week, a social activist woman who had had her own unfortunate run in with the police came, and enjoyed putting Jesus and spirituality together with social justice. Another woman came whose husband had left Christian faith for an Afro-centric belief, and she hadn’t been in a Christian setting in a while. And so on. I’m so grateful for each of these people and the chance to interact with them. I hope the dialogue continues. The issue of criminal justice is pressing. It is a ripe opportunity for Christians to stand at the intersection of evangelism and social justice.
Theologian Michael Ignatieff says, ‘The abuse of justice in prisons continues to repose on the lazy, unreflecting belief on the part of the general public that prisoners deserve nothing better. [The] degradation of prisoners degrades all of us because it is in the name of all of us that they suffer their penalties… People [may be] too lazy to think through the consequences of strong emotions.’[14] I strongly agree.
In the end, we can debate how much penal substitution contributed to the prison crisis in the U.S. Other factors like racism and prison privatization play a big role as well. But I think one thing is certain: penal substitution cannot contribute resources towards a restorative, non-retributive, paradigm of criminal justice. By its very nature, it makes retributive justice the highest justice in God and in society. So it can’t help us get out of the problem it helped create.
For further reading, see
English Christian theologian, ethicist, and social commentator Timothy Gorringe’s 1996 book God’s Just Vengeance: Crime, Vengeance, and the Rhetoric of Salvation,
Scottish Christian theological ethicist Duncan Forrester’s 1997 book Christian Justice and Public Policy,
Australian theologian Christopher Marshall’s 2001 book Beyond Retribution: A New Testament Vision for Justice, Crime, and Punishment.
[1] Paul Tullis, “Can Forgiveness Play a Role in Criminal Justice?” New York Times, January 4, 2013; http://www.nytimes.com/2013/01/06/magazine/can-forgiveness-play-a-role-in-criminal-justice.html
[2] Ibid
[3] Peter Schworm and Meghan E. Irons, “14-year-old Boy Charged in Shooting of 9-year-old Brother in Mattapan,” Boston Globe, February 7, 2014; and Maria Cramer and Michael Levenson, “Teen Charged in Mattapan Shooting Had Violent Past,” Boston Globe, February 10, 2014
[4] Ministry of Justice, “Trends in Child and Youth Prosecutions in New Zealand 2002 – 2011” (2012)
[5] Benjamin L. Corey, “Justice Broken: How A Poor Theology Of The Cross Created America’s Broken Justice System,” Patheos, January 27, 2014; http://www.patheos.com/blogs/formerlyfundie/broken-justice/
[6] Christopher D. Marshall, Beyond Retribution: A New Testament Vision for Justice, Crime, and Punishment (Grand Rapids, MI: Eerdmans, 2001), p.60 quoting Timothy J. Gorringe, God’s Just Vengeance: Crime, Vengeance, and the Rhetoric of Salvation (Cambridge: Cambridge University Press, 1996), p.140. The precise relationship between theology and social movements is generally difficult to trace, as we might argue that the ‘rediscovery’ of Roman law and Latin sources in the 12th century, especially at the Bologna University in Italy, along with Renaissance humanism from the 14th, influenced Christian theology throughout Europe. Nevertheless, my point here is that the theological elevation of retributive-meritocratic justice to the center of God’s character – which lies at the heart of penal substitution atonement theology – certainly has made it difficult for those Christian adherents to consider other principles and forms of justice.
Henry Collin Minton, “John Calvin, Lawyer,” The North American Review, Vol. 190, No. 645 (August 1909), https://www.jstor.org/stable/pdf/25106429.pdf, pp. 212-221, writes about Calvin’s approach to law, crime, and punishment:
“God is the great legislator for human affairs. Any Congress or Parliament that enacts laws in consistent with His is a usurper, and to violate its statutes makes the criminal but marks the saint. Legal right when morally wrong is to be honored by good men only in the breach, and legal wrong when morally right is to be consecrated by a persistent maintenance. Human lawmakers have no right whatever to legislate except as they republish and apply what is eternally right, whether men sanction it or hold it in contempt. God’s law of right is the constitution of constitutions, and no statute of men which is inconsistent with it is valid for their conscience or their conduct.
Nor is this the fiction of a scholastic theologian. It has its illustration in every civilized modern state. The invasion of a personal right is an offence not only against the person, but against the state. An Englishman’s theft of his neighbor’s purse is not a wrong against his neighbor only; it is a crime against the Crown. An American’s assault upon the person of his fellow is a crime against the whole body of the people; and in England ” the Crown,” in America ” the people,” will prosecute and punish the offender. A tort is not a private wrong only; it is a public crime. Sir Henry Maine tells us (“Ancient Law,” third American Ed., p. 359) that in primitive jurisprudence ” the criterion of a delict, wrong or tort, is that the person who suffers it and not the state is conceived to be wronged “; and so the very development of the law of tort into the law of crime marks the advance of civilization from the infancy of jurisprudence, The authority of the state interposes and avenges what it regards as an offence against its own Majesty. Only construe personally this theory of government and we have found no final tribunal this side the authority of the living God.
Calvin held this view absolutely. All wrong is sin.” (p.215)
[7] John Owen, Works 10:550; originally titled Justitia Divina in 1653
[8] Kaia Stern, Voices from American Prisons: Hope, Education, and Healing (New York: Routledge, 2015), p. 39. For an excellent and sympathetic treatment of Augustine’s teaching on selective grace, and especially the responses of John Cassian and Vincent of Lerins to Augustine, see Seraphim Rose, The Place of Blessed Augustine in the Orthodox Church (third edition by St. Herman of Alaska Brotherhood, 2007). For a simple introduction to Catholic and Protestant efforts to go behind and before Augustine to recover Nicene theology, see this summary from The Anastasis Center.
[9] H. Prejean, Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States (New York: Random House, 1993), p. 124.
[10] Sarah Posner, ‘Christians More Supportive of Torture Than Non-Religious Americans,’ Religion Dispatches, December 16, 2014; http://religiondispatches.org/christians-more-supportive-of-torture-than-non-religious-americans/
[11] Father Stephen Freeman, ‘Going to Hell with the Terrorists and Torturers,’ Ancient Faith blog, December 12, 2014; http://blogs.ancientfaith.com/glory2godforallthings/2014/12/12/going-hell-terrorists-torturers/
[12] Cultural conservatives in principle call for the maturation of human desires: our desires can be shaped and changed, especially as we age and enter into new life stages. I worry that secularism places very weak moral restraints or guidance on human self-indulgent individualism, especially on the young.
[13] Max Fisher, “A Different Justice: Why Anders Breivik Only Got 21 Years for Killing 77 People,” The Atlantic, August 24, 2012
[14] Michael Ignatieff, “Imprisonment and the Need for Justice”, Theology, 95/764 (1992) p.98