July 2018 Philadelphia Chapter of Pax Christi U.S.A.

Restorative Justice

and the Traditional Purposes of Punishment

Presentation by Joseph Betz, PhD At the Philadelphia CPF Annual Retreat, April 2018

I retired from teaching philosophy at Villanova University in 2011. I taught twelve courses at Graterford prison for Villanova’s bachelor’s program between 1989 and 2010. There were 350 inmate students in these courses, though I taught many inmates two, three, or even four times. I made many trips taking ordinary students from the Villanova campus to meet my Graterford inmate students. Since retiring, I continue regular visits to Graterford as one of the mentors of the Gray Panthers there, a group of aged inmates. Joe Bradley, the convener of this retreat, is my associate as mentor there. This talk is based on my experiential knowledge of what the prison and the inmates are like. I count many of the inmates as my friends. One of my Graterford students was Tyrone Werts, speaking to you later today. Another was George Trudell, the reason I came to know the next person to speak to you, Liz Geyer. Pardon me if I always refer to the criminal in my talk now as male. It is because I am thinking of identifiable Graterford male inmates that I know.

This talk explains how, in my opinion, criminal justice can be restorative, can harmonize the interests of all involved. This restoration begins to occur by punishment. We must punish crimes. Why? Genuinely criminal acts seriously violate the basic human rights of natural persons, the bearers of those rights. Criminal acts violate, for instance, the rights to life, bodily integrity, health, mental serenity, peace, community inclusion, and human potentiality. These criminal violations generate immediate societal outrage. With no impartial government providing police, courts, and prisons to punish, blind, callous, hateful revenge would be the consequence. Feuds would begin and be perpetuated. There would be acts of vigilante justice like lynching. Just punishment averts this savagery.

Punishment, if judiciously designed and imitative of civil law can restore health, wholeness, trust, decency in the criminal, the victim or victim’s relatives, and in society. The four traditional theories of the purposes of punishment stress 1) retribution, 2) rehabilitation, 3) deterrence, and 4) incapacitation. This talk attempts to explain how each theory of punishment is to be interpreted in practice if restorative justice is to be achieved.

That there can be restorative justice does not mean that the murder victim’s life, the arm lost in a barrage of assault rifle bullets, the blinded man’s sight, the stolen and then resold inherited jewelry, can be wholly restored. But imitating civil law can help since it aims at restoration. Civil law repairs the damage done by civil wrongs, torts. Lead poisoning in a child due to a landlord’s negligence in removing dust from lead paint in an old apartment is a tort. The aim of the civil law is to make the injured party whole again. The tortfeasor must pay damages, that is, cash payments to restore lost wages, medical expenses, costs of rehabilitation, and compensation for mental and physical suffering. Where the tort caused death, the relatives of the deceased receive these rectificatory benefits. Something like this can be achieved if criminal law incorporates this aspect of civil law and government, or wealthy criminals, compensate the victim or the victim’s relatives. The victim injured by the crime is like the person injured by the tort. Oddly, restorative criminal justice is significantly better than restorative civil justice.

This is because the criminal as well as the victim receives benefits, as I will attempt to show. Moreover, these benefits do not violate the legal maxim that no criminals may benefit from their crimes.

For criminal justice to be restorative justice, the retributive purpose of punishment must be differently understood. Notice the prefix “re-“in both the words retributive and restorative. The Oxford English Dictionary defines the prefix “re-”- as “return to a previous state.” The “re-” prefix in the word retributive refers back to a time and situation before the crime was committed. The word retributive is now used to claim that that initial situation was a good situation and punishment will result in a return to the pristine goodness of the beginning situation.

The philosopher G.W.F. Hegel’s use of dialectical reasoning to justify retributive capital punishment makes this clam of a supposed return to a just situation clear. Hegel’s thesis is that a just situation existed when the victim was alive and enjoying life. The crime of murder is the antithesis destroying that previous just state. Hegel holds that the synthesis, capital punishment, kills the killer, so that the criminal pays the debt of taking a life with his own life. Thus the scale is balanced again. A life taken pays for a life taken. Thanks to capital punishment, Hegel holds, justice is restored.

But my experience in Graterford exposes a flaw to this reasoning. It is the supposition that, in any case of murder, the initial situation was just. Perhaps the murderer was in an unjust situation, an African-American who was a child raised in ghetto squalor by a single parent. She was an unskilled mother, rarely at home to protect and guide her multiple children, for she strives to keep them fed, clothed, and housed by working three, part-time jobs. This describes many of my Graterford students from Philadelphia. In beginning each course, I asked all my students to identify themselves by the nearest large intersection in their childhood neighborhoods. These were intersections, I recognized, in poor North or West Philadelphia. As an intersection was named, my students could call out the brand-name of the bags of heroin sold there—Morning Star or Sweet Peach, for example. These African-American inmates from those intersections are about two-thirds of the population of Graterford. It is the same story with many of the white or Latino inmates that I taught, for instance, those from Fishtown or Kensington. Kensington has long been the site of some of the most concentrated drug use, with enormous numbers of heroin and fentanyl deaths, in the whole United States. There is a scarcity of good role models and an abundance of bad ones presented to kids growing up in those neighborhoods.

As they committed their crimes, many of my inmate lifer students were in unjust situations before their crimes, and there are unjust situations other than poverty. One lifer student was the child of a 15 year-old drug addicted mother. One murdered when he, a Vietnamese war infantryman, was probably in the midst of a PTSD seizure.

But he was convicted before Post Traumatic Stress Disorder was first accepted as a criminal defense. One was the member of the dominant gang in his sorry neighborhood. The most important part of his early moral education was that gang loyalty demanded that you did not snitch on another gang member. One student lifer was a rich kid from his rich neighborhood’s high school, where drug-sellers thrived because their targeted market of teenagers had plenty of purchasing money. That rich kid was unconscious from a bad combination of drugs when he murdered his girlfriend, the girl he says he intended to marry. One of my students was waiting in the car outside a drug house, when his friend went in with a gun, intending to scare and rob the drug dealer. But the friend, to rob the drug dealer, had to shoot and kill him. Both the gunman and the friend waiting in the car received the same life sentences without parole. You will hear more of the injustice of this disproportionate sentencing because of Pennsylvania’s “felony murder” law when the next speaker, Liz Geyer, tells her story.

Since the pre-crime situation of the criminal was not just, the Hegelian retributive argument’s assumption that the criminal and his victim were equally advantaged before the crime does not hold. The crime sprung somehow from this unfairness, this disadvantage in character-molding circumstances. Many of my criminal students did not grow up or live in maturity in a society in which, as Dorothy Day wishes, it is easy to be good. Thus, after their crimes, while receiving some punishment, society now owes the criminal the restitution of making the criminal’s situation just in so far as it can. This would be by the paternalistic treatment of the convict while imprisoned. This not so evil evil-doer can rightly suffer the evil of loss of freedom as a result of his crime, but not a treatment which makes him even worse than his pre-crime circumstances made him. Retributive punishment should make the criminal whole and healthy and normal not again, but for the first time. And then it should release him.

But what about the victim? Am I ignoring the suffering of the victim? I am not, but our criminal justice system largely ignores the victim. As it exists now, retributive justice brings harms to the criminal but no helps to the victim. Our law holds that murder and other crimes are offenses against society, and not against individual victims. A rape-victim might be jailed as an uncooperative material witness if she refuses to be a court witness against her rapist. Restorative justice for the victim should then be by the society, achieved by the sorts of governmental, programs like victims’ compensation funds, universal free health care, free higher or alternative education. Yes, wealthy criminals must pay too. Thus, this corrected retributivism with helpful concern for both, leads to justice both for the victim, or the victim’s relatives, and for the criminal.

However, neither the victim, nor society, nor justice can be satisfied by the claim that the criminal from the initial unjust situation is immediately after conviction, to be placed in a just situation back in society. Unfortunately, that situation must be programs in prison. This is the purpose of incapacitation as a theory of punishment.

Incapacitation is the social self-defense achieved by imprisonment, not by killing the killer, chopping off the thief’s hand, castrating the rapist, blinding he who blinds his victim. Imitative punishments of simple-minded retributivists are “cruel and unusual,” and thus forbidden. But taking the criminal off the streets is right, and the revolving-door justice of the too-lenient criminal court, which immediately returns the criminal to the street without incarceration is wrong. Society is fearful if the criminal is back on the streets too soon. Even criminals made such by sorry childhood or life circumstances properly lose their freedom. This blocks them from repeating their socially harmful, human-right violating, criminal acts. The victim or his/her relatives feels safe in the community again if the criminal is removed from it. Society is trustful that the government is making the streets safe. The feeling of freedom to go out is restored.

This loss of freedom by incarceration satisfies the additional purpose of just punishment, deterrence. Even the criminal made-criminal by a deficient childhood or extreme circumstance can follow the reasoning deterrence requires. Namely, that the benefit from committing his crime is less than the far greater cost of punishment for that crime. This assumes that the criminal sees a real chance of being caught, convicted, and punished, so there must be examples known to would-be criminals of those actually incarcerated for their crimes. There must be prisons well-publicized for jailing notorious criminals. This knowledge must be widely shared by the public so that it generates a fear of the consequences to the prospective criminal, so that he never commits the crime. The jailed criminal is deterred, fearful from committing the crime a second time after release from jail. The would-be criminal observing the jailed criminal, is also deterred, fearful, of committing the crime the first time. The victim of the crime, and society in general, are relieved of fear if satisfied that the crimes previously committed are, by deterrent punishment, rendered less likely to be repeated. A measure of just tranquility is restored to all involved. Peace is present, the peace Augustine defines as the calm which comes from order.

This brings us to the rehabilitative purpose of punishment. This is the crucially important purpose of punishment in my argument for realizable restorative justice. My claim is that the most important part of restorative justice is the redemption of the criminal. Maybe the victim is restored to his pre-crime just state, but the sort of criminal that I know best was not in a just state before the crime. In fact, often the criminal became a criminal because his pre- crime state was an imperfect and unjust state. How good and just and perfect a situation was the Graterford inmate in, if he was one of the approximately 60% of inmates in Pennsylvania’s state prisons who were at only a fifth grade reading level when they entered prison? I have met inmates illiterate in both Spanish and English. I know from his aged, volunteer tutor that, after 5 years tutoring her pupil in literacy, one inmate was then studying from only a 5th grade reader.

The criminal deserves punishment, yes, but the fact that the inmate is a human person made in God’s image, a person with human rights, means that the convict deserves rehabilitation. Remember, as the charming little black boy on the poster says, so the prison inmate may say, “God made me, and God does not make junk.” What was often denied the convict before he went to jail is now due him. The correctional or reform, repairing, redeeming, reclaiming, aspect of punishment is the apex of restorative justice. My years in prison teaching a multitude of convict-students has proven to me that, whoever the life-sentenced convict was at the time of his crime, after 20 years, maybe less, he is a reflective, calm, educated, stable individual now. If he shows remorse for his crime, if

he has not been a disciplinary problem, if he has taken advantage of educational opportunities, if he belongs to some self-regulating inmate associations, if he is part of a credible religion, to continue his incarceration is wrong. Twenty years, sometimes less, is punishment enough. Restorative justice is achieved in its final phase only if he is released, even released with parole. Real life sentences, incarceration until death, are, says Pope Francis, unnecessary and wrong. Where the inmate is denied any hope of release, there is no justice.

To summarize my argument. Real restorative justice must attempt to harmonize all interests—those of the victim and/or victim’s relatives, those of society, and those of the criminal. The criminal should be apprehended, tried, punished if guilty. Restoration begins with the society, through government, treating the crime’s victim or the crime victim’s family better. The damages which the civil law awards to one injured by a tort in order to make him or her or them whole again should be society’s guarantee. But my different interpretation of retributivism demands that not only is justice restored for the victim, it is provided late for criminal who was denied it before. This means that the rehabilitative aim of the punishment must always be the development of the moral, mental, and physical powers of the convict. The incapacitation of the criminal, the loss of his freedom, satisfies society’s demand for some sort of deprivation, and for deterrence. And the removal from the streets satisfies society’s demand for

safe streets. Imprisonment for the inmate means peace and security for society. The incapacitation of the convict makes possible the enjoyment of an enriched prison atmosphere, one that makes it easier for the inmate to become good than was his childhood or youthful environment.

Finally, Incapacitation by incarceration can become like the cast setting a broken bone. Think of the education, programs, clubs, topical workshops, religious activities, job performances of the convict, as the rehabilitative curing occurring while the arm, the inmate, is in the cast. In restorative justice, the now-healed and healthy convict deservedly released from prison promises to be of pleasant use to society, just as like the healthy arm now released from the cast is a restored pleasant use to the now-healed individual.