{"id":5724,"date":"2022-04-01T21:04:48","date_gmt":"2022-04-01T21:04:48","guid":{"rendered":"https:\/\/learn.elca.org\/jle\/?p=5724"},"modified":"2022-04-01T21:22:42","modified_gmt":"2022-04-01T21:22:42","slug":"we-want-justice-retributive-distributive-and-restorative-justice","status":"publish","type":"post","link":"https:\/\/learn.elca.org\/jle\/we-want-justice-retributive-distributive-and-restorative-justice\/","title":{"rendered":"We Want Justice: Retributive, Distributive, and Restorative Justice"},"content":{"rendered":"

[1] I want to begin with a difficult and inexplicable truth: white racism is alive and well in the institutional and cultural life of the United States of America. Since the death of George Floyd, there have been multiple calls for racial reckoning in the United States and around the globe. [1]<\/a> These calls reveal a deep lament to get on with public discussions and transformation of our institutional and individual life.\u00a0 The deep emotion and desire to re-construct institutions of our society deeply reflect the clarion call of the Rev. Dr. Martin Luther King, Jr., \u201cWhite America must recognize that justice for Black people cannot be achieved without radical changes in the structure of our society\u201d[2]<\/a>\u00a0 So goes the public debate!<\/p>\n

\"\"<\/p>\n

[2] In 1986, on my first trip to Zimbabwe on the continent of Africa, our host gave us a gift. It was a statue of a bird. After thanking our host, I asked, \u201cWhat does this symbolize?\u201d \u201cIt is a Sankofa bird,\u201d replied our host. The conversation continued and our host educated us about this common symbol among Akan people in Ghana and other tribes in Africa.\u00a0 It symbolizes a mythical bird with its head turned backward with its beak picking up an egg while walking forward.\u00a0 It conveys that it is alright to retrieve the past as we go into the future.[3]<\/a>\u00a0 The people seek knowledge and wisdom essential to their existence as a community.\u00a0 History, therefore, has a role to play in our journey toward justice now and in the future.\u00a0 Let\u2019s take a moment to retrieve some history.<\/p>\n

[3] On Sunday, January 4, 2022, some of us learned that the last living parent of one of the four young African American girls killed in the 1963 Birmingham church bombing, joined the ancestors.\u00a0 Mrs. Maxine McNair, the mother of Denise McNair made her transition.<\/p>\n

[4] Last month the great Nobel Prize winner, Archbishop Desmond Tutu made his journey to be with the ancestors.\u00a0 This great pastor, theologian, and apostle of forgiveness and reconciliation made an indelible mark on many people worldwide.\u00a0 This great teacher taught us what courage was like amid Black bodies being senselessly brutalize by apartheid policies and actions.<\/p>\n

[5] On January 5, 2022, the governor of Louisiana pardoned Homer Plessy.[4]<\/a>\u00a0 In 1892 Plessy was arrested for violating Louisiana\u2019s Separate Car Act.\u00a0 This Act held that trains and other spaces could legally separate African Americans and Whites.\u00a0 In keeping with the law, Plessy had to move to a car for African Americans.\u00a0 He resisted and was promptly arrested.\u00a0 Plessy\u2019s case was struck down in the Louisiana Supreme Court.\u00a0 After an appeal to the United States Supreme Court, which he lost, \u201cSeparate but Equal\u201d became a legalized form of apartheid in the United States.\u00a0 The Plessy v. Ferguson<\/em> (1896) decision was then revoked in the famous Brown v. Board of Education of Topeka Kansas<\/em> in 1954.<\/p>\n

[6] A thread which runs through these remembrances is white racism and the struggle to re-construct the structures of society and bring about a more perfect society.\u00a0 The lived experiences cannot be forgotten. If they are forgotten we are surely doomed to repeat the horror heaped upon Black bodies.<\/p>\n

[7] We also remember what happened on January 6, 2021.\u00a0 Americans were gathering in the nation\u2019s capital, as we met as Lutheran ethicists at our annual meeting, to remember the insurrection which occurred.\u00a0 What I remember most about that day last year was seeing mostly angry White men.\u00a0 Even more disconcerting, because of the deep racial implications, was seeing a noose and the Confederate flag flying on the Capital.\u00a0 Yes, remembering the past serves an important function.\u00a0 It reminds us that we all have a responsibility to work, in our own way, in solidarity with others to bring justice to all people.<\/p>\n

[8] As we think about bringing justice to all people, this essay aims to explore the similarities and differences between retributive, distributive, and restorative justice.\u00a0 I will accomplish this by asking these questions: (1) What do people mean by \u201cjustice?\u201d\u00a0 (2) What precisely are retributive, distributive, and restorative justice?\u00a0 A greater emphasis will be placed on restorative justice as it was the theme of our gathering.\u00a0 (3)\u00a0 What, if anything, do Lutheran social teachings offer in the resolution of injustice?\u00a0 (4) Finally, in light of the human propensity for sin (\u201cfor all have sinned and fallen short of the Glory of God\u201d Romans 3:23), would a combination of these three forms of justice best transform injustice, conflict, crime, institutions and, thus, really bring true justice?<\/p>\n

[9] I will introduce each form of justice with an illustrative story.\u00a0 These stories, some of which are of personal interest, will focus our discussion. \u00a0These stories reflect the lived experiences of African Americans along with those in other communities who suffer injustices.\u00a0 In telling these stories I hope that the reader will see how all three forms of justice may more accurately reflect our socialization process, human morality, and decision-making when we seek to transform our institutional and individual lives. I believe, at a fundamental level, that Lutheran theological and social ethical teachings (while paradoxical in nature) support that position. This position, I would contend, is contextual.\u00a0 That is, each individual in community has different life experiences.\u00a0 Those life experiences shape one\u2019s perspective, their interpretation of the Lutheran (ELCA) social ethical teaching tradition, and their ability to work for justice.<\/p>\n

The Context for Retributive Justice: \u201cWe Want Justice\u201d<\/strong><\/p>\n

[10] The TV screen was filled with protestors shouting, \u201cWe want justice.\u201d Some people were carrying signs which read \u201cJustice for Floyd.\u201d\u00a0 Beginning May 25, 2020, protestors were marching in downtown Chicago, holding rallies at various spots in outdoor locations.\u00a0 There was property damage, police cars were damaged, and some people were injured.\u00a0 On the south side of Chicago (where I live), popular stores were vandalized, goods stolen, and in some places there was general mayhem.<\/p>\n

[11] Those scenes in May 2020 were replicated across the country.\u00a0 And they are not new.\u00a0 The 1960s and 1970s witnessed rebellions in many cities.\u00a0 People were taking to the streets protesting the abuse of Black bodies and demanding justice.<\/p>\n

[12] Social movements have been a stable activity in the United States and around the globe.\u00a0 They are methods for resisting oppression and domination by institutions and people in society.\u00a0 These movements, in some instances, accomplished their goals.\u00a0 For example, the Civil Rights Movement was able to bring an end to racial segregation, secure Voting Rights and Fair Housing legislation.\u00a0 These movements express a deep claim for justice under the law.<\/p>\n

[13] A common thread through each of these movements has been a slogan, a pithy phrase, or song.\u00a0 They galvanized the public and became a means for attracting members and focusing activity.\u00a0 For example, during the last presidential election candidates from both the Democratic and Republican parties coined slogans.\u00a0 The former built its vision of America through the theme \u201cBuild Back Better.\u201d\u00a0 The latter wanted to \u201cMake America Great Again.\u201d\u00a0 During the Civil Rights Movement, the theme was to \u201cRedeem the Soul of America.\u201d[5]<\/a><\/p>\n

Retributive Justice: \u201cYou Do the Crime, You Do the Time\u201d<\/strong><\/p>\n

[15] We all know the story about George Floyd.\u00a0 He was murdered on May 25, 2020, by Officer Derek Chauvin, a Minneapolis police officer.\u00a0 During the trial family and friends testified on behalf of George Floyd.\u00a0 Officer Chauvin, did not testify; however, during sentencing said, \u201c\u2026I want to give my condolences to the Floyd family.\u201d[7]<\/a>\u00a0 Giving condolences is one thing, however, asking for forgiveness (a central tenet in restorative justice) is different.<\/p>\n

[16] Following the jury\u2019s decision, a press conference was held.\u00a0 The state of Minnesota\u2019s Attorney General, Keith Ellison, made a profound statement.\u00a0 He said, \u201cI would not call today\u2019s verdict \u2018justice,\u2019 however, because justice implies true restoration<\/em>.\u00a0 But it is accountability, which is the first step towards justice.\u201d[8]<\/a>\u00a0 Ellison made clear that there is a difference between accountability, justice, and restoration.\u00a0 There is a sense of incrementalism or a process to justice or restoration.\u00a0 Chauvin, faced a popular maxim central in the American legal system, \u201cyou do the crime, you do the time.\u201d\u00a0 In plain view that is retributive justice.\u00a0 There are several principles operating in retributive justice.<\/p>\n

[17] Many of us have been socialized to believe that if you do something wrong there are consequences or punishment.\u00a0 The first principle is establishing who did what and the nature of the crime.\u00a0 In the George Floyd case, it was clear who did what.\u00a0 Officer Chauvin had his knee on Floyd\u2019s neck and caused him to die.\u00a0 A common understanding of the facts is crucial and established in a court of law.\u00a0 The second principle is that there should be some entity that has the authority to mete out punishment.\u00a0 The state establishes certain laws through legislation and the courts have the authority to impose those laws.\u00a0 In other words, individual citizens are not authorized to punish wrongdoers.\u00a0 It is understood in America that there are institutions and systems responsible for carrying out punishment for any crime.<\/p>\n

[18] A third principle is \u2018just desserts.\u2019\u00a0 The focus here is that one gets the punishment they deserve.\u00a0 It is good that the offender receives the punishment they deserve.\u00a0 While Officer Chauvin might have been sentenced to death for taking the life of George Floyd, one alternative was prison.\u00a0 Justice, in this sense, means the offender who committed the crime is \u201ctaking his or her punishment.\u201d\u00a0 While it is possible for victims to say something at a trial or sentencing, a key ingredient (important in restorative justice as we will see later), is healing and integration back into the community.\u00a0 Retributive justice hardly brings healing of the community when there continues to be perpetration of crimes by citizens and those charged with the responsibility to serve and protect.<\/p>\n

[19] A fourth principle could be stated this way.\u00a0 It is not permissible to punish an innocent person.\u00a0 That would be considered morally bad.\u00a0 Sometimes innocent people are punished for crimes they did not commit or were witnesses to a crime.\u00a0 A weakness of retributive justice is its \u201ceye for an eye, tooth for a tooth\u201d understanding (Leviticus 24:19-21).\u00a0 In many ways this notion, sometimes understood as revenge or retaliation, does nothing to reduce harm, bring healing, or restore community.\u00a0 However, retribution is a major expression of justice in the United States and other countries.\u00a0 The protestors may be expressing this form of justice, namely, accountability for killing a person.<\/p>\n

The Henrietta Lacks Story: A Case of Distributive Justice?<\/strong><\/p>\n

[20] Henrietta Lacks was sick.\u00a0 There was bleeding in her abdomen. \u00a0She went to John Hopkins Hospital in Baltimore (the only hospital, at that time, serving African Americans in a segregated city) where she lived.\u00a0 After being diagnosed with cervical cancer, the doctors took a sample of her blood cells without informing her, seeking her consent, or notifying her family.\u00a0 The doctors discovered the cells lived outside the petri dish.\u00a0 Consequently, Henrietta Lacks cells (now called HeLa cells) were shipped to researchers and scientists around the world.\u00a0 HeLa cells were used since 1951 (the year Henrietta Lacks died) for many important scientific discoveries including the polio vaccine and other vaccines as well as knowledge about diseases like leukemia.[9]<\/a><\/p>\n

[21] Now seventy years later, the Lacks family wants \u201cjustice.\u201d\u00a0 Their lawsuit against Thermo Fisher Scientific seeks two things: payment from the pharmaceutical company for using Henrietta Lacks cells for profit and recognition that her cells are contributing to science.\u00a0 Along with those items the Lacks family is seeking the intellectual property associated to those cells.[10]<\/a><\/p>\n

[22] What makes this story so painful, is the racially unjust medical system.[11]<\/a> Moreover, the body of an African American woman was viewed as chattel to be sold to whoever wanted it.\u00a0 Consequently, her story had been hidden until Rebecca Skloot told the story in her book The Immortal Life of Henrietta Lacks<\/em>.[12]<\/a>\u00a0 You may recall that Oprah Winfrey starred in a movie on the life of Henrietta Lacks.\u00a0 A concluding result of the book and movie is that the Lacks family should have been asked to give their consent and science and its practitioners should have sought permission from the Lacks family before using or selling HeLa cells.<\/p>\n

[22] The theory of distributive justice is most interesting.\u00a0 It assumes that there is a common good; namely, justice and that its scales will be equally balanced without regard to race, ethnicity, gender, immigration status, sexual orientation, class, or any other factor.\u00a0 This \u201cunalienable right\u201d government guarantees to every citizen. Every citizen can expect that they will have \u2018equal justice under the law.\u2019 Various groups of people, despite legislation and programs initiated and funded by the government and other institutions in society, still experience injustice.\u00a0 Of course, this raises the question about the value of distributive justice as a position for reconstructing institutions and providing equal treatment under the law.\u00a0 Yet, it is still a stable of the \u2018American Dream.\u2019<\/p>\n

[23] One of the key figures, among others, in this discussion is John Rawls.\u00a0 Distributive justice (or justice as fairness), for Rawls, is undergirded by a sense of contract.\u00a0 That is, everyone operates from what he calls an \u201coriginal position\u201d which is \u201cthe appropriate initial status quo, and thus the fundamental agreements reached in it are fair.\u201d[13]<\/a>\u00a0 Theologically this \u201coriginal position\u201d of Rawls imparts that how God created an individual is one of chance.\u00a0 Individuals act vis-\u00e0-vis \u2018a veil of ignorance\u2019 meaning they do not know, in advance, their capacities or station in life.<\/p>\n

[24] Rawls develops principles of justice based on \u201ca veil of ignorance.\u201d\u00a0 Consequently, this ignorance leads to fairness.\u00a0 Choices are made that lead individuals to embrace principles of justice commonly accepted and meaningful to everyone in society (e.g., equal justice under the law).\u00a0 Since it is impossible for any person to really know what his or her capabilities are or where they will end up in society, the principles will be fair.\u00a0 Distributive justice or justice in fairness, in Rawls reading, is \u201cproviding in the first instance a standard whereby the distributive aspects of the basic structure of society are to be assessed.\u201d[14]<\/a> Moreover, one\u2019s race, class, and family influences are a matter of luck.\u00a0 They should not influence the benefits or goods an individual receives.\u00a0 In the end, distributive justice limits those factors in a way that material goods can be distributed fairly.<\/p>\n

[25] Principles of distributive justice include equality, equity, and allocation of goods.\u00a0 Equality communicates that everyone in society gets the same amount of goods.\u00a0 Each person has a claim to the material goods of society.\u00a0 A second principle, just desserts, conveys that a person deserves some good.\u00a0 In the Lacks story, the family is saying that they deserve a monetary reward because of what Henrietta Lacks contributed to society.\u00a0 The family deserved a \u201cfair allocation\u201d of the profits pharmaceutical companies were making off HeLa cells and recognition of her contribution to science and society.<\/p>\n

[26] A crucial problem with Rawls understanding of justice as fairness is that it assumes that everyone is equal in society and therefore can make a claim for the materials goods of society.\u00a0 In my view, this is a na\u00efve and a highly theoretical perspective. Rawls assumes there are perfect societies and just institutions. Rawls is pursuing an ideal form of justice and behavior by members of society.\u00a0 Individuals from communities of color know from lived experiences because they see, hear, and feel when they are treated unjustly.<\/p>\n

[27] The economist and philosopher from India, Amartya Sen argues a different point.\u00a0 While acknowledging Rawls understanding of \u2018justice as fairness\u2019 as a contribution to the development of concepts of justice, Sen contends a comparative position is \u201crealization-focused understanding.\u201d\u00a0 This view focuses more on justice and injustice, the actual lived experiences of people.\u00a0 Sen writes, \u201ca realization-focused understanding must\u2026concentrate on the actual behaviour <\/em>of people, rather than presuming compliance by all with ideal behaviour.\u201d[15]<\/a>\u00a0 Sen\u2019s perspective appears to relate to the experiences of people who suffer injustice.\u00a0 In fact, Sen is arguing from a marginalized community\u2019s understanding of their lived experience.\u00a0 How people act is more determinative than pursuing an ideal understanding of justice or just institutions.\u00a0 The concern here is whether justice is being moved forward in society and by institutions.<\/p>\n

[28] Returning to the Lacks story, we see how they actually experienced life in society and how the reality of racism influenced how they were treated and the justice they received.\u00a0 They were poor, did not know what the doctors were doing, and lived during a time of racial segregation with all its perceptions, policies, and laws governing their lives and the lives of African Americans.\u00a0 Those influences which Rawls calls \u201cluck\u201d determined what benefits they would receive or not receive.<\/p>\n

[30] An AT&T commercial captures the persuasiveness of distributive justice. The commercial features an adult female, an adult male, a little boy, a little girl, and an AT&T employee.\u00a0 The employee says, \u201ceveryone gets our (AT&T\u2019s) best deal.\u201d\u00a0 To demonstrate this the employee says to the little girl \u201cwhat if I give you a lollipop?\u201d The employee then says to the little boy \u201cwhat if I give you our best lollipop?\u201d\u00a0 The little girl says, \u201cThat\u2019s not fair.\u201d\u00a0 The lollipop given to the little boy was bigger.\u00a0 The employee takes back the smaller lollipop and gives the little girl the same size lollipop the little boy received.\u00a0 That for me is distributive justice.\u00a0 The little girl saw her lollipop was smaller.\u00a0 She spoke up and the employee responded positively.\u00a0 The assumption being that everybody gets the best deal, equality.\u00a0 But, distributive justice, while appearing to be just fairness, is weighted towards those who believe they are equal.<\/p>\n

The Greensboro Truth and Reconciliation Commission: A Case of Restorative Justice<\/strong><\/p>\n

[31] The third story is about an event which happened before I went to North Carolina to serve as Director of Minority Ministries (it was later changed to Inclusive Ministry).\u00a0 I chose this story because it was being touted as the first Truth and Reconciliation Commission in America.[16]<\/a>\u00a0 And it had an impact on the ministry I was called to do\u2014work with White Lutheran congregations located in or near the African American community.<\/p>\n

[32] In November 1979 more than thirty members of the Communist Workers Party went to a public housing complex which housed many African American mill workers to conduct a \u201cDeath to Klan\u201d march.\u00a0 The KKK, at that time, had joined with a neo-Nazi group so they could grow.\u00a0 They had begun to gather with their guns.\u00a0 A caravan of cars showed up at the march and after several incidents the KKK\/neo-Nazi members began shooting into the crowd of marchers.\u00a0 After the melee five members of the Communist Workers Party were dead and ten (10) people were injured.<\/p>\n

[33] In 2004 The Greensboro Truth and Reconciliation Commission was established.\u00a0 After a year of searching, seven commissioners were selected: four women of color, a fifth member who was a member of the League of Women Voters (a White female), a corporate attorney (a White male), and a local religious leader (a White male).\u00a0 The Commission was charged to examine the \u201ccontext, causes, sequence and consequences,\u201d and to make recommendations for community healing.[17]<\/a>\u00a0 Patterned after the Truth and Reconciliation Commission in South Africa, hearings were held so victims, perpetrators, and other community participants could make their voices heard.\u00a0 I should note that Archbishop Desmond Tutu did participate with the Commission during its work.\u00a0 The Commission issued a final report in 2006 and has ceased to operate although its website is still functioning. The work of the Commission embodied what they believed would be an example of restorative justice.<\/p>\n

Principles of Restorative Justice<\/strong><\/p>\n

[34] Citizens are beginning to see restorative justice as a \u201cnew\u201d methodology for transforming conflict and crime in communities across the globe. Indeed, more countries are establishing Truth and Reconciliation Commissions to hold people and structures accountable for their deeds of injustice.\u00a0 A key figure in the United States is Howard Zehr\u2019s Little Book of Restorative Justice: Revised and Updated<\/em>.[18]<\/a>\u00a0 I will be following his description of restorative justice.<\/p>\n

[35] Zehr defines restorative justice as \u201ca process to involve, to the extent possible, those who have a stake in a specific offense and to collectively identify and address harms, needs and obligations, in order to heal and put things as right as possible.\u201d[19]<\/a>\u00a0 Zehr, rightly I think, recognizes that his own understanding of restorative justice connects with Indigenous people and communities on the continent of Africa.[20]<\/a>\u00a0 A central understanding is that human beings are connected.\u00a0 This is refreshing, especially in a world where structures and people seek to divide the human family to solidify or enhance their power.\u00a0 Because the human family is interconnected, one of the goods of restorative justice is making whole community relationships right.<\/p>\n

[36] Making individual and community relationships right involves concerns about healing<\/strong> the wounds of victims, restoring<\/strong> offenders to law-abiding lives, and repairing<\/strong> harm done between people and in communities.\u00a0 A critical concept here is respect for all who are involved.\u00a0 The realization of human interconnectedness raises the value of respect for the individual.\u00a0 Respect for the individual is undergirded by a respect for diversity.\u00a0 The human family is diverse and has different life experiences.\u00a0 Another way of saying this is that particularity is important when engaging in restorative justice.\u00a0 Respect for all honors the various contexts, situations, and stories of pain and suffering in the lives of people.<\/p>\n

[37] Following this central vision of respect for all, then, are three principles: repair, stakeholder involvement, and transformation of institutions and structures. For justice to prevail there must be healing for victims, offenders, and communities which have been harmed by crime or other activity which harms citizens.\u00a0 All parties are invited to identify the harms (i.e., crimes) and then develop a plan for addressing them.\u00a0 Crucial to this healing is an ability to forgive.\u00a0 Archbishop Tutu and Mpho Tutu say it eloquently when they speak about \u201cchoosing forgiveness or revenge, but revenge is always costly.\u00a0 Choosing forgiveness rather than retaliation ultimately serves to make you a stronger and freer person.\u201d[21]<\/a>\u00a0 Participation in the act of forgiveness (restorative justice) is expected after all parties agree to the process.<\/p>\n

[38] A second principle is stakeholder involvement or stakeholder engagement.\u00a0 Victims, offenders, and communities must have an opportunity to become involved in the process.\u00a0 The success of stakeholder involvement is assessed by the degree victims, offenders, and individuals from the communities who are actively engaged in making decisions about how<\/em> to accomplish the repairing that is both necessary and needed.\u00a0 Not only does this require public acknowledgement of the wrongs committed, but it may also include a request for some form of reparations or restitution.<\/p>\n

[39] The third principle is transformation of the community and other institutions.\u00a0 The roles and responsibilities of institutions and the community must be rethought.\u00a0 Here, there is some connection with Lutheran ethical thought.\u00a0 Lutherans teach, I believe, that government has a role and responsibility to play in society.\u00a0 Its primary responsibility is to preserve a just order, prevent chaos, and to support the citizens when they cannot do so themselves.\u00a0 The community also has a role which involves establishing peace.\u00a0 Certainly, one way of establishing peace is by developing plans for respecting and receiving the victims of harm as well as the offenders.\u00a0 The success of the transformation of the community is gauged by how deliberately it rethinks the role the government and other institutions play in society, especially the criminal justice system.<\/p>\n

[40] There are various practices associated with restorative justice.\u00a0 Howard Zehr outlines these rather nicely.\u00a0 So, I will only highlight them.<\/p>\n

[41] Among the most important of these practices is Victim-Offender Conferences<\/strong>.\u00a0 These conferences afford an encounter between the person harmed and the offender who caused the harm.\u00a0 If we look back at retributive justice there may be encounters between victim and offender.\u00a0 In George Floyd\u2019s case there was not that opportunity.\u00a0 Derek Chauvin, however, did express his condolences publicly at sentencing.\u00a0 However, there were no conferences between Floyd\u2019s family and Chauvin.<\/p>\n

[42] Second, family group conferences<\/strong> are essential.\u00a0 This is an opportunity for family members to tell their stories of the pain of being harmed by the offender.\u00a0 The focus is also on exploring facts, feelings, and resolutions concerning the harm that was done.\u00a0 Equally important to consider are the needs of the victim.\u00a0 As in the case of Greensboro and the most prominent Truth and Reconciliation Commission (South Africa) there are public hearings or forums, spaces created for those harmed and offenders to share their voices.<\/p>\n

[43] A third practice is called the Circle Approach<\/strong>.\u00a0 This approach, which Zehr acknowledges emerges out of the First Peoples\u2019 tradition and practices, seeks to bring healing and restoration.\u00a0 Everybody sits in a circle and a talking piece is passed around to assure each person has an opportunity to speak from their heart.<\/p>\n

[44] If I were to offer a critique it is this.\u00a0 It appears that truth and reconciliation commissions focus on harms done to individuals.\u00a0 The power of victims sharing their stories of injustice or harms is necessary. There is power in hearing from offenders and their desire for forgiveness.\u00a0 The possibility of integrating back into the community is a laudable goal because it brings healing.\u00a0 However, what is to be done about those institutions<\/em> which have an ethos of intentionally harming and abusing people?\u00a0 It seems to me, that restorative justice is focused more on individuals rather than changing institutions.\u00a0 In the present climate of the United States, I am not very hopeful that structures\/institutions can be transformed into just structures and institutions vis-\u00e0-vis restorative justice.\u00a0 That assertation assumes that Rawls understanding of justice as fairness and just institution is real.\u00a0 I am, however, hopeful that individuals can be transformed and, having been transformed, will \u201cdo justice\u201d in and through their vocations.<\/p>\n

Implications for Lutherans in the ELCA<\/strong><\/p>\n

[45] Members of ELCA congregations and seminarians frequently ask questions about why the ELCA engages in societal politics.\u00a0 They may also wonder about the ELCA\u2019s position on a particular issue.\u00a0 They ask, \u201cHow are we expected to participate in structures which govern our lives?\u201d\u00a0 The prominence of such questions may be an indication that the ELCA theological and social ethical teaching tradition is not well-known.\u00a0 Does that tradition, variously interpreted by the context and lived experiences of ELCA members, contribute anything to doing the work of restoring communities, bringing forgiveness, and healing victims of oppressive structures who suffer harm?\u00a0 The ELCA theological and social ethical teaching tradition does have resources which answer those thinking on the matter of justice. I want to focus on two Social Statements: The Church in Society: A Lutheran Perspective<\/em> adopted in 1991 and the more recent statement, The Church and Criminal Justice: Hearing the Cries<\/em> adopted in 2013.[22]<\/a><\/p>\n

[46] The foundational document for understanding the theological and social ethical position of the ELCA is the social statement, Church and Society<\/em>.\u00a0 The social statement clearly articulates Lutheran theological marks, scripture, and confessional documents of the ELCA.\u00a0 Formed by God\u2019s grace and through our faith which is active in love, we engage the world and its institutions.\u00a0 Our baptismal vocation, whatever profession we may have (student, spouse, teacher, preacher, police officer, judge, police chaplain, etc.) names that our calling is to do justice.\u00a0 Our striving (a phrase which troubles some people) for justice, however, is tainted by sin.\u00a0 Human beings, as Lutherans say, are both saints and sinners.\u00a0 This paradox or ambiguity leads us in a particular direction, a recognition that the justice we pursue is not perfect and that institutions in society are not perfect.<\/p>\n

[47] The Church and Society<\/em> social statement states it this way, as Christians, we are to participate critically in society and its institutions.\u00a0 That critical participation may take various forms (confronting institutions\/systems, advocacy on behalf of our neighbor, joining in a letter writing campaign or participating in demonstrations).\u00a0 Moreover, institutions are created by God to contain the sinful nature of individuals.\u00a0 This understanding emerges from the way Lutherans perceive how God works in creation.\u00a0 On the one hand, God works through the Law.\u00a0 The purpose of the Law is to restrain chaos and sin, bring order in society, and to make sure the institutions in society act justly.[23]<\/a>\u00a0 On the other hand, God works through the Gospel.\u00a0 The Gospel witnesses to the saving Grace imparted to humans.\u00a0 God\u2019s grace is what saves us (justification by grace) and not our deeds.\u00a0 Therefore, as Lutherans, we teach that \u201cThis church, therefore, must unite realism and vision, wisdom and courage, in its social responsibility.\u201d[24]<\/a>\u00a0 And it is the responsibility of the church to \u201cmediate conflict and to advocate just and peaceful resolutions to the world\u2019s divisions. It should support institutions and policies that serve the common good and work with and learn from others in caring for and changing global society.\u201d[25]<\/a>\u00a0 This could be interpreted as supporting the \u2018status quo,\u2019 however, it reflects reality, how the law functions in the world, and our lived experiences.\u00a0 The criminal justice social statement also reflects this two-fold functioning of God in the world.\u00a0 One form of justice is \u2018civil righteousness\u2019 or the law.\u00a0 The other being \u2018spiritual righteousness,\u2019 the gospel.\u00a0 These two forms of justice are never separate.\u00a0 They are interrelated.<\/p>\n

[48] The Church and Criminal Justice: Hearing the Cries<\/em> (2013) is unique in that it provides a pathway to justice.\u00a0 It argues that restoration can be pursued.\u00a0 The statement puts it this way, \u201cRestorative justice focuses on crime as an offence against human individuals rather than simply as against \u2018the state.\u2019\u201d[26]<\/a>\u00a0 Like Zehr\u2019s understanding of restorative justice, the ELCA focuses in this pathway on the needs of the individual and seeking wholeness in the community.\u00a0 The movement toward practicing restorative justice, however, is tempered with what is identified as \u2018yearning.\u2019\u00a0 In other words, there is a sense that the movement toward justice is something we strive for (yearning) and it is something anticipated in the future which only God can bring.[27]<\/a>\u00a0 Only the sureness of God\u2019s Promise, in Jesus Christ, will justice manifest itself fully.\u00a0 Our call as Christians, is accepting partial justice in the present.<\/p>\n

Conclusion<\/strong><\/p>\n

[49] I have attempted to present, via comparison, three forms of justice prominent in society as embodied in the lived experiences of some of God\u2019s people.\u00a0 There maybe situations which call for retribution or distributive justice.\u00a0 However, as the The Church and Criminal Justice: Hearing the Cries<\/em> (2013) says, \u201cthis statement recognizes that a more fundamental transformation in thinking about criminal justice is required.\u00a0 It calls for a transformed mindset, one that counterparts the logic equating more punitive measures with more just ones.\u201d[28]<\/a>\u00a0 Do the ELCA theological and social ethical social teachings offer resources for our individual and corporate life?\u00a0 Yes, although in a paradoxical manner.\u00a0 A combination of all three forms of justice is the most appropriate response to human immorality.\u00a0 However, as followers of Jesus Christ, the criminal justice social statement calls us to a way of living that seeks restoration between victims of crime, perpetrators of crime, communities which experience crime.\u00a0 We are called to pursue justice, knowing that perfect justice will come!<\/p>\n

[1]<\/a> This presentation has been rewritten to include questions and comments made at the Lutheran Ethicists Gathering held on January 6, 2022.\u00a0 I want to thank all the people who shared their comments and questions.\u00a0 I may have misheard and misunderstood what was asked and said; however, I take full responsibility for how those comments and questions are incorporated in this final version.\u00a0 I look forward to further conversation about a critical issue for these times in our church and in the world.<\/p>\n

[2]<\/a> Martin Luther King, Jr., \u201cA Testament of Hope,\u201d in A Testament of Hope: The Essential Writings of Martin Luther King, Jr.<\/em> Edited by James Melvin Washington (Harper & Row, Publishers, San Francisco), 1986. 314.<\/p>\n

[3]<\/a> Sankofa means \u201cGo back and get it.\u201d As the Akan proverb goes, \u201cSe wo were fi na wosan kofa a yenkyiri.\u201d To wit, it is not taboo to go back and get something after you have forgotten it. More literally, it means if you forget and you go back to get it, there is nothing wrong with it.\u00a0 Available at https:\/\/www.adinkrasymbols.org\/symbols\/sankofa<\/a>.<\/p>\n

[4]<\/a> \u201cHomer Plessy, of Plessy v. Ferguson\u2019s \u2018separate but equal\u2019 ruling, pardoned by Louisiana governor,\u201d by Tina Burnside, CNN. January 5, 2022.\u00a0 Available at https:\/\/www.cnn.com\/2022\/01\/05\/us\/plessy-pardon-signed-by-governor\/index.html<\/a>.<\/p>\n

[5]<\/a> Quoted by Adam Fairclough in To Redeem the Soul of America: The Southern Christian Leadership Conference and Martin Luther King, Jr. <\/em>(Athens and London: The University of Georgia Press, 1987), 32.<\/p>\n

[6]<\/a>From the album Long Live Love<\/em>, 2019. Emphasis added.<\/p>\n

[7]<\/a> \u201cWATCH: Chauvin breaks his silence at sentencing in George Floyd case.\u00a0 Available at https:\/\/www.pbs.org\/newshour\/nation\/watch-live-chauvin-is-sentenced-in-george-floyd-killing<\/a>. By Amy Forliti, Associated Press and Steve Karnowski, Associated Press. Nation<\/em>, June 25, 2021.\u00a0 Accessed October 22, 2021.<\/p>\n

[8]<\/a> \u201cToday\u2019s verdict isn\u2019t \u2018justice\u2019.\u00a0 But accountability is a first step to justice.\u201d Keith Ellison. April 20, 2021.\u00a0 Accessed January 5, 2022. Available at Today\u2019s verdict isn\u2019t \u2018justice\u2019. But accountability is a first step to justice | Keith Ellison | The Guardian<\/a>. Emphasis added.<\/p>\n

[9]<\/a>Available at: Henrietta Lacks\u2019s family wants compensation for her cells – The Washington Post<\/a><\/p>\n

[10]<\/a> Available at: \u00a0Estate of Henrietta Lacks sues biotechnical company for nonconsensual use of her cells – CNN<\/a>.<\/p>\n

[11]<\/a> It should be noted that during this same time frame the United States Public Health Services Study of Untreated Syphilis in the Negro Male study was being conducted.\u00a0 This study, known as the Tuskegee Syphilis Experiment, was conducted from 1932 to 1972 in Tuskegee, Alabama.\u00a0 See James Jones, Bad Blood: The Tuskegee Syphilis Experiment, New and Expanded Edition<\/em> (New York: The Free Press), 1981, 1993).<\/p>\n

[12]<\/a> Rebecca Skloot, The Immortal Lie of Henrietta Lacks<\/em> (New York: Crown Publishers), 2010.<\/p>\n

[13]<\/a> John Rawls. A Theory of Justice<\/em>. The Belknap Press of Harvard University Press (Cambridge, Massachusetts: 1971), Kindle Edition, p. 12 of 588 (location 588 of 11137).<\/p>\n

[14]<\/a> Ibid., page 9 of 588 (location 322 of 11137).<\/p>\n

[15]<\/a> Amartya Sen, The Idea of Justice<\/em>. The Belknap Press of Harvard University Press (Cambridge, Massachusetts: 2009), Kindle Edition, p. 6-7 of 468 (location 515-521 of 10349). Emphasis added.<\/p>\n

[16]<\/a> An important first truth and reconciliation commission was the state of Maine\u2019s investigation of child welfare among Wabanaki people in Maine. That commission\u2019s report is available at Truth & Reconciliation – Wabanaki REACH (mainewabanakireach.org)<\/a>.<\/p>\n

[17]<\/a> Greensboro Truth and Reconciliation Commission Report. May 25, 2006, 6.\u00a0 Available at https:\/\/greensborotrc.org<\/a>.<\/p>\n

[18]<\/a> Good Books (New York, 2014). I recommend two other books for further investigation into restorative justice: Fania Davis, Race and Restorative Justice: Black Lives, Healing, and US Social Transformation<\/em> (New York: Good Books, 2019) and Colorizing Restorative Justice: Voicing our Realities<\/em>.\u00a0 Edited by Edward C Valandra Wanble and Wap\u021f\u00e1hi Hoba\u0161\u00edla. Forward by Justice Robert Yazzie (St. Paul, Minneapolis: Living Justice Press, 2020).<\/p>\n

[19]<\/a> Zehr, p. 33, location 492 of 940.<\/p>\n

[20]<\/a> Ibid, p. 20, location 288 of 940.<\/p>\n

[21]<\/a> The Book of Forgiving: The Fourfold Path for Healing Ourselves and Our World<\/em>.\u00a0 Edited by Douglas C. Abrams \u2013 First Edition (Sydney: HarperCollins Publishers Australia Pty. LTD., 2014).\u00a0 Kindle Edition, p. 7 of 231, location 105 of 2519.<\/p>\n

[22]<\/a> All ELCA Social Teachings and Messages are available at \u00a0https:\/\/www.ELCA.org\/socialstatements<\/a>.<\/p>\n

[23]<\/a> Church and Society<\/em>, 3.<\/p>\n

[24]<\/a> Ibid.<\/p>\n

[25]<\/a> Ibid.<\/p>\n

[26]<\/a> Criminal Justice: Hearing the Cries<\/em>, 31.<\/p>\n

[27]<\/a> Ibid., 21.<\/p>\n

[28]<\/a> Ibid., 47.<\/p>\n","protected":false},"excerpt":{"rendered":"

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