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The end of punishment: Restorative justice, prison abolition and the Christian refusal of state violence

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Contemporary prison abolitionists working at the grassroots level are drawing creatively on earlier restorative justice practices to prefigure a world without prisons. ()

Listen to Vincent Lloyd discuss prison abolition with Waleed Aly and Scott Stephens on the first episode of The Minefield for 2019.

In 1978, a Vietnam veteran named Harry Palmer was struggling to support his family. Decorated in battle, he was now in Elkhart, Indiana, struggling to pay his bills. He decided to steal. Palmer wanted to provide his children with the sorts of possessions he saw his neighbours' children enjoying. He was caught.

Indiana had a strict, ten-year minimum sentence for burglary, but Judge William D. Bontrager had a different idea. After less than a year, Bontrager allowed Palmer to participate in the Victim Offender Reconciliation Program, one of the first experiments in restorative justice. Instead of serving time, Palmer met with his victims and agreed to compensate them. He performed manual labour for his victims each week until the restitution was complete. By all accounts Palmer was a model prisoner, and he was an enthusiastic and dedicated participant in this alternative dispute resolution process.

The Indiana Supreme Court was less enthusiastic than Bontrager about creative alternatives to incarceration. It ruled that Palmer must return to prison for the remainder of his ten-year sentence. Bontrager could not bring himself to send Palmer back to prison. He contemplated resigning, but eventually just withdrew from Palmer's case. Another judge stepped in and returned the veteran to prison.

But the Indiana Supreme Court was irritated at Bontrager's intransigence. They found him in contempt of court, sentenced him to thirty days in jail ― a sentence that was suspended ― and fined him $500. Bontrager's frustration reached a breaking point. He resigned from the bench and returned to his law practice. A few years later he would move to Minneapolis to become the director of Christian Conciliation Service, a non-profit restorative justice initiative, and he would later educate others on restorative justice principles elsewhere in the United States and in the former Soviet Union.

The ethical dilemma confronted by Bontrager is as old as Antigone. When my obligations to my god or conscience seem to supersede my duties to secular authorities, what am I to do? In Bontrager's view, there was an "irreconcilable difference between the laws of Indiana and the laws of God." Bontrager was forced to make a choice, and, for him, it was not a difficult one. "If I have to be true to something, I will be true to God and not the law." A prison system that incarcerates a person for so long, possibly even turning a good man bad, must be disobeyed, even at the cost of one's professional reputation and job security.

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Rarely, when it is presented today, does restorative justice evoke zealous piety of the sort we see with Bontrager. Secularised and professionalised, restorative justice is more often than not the province of the social worker or criminal justice administrator. When religion appears in the orbit of restorative practices, it is generally ecumenical Protestantism or New Age spirituality; care is taken not to exclude or unsettle. Religion's capacity for confrontation and refusal has generally fallen out of the picture.

To understand Bontrager's stance, we must understand the novelty of restorative justice in the late 1970s and the specific religious context out of which it arose. North-central Indiana has large Mennonite and Christian Brothers communities. These two closely related denominations ― which descend from the Anabaptists ― have a longstanding commitment to radical peace-making and quietist disengagement from state institutions more generally. Though many Mennonites and Brethren do not go so far as their Amish cousins in refusing as much participation as possible in the state, the theological and social attitude remains one of wariness and separation. Above all, the state is seen as a site of violence ― a violence that even at its least malevolent is wholly inimical to the peace of a true Christian community. And prisons were hardly on the mild end of the spectrum of state violence.

Bontrager's more confrontational edge was, in part, a matter of provenance. His father had been raised Amish but left that community to further his education. Bontrager himself belonged to the Brethren, taught Sunday school at his church, and lectured at the Associated Mennonite Biblical Seminary. While making restitution to his victims, Harry Palmer, too, became religious: he joined the Mennonites.

The Victim Offender Reconciliation Program in which Palmer participated was directed by Howard Zehr, a man who would go on to become one of the most recognisable figures in the international restorative justice movement. This was Zehr's first attempt at putting his ideas into action, and he would spend the rest of his career promoting what he learned in it. Zehr was born in 1944, the son of a pastor who would serve as the head of the Mennonites. Coming of age in the 1960s radicalised Zehr, as it did many other first-generation advocates of restorative justice. After high school in Indiana, Zehr enrolled in the local Mennonite college. During his first year, he attended a lecture by John Howard Yoder, the twentieth century's towering Mennonite theologian. Yoder urged the young people in his audience to take risks, to leave their comfort zone. Zehr took this directive literally. He packed up and moved to Atlanta, enrolling in Morehouse College, and, in 1966, he became the historically black school's first white student to graduate.

Zehr would go on to spend seven years teaching at the historically black Talladega College in central Alabama where he witnessed first-hand the injustices caused by the criminal justice system, and particularly the racism with which the system was infested. These experiences motivated him, in 1978, to set aside his academic career, return home to Elkhart, and try out a new approach to achieving justice.

Zehr argued that justice codified in law is retributive by nature and aims to take a toll on the offender rather than to create peace among victim, offender and the community as a whole. He advanced a third model ― "covenant justice" ― which synthesises the best elements of both types of justice. This third type of justice has been largely forgotten, he asserts, but it has its origins in the Hebrew Bible. "Old Testament law does not have the sense of rigidity and formalism that our law does. Law points a direction, and it must be discussed." What mattered most in this ancient world, according to Zehr, was the covenant between God and the people, with the state playing a secondary, provisional role. "Covenant justice was making things right, finding a settlement … living in peace and harmony with one another in right relationship" ― it was Shalom.

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In these early days, the commitment to God's law motivating restorative justice also motivated a complementary ambition: prison abolition. The inaugural International Conference on Prison Abolition (ICOPA) brought to Toronto a mix of activists, practitioners and academics in 1983. The meeting was steeped in religious sentiment and authority, and it was made possible by the financial resources of religious communities. The conference secretary, Jake Friesen, was trained as a Mennonite minister in Elkhart and had worked for the Mennonite Central Committee. The conference coordinator, Bob Melcombe, was a member of the Quaker Committee on Jails and Justice, and he had been incarcerated three times for his protests against nuclear armament.

Melcombe introduced the religious language of restorative justice from the start, in his welcome letter: "As we build justice, we build a sense of community; as we build community, we build peace." Financial support for the conference came from a few secular social justice groups, Canadian unions, but also from many, many religious communities: Augustinians, Cistercians, Franciscans, Jesuits, Dominicans, Quakers, Mennonites and others, from far and near. The conference was officially endorsed by groups including the United Church of Canada's Criminal Justice sub-unit, the outreach committee of the Presbyterian Church of Canada, the University of Toronto's School of Theology, two Quaker organisations, and the Canadian arm of the evangelical Prison Fellowship. Melcombe spoke in an unabashedly religious and abolitionist idiom:

There is no way to reform what we have ― a society based on punishment. There is only one way to create a society based not on punishment but on values positive, creative and just ― to abolish the methods of punishment and the system built around them.

This strident political theology did not remain a part of restorative justice projects. The Christian imagination animating experiments like Zehr's taking place in North America would fall away as such projects attracted international attention and crossed the Pacific. By 1989, New Zealand had fully adopted a restorative justice model for juvenile offenders, eliminating incarceration for them altogether, and the model began to be used for some adults in 1994; Australia would begin implementing restorative justice programs a few years later.

In these contexts, with their government adoption, restorative justice techniques and ideas rapidly developed in their sophistication, but their orientation shifted from political-theological abolitionism to spiritual reformism, and indigenous terminology and practices were brought into the justice system.

When restorative justice began attracting widespread attention in the United States two decades ago, it came with a spiritual, reformist aura. The New York Times discovered restorative justice in 1995, framing it as a response to jail overcrowding. The Times reported that secular liberals, law enforcement and evangelicals were all beginning to turn away from prisons and toward restorative justice, which it defined as "a spiritual notion that a crime affects more than just a criminal in the justice system." Proponents of restorative justice believe, "The response to crime must include the victim, society and the community as well."

Notice this approach is called "spiritual," not religious ― and integral to this spirituality was an appeal to indigeneity. For example, Kay Pranis, the restorative justice coordinator for the Minnesota Department of Corrections in the mid-1990s, turned to indigenous communities in Minnesota for help in refining restorative justice practice. After she was laid off by the state, Pranis became a freelance trainer, and she founded Living Justice Press, a publishing house dedicated to publicising restorative justice with a particular focus on books sharing wisdom from indigenous communities.

The historical entanglement of restorative justice and prison abolitionism was now fully obscured. This is crystal clear when we consider how Prison Fellowship, the global evangelical prison ministry, read and deployed Bontrager's story. Writing in Prison Fellowship's magazine, Charles Colson tells a version of Bontrager's story in which Harry Palmer had "accepted Christ in 1977 while in jail" and Bontrager "had himself been converted to Christ a year earlier." Rather than pointing to a religious community forming Bontrager into the man he is, for Colson it is Bontrager's personal faith in Jesus Christ that matters.

Moreover, in this version Bontrager "knew the Supreme Court's order didn't meet God's standard of justice and righteousness" ― so the legal system would need to be improved and prisons would need to be reformed. For dangerous offenders, Colson argues, there is only the cage. For the non-dangerous, restorative justice is preferable. "The criminal justice system," he writes, "which is absolutely crucial if government is to carry out its first duty ― the preservation of order ― urgently needs reform." What for Zehr requires a new kind of as-yet-unrealised justice, in Colson's hand becomes a friendly amendment to the existing regime of state violence.

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In the last few years, criminal justice system administrators in North America have increasingly sought to integrate restorative justice into their work, following the New Zealand and Australia models. When developed with care and caution, these efforts can serve to shrink the existing system of punishments, but especially in the United States, where the criminal justice system has shown itself to be exceedingly adept at turning critique into grounds for yet more growth, they can also serve to expand it.

At the same time, however, prison abolitionists working at the grassroots level are drawing creatively on restorative justice practices to prefigure a world without prisons. As often as not under the umbrella of "transformative justice"― since in communities broken by systematic racism and injustice there is no prior justice to "restore" ― organisers are using practices drawn from those early, radical Christian experiments to repudiate systems of state violence that equate accountability with exile, effect "healing" by administering more hurt, and secure "public safety" by further destabilising wounded communities.

As a complement to abolitionism's negative push to root out these moral abominations, drawing on Angela Davis's concept of abolition democracy, closely aligned with the Black social gospel tradition, organisers are weaving together a new set of social practices and institutions intended to effect real accountability, healing and public safety. Religion is becoming more prominent in these efforts. Sometimes ― as in the case of the Oakland-based Seminary of the Street or Chicago's #believersbailout ― abolitionist practices of refusal and restoration are creatively engineered within the bounds of discrete religious traditions. At other times, as in the case of Ubuntu Philadelphia, which stages rituals of reconciliation to foster healing and social transformation, the organising framework couples eco-socialism to a universalist spirituality. Like Judge Bontrager, the organisers behind these efforts emphatically reject the concept of justice as it has been captured by the criminal justice system with its secularist rejection of God's law, with its sacrificial theology and with its idolatrous deification of police and prosecutors.

Whether through explicitly theological or strategically secular idioms, these abolitionist organisers look to enact a higher law diametrically opposed to the myopic and violent law of the state. These abolitionists envision a world radically different than ours, and model how to act in our own communities in order to bring this new world into existence. If it is justice in its best, truest, most beautiful sense that we crave, we ought to follow their lead.

Joshua Dubler is Assistant Professor of Religion at the University of Rochester. He is the author of Down in the Chapel: Religious Life in an American Prison. Vincent Lloyd is Associate Professor of Theology and Religious Studies at Villanova University. He is the author of Black Natural Law, Religion of the Field Negro: On Black Secularism and Black Theology and In Defense of Charisma. They have completed a book entitled "Break Every Yoke: Religion, Power, and the End of Mass Incarceration," which attempts to marshal religious resources toward prison abolition.

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