We are so accustomed to the institution of criminal justice being as it is that we rarely notice it is a system of proportional revenge. This aspect of our legal system has ancient roots that have changed little in the last millennium or two.
We pride ourselves on our superior legal system, and often with good reason. It is far superior to many other legal systems. But in some respects, our legal system is bound to the past in ways that do not serve us well.
Take the death penalty for example. This is a barbaric application of the ancient principle of proportional revenge, the eye-for-an-eye model of justice. One life is literally taken in return for another so that the punishment is the same as the crime.
This system does not have to be as it is. We can shift the emphasis from proportional revenge by weighing factors other than the crime that was committed. Take the South African case of the State vs. Maluleke, for example.
Joyce Maluleke was convicted of murder in the High Court of the Transvaal Provincial Division. The victim was a young person who was caught by Joyce and her husband breaking into their home with the apparent intent to commit theft. They tied him up and then assaulted him repeatedly until he died. Joyce's husband died before the trial began.
The judge took a number of factors into consideration before rendering judgment. Joyce had four minor children who were dependent on her, she was unemployed, and her only income was a child grant. He husband's pension benefits had been revoked due to the crime. She was a first offender and there was no evidence that there was any danger of the crime being repeated, nor was there any indication that Joyce was a person normally given to violent conduct.
There was evidence that she regretted and still regrets the death of the victim. The court found that she was clearly not a person against whom society needs to be protected.
The defense attorney offered evidence of a traditional custom in Joyce's community of apologizing for the taking of the deceased's life by sending an elder member of her family to the family of the deceased to attempt to mend the relationship between the families. When Joyce was asked whether she had complied with this custom, she answered that she had not.
When the victim's mother was called to testify about the hurt and loss that the deceased's family had suffered, counsel for the defense asked her if she was willing to have a member of Joyce's family visit her in order to attempt to restore the broken relationship between the families. The deceased's mother said she was, adding, "But she must tell me why she killed my child." This is often the question the survivors of murder victims want answered, sometimes even more than they want revenge.
Finding this answer sufficient to apply a measure of restorative justice to the case, the Court sentenced Joyce to 8 years in prison. However, all of the sentence would be suspended for a period of 3 years if Joyce apologized according to custom to the mother of the deceased and her family within a month after the sentence was imposed.
The Court noted that this village tradition presented the opportunity for a suitable sentence to be imposed that could also create an opportunity to begin to heal the wounds that the commission of the crime caused to the family of the deceased and to the community at large. As it happened, the accused and the deceased's mother started talking to each other before the Court had formally adjourned.
The Court pointed out that restorative justice shifts the focus of the criminal process from retribution to healing and re-establishing societal bonds. It concentrates on the development of the offender into a responsible member of society, through the process of acknowledging the hurt suffered by the victim and society, and taking steps to eliminate the effects of the crime upon these individuals and the community at large.
We are so accustomed to people being sentenced to prison for many years, we forget it is a severe form of punishment. It should only be imposed as a last resort and then, only when no other form of punishment will do. I have been told by a number of people who work in prisons that a large majority of the people whom we incarcerate have no need to be there. If their incarceration does not make us any safer, why waste all that money?
Posted on GenuineJustice.com on 11-22-10.
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