'Yes' and 'No' to Restorative Justice as a Mennonite Thing

BRIAN R. GUMM1 Abstract: This paper will take an historical and narrative approach to address the restorative justice movement and its resonance with overarching biblical themes of justice and community. It will do so by comparing the histories and assumptions of both the restorative justice movement and the criminal justice system. Finally, early Anabaptist experience will be examined as a way to see how the beginnings of the restorative justice movement may have been conceivable centuries later. I. Restorative Justice: From humble beginnings Restorative justice is a values- and principles-based framework that attempts to address incidents of wrongdoing by asking three questions: 1) Who has been hurt? 2) What are their needs? and 3) Whose obligations are these?2 In its early days in the 1970s and '80s, before it was even called restorative justice, the field's practitioners saw the Western criminal justice system as implicitly asking a very different set of questions when addressing wrongdoing: 1) What laws have been broken? 2) Who did it? and 3) What do they deserve?3 When contrasting these two sets of questions, it's quickly seen that the starting points for restorative justice and the criminal justice system are fundamentally different. One assumes a powerful system where the other assumes relationship. One focuses on an individual, the other, a community. Finally, one prescribes punishment where the other seeks restoration. But these are boring, abstract ways to talk about restorative justice, so let me tell you a story. It's a story first told to me by the grandfather of the restorative justice movement, my mentor, colleague, and friend, Dr. Howard Zehr. I lovingly call this the creation story of restorative justice. 4 One night in in the spring of 1974, in a small town in central Ontario, two teenage boys got
1 Brian R. Gumm is a dual-degree student at Eastern Mennonite University in the Center for Justice and Peacebuilding (MA, Conflict Transformation, emphasis in restorative justice) and Seminary (Mdiv, emphasis in theology). This paper was originally prepared and delivered as Restorative Justice: Revisiting Punitive Interpretations of the Bible, a presentation for the Student Learning and Global Justice Conference hosted by International Justice Mission and Council for Christian Colleges and Universities, Friday, April 8, 2011, in Vienna, Virginia. 2 Howard Zehr. The Little Book of Restorative Justice, Little Books of Justice & Peacebuilding. Intercourse, PA: Good Books, 2002, 21. 3 Ibid. 4 This story has been told by Howard Zehr countless times and has been recorded in a handful of restorative justice books. I'm drawing on the account from Gary Nyp. Pioneers of Peace: The History of Community Justice Initiatives in the Waterloo Region, 1974-2004. Kitchener, Ontario: Pandora Press, 2004, 13-15.

Gumm : 'Yes' and 'No' to Restorative Justice as a Mennonite Thing

drunk and went on a vandalism spree throughout the town. The two eighteen-year-old boys smashed windows, damaged vehicles, defaced church signs, and even pulled a boat out of a driveway and into the middle of the street before going back home and passing out. They awoke the next morning to police knocking on their door. The boys were charged with vandalism of twenty-two properties. In the midst of the sentencing process, two Mennonite men working as probation officers were assigned to the case. Seemingly on a whim, one of them suggested that it would be neat to have the offenders in this case meet the victims of their vandalism face to face instead of simply sending them both off to jail, to which the other replied why not? 5 Along with their pre-sentence report to the judge in the case, who had a reputation for being strict, the two Mennonite probation officers suggested their wild idea. Much to everyone's surprise, the judge accepted their suggestion in lieu of jail time for the boys. So the two Mennonite probation officers took the two young men around Elmira, Ontario, knocking on doors, meeting their victims face to face, and apologizing. This experience radically reoriented the life of one of the boys, Russel Kelly, who had lost both of his parents and was struggling with substance abuse issues before this. From these humble beginnings began a movement that nearly forty years later has circled the globe and spread far beyond its origins in the criminal justice system. But let's take our three restorative justice questions and explore this creation story a bit more. First: Who has been hurt? The obvious answer is the twenty-two people or families whose properties were vandalized. But wait a minute, we also heard that one of these boys, Russel, had lost both of his parents before he was even eighteen years old, and was coping with drugs and alcohol. Does this not sound like someone who is hurting? So any justice process that is restorative will quickly show how easily lines are blurred when you shift from blame in an isolated incident to identifying pain and brokenness in a community who has experience wrongdoing. Once we have an idea who has been hurt in a situation, we ask: What are their needs? The people whose properties were vandalized had their
5 Ibid., 15.

Gumm : 'Yes' and 'No' to Restorative Justice as a Mennonite Thing

sense of safety and security shattered like the very rocks careening through their plate glass windows, thrown from the boys' hands. These people needed to feel safe again in their own homes and neighborhoods. And what of the boys? We know from Russel's experience of losing his parents that he likely needed the experience of a family which he'd since lost, the need to feel connected and supported. Lastly, we'll ask: Whose obligations are these? As members of the community, the boys had an obligation to help restore their victims' sense of security and safety, but the victims and the wider community hopefully feels even in the midst of their distress at the violation a sense that these boys are one of their own and might be successfully brought back into relationship through the justice process. This last bit on community obligations is tricky business, as we are so conditioned to think of justice as a one-way street. But at the same time you can't command someone to suddenly begin thinking and acting restoratively in this way. Indeed, when I've heard Howard Zehr tell this story, having been later influenced by and talking to some of the people in this situation, he adds a little piece about the boys walking up to one house in particular, which they'd vandalized, knocking on the door, only to be greeted by a gruff, shirtless man, with a beer in his hand and his eyes locked suspiciously on the two boys. Try telling him to be restorative! The question that hasn't yet been made clear which is very important when addressing skeptics of restorative justice is the process question: How you do the stuff the first three questions only help describe? One you have a larger, more communitarian sense of what's going on in a case of wrongdoing, you need to actually do something about it in ways consistent with the assumptions of the initial questions, namely a community seeking to repair harm vs. a system seeking to punish the lawbreakers. So far we've taken a look at the fundamental questions and assumptions of restorative justice contrasted with assumptions of a perhaps oversimplified account of the Western criminal justice. We've then seen how those questions and assumptions were at work in the creation story of restorative justice.

Gumm : 'Yes' and 'No' to Restorative Justice as a Mennonite Thing

This has hopefully served as a suitable introduction to the field of restorative justice. But I haven't talked about the Bible yet, as the title for this paper advertises. What punitive interpretations of the Bible am I assuming? In the next section I will show how the prison system in the U.S. was modeled on European monastic orders and how these religious impulses mixed with questionable philosophical commitments lodged firmly in the nineteenth century American social imaginary. 6 The consequences of such a mixture has produced profoundly sour fruit throughout the years, into our own time.

II. Criminal Justice: Engineering penitence, producing madness Through his survey of literature covering post-Enlightenment legal traditions and prison systems, David Cayley helps us see that the penitentiary system that developed in eighteenth and nineteenth century America had its roots in early modern European monastic orders who practiced particularly harsh forms of punishment, including solitary confinement and physical mutilation. 7 But as even the word penitentiary shows us, it goes back further than that. What made such an idea conceivable in the first place? Cayley makes the claim that (t)he idea that crime demands prosecution and punishment seems no more than common sense to us today. But it cannot be found in Western society before the twelfth century, when modern conceptions of law first made their appearance. 8 In early European society, law was embedded in social life rather than embodied in special legal institutions.9 If this sounds familiar, it should. Pre-modern practices of law and justice were inherently social, just as restorative justice approaches are and criminal justice approaches are not. This sociality began to shift in Europe, however, in the eleventh and twelfth centuries when the Roman church began to assert itself over-against ruling authorities, resulting in a long and conflictual, often
6 Cf. Charles Taylor. Modern Social Imaginaries. Durham: Duke University Press, 2004. 7 David Cayley. The Expanding Prison : The Crisis in Crime and Punishment and the Search for Alternatives. Toronto: House of Anansi Press, 1998, 138. 8 Ibid., 123. 9 Ibid., 126, emphasis mine.

Gumm : 'Yes' and 'No' to Restorative Justice as a Mennonite Thing

violent, social-economic-political battle. Results of this power struggle produced among other things the Inquisition in the fifteenth century, the Protestant Reformation in the sixteenth, the so-called Wars of Religion10 in seventeenth century Europe, all of which helped give birth to the Enlightenment intellectual project and its political progeny, the powerful Western systems we inhabit today: the modern nation-state and democratic capitalism. Mixed up in all of this was the developing idea that crime is primarily an individual matter rather than social, and therefore the solution is also individual, namely punishment. What I've just tried to do is to take a quick sprint through Western history from the medieval period into the early modern period in hopes that it can become at least conceivable that the whole cluster of thoughts and practices encapsulated in a phrase like crime and punishment or a word like penitentiary are not givens, but are rather products of messy history in which the church is very much enmeshed. So even though today Americans live in a country where the church is disestablished from the state, we can look back over history and see that some of our ideas had unintended consequences as they worked out in practice and gained institutional momentum and collided with other forces. The so-called war on drugs, for instance, is predicated on the assumption that crime and moral evil are identical and that whatever is wrong should be illegal and whatever is illegal must also be wrong.11 American Christians are often the most vocal supporters of legislation on moral issues, but as Cayley convincingly shows, the war on drugs and mandatory minimum sentencing reform in the early 1980s created the conditions in which the prison system has exploded in America at a startling rate, not just in terms of the number of people incarcerated but also the entire prison-industrial complex that has cropped up in order to support such a system, which itself develops into a formidable lobby with a vested interest in further growth. 12 Indeed, the situation has only accelerated since Cayley's
10 Cf. William T. Cavanaugh. The Myth of Religious Violence : Secular Ideology and the Roots of Modern Conflict. New York: Oxford University Press, 2009. 11 Cayley, Expanding Prison, 292. 12 Ibid., 54.

Gumm : 'Yes' and 'No' to Restorative Justice as a Mennonite Thing

book was published in the late 90s. Since that time we've seen prison populations only continue to rise, and since the global economic crisis broke out a few years ago, we're now seeing states in budget crises, unable to support the criminal justice practices they signed on for under valiant tough on crime political rhetoric that still has considerable currency in public opinion. Under such tough economic circumstances, states are increasingly turning to something that may be a completely new phenomenon: privately-run, for-profit jails. Christians must ask themselves in light of the Bible's many warnings against the idolatrous desire of greed and power: Do we think capitalism is the solution to our prison crisis?

III. Anabaptism: An alternative history In the last section I tried to show that, as it relates to the criminal justice system in the U.S., we've gotten ourselves into quite a pickle. To do this I made use of a broad historical narrative that traced the lines of major intellectual and sociopolitical movements over nearly a millennium, with the church deeply in the mix for most of it. Now I want to turn to history again but this time I want to trace a little line, the line of the Anabaptists. I know here at this conference I can safely assume everyone is Christian, but what I cannot safely assume is that many if any people here will know what Anabaptism even is. Before I start tracing this line, though, I want to call back into our awareness the story from the beginning of this paper: the creation story of restorative justice. Specifically, I want to remind us that the two probation officers who dreamed up the crazy idea the idea to make the two boys apologize to the victims of their vandalization those probation officers happened to be Mennonite. For reasons I'll go into shortly, the vocation of probation officer was not then and probably still isn't now a typically Mennonite thing to do. Indeed, as one of the officers reflects, As a Mennonite, I always considered the court system as too military, too aggressive, and it was only at the urging of his church

Gumm : 'Yes' and 'No' to Restorative Justice as a Mennonite Thing

agency, the Mennonite Central Committee, that he agreed to take the volunteer position. 13 What I want to suggest is that it's no accident that these two Mennonite men would think of such a thing in this strange new job in which they found themselves, and that it didn't just come out of the clear blue sky. Rather, this idea was the fruit of a peculiar strand of the Christian tradition, whose collective memory and faith practices shaped these men in such a way as to make it seem conceivable despite the long odds of the idea being accepted by the judge in the case. The Anabaptist tradition which eventually formed into groups including the Mennonites began in sixteenth century Germany, roughly contemporary with the beginnings of the Protestant Reformation. While there is no single myth of origin for the Anabaptist movement, 14 one of the more straightforward and observable dimensions was their dawning conviction based on a deep engagement with the Bible that the rite of baptism was to be a person's own conviction discerned in the fellowship of believers. In other words, they became convinced and practiced adult baptism, which in that generation meant re-baptism, the source of the word Anabaptism. This word came from outside the group from the dominant churches and was intended as an epithet, an insult, much like the word Christian functioned in first century Antioch, which as Kavin Rowe shows us in his study of Acts, came from the Roman government as a uniformly derogatory term. 15 In Reformation-era Europe the highly volatile climate described earlier such a move as adult baptism was political from the word go. For both Catholic and Lutheran churches in Germany, hand in glove with provincial governments, the practice of infant baptism served not only a spiritual function but a civic one as well, namely being registered as a citizen to your territory and, if you were an able-bodied man, being subject to inscription into your prince's wars. Simply put the Anabaptists were not only heretics but
13 Nyp, Pioneers of Peace, 14. 14 Cf. Thomas Heilke. "Theological and Secular Meta-Narratives of Politics: Anabaptist Origins Revisited (Again)." Modern Theology 13, no. 2 (1997): 227-52. 15 C. Kavin Rowe. World Upside Down : Reading Acts in the Graeco-Roman Age. New York: Oxford University Press, 2009, 129-30.

Gumm : 'Yes' and 'No' to Restorative Justice as a Mennonite Thing

treasonous heretics at that, which earned them death by drowning, burning, hanging, and my favorite: being put in a cage and ran up a chain to the top of the church steeple where you would eventually die of starvation or exposure, and where your bones would take over 400 years to break down to the point of falling through the bottom of the cage. (Do I sound bitter?) All of these things happened, and I only make a dramatic show of it to underscore the importance of the martyr tradition in Anabaptism, especially among Mennonites even today, nearly 500 years later.16 Early persecution led eventually to migration to the American colonies, and later Canada and Latin America, at the promise of religious tolerance and abundant land for this mostly-agrarian group. Used to being separated from society by necessity, those walls eventually began to break down for many North American Mennonites in the 20 th century as they moved from what Driedger and Kraybill call Quietism to Activism or what Ervin Stutzman has shown in his new rhetorical study, from Nonresistance to Justice.17 But from the earliest days of this movement, a strong communal sense pervaded, galvanized by persecution, but also evident in their experience of the Holy Spirit. As Stuart Murray points out, early Anabaptists saw the congregation as the primary locus of the Spirit's activity, as well as the setting within which Scripture was read and obeyed.18 Their reading of Scripture, too, as Driedger and Kraybill show us, clearly tilts toward the New Testament. And within the Gospels, Matthew's story predominates because of Mennonite deference to the Sermon on the Mount. Matthew 5 is quoted most extensively. Moreover, within chapter five the cluster of verses dealing with nonresistance and love of enemies...19 Early Anabaptist conflict within the fellowship was also handled with deference to Jesus'
16 Cf. Thieleman Van Bragt. Martyrs Mirror: The Story of Seventeen Centuries of Christian Martyrdom from the Time of Christ to A.D. 1660. 2nd reprint ed. Scottdale, Pa.: Herald Press, 2001; and Tongue Screws and Testimonies: Poems, Stories, and Essays Inspired by the Martyrs Mirror. Edited by Kirsten Eve Beachy. Scottdale, Pa.: Herald Press, 2010. 17 Cf. Leo Driedger and Donald B. Kraybill. Mennonite Peacemaking : From Quietism to Activism. Scottdale, Pa.: Herald Press, 1994; Ervin R. Stutzman. From Nonresistance to Justice : The Transformation of Mennonite Church Peace Rhetoric, 1908-2008. Scottdale, Pa.: Herald Press, 2011. 18 Stuart Murray. Biblical Interpretation in the Anabaptist Tradition, Studies in the Believers Church Tradition. Kitchener, Ont; Scottdale, Pa.: Pandora Press; Herald Press, 2000, 145. 19 Driedger and Kraybill, Mennonite Peacemaking, 30.

Gumm : 'Yes' and 'No' to Restorative Justice as a Mennonite Thing

own instruction in Matthew's gospel, namely Matthew 18:15-18, which for generations Anabaptists would call the Rule of Christ. 20 Now with the restorative justice creation story in view, let me read the first few sentences of the Rule of Christ: If your brother or sister sins, go and point out their fault, just between the two of you. If they listen to you, you have won them over. But if they will not listen, take one or two others along, so that every matter may be established by the testimony of two or three witnesses'" (NIV). Is it too much of a stretch to suggest that this verse, so important to early Anabaptist experience, could have somehow helped spark the imaginations of the two Mennonite probation officers on another continent a few hundred years later? I'm aware of a number of risks with making such a suggestion, but I don't want to rule it out completely. While I'm not suggesting that these two men were cognitively recalling this verse in this particular situation, I am suggesting that their community's faith practices, informed by its history and theology, provided the social imagination, or better yet the theopolitical imagination, necessary for such an idea to be conceivable in the first place. 21 Wouldn't it be neat22 if offenders could encounter their victims and be put into such a place as to be transformed? Neat, indeed..

IV. Conclusion As I close, let me make a few things clear as to what I am not trying to say in all that's preceded. I am not trying to colonize restorative justice by claiming that it's solely a Mennonite thing. Doing so would be ignorant and irresponsible considering the directions that the field has taken since the 1970s. Another thing I am not trying to say is that the communal/relational attitudes inherent to restorative
20 Ervin A. Schlabach. "Rule of Christ among the Early Swiss Anabaptists." Mennonite Quarterly Review 52, no. 3 (1978): 265. 21 Cf. Taylor, Modern Social Imaginaries and William T. Cavanaugh. Theopolitical Imagination. London: T & T Clark, 2002. 22 Nyp, Pioneers of Peace, 15.

Gumm : 'Yes' and 'No' to Restorative Justice as a Mennonite Thing

10

justice are necessarily new. In fact, if anything, I hope I have shown through my construals of history that they're actually quite old. When my mentor, Howard Zehr, tells this creation story and his later work in articulating the field, he's quick to point out that non-Western people who come to know restorative justice often say quite matter-of-factly, Well, of course! That's how we've handled wrongdoing all along! or That's how our elders handled these situations! Indeed, a communal awareness as it relates to handling wrongdoing is a very, very old impulse, and that it's so surprising to Westerners only underscores how our societal imagination has been captivated by the habits of individualism. So to summarize, I've tried to show that restorative justice is a return to the teachings approach for understanding and repairing harm in communities and societies. Much could be said about the field as it is currently conceived and practiced, as it is now a truly global phenomenon. But rather than doing that, I chose in section one to focus on the creation story of restorative justice from a little town in Ontario nearly 40 years ago, and to show how that story fits with the basic questions of a restorative approach to repairing harm: 1) Who has been hurt? 2) What are their needs? and 3) Whose obligations are these? And lastly: How do we proceed? In section two I focused on the Western criminal justice system and attempted to give it a coherent historical narrative that showed both 1) it's inherently individualistic orientation and 2) the dominant church's complicity in its formation and continued maintenance. Finally, in section three I attempted to give a story behind the story of restorative justice, namely the experience of Anabaptist Mennonites, not to lay claim to restorative justice, but rather to offer the gifts that such an approach has to those who might listen and benefit. After all, as the Sunday school song goes: Love is something if you give it away. You'll end up having more.

Gumm : 'Yes' and 'No' to Restorative Justice as a Mennonite Thing

11

Works Cited Cayley, David. The Expanding Prison : The Crisis in Crime and Punishment and the Search for Alternatives. Toronto: House of Anansi Press, 1998. Driedger, Leo, and Donald B. Kraybill. Mennonite Peacemaking : From Quietism to Activism. Scottdale, Pa.: Herald Press, 1994. Murray, Stuart. Biblical Interpretation in the Anabaptist Tradition, Studies in the Believers Church Tradition. Kitchener, Ont; Scottdale, Pa.: Pandora Press; Herald Press, 2000. Nyp, Gary. Pioneers of Peace: The History of Community Justice Initiatives in the Waterloo Region, 1974-2004. Kitchener, Ontario: Pandora Press, 2004. Rowe, C. Kavin. World Upside Down : Reading Acts in the Graeco-Roman Age. New York: Oxford University Press, 2009. Schlabach, Ervin A. "Rule of Christ among the Early Swiss Anabaptists." Mennonite Quarterly Review 52, no. 3 (1978): 265-66. Zehr, Howard. The Little Book of Restorative Justice, Little Books of Justice & Peacebuilding. Intercourse, PA: Good Books, 2002. Bibliography Bragt, Thieleman Van. Martyrs Mirror: The Story of Seventeen Centuries of Christian Martyrdom from the Time of Christ to A.D. 1660. 2nd reprint ed. Scottdale, Pa.: Herald Press, 2001. Cavanaugh, William T. Theopolitical Imagination. London: T & T Clark, 2002. ___. The Myth of Religious Violence : Secular Ideology and the Roots of Modern Conflict. New York: Oxford University Press, 2009. Critical Issues in Restorative Justice. Edited by Howard Zehr and Barb Toews. Monsey, N.Y.; Cullompton, England: Criminal Justice Press; Willan, 2004. Heilke, Thomas. "Theological and Secular Meta-Narratives of Politics: Anabaptist Origins Revisited (Again)." Modern Theology 13, no. 2 (1997): 227-52. Hunter, James Davison. To Change the World : The Irony, Tragedy, and Possibility of Christianity in the Late Modern World. New York: Oxford University Press, 2010. Johnstone, Gerry. Restorative Justice : Ideas, Values, Debates. Cullompton: Willan, 2002. Stutzman, Ervin R. From Nonresistance to Justice : The Transformation of Mennonite Church Peace Rhetoric, 1908-2008. Scottdale, Pa.: Herald Press, 2011. Taylor, Charles. Modern Social Imaginaries. Durham: Duke University Press, 2004. Tongue Screws and Testimonies: Poems, Stories, and Essays Inspired by the Martyrs Mirror. Edited by Kirsten Eve Beachy. Scottdale, Pa.: Herald Press, 2010. Uelmen, Amy. "An Alternative Lens on Crime." Living City, April 2007, 18-20. Zehr, Howard. Changing Lenses : A New Focus for Crime and Justice. 3rd ed. Scottdale, Pa.: Herald Press, 2005.