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William D. Bontrager, J.D.

1710 C.R. 121, Hesperus, CO. 81326

970-259-3384

wdb@frontier.net

RECONSIDERING and REDEFINING, JUSTICE

From the vantage point of 16 years in the law -- as attorney and judge -- and, since 1983 functioning as a minister of reconciliation -- I have come to a conclusion concerning justice:

Justice is a personal, relational, internal, emotional, and even theological concept. If you doubt this, we could start by discussing any famous legal case with which people have familiarity, and see how many conclusions concerning justice we find.

Proverbs 29:26 would seem to affirm this position: "Many may seek the ruler's favor (Judge or President, to name two), but justice for man comes from the Lord."

If my conclusion is true, then it follows that:

(1) Justice can never be systematized;

(2) To the extent that we give the impression that we can "establish" (systematize) justice, we perpetrate a lie;

(3) The lie results in people having an expectation of something which is impossible (witness our current attitude towards the Preamble to the U.S. Constitution);

(4) When expectations fail, people loose peace; and

(5) When a sufficiently significant number of people in a given society loose the same peace relative to the same expectation (here the expectation that through law and legal system we can establish justice), respect for authority will end, and riot or revolution will begin (albeit its form may be disguised for many years).

I believe we are on the brink of that today in the U.S.

A problem of perception which we in the United States face is that our fore-fathers made a number of promises about what "We The People" could and would do:

"Create a more perfect union; Establish justice; Insure the domestic tranquility; Provide for the common defense; Promote the general welfare; and Secure the blessings of liberty ourselves and our posterity."

We said we would do this through law and governmental system ("do ordain and establish this Constitution of the United States of America").

Thus, we created a monumental expectation in the people.

In contrast, the Bible says that every one of these come only from God. If you question this look at: Col. 1:17; Pro. 29:16; Pslm. 127:1; Is. 58:3-12; and Pslm. 2:1, 4.

If what I have said so far is true, then we need to redefine justice, rediscover the true components of justice, modify what is taught the next generation, and alter our systems of law so that we maximize the possibility of such redefined justice actually happening from time to time.

Consider, as a starter, the following thought: I can do justice, but I cannot make you receive my actions as justice for you -- that is an inner thing within you. Or reverse it: You can do justice to me, and I can choose to be angry, bitter, etc. The world can tell me you did justice towards me, and I can still choose the bitterness.

This does not mean that we should not strive to make things better -- first as individuals and secondly as societies. But it does mean we need to stop teaching a lie and, thereby, creating un-fulfillable expectations which then become excuses and justifications for our actions which hurt other people.

So, let's try to begin defining justice by considering when justice becomes an issue, and in that way move towards a definition.

Justice becomes an issue only in the setting of conflict -- actual or perceived.

In any conflict, I can become involved in any of at least five different ways:

(1) As an offender or one who another perceives as having offended them;

(2) As one who perceives themselves as a victim of the act of another;

(3) As an outsider making judgments about who is right or wrong in a conflict between others;

(4) As an insider involved in a process which seeks to resolve the conflicts of others -- law enforcement officer, defense attorney, prosecutor, judge, juror, correctional official, probation or parole officer.

(5) As a member of a "community" in which the conflict arises.

From my studies and observations, I have concluded that Justice will be done (received) when:

In situation #1, I see my fault, acknowledge it to all necessary people, and seek to do what I can to right the wrong.

In situation #2, I come to forgiveness in my heart, then confront the offender (face-to-face, or in writing) to name the offense done and the harm caused, and then release the outcome of the matter.

In situation #3, I detach myself from the taking of sides and instead seek to assist in finding right solutions, but without a need to have my solution accepted. Obviously I must confess misdeeds done while having earlier chosen a side.

In situation #4, I do the best I can to help people in situations 1, 2, and 3 behave as they ought so that they may feel justice was done -- without expectation that they will listen or change.

In situation #5, I help bear burdens of victims, and assist in the reconciliation and rehabilitation of offenders.

Furthermore, we will never have justice until we can determine that a system -- maybe not the best under the circumstance -- but a system trying to be fair, peopled by individuals trying to do good and not evil, made a decision with due deliberation. We have to be willing to give the benefit of the doubt to the system and those running it. We cannot demand perfection from a system populated by imperfect people.

And I, an outsider, cannot make a judgment as to who is speaking truth without risking loss of peace. I do not have sufficient facts to know absolute truth. Since I was not an insider charged with the duty of judgment, I should refrain from making a judgement if I desire peace. I cannot determine that the system was flawed, resulting in a loss of justice to one or the other, without risking peace. If I lose peace, I will begin to cry out for justice.

Now, none of this means that I cannot make such some judgments, and work for change -- but it means I must do so without any expectation of success or I will loose peace. I can discuss the system relative to a case -- but I must do so without siding with either individual. I can applaud and/or criticize their reported or observed actions, but I cannot make their offense my offense.

Now, if you have stuck with me to this point, I am ready to define justice -- but there will be two definitions -- one for the individual, and one for the system (society).

Definition #1: Justice will exist, relative to any one conflict, only within the heart of any party, participant, or onlooker, and then only to the extent that the person behaves according to God's principles relative to the conflict.

Definition #2: Justice will exist to the extent that there is a system for redressing grievances, which system is seen by the vast majority of people as being fair in its methodology -- provided that they do not expect it to bring about that justice which is defined in definition #1.

Because we have not properly taught #1, and because our system today no longer is seen as fulfilling #2 -- for we look at the system without understanding #1, and we operate it without understanding #1 -- there is the sense that there is no justice in the land. There is a mechanism to redress grievances, but few consider it fair or just.

So, what is to be done?

It is not my purpose here to get into the teaching aspect beyond reciting the principles which I have already given. But I do want to look at the criminal justice system -- and the key players within it -- to see what might be done to improve the appearance of fairness.

Our basic problems with the criminal system today are:

(1) It is too slow;

(2) It leaves people out who need to be brought in; and

(3) It most often fails to force confrontation with one's inner being or with absolute truths.

First the matter of speed. The vast majority of first time criminal offenders are, at the moment of arrest, both confessing and repentant. They know they blew it; their excuses and justifications are at a minimum. But by the time sentencing comes around, they:

(1) No longer believe they did anything wrong;

(2) Blame others (or "society") for damaging them and thus causing them to commit crimes;

(3) Justify themselves in comparison to other more heinous offenders; and

(4) Are not accepting of any punishment the Court fixes.

Why does this change take place? Delay of the day of judgment helps. Our hearts are deceptively wicked things and, given a chance, they will close down to defend our psyche. Fear of the consequences for our behavior also gets in and shuts us up.

One of the greatest things which we could do for the system -- and this is for the judges and the legislators -- is to make sure we have enough courts, presided over by sufficiently trained judges, operated in such a way that the vast, vast majority of all criminal cases are disposed of in 30 days. And that can be done with complete due process.

But more importantly, we can make legislative changes to bring our laws and procedures into compliance with God's philosophy for law and legal process. For that subject, see [Man's Law v. God's Law].

A second reason for the closing down of the heart is the way in which we operate the system apart from the matter of speed. Through the combination of the way attorneys are taught and act, and the way the system is structured, the offender says the words, "not guilty," when they know themselves to be guilty. The act of denying what I know to be truth will sear my heart and conscience. I begin to deny truth -- the truth that I made a free and voluntary choice which caused a harm to another -- and start to make excuses based upon other factors.

One thing which could be done to alleviate this would be for defense attorneys to begin to do what they used to do -- ask the client if they did the crime. If the client then acknowledges the crime, the lawyer does his own pre-sentence investigation, prepares his own prescriptive sentence, and then goes to the prosecutor and starts talking about what can be done. The lawyer does not try to "get the client off," in the normal sense of that phrase, nor does the lawyer seek to "uphold the system for the benefit of all." There is a live person here, who needs to deal with his or her faults if they are to find justice. The lawyer has to help that process, not hinder it.

I have practiced law this way, and discovered that defendants will accept such a sermon delivered by the lawyer -- they came looking for counsel for life. True, the hardened-of-heart offender will not accept -- but let's give all the chance.

The lawyer, and all others involved in the system must also confront the efforts of the offender to justify. For example, for every person in the ghetto who steals, I can show you another who does not. For every person from a broken home who riots, I can show you another who does not. Etc., etc., etc. True, circumstances can harm us -- but we still have the choice as to how we will deal with the wrong. Remember the scenes of residents of the riot area in Los Angeles helping protect others who were from the "outside?"

A third reason for closing down of the heart is called plea-bargaining (some have sentence-bargaining as well). Bargaining takes several forms, but the common denominator is, again, increasing the level of denial within the offender.

I get arrested for crimes A, B, C and D. My lawyer bargains so that I plead guilty to A, and B, with C, and D being dismissed. In short, I have not had to acknowledge (confess) to all that I really did.

Or, I get arrested for crime A, the factors in which are X, Y and Z. My lawyer bargains for me to plead guilty to crime C, the factors in which are X, Y, and M. Later I tell myself that I was not guilty of what I was convicted -- and there is truth in what I tell myself. I continue in self-deception and denial of responsibility.

Or, my crime carries a sentence range of 6 to 20 years, which is suspendable, and I agree to plead guilty to a sentence of 2 years of incarceration rather than risk a longer term. This is sentence- bargaining. But I gave up the opportunity to receive unmerited favor (grace) from the judge. So I blame the prosecutor for being sadistic, or my lawyer as being incompetent, the judge as biased, or the law for being harsh. I do not see myself as having free will in the processing of the case.

The best thing we can do is to stop bargaining -- both by the prosecutor and by the defense attorney. If there is a bargain that involves dismissing (or not filing) some charges, then make sure that there are written confessions to those charges, that those charges are acknowledged and confessed in open Court, and that the victims of those charges are also taken into account throughout the process.

If a bargain to a lesser offense is granted, let it be to an offense which includes the same factors as the original and then do the reduction because it more truly reflects intent of the offender (such as reducing attempted murder to attempted voluntary manslaughter -- the facts are the same, only the mind-set of the offender is at issue).

As to sentence bargaining, I do not believe that a prosecutor should ever do such. Rather the prosecutor should argue for that sentence which he or she believes to be in the best interest of offender, victim, and society. Prosecutors, defense attorneys, and judges should all take the time to fully analyze the offender, available options, etc., and should then design a prescriptive sentence options.

I also believe it is better for all concerned to dismiss a case which cannot be proven then to hold out for some plea. This often comes up where there is a reluctant witness, or an unavailable witness, or an incompetent witness.

Of course, in all of this, there must be a judge trained and willing to operate his or her court so that the confrontation potential is enhanced, and so that knowledge of the offender is maximized -- and then the judge must have the guts to run the court that way, for the lawyers and many others involved (professionals and onlookers) will scream about the results.

Finally, in order for what I am suggesting to take place, legislators must cease sentencing through mandatory minimum incarceration laws, and allow the discretion to get back in the hands of the judges. For that to happen, either legislators must come to know the truths I am presenting, and have the guts to put them into play, or the people must come to know these truths and let the legislators know that they have to change the laws.

A fourth reason for closing down the heart is that we have developed a concept, and designed our system, so that crime is seen as against the state. This harkens back to merry old England, and the "Breach of the King's Peace."

It is true that crime breaches peace of the community -- but it also breaches the peace of the victim, the peace of "community" of the victim, the peace of the offender and the peace of the "community" of the offender.

But we have forgotten these other breaches of peace, and have left them out of the system. Thus the offender, in most instances, goes through the system and, at the end, believes he is clean -- he has done his time, paid back society, etc.

But he has not faced his victims. Until he faces them, he can never have peace, for it is to the victim, first and foremost, that confession must be made.

Thus, victims must be brought into the system at the earliest possible moment, kept fully informed at all stages, and invited and encouraged to meet their offender in a face-to-face setting (with others present) to speak their concerns and feelings about what happened to them. There is no reason to postpone such meetings until after sentencing; they can just as easily take place pre-sentencing.

And we need to define victim more widely -- snatching a purse from a little old lady will involve her immediate family members, and maybe others (community). The offender's family members may well be victims, as they "do time" along with the offender.

We need to move towards face-to-face meetings which involve all the people needed to maximize the potential for confrontation and healing to take place. What must be done is to operate the system in such a manner that the potential for the offender to face himself -- naked, alone and without hope -- is maximized.

This means that police, prosecutors, defense attorneys, judges, probation officers, parole officers, correctional officials, special services personnel (drug, alcohol, sex offense, etc. counselors), and even such people as religious visitors to penal facilities -- all have the same role to play: to, in any conversation with any offender, do nothing to encourage the continuation of denial and justification, and do whatever is reasonably possible to confront them with truth.

I believe that a change in a the heart of an offender can take place at any time in the process. We have the responsibility to be looking for that change, encouraging it, and responding to it when it appears.

One way to judge the sincerity and completeness of the change of heart is by then having the offender face each and every offense and see how he or she responds. The response of a repentant heart will be to seek opportunities to meet and confess to victims and forgive others for wrongs done (and this includes society), thereby dropping justifications and excuses.

You will note that I said, "responding to it." By that I mean we need a system so flexible that even if this demonstrative change of heart does not take place until after the start of prison, we need to be able -- dramatically, and rapidly -- to modify the incarceration/punishment phase to respond to the change so that the offender does not loose heart.

Restitution -- to victims and/or society -- is another part of this process of confrontation and rehabilitation. But restitution is, like punishment and justice, a concept which is highly personal. It is not easily converted to a dollar for dollar equation. What is the value of a shotgun, in the family for 4 generations, stolen and never recovered?

Is the receiving of some restitution sufficient, even though it is never full restitution?

The only possible way for both victim and offender to come to believe that justice was done to them relative to restitution is for them to meet, face-to-face, and discuss the matter.

And restitution should include a "community component", for the entire community has lost peace, to some degree. The best way for this component to be met is through community service restitution, rather than fines and court costs.

In conclusion, to have a system for redress of criminal grievances which is entitled to be called a "justice system," it must be restorative in vision and operation. "Restorative justice" is based on the premise that crime causes injuries -- physical, emotional, and relational -- to victims and communities as well as to the state. Thus a "restorative justice" system should:

(1) Open avenues for repair of those injuries;

(2) Actively involve victims, offenders and communities in the process at the earliest possible moment, and to the maximum extent possible;

(3) Recognize that in promoting justice, government is responsible for preserving order, and the community is responsible for establishing peace;

(4) Offer the offender restoration through forced confrontation with truth, and the facing of victims -- whether classical victim, family, or community;

(5) Offer the victim restoration by the opportunity to be heard -- by the system and by the offender -- and then by releasing anger, bitterness, sense of helplessness, etc; and,

(6) Offer the community restoration by being a part of the process of restoration (and burden bearing) of offenders and victims.

Show me a nation practicing these things, and I will show you a nation of people who respect their laws and their systems -- a people who are content.

[For more on this concept of Restorative Justice, go to any search engine and type in "Restorative Justice". Many sites are available.]