From the Archive: Particularity and Justice

Written for a class on Restorative Justice

Jacob’s Ladder, © The Trustees of the British Museum

[Mrs. Turpin] raised her hands from the side of the pen in a gesture hieratic and profound. A visionary light settled inher eyes. She saw the streak as a vast swinging bridge extending upward from the earth through a field of living fire.Upon it a vast horde of souls were rumbling toward heaven. There were whole companies of white-trash, clean for the first time in their lives, and bands of black niggers in white robes, and battalions of freaks and lunatics shouting and clapping and leaping like frogs. And bringing up the end of the procession was a tribe of people whom she recognized at once as those who, like herself and Claud, had always had a little of everything and the God-given wit to use it right. She leaned forward to observe them closer. They were marching behind the others with great dignity, accountable as they had always been for good order and respectable behavior. They alone were on key. Yet she could see by their shocked and altered faces that even their virtues were being burned away.¹

Anyone who has read Flannery O’Connor’s short story “Revelation” knows that there is a certain aesthetic quality and proportionality to justice. For the character of Mrs.Turpin the just measure of judgment subsists in the revelation she experiences in seeing all those she felt to be the least and last joyfully leading the train toward heaven. While this image is most often used—appropriately—to highlight the self-deception so many of us fall prey to, there is a special justice in the manner which the revelation comes to Mrs.Turpin, a justice which would not have been so sweet or illustrative if it were meted out in another way, say in the guise of a booming voice or angelic visitor.Nor would it have meant as much if it consisted of an overwhelmingly harsh or disproportionate punishment. Because the means of judgment is proportional and well-suited to the specific character of Mrs. Turpin it has more impact. The same is true of human justice and judgment: it is truly just when it is tailored to the specific case and takes into account the individual and the situation Such a judgment not only fulfills the requirement of mercy, but can be transformative in nature and offers hope for justice in both the retributive justice system and in restorative justice efforts.

That there is a sense of proportion and aesthetics to justice should come as no surprise to Christians, who experience redemption played out upon the background of an aesthetic of beauty, truth, perfection and completion over against the ugliness of lies, death and decay.  Consider Athanasius’ description of the incarnation, wherein Jesus’ enfleshment is seen as a fitting means to renew the divine image in a corrupt creation. His death—being the incarnate Logos—is proportioned to the death brought about by our first parents’ sin and is able to absorb the full brunt of the assault and emerge in the resurrection on the other side, first born of the dead.²

The Cross was proportional to our sins in that it had to occur in order for us to be free from sin—a fitting sacrifice for the sins of the whole world—but it was weighted toward mercy, not just balance, and because all Christian judgment flows from the cross—for through the cross we are freed to judge—it must in its deliberations of justice and judgment inevitably privilege mercy.  “Christian punishment,” Stanley Hauerwas states “is properly understood to be excommunication or binding and loosing.  To be confronted by our brothers and sisters because of our sin is a call to reconciliation.  Not to hear the call is to condemn ourselves.”³  It is in this that we see a Christian model for justice: mercy extended and if rejected the condemnation is of our own doing and no one else’s.

The judgment of Christians is to be always tempered by the memory of our victim-Lord who calls us to repent of our own sins and to go forth proclaiming the good news of salvation and forgiveness to others.  Because we have been granted mercy, we are to show mercy to others in order for justice to be done:

The preaching of the resurrection, as we have seen, is not addressed to an abstract audience: the victim involved is the victim of the hearers.  We are, insistently and relentlessly, in Jerusalem, confronted therefore with a victim who is our victim.  When we make victims, when we embark on condemnation, exclusion, violence, the diminution or oppression of anyone, when se set ourselves up as judges, we are exposed to judgment (as Jesus himself asserts in Matt. 7:1-2), and we turn away from salvation.⁴

This is the situation that Christopher Marshall is analyzing when he quotes the following:

The Bible identifies the prison with the spirit and power of death.  As such, the problem with prisons has nothing to do with the utilitarian criteria of deterrence.  As such, the problem is not that prisons have failed to forestall violent criminality and murderous rampages; the problem is that prisons are identical in spirit to the violence and murder that they pretend to combat.  The biblical discernment of the spirit of the prison demythologizes our pretenses.  Whenever we cage people, we are in reality fueling and participating in the same spirit we claim to renounce.  In the biblical understanding, the spirit of the prison is the spirit of death.⁵

This description of prisons is something that is demonstrable in other aspects of our society as well, in our creation of invisible people and places.  The people of New York’s Mott Haven as described by Jonathan Kozol in Amazing Grace: The lives of Children and the Conscience of a Nation are one example, as are the homeless throughout the United States. The existence of such places and the treatment of people in these situations is tied to a refusal to see individual perpetrators as individuals: instead they become representative of a class or an ideal that society must be rid of.  This is the same desire that provides the impetus for zero tolerance and mandatory sentencing as well as low quality nursing homes where visits are non-existent, elective abortion and embryonic stem cell research as well as the obsession revealed via age-defying beauty treatments.  It accounts for some of the excesses of America’s current war and is the manifestation of the sickness of a society and a people that cannot accept evidence of their own fragility or finitude and resents any evidence thereof, seeing it—the people—as a cancer to be excised.  This is why totalitarianism with a strict and arbitrary imposition of the law inevitably goes along with programs which seek to remove evidence of weakness from society.  The difference between the U.S. and the regimes of Nazi Germany and Stalinist Russia is that we follow the Huxleyan rather than the Orwellian pattern.  

In the Huxleyan prophecy, Big Brother does not watch us, by his choice.  We watch him, by ours.  There is no need for wardens or gates or Ministries of Truth.  When a population becomes distracted by trivia, when cultural life is redefined as a perpetual round of entertainments, when serious public conversation becomes a form of baby-talk, when, in short, people become an audience and their public business a vaudeville act, then a nation finds itself at risk: culture death is a clear possibility.⁶

This is the constant specter for America, for we have a history of seeking an enjoyable anti-septic culture—a nation-sized Potemkin village worthy of Siddhartha’s father where death and decay are whisked away into the gutter—and the ill and destitute that remind us of who we truly are become anonymous figures for pity and programs—as long as they stay in their proper place.

The Christian hope though, is a better one.  In it, death and decay are not painted over and cloaked with the scent of fine perfume—only for the sickly odor to bubble ever more insistently to the surface—instead it is a hope arrived at through head on confrontation and conquest of death resulting in transformation; “salvation” Rowan Williams says, “does not bypass the history and memory of guilt, but rather builds upon and from it.”⁷

An appropriate question might be how such a Christian conviction of meeting individuals as people rather than representative figures can be transmitted to the courts.  The recognition however, that proportionality and recognition of specifics leads to a better, more effective judgment is not the sole purview of Christians as evidenced by Martha Nussbaum’s appeal to antiquity in defense of epieikeia which is defined in “Equity and Mercy” as two concepts: “the ability to judge in such a way as jurors bond with sensitivity to all the particulars of a person and situation, and the ‘inclination of the mind’ toward leniency in punishing—equity and mercy.”⁸  This concept is shared by some advocates of Restorative Justice and defenders and supporters of jury nullification.  Both groups’ arguments depend, in the end, upon the priority and importance of particularity in deliberation and judgment. 

The belief that particular circumstances matter in the administration of justice and the formation of a just society is one that is shared by diverse commentators upon our society and today’s criminal justice system.  The Restorative Justice movement and those groups who support a clarified, secure or expanded role for jury nullification share some common motivations and observations regarding the criminal justice system.  Additionally, each is an eclectic movement in itself as they unite people of divergent political, religious, ethical and social views.  What is agreed upon is that our current justice system has become too abstract in its implementation of the law and has become ineffective and even unjust because of that.

That particulars are important is not a foreign understanding to the American legal system, although it sometimes seems as though it were.  In fact the basis of the legal system of the English speaking world is foundationally concerned with particularity.  The Common Law system that developed in England and among her former colonies prizes the freedom to respond to circumstance.  The principle of particularity is important not only for the retributive justice system in the United States—and those who desire to reform it—but also for the new loyal-opposition, restorative justice.⁹  That the principle sometimes seems foreign has to do with a shift toward a more legalistic or universalized model of justice in many of our deliberations.  

That there are dangers of injustice in too great a sense of particular circumstance is undeniable, and one criticism of restorative justice principles is how any uniformity can be achieved and what’s to prevent exploitation of the system by those with the wherewithal to do so?  Likewise, those who decry the existence of jury nullification and seek to obscure its existence or declare it illegal cite their concerns of lawlessness, and chaos resulting from disregard of and less than uniform application of the law.  Yet it is clear that our laws are not now—nor have they ever been—applied uniformly and without adaptation.  “In practice only a small proportion of ‘criminalizable events’ are actually criminalized, i.e. interpreted and handled as crimes.”¹⁰  The answer to these objections is vigilance as it is the answer for any justice system when it is put the question.  Additionally, it must be pointed out that such a focus is not new, rather the new idea is uniformity as revealed by the increase in the number of laws designed to standardize the implementation of laws, such as zero tolerance and mandatory sentencing rules.  For some critics of restorative justice or jury nullification there is concern that community norms can circumvent justice by making it less likely that people receive the same punishment or make the same restitution for the same crime.    

Yet, as Martha Nussbaum points out in “Equity and Mercy,” it is impossible to have justice without acknowledging the particular, which means precisely that justice will look slightly different for different people because they are different and the circumstances vary.  The example Nussbaum gives is of the tragic figure Oedipus who committed heinous acts:

but did so with extenuating circumstances.  (Oedipus committed both parricide and incest, but with an excusable ignorance of crucial information.  Dike says that parricide and incest have occurred here, and the balance must be righted.  The eyes that saw their mother's naked body must be blinded.  Now in this case the doer and the sufferer are the same individual, but notice that Oedipus’s particularity is still in a significant sense neglected.  For he is being treated the same way, by dike, as a true or voluntary parricide would be treated, and crucial facts about him, about his good character, innocent motives, and fine intentions, are neglected.  But to neglect all this is to neglect him: substitution again though of a more subtle sort, neglecting crucial elements of the person’s individual identity.¹¹

The example of Oedipus is illustrative for Christians when considering similar circumstances: Oedipus was punished as a satisfaction of the petty gods of the Greek pantheon—but Christians don’t believe in that sort of deity, and our sense of justice should reflect that; even those Christians who hold to some form of the satisfaction theory of the atonement articulate a more just and merciful understanding of judgment.  For a majority of modern readers in fact, the tragedy of Oedipus is perceived differently than it was for many of the ancients.  For many, the lesson of Oedipus was that one couldn’t escape the fates and the tragedy was the exposition on that message.  For modern readers or watchers, the tragedy of Oedipus is precisely as Nussbaum points out: He was a good man with good intentions and was punished as though he were wicked.

For the retributive justice system particularity is important because it imparts a degree of equity to judgment, providing for the proper balance of judgment and mercy.  This could be stated by saying that one’s “just deserts” are determined not only by what one does, but by the reasons one does it and the intention one has in doing it.  Our justice system has codified ways of taking this into account in some situations; for example, premeditated murder is considered a worse crime than manslaughter or a crime of passion though the victim is no less dead, but because the crime is considered to be proportionately worse when it is planned and carried out with a clear lack of conscience and elicits no expression of remorse. 

Despite the tradition of the common law to look at specifics, in recent years as our society has sought to come to grips with crime and discover new means of curtailing the tide of rising violence we have moved in some cases toward a more arbitrary institution of laws and rules at both a legal and institutional level.  It is clear that a mechanistic approach to law is a breeding ground for tragedy.  Zero tolerance legislation is an example of this sort of mechanistic approach, one which allows occurrences which seem completely absurd to many observers and plays into the them of a militarization of society which closes at least portion of the culture down, breeding even greater unrest.  The conception of justice revealed in this approach to law reflects an understanding of justice similar to what Nussbaum termed dike, the penchant for uniformity and balance that blinded Oedipus.  Yet, in reality we do not live in a world that lends itself to strict dike, “a harsh and symmetrical world, in which order and design are preserved with exceptionless clarity” yet it seems more likely that our world is more often one of epieikeia:

 a world of imperfect human efforts and complex obstacles to doing well, the world in which humans sometimes deliberately do wrong, but sometimes also get tripped up by ignorance, passion, poverty, bad education, or circumstantial constraints of various sorts.  It is a world in which bad things are sometimes simply bad, sometimes extremely bad, but sometimes—and more often when one goes into them—somewhat less bad, given the obstacles the person faced on the way acting properly.  Epieikeia is a gentle art of particular perception, a temper of mind that refuses to demand retribution without understanding the whole story; it responds to Oedipus’ demand to be seen for the person he is.¹²

In view of this an understanding of particularity prevents injustice by preventing a ruling or punishment that is unconscionable given the facts at hand.  Epieikeia provides a means of ensuring that there is a proper balance that respects the aesthetics of justice, an appropriate balance between judgment and mercy taking all the facts into account.  Such an accounting forces the humanization of the offender and the victim, which is why particularity is important to restorative justice as it seeks to bring about reconciliation.  Forgiveness and reconciliation is impossible when the participants are de-personalized and see one another as adversaries—if they see one another at all.

Particularity can act as a check on unjust practices because it is not prone to “the deficiencies of the monopolistic (socialist/communist) and the arbitrary (Roman Law) views of justice [which] can be understood more clearly as deficiencies in light of the commutative and distributive senses of justice advanced by Thomas. . . .Arguably, the common law is a good case study, for it does not suffer the deficiencies of monopolism or arbitrariness because its principle guide is custom.  In the common law system of justice of the United States, the law has endeavored to discover tacit knowledge and informal practices.”¹³

If particularity is an important aspect of justice and discernment, as it seems to be, why has its application become more limited in our justice system?  It seems that this trend can be traced to the professionalization of the legal system and the subsequent creation of what can only be described as a sort of caste system.  One can see recognition of this caste system in the very definition of Restorative Justice put forward by Gerry Johnstone:

A common way of explaining restorative justice, used especially by practitioners, is to describe it as a distinctive process [original emphasis].  For instance, restorative justice is often contrasted with conventional criminal justice processes in which victims and offenders are positioned as adversaries, discouraged from communicating directly with each other, and expected to remain passive whilst all the key decisions are made by professionals [emphasis mine].¹⁴

Indeed, for Johnstone, the essence of the current justice system is that a “group of professionals—police and prosecutors—prepare and present the case against the suspect, on behalf of the victim and community.  Usually, the suspect will also be represented by a professional lawyer.  A neutral third party (such as a magistrate or judge/jury) has the power to decide which party wins.  If the suspect wins, i.e. if he or she is found ‘not guilty’, the process comes to an end.”¹⁵

Where Johnstone errs, at least from some perspectives, is in his evaluation of the Jury as “neutral.”  While the Jury surely should be impartial, to describe them as neutral is to devalue their role as arbiters of the community conscience.  

While there are multiple outlets whereby mitigating evidence may be admitted into the trial and sentencing processes, the most dramatic element of the American legal system allowing for account of the particulars is known as jury nullification.  Nullification has been a hotly debated topic in law reviews over the past decade as supporters of its existence—both liberals and conservatives—have campaigned for juries to be informed of their ability or right to nullify or decide the law.    The issues surrounding jury nullification are complicated and hotly debated in contemporary legal theory, but it does seem that the right to decide the law waned (or at least public discussion of it) as the legal professions became more specialized and gained more ascribed authority.  Conversely, it follows that as a society’s estimation of prosecutors/lawyers and judges declines—either for moral or intellectual reasons—or their estimation of their own abilities increases, support for nullification would increase.¹⁶

Despite the characterization of nullification supporters as people who desire to flagrantly disobey the law, the reality is that for the most part what is suggested is more benign and indeed integral to our justice system.  Rather than being a means through which a jury can pass judgment on the morality of a specific law, the ability to nullify instead exists as a means to express disagreement or displeasure with the state’s application of the law or seeking a punishment that seems unnecessarily harsh.  In this line of reasoning “jury nullification [can play] an essential part in the jury’s role as moral arbiters of the community, [sometimes] calling for education of jurors in minority communities about their potential role in resisting, through active jury nullification, the increasing trends toward disproportionate incarceration of African-American men in the United States.”¹⁷  Interestingly, other groups supporting a more active acceptance of jury nullification include right-wing militia movements—indeed, as recently as 2003 George Bush was challenged by Ralph Nader to indicate his support for the Texas Republican Party’s platform, which among other things supported a more active role for jury nullification.  While the current Texas GOP platform has changed the language to make it less inflammatory, it maintains the general thrust of the idea.

Particulars are important in Restorative Justice for several reasons.  Most directly, Restorative Justice shares the concern of some advocates of Jury Nullification that universalization and professionalization of the justice system, i.e. the removal of local or community concerns in favor of more abstract and distant state concerns.  This shift, Restorative Justice advocates argue, has contributed to the failure of the justice system to prevent crimes and discourage recidivism.  One example pointed out by restorative justice advocates is that of a Samoan boy who underwent a restorative process and was forgiven for his transgression yet “Conventional justice still ran its course, and the young Samoan was imprisoned.  Forgiveness, the court deemed, was not enough.  Justice had to be done, and seen to be done.  But for all those directly involved, it was the act of forgiveness, not the punishment of imprisonment that was the better justice in this tragic episode.”¹⁸  In this situation we see one area where restorative justice and jury nullification can work together for more practical and particularized solutions to crime.  Since even the opponents of a robust understanding of jury nullification recognize its importance as a check upon unjust prosecution and even a mechanism for change in the justice system, it seems clear that it could have some role to play in the implementation of restorative justice principles.  

In the cases of both our retributive justice system and the emerging restorative justice groups the emergence of a strict legal caste system has worked to militate against the application of particularized justice.  In each situation, it is only with some form of devolution of that authority that justice of either the retributive or restorative variety can be served.

Restorative justice sees as its basic goal the establishment of “new forums and processes to which many criminal cases currently dealt with by conventional criminal justice forums and processes can be diverted either at the pre-trial or sentencing stage.”  Each of these diversion strategies has the effect of bringing the conflict resolution back to a more immediate and less abstract level.

One historical example regarding the power of jury nullification to change the legal system involves the extensive use of the death penalty in England during the eighteenth century, including for theft of property valued at more than forty shillings.  

In order to avoid the death penalty, juries would often use their fact-finding power to remove the crime in question from the class punishable by death to a lesser classification.  For example, many juries found property stolen to be valued at thirty-nine shillings, just short of the amount which would have condemned the defendant to death.  That it was the perceived injustice of the death penalty in such cases, rather than the precise valuation involved, is shown by the allegation made in Parliament that when the valuation deserving the death penalty was raised from forty shillings to five points, the juries raised their verdicts from thirty-nine shillings to four pounds, nineteen shillings; again, just less than the amount needed to convict of the capital crime.¹⁹

The juries’ right to decide the law stems not from an innate ability to disregard the law but from the understanding that a jury is a check on the judicial and legislative systems.  It can determine whether the law is applied in a just manner.  In a case similar to that of the Samoan boy, the jury could have indicated via jury nullification that they felt justice had already been served and further pursuit in the criminal justice system was unnecessary.  

Perhaps the most telling example of this ability—more specifically of the failure to use it—arises from the much publicized case of an execution of a mentally retarded man in Texas several years ago.  It is in some sense ironic that Justice Thomas wrote of the ability to nullify in his minority opinion in Penry II (a case dealing with the appropriateness of the death penalty in cases of mental retardation), as an appropriate outlet for the concerns of the jury:

Thomas argues that the applicable standard under Penry I is “whether a reasonable juror could have believed that there was no vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence.”  Thomas, quoting the appellate court’s opinion, refers to the jury instruction in Penry’s second trial as a “nullification instruction,” apparently conceding that, in order to give effect to a juror’s “view that Penry did not deserve” a death sentence, that juror would have to “nullify” the answer to at least one of the three Texas statutory special issues.²⁰

 In cases where there is mandatory sentencing that seems unjust given a particular situation, the jury has the right/ability to nullify.  Not only that but some justices who would protest most against the idea of jury nullification in the majority of cases have actually expressed positive endorsement of the idea in some of their opinions.

Even for advocates of retributive justice who seek a greater sense of proportionality to punishment, the shift to greater professionalization and standardization has been a negative one as it has resulted in a more arbitrary application of the law and sentencing.  As Nussbaum indicates, judgments which fail to appropriately consider the particulars are “described as ‘harsh,’ harshly stubborn,’ a ‘cure of evil with evil.’  And this goes to the heart of our puzzle, clearly, for what we need to know is how that sort of justice comes to be seen as harsh and its lack of fit to the particulars rather than as simply imprecise”²¹  The hope for both retributive and restorative justice is to reclaim particularity as an important tool to understanding appropriate restitution or punishment so that they can be proportional to the individual case and thereby satisfy the demands of epiekeia and the exercise of Christian mercy in judgment and forgiveness.

1. Flannery O'Connor, "Revelation," in The Complete Stories (New York: Farrar, Straus and Giroux, 1971), 508.

2. Athanasius, On the Incarnation (Crestwood: St. Vladimir's Seminary Press, 2003), 34 & 41.

3. Stanley Hauerwas, "Punishing Christians," in Performing the Faith: Bonhoeffer and the Practice of Nonviolence (Grand Rapids: Brazos Press, 2004), 199.

4. Rowan Williams, Resurrection: Interpreting the Easter Gospel (Cleveland: The Pilgrim Press, 2002), 5-6.

5.  Griffith, The Fall of the Prison: Biblical Perspectives on Prison Abolition (Grand Rapids: William B. Eerdmans, 1993), 106.  Cited in Christopher D. Marshall, Beyond Retribution: A New Testament Vision for Justice, Crime, and Punishment (Grand Rapids: WB Eerdmans, 2001), 14.

6. Neil Postman, "The Huxleyan Warning," in The Asheville Reader: The Individual in the Contemporary World, ed. Grace Campbell, et al. (Acton: Copley Custom Publishing Group, 2002), 494.

7. Williams, Resurrection: Interpreting the Easter Gospel, 6.

8. Martha C. Nussbaum, "Equity and Mercy," in Punishment and Rehabilitation, ed. Jeffrie G. Murphy (Belmont: Wadsworth Publishing Company), 214.

9. Ronald J. Rychlak, Trial by Fury, ed. Gloria L. Zuniga, vol. 8, Christian Social Thought Series (Grand Rapids: The Acton Institute, 2004), ii-v.

10. Gerry Johnstone, Restorative Justice: Ideas, Values, Debates (Portland: Willan Publishing, 2002), 59.

11. Nussbaum, "Equity and Mercy," 218.

12. Ibid., 219.

13. Rychlak, Trial by Fury, ii-iii.

14. Gerry Johnstone, ed., A Restorative Justice Reader: Texts, Sources, Context (Portland: Willan publishing, 2003), 2.

15. Johnstone, Restorative Justice: Ideas, Values, Debates, 136.

16. David A. Pepper, "Nullifying History: Modern-Day Misuse of the Right to Decide the Law," Case Western Reserve Law Review 50, no. 3 (2000): 18.

17. Timothy S. Hall, "Legal Fictions and Moral Reasoning: Capital Punishment and the Mentally Retarded Defendant after Penry V. Johnson," Akron Law Review 35, no. 3/4 (2002): 11.

18. Marshall, Beyond Retribution: A New Testament Vision for Justice, Crime, and Punishment, 256.

19. Hall, "Legal Fictions and Moral Reasoning: Capital Punishment and the Mentally Retarded Defendant after Penry V. Johnson," 10.

20. Ibid.: 11-12.

21. Nussbaum, "Equity and Mercy," 216.