A dangerous concept
Americans may soon become familiar with another feel-good concept that has the potential for some very disturbing consequences. The concept is known as “restorative justice,” an old idea with a new name. The roots of restorative justice can be found in healing traditions and the non-retaliatory responses to violence endorsed by many faith communities. In theory, this notion represents a return to the simple wisdom of viewing conflict as an opportunity for a community to learn and grow. It operates on the premise that conflict, including criminal conflict, inflicts harm, and individuals must accept responsibility for repairing that harm. Proponents believe that all parties with a stake in a specific offense come together to resolve collectively how to deal with the aftermath of the offense and its implication for the future. So far, so good.This means that victims, offenders and communities actively participate in devising and implementing mutually beneficial solutions. Proponents also tell us that conflicts are resolved in a way that restores harmony to the community, allowing offender and victim to continue to live together in a safer, healthier environment. Still essentially benign, right? Read on.Canada has been at the forefront of the restorative justice movement, which has now crossed the border into the United States – most particularly into Minnesota and Vermont, the latter having embraced it as official state policy.At the other end of the spectrum is the age-old notion in ethics and law that the punishment must fit the crime – a principle iin which the severity of the penalty for a misdeed or wrongdoing should be reasonable and proportional to the severity of the infraction. But punishment can be overly severe for reasons of retribution, deterrence, or problem elimination. So, too, in the hope that the transgressor will amend his or her ways, or is a minor threat to re-offend, the subjectivity component can also render punishments that are too lenient.The concept of the punishment fitting the crime has been with us since the Law of Moses, specifically in Deuteronomy 19:17-21, which includes the punishments of “life for life, eye for eye, tooth for tooth, hand for hand, foot for foot.” The U.S. Constitution obliquely references this issue with its ban on cruel and unusual punishment. But what constitutes “cruel and unusual” and when does our reluctance of being too severe cross the bounds of common sense?About two months ago, an event occurred in Chittenden County, Vt., that raises some serious questions about restorative justice. Claiming he no longer believes in punishment, Vermont Judge Edward Cashman issued a 60-day sentence to a man who confessed to repeatedly raping a young girl over a four-year period, beginning when she was 6 years old. The judge disagreed with prosecutors who thought Mark Hulett, 34, of Williston, Vt., deserved eight to 20 years in prison and said, “I’m now more concerned about rehabilitation. … The one message I want to get through is that anger doesn’t solve anything. It just corrodes your soul.” Cashman said he was primarily concerned that the man who repeatedly raped this little girl over a period of four years received sex-offender treatment, which leads me to ask where was the judge’s concern for the child whose life has been irrevocably altered?Exacerbating the matter was the fact that Vermont’s Department of Corrections considered Hulett a “low-risk” for re-offense; meaning he didn’t qualify for in-prison treatment. As a result, Cashman sentenced Hulett to 60 days in jail, and “treatment” after release.The judge told those present that when he began his judicial career 25 years ago, he handed down tough sentences but now believes “it accomplishes nothing of value. It doesn’t make any thing better. It costs us a lot of money. We create a lot of expectation, and we feed on anger.” Because Vermont does not have mandatory sentencing for child molestation, i.e. a “Jessica’s Law,” the presiding judge determines the appropriate punishment for child sex offenders. In this case, Judge Cashman’s idea of appropriate punishment for the repeated rape of a pre-pubescent child over a four-year period was 60 days behind bars. Unbelievable!The case received very little national media attention. But Bill O’Reilly, who is on a crusade to ensure that all states pass a “Jessica’s Law,” i.e. mandatory 25-year prison terms for first-offense child-sex offenders along with a requirement to wear electronic tracking devices at all times after release, featured the story on his nightly news-analysis show for over a week.After O’Reilly posed the tendentious question, “Would you boycott Vermont if this 60-day sentence is allowed to stand?” for his on-line viewer poll, Vermont’s Department of Corrections hastily amended its original position and advised Judge Cashman that “the state will provide in-prison treatment for Hulett.” A few days later at the post-trial hearing, and arguably because of the national scrutiny O’Reilly focused on the situation, Cashman modified his original sentence from 60 days to three to eight years. Perhaps as mystifying as the absurd sentencing, whether the original 60-days or the almost as ridiculous 3 to 8 years, is that neither of Vermont’s senators, Pat Leahy or Jim Jeffords, nor Gov. Jim Douglas, nor its former governor and DNC chairman, Howard Dean, intoned a single word of outrage during the entire episode.But upon reflection, it occurred to me why Leahy, Jeffords, Douglas and Dean didn’t have the intestinal fortitude to comment about this egregious miscarriage of justice. You see, restorative justice is official Vermont policy, making the rights of a child subordinate to political correctness in that state.Butch Mazzuca, a local Realtor and ski instructor, writes a weekly column for the Daily. He can be reached at firstname.lastname@example.org
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