Restorative Justice for Human Harms of Animals
What’s the appropriate punishment for human harms of animals? Should punishment consider animals as morally equivalent to humans? What would a world look like in which a chimp killer was seen for being a murderer? In this paper, I will defend a restorative approach to human harms against animals.
Some may argue that what qualifies a being for moral and equal consideration is rationality; however, moral consideration is given to beings who do not meet this qualification. Consider the case of a mentally disabled individual. She is given equal consideration to any rational human. This holds true in the case of babies as well, although there still lies potential for rationality in the future.
Like rationality, other characteristics are not specific to all and only humans or all and only animals. This inability to separate all humans from all animals is known as The Argument for Marginal Cases. Because there will always be marginal cases such as babies and mentally disabled individuals, this creates the All and Only problem. All and only humans do not have a specific characteristic that all animals do not have, and all and only animals do not have specific characteristics that all humans do not have.
Peter Singer proposes that the qualification for moral consideration should be sentience, the ability to suffer and feel pain. Sentience should be the qualification for moral consideration because it is the prerequisite to having any interests at all (Singer 107). Consider the case of kicking a rock: If Bill kicks a rock, this is morally permissible because the rock has no interest not to suffer. However, consider the case of Bill kicking a rat. If Bill kicks a rat, this is morally impermissible because the rat has an interest not to suffer.
If more criteria than sentience was accorded to determine qualifications for moral consideration, this would be speciesism, allowing the interests of our own species to override the greater interests of members of others due to prejudice/bias. For example, let’s revisit the case of rationality as a qualification for moral consideration. By giving nonrational humans equal consideration while not giving other nonrational beings equal consideration, we are allowing the interests of humans to override the interests of animals due to prejudice/bias.
Equal consideration of humans and animals does not necessarily indicate equal treatment. Animals’ comparable interests deserve equal consideration to humans’ comparable interests. Similarly to how humans and animals have different capacities, so do men and women. Consider the case of abortion. Abortion is legal in some states for women; however, equal consideration does not indicate that men also should have abortion rights in these states because men cannot carry babies. Although men and women should be considered equally, this does not indicate equal treatment.
In a justice system that morally considers animals on the basis of sentience, the focus would have to be change within society because of the prominent nature of the systematic infliction of harm on animals for products, food, medical testing, and other things. Because the goal of punishing human harms to animals is an animal cruelty-free world, the kind of theory of punishment needed would have to focus on the future, not just the past.
Retributive justice would not be an effective theory of punishment when it comes to human harms of animals because it does not take into account future considerations. Retributive punishment focuses on mistakes in the past. In retributive justice, punishment is given in proportion to their crime (Brooks 15). Retributivism punishes a criminal on what they’ve done in the past rather than what they believe he/she could do tomorrow because retributivism is backwards-looking (Brooks 16). However, when punishing human harms of animals, the goal would not be giving criminals punishment they deserve in proportion to their crimes, but, instead, moving towards a society in which each citizen can have a future in which they no longer harm animals and recognize the importance of living in a society that does not tolerate human harms of animals. To take into consideration the potential future of the past offenders and society, a forward-looking approach is necessary.
The retributive thought that criminals “deserve” punishment does not always hold true and would not be an effective theory of punishment when it comes to human harms of animals.
Moral and causal responsibility are two different things. Consider this situation. If Bill wants to make Miranda fall and he pushes Miranda, then Bill is morally responsible. However, if Bill does not have the intention to make Miranda fall and someone pushes Bill into Miranda to make Miranda fall, then Bill is only causally responsible and not morally responsible.
For many who commit crimes, it is for the purposes of survival; many factors are external forces pushing them to commit these acts. For individuals who are pushed by external forces, like the inability to get a job after serving time and having a criminal record, they are also only causally responsible. If an individual is simply causally responsible, they do not “deserve” punishment since their intention was not to cause harm. Consider the situation that Miranda is trying to kill Bill. If Bill ends up harming Miranda in self-defense, he is not morally responsible and therefore does not “deserve” punishment; however, if Bill had the intention to kill Miranda and he did kill her, then Bill would be morally responsible.
It cannot be known for certain that someone deserves to be punished so retributivism is not an effective theory of punishment for human harms of animals. To assert that a criminal deserves retributivist punishment, we must make sure that the criminal is morally responsible. Consider the previous situation of Bill killing Miranda. We cannot know with certainty that Bill is morally responsible because we do not know for certain exactly what was going on in Bill’s head when he killed her. Because we don’t know Bill’s intentions, we cannot know that he is morally responsible with absolute certainty. As said by Kant, “Therefore, no perfectly just judgements can be passed (Brooks 23).” Because we cannot know for certain if anyone is morally responsible for a crime, we cannot, with certainty, know if someone “deserves” to be punished.
Restorative justice is a theory of punishment that aims at the restoration of the offender and his/her relationship with the victim and community. By the offender committing a crime, they have harmed their relationships with the victim and community. They must go through the process of a restorative conference to mend the relationships and be restored. In this conference, stakeholders are included, anyone who holds a stake in justice; the community, victims, and the offenders all have a stake in justice and can address crime through the restorative conference (Brooks 65). Community members can address the crime as they have a stake in their community to reduce the crime rate and in restorative justice. This method of punishment is forward-looking because it focuses on the future and how to mend the relationships and restore the offender. The stakeholders all come to a mutual understanding so that each has confidence in the outcome.
The offender must acknowledge their guilt in the restorative conference; this is because if guilt isn’t acknowledged, then offenders cannot be restored. A conference mediator from the Restorative Justice Council will mediate each restorative conference. Although offenders speak for themselves, legal representation is also given.
During the conference, after the victims, the offender, and the community all communicate honestly with mutual understanding, a contract is agreed to; the offender must satisfy the conditions of the contract agreed to in the meeting in order to be fully restored. While the offender has a responsibility to acknowledge guilt, the community also has a responsibility to communicate with the offender to support his/her restoration. 2% of times restorative contracts are not agreed upon within the restorative conference (Brooks 66). If an offender fails to meet the conditions of his/her contract, then another contract could be made which is less favorable to the offender or the offender could face trial which would include the possibility of imprisonment. When offenders are restored, they are no longer criminals and reintegrated as citizens. The forward-looking restoration theory would be more beneficial to, not just the offender but, the community because the community would actually be safer considering that prisons create more crime than it prevents (Alexander 224).
Consider this situation from 2007. A chimpanzee who escaped confinement in the UK was shot and his killers were not sought after or prosecuted. While Cavalieri looked forward to ‘a time when the killing would be seen for what it was-murder,’ so do Donaldson and Kymlicka. Let’s imagine that society has reached that time and the killing is seen as a murder. Consider that the chimpanzee escaped an animal sanctuary and was shot.
In this situation, the victim, has been murdered and therefore cannot participate in the restorative conference. In a restorative conference, although participation of the victim would make the process more efficient, it is not required for the restorative conference; a successful restorative conference can still occur in which a restorative contract is agreed upon with conditions for restoration of the relationship with the community. If the victim was alive and human but did not want to attend, there would be the possibility of family members going in place of them to the restorative conference. However, in this particular scenario and in other cases of human harms to animals, an animal welfare specialist, or another stakeholder for the reconciliation of the relationship between the animal community and the offender, could attend the conference.
A strength of restorative justice is that the community included varies depending on the crime committed. For example, if a victim is targeted because of their race, then a different community than the geographical community have broken bonds that need to be restored within the conference (Brooks 78). In this situation of the chimpanzee, the chimpanzee was targeted, pointing out the need for reconciliation with the animal community. As animals cannot speak for themselves, an animal welfare specialist will step in as a sort of spokesperson for the animal community. The animal welfare specialist, the community, and the offender would be mediated in their restorative conference by a member of the Restorative Justice Council.
The animal welfare specialist could advise some conditions for the contract to mend the harm done to the animal community by the offender. For example, suitable agreed upon conditions for the contract could include the offender spending time working at a shelter or a nearby animal sanctuary to give back to the community that he disenfranchised. The community which he lives in may include conditions within the contract such as taking classes on gun safety to reconcile his relationship with the human community. An apology from the offender is central to the restorative conference. Through dialogue of restorative conditions and acknowledgement of guilt, the offender would be on the path to becoming restored. After interacting with and taking care of chimpanzees, the offender would more clearly recognize their sentience and the importance of treating them well. The gun safety classes could teach him about the difference between and when to use a gun and when not to use a gun. After satisfying these agreed upon conditions, the offender would be less likely to offend again and would be considered restored.
In 2007, Michael Vick, a high profile NFL player, was sentenced to 23 months in prison for his involvement in running a violent and bloody dog-fighting ring (Case Study). This dog-fighting ring was a complex operation in which high stakes gambling occurred with bids up to $26,000. Over 50 dogs were trained to fight each other, sometimes to the death. Michael Vick did his time of almost 2 years in prison, became a public pariah, and worked to help The Humane Society of the United States (HSUS); The NFL rehired Michael Vick after he was endorsed as being a good future pet owner by the HSUS president (The Humane Society 1). Although Vick has paid the price for his crimes, in the retributivist sense, many fans still do not support him or believe that he has changed.
Rather than the retributive punishment that was given to Vick, a restorative justice punishment would give Vick’s fans and the public something that they haven’t heard yet, a sincere heartfelt apology and a say in how he can reconcile his relationship with the community. Within the restorative conference in which the offender would be given legal representation, the community in which the crimes took place and the animal welfare representative (to represent the animal community) would speak in honest and open dialogue to restore the broken bonds between the communities. Despite the fact that legal representation was given, Vick would speak for himself.
According to the National Link Coalition, “When animals are abused, people are at risk”; violence towards animals has a strong link with violence to humans (Animal Cruelty and Domestic Violence 1). Because Vick has a large group of youth that idolize him and young fans may copy the actions of someone they idolize, the community is especially important in the restoration of Vick.
The community, offender, and animal welfare specialist could agree on terms for the restorative contract such as using his authority to better the view of all animals. This could be done in a variety of ways; a suitable restorative condition of the contract could be for Vick to give enough money to HSUS to create a commercial starring himself to raise awareness for animals. Vick must spend 300 hours creating this commercial. This would help to mend the broken trust between Vick and the community by influencing the youth in a positive way when it comes to treatment of animals. Vick would have to take educational courses on how to care for animals and spend time at a shelter to establish a loving bond by taking the dogs for a walk, bathing them, and other tasks which he would be taught how to do. Dog-fighting was culturally acceptable in certain regions of the South, and many African Americans may mistrust dogs due the 1960s when police would use attack dogs to “quell.” As Vick did not have significant relationships with animals, working at a shelter and developing trusting relationships with animals would decrease the chance of Vick offending again. After complying with the restorative contract, Vick would be considered restored.
Some argue that restorative justice is not a theory of punishment (Brooks 67). This is because restorative justice does not endorse the use of prisons in any case; the offender also does not have a criminal record if they comply with their restorative contract.
However, restorative justice is a theory of punishment, and this criticism is incorrect. Imprisonment and punishment are not the same thing, although there are instances when punishment would be imprisonment for some theories of punishment. Many crimes do not require imprisonment in all theories of punishment. For example, in retributivism, a traffic violation may require only a fine and no imprisonment. Deterrence punishments may not involve imprisonment either because, based on the crime, deterrence may be more effective through a method other than imprisonment (Ellis 341).
Some argue that restorative justice does not allow for enough accountability to restore the offender; this is because restorative justice is just a conversation and is seen as an easy way out. However, this is not true. In the restorative conference, the offender acknowledges guilt and apologizes. Restorative justice also helps mend relationships with the community and victim due to the offence, which is one step of accountability that retributive justice does not address. Offenders are not only held accountable for their crime, but the effects on relationships because of the crime they committed. Perhaps this objection points more to the perceived lack of guilt within the restorative justice process. Shame punishments are a method within the restorative justice system to instill more of a sense of guilt (Brooks 77). For example, a thief may wear a sign that says “I am a thief. This is my punishment (Brooks 77).” This kind of shaming punishment may reinforce the wrongness of the crime the offender committed. In the case of Michael Vick, a similar shame tactic of wearing a sign could be utilized to instill more of a sense of guilt, if a restorative contract is not agreed upon or if guilt is not acknowledged within the restorative conference; this would emphasize the sense of wrong in the crime Vick committed.
The appropriate punishment for human harms of animals is restorative justice for its forward-looking characteristics. On the basis of sentience, animals should be considered, especially in cases of harmful offenses and mistreatment by humans. In the case of the chimpanzee killer and Michael Vick, restorative justice would be more beneficial for the community because it would allow for relationships to be reconciled as well as accountability to be held. In the same way Cavalieri, Donaldson, and Kymlicka look forward to a day when the chimpanzee killer will be seen as a killer, so do I, and restorative justice would be the theory of punishment that would set society on a path to an animal cruelty-free future.
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