Dangers of the big tent
Aug 26, 2009
In making the case for restorative justice, Erik Luna invokes the familiar narrative of a pathological American criminal justice system—political demagogues pushing ever tougher sentencing policies on an uninformed public, resulting in wildly escalating prisons populations and fiscal burdens—and asserts that restorative justice cannot possibly do any worse. Indeed, he suggests, restorative justice may bring about a change in heart among the demagogues: the theory and principles of restorative justice may force policymakers “to reevaluate their own intellectual commitments and the merits of their chosen sentencing methodologies.
The picture is attractive, and not entirely implausible, but I fear that Luna may underestimate the strength of the ideological commitments undergirding America’s penal harshness and overestimate the extent to which restorative justice must necessarily rest on different and more humane premises. Or, to put the matter differently, Luna’s “big-tent” take on restorative justice—it can be substantive, it can be procedural, it can coexist peacefully with a diverse set of other theories of punishment, and it can be integrated comfortably into existing criminal justice processes—may do more to reinforce than to challenge the suppositions of those who advocate ever-greater toughness.
I am quite sympathetic to the restorative justice project. What I find most attractive about restorative justice is its insistence that victims and offenders are real human beings, not just wooden marionettes to be brought upon the criminal justice stage as it serves the convenience of the lawyers; that the criminal justice system should address itself more directly to the needs of these human beings than to abstract ideals like retribution and deterrence; and that among the most compelling of these real human needs are opportunities to speak about the offense and its aftermath—to tell one’s story—and to participate in developing a communal response to the offense. If these principles were consistently recognized as the essential core of restorative justice, then restorative justice would indeed represent a profound challenge to business as usual in American criminal justice.
But restorative justice can be presented and understood in quite different ways. Including victims may reinforce the basic, anti-defendant narrative of the victims’ rights movement: the court system has grown too attentive to defendants’ rights, and victims must now be given greater rights in order to combat the system’s domination by defense lawyers. The emphasis on “holding offenders accountable,” so common in restorative-justice rhetoric, may reinforce common assumptions that crime is always a matter of free choice made by rational actors—missing the important crimogenic roles played by mental illness, substance abuse, peer pressure, poverty, racism, and the like—and may thereby implicitly deny the need to hold communities accountable, too. Similarly, the use of processes that have no capacity to adjudicate factual disputes and that are typically expected to culminate in an apology may reinforce beliefs that all defendants are legally and morally guilty. Finally, the use of shaming sanctions (as has been advocated by John Braithwaite and others associated with the restorative justice movement) may reinforce the perception that incarceration is too easy on defendants.