Three justice orientations (or two?)
Sep 10, 2009
by Dan Van Ness
Howard Zehr, recently wrote in his Restorative Justice Blog:
Stanford Law Professor Herbert Packer has argued that two opposing justice orientations dominate U.S. policy debates: crime control vs. due process. Could a restorative justice orientation provide a “third way?” that transcends these poles? The following identifies some assumptions of each.
Crime control orientation: emphasis on order and security....
Due process orientation: emphasis on preventing misuse of the punishment system....
Restorative justice orientation - emphasis on repair and responsibility....
In my comment on his blog I wrote:
In 1970, John Griffiths wrote a response to Packer in which he said that the two models of crime control and due process were really a single model, which he called the battle model. To demonstrate that operating within the battle model limits our ability to see alternatives, he presented what he called the family model as an alternative. He does not appear to be seriously proposing this as an approach to criminal justice. His is an intellectual exercise.
However, the family model has a number of restorative dimensions. I’ll just quote from Restoring Justice by Karen Strong and myself (pp 173-74):
“Whereas Packer’s adversarial models assumed disharmony and fundamentally irreconcilable interests amounting to a state of war, Griffiths proposed assuming ‘reconcilable — even mutually supportive — interests, a state of love.’ This would, he argued, significantly change our concepts of crime and the criminal. We would see crime as only one of a variety of relationships between the state and the accused, just as disobedience by children is only one dimension of their relationship with their parents. Furthermore, we would treat crime as normal behavior, expected even if not condoned. We would view criminals as people like us, not members of a special and deviant class of people. Furthermore, we would emphasize self-control rather than the imposition of external controls, and would assign the criminal process an educational function, teaching those who observe it by what it does and how it does it.”
The contribution Howard has made is to place restorative justice inside the battle model, which is so overwhelming the dominant model that we need to do that in order to communicate with others who assume that is the only model.
The contribution Griffiths made is to remind us that there are new ideas to be found by stepping outside the battle model entirely.
Both are important contributions.
BTW: Griffths article is "Ideology in Criminal Procedure or a Third 'Model" of the Criminal Process," Yale Law Journal 79 (1970) 359.