introduction
Proportionality
Proportionality has to do with the extent to which sanctions similar in
severity are imposed on offenders committing similar offences.
Proportionality, for traditional criminal justice, satisfies a sense of
retributive fairness; it is cruel and unusual to impose sanctions of
different severity on different offenders who have committed
essentially the same crimes.
Warner argues that restorative justice could impose disproportionate sanctions on offenders committing similar offences (Warner, 1994), since it allows different victims to place different demands on offenders who may have committed similar offences. Some victims may only want a simple apology, while others may expect full restoration by the offender.
Four responses have been made to this criticism. First of all, any informal processes used in a diversionary scheme would necessarily present problems of consistency and proportionality (Morris, et al., 1996 at 230). To say that restorative processes are illegitimate on this basis is to say that all informal processes are illegitimate. This would effectively elevate formal procedures of liberal Western democracies above the informal procedures of indigenous cultures.
Secondly, the traditional criminal justice system has not been successful at eliminating this problem (230). Research indicates that many of the same factors that influence the severity of sanctions imposed in FGCs do likewise in traditional processes. Research in Brussels indicates that subjective factors--attitude of minors, support of the family, and situation at school--were taken into account when imposing a number of hours of community service on juveniles committing similar offences. This, at times, resulted in disproportionate number of hours worked.
In practice, the formal justice system strikes a balance struck between uniformity and flexibility. As the traditional system takes account of mitigating and aggravating factors to either reduce or increase the "average" sanction in a formal process (Galaway and Hudson, 1996 at 12-13), a restorative process allows the parties to consider the particular circumstances surrounding the crime when negotiating an agreement.
Thirdly, guidelines and rules could be developed to limit the likelihood of unduly harsh sanctions being imposed. An oversight role given to the courts could assure that there are no great disparities in sanctions imposed on offenders in informal processes (12-13). Braithwaite shares Warner's concern only to the extent that FGCs exceed upper limits; that is, conferences imposing incarcerative orders or sanctions punitive in effect that exceed those that formal courts would typically impose. This concern, for Braithwaite, is alleviated by reserving an appellate role for formal courts overseeing the agreements reached in FGCs (Braithwaite, 1994 at 203-204). The courts could strike down agreements that are overly oppressive.
Finally, consistency and proportionality of outcomes serve "abstract notions of justice" within a traditional system which is at odds with the values underlying a restorative system. A traditional system values proportionate outcomes of antiseptic formal processes at the expense of proactively involving the victim and the offender. Conversely, restorative justice seeks to restore the social imbalance within the affected community caused by the crime (Morris, et al., 1996 at 230). In other words, the two systems of justice operate on two fundamentally different foundations, which ultimately shape their different conceptions of fairness. This in turn affects the relative importance each gives to proportionality.
Proportionality is how retributive justice satisfies notions of fairness. Focused as it is on punishment and "just deserts" retributive justice must result in proportionate outcomes to achieve legitimacy. Restorative justice operates on a fundamentally different conception of fairness--not absolute uniformity, but satisfaction of the participants in the process. Proportionate outcomes, then, become secondary to its primary aim of proactively involving the victim and the offender in a process that handled them fairly (Hudson and Galaway, 1996 at 12-13). The debate over proportionality becomes a debate over which paradigm of justice, and all of its implications, one subscribes to and seeks to achieve.
Van Ness and Strong contend that with a plurality of sentencing goals--deterrence, incapacitation, rehabilitation, and retribution--we often see discordant assessments of the primary aim of traditional criminal justice system sentencing schemes. It is no wonder then why we see disparate imposition of sanctions on offenders committing similar offences (Van Ness and Strong, 1997 at 51-53).
Restorative justice advocates, on the other hand, declare a single overarching purpose--the "reintegration into safe communities of victims and offenders who have resolved their conflicts" (Van Ness and Strong, 1997 at 51-53). They suggest that this would be the determining goal, limited only to the extent that public safety requires that the offender be incapacitated because he/she presents such a high risk of seriously re-offending and injuring others. Resolution of the conflict would be the primary aim, limited only by a compelling, overriding public safety reason for incapacitation.
The amount of a particular sanction would be based on the nature and gravity of offence and harm, paid in one of several equivalent units of a common currency. The method could be determined on the basis of which sanctioning method is most successful at preventing crime, and which is most appropriate for the particular offender (accounting for economic inequities).
Retributivists anchor the seriousness of both the crime and punishment to the extent to which each impedes the standard of living of the typical person. Restorative proportionality allows the parties involved in a restorative process to substitute real persons for the abstract "typical" person. The parties then can negotiate an agreement comparing it to the range of possible alternatives (Van Ness, 1997 at 18-21). Restorative proportionality then links the severity of the harm to the degree of "'restorative effort'" required by the offender (19).
Participants in a restorative process would be provided with a range of alternative sanctions for the typical offence involved, with opportunity to alter the sanction within this range to take account of the particular circumstances surrounding the commission of the offence. If an agreement could not be reached, a sentencing judge could impose the sanction within the pertinent range (Van Ness and Strong, 1997 at 58). If the victim's actual loss was less than the minimum established, the victim would be paid the actual amount of loss, with the remainder put into a victim compensation fund for those victims whose losses exceeded the range.
Disparity between sanctions imposed may arise when the offender is sentenced according to the offence alone; according to the actual harm caused alone; or when offenders have different abilities to make reparations. In part, this disparity may be alleviated by the use of different sanctions, but with equivalent severity. A system of units of comparable severity may be derived for sanctions (Van Ness and Strong, 1997 at 57-59). For example, while a $1,000 fine may be relatively inconsequential to a wealthy offender, it may be relatively burdensome to a poor offender. To exact sanctions with equivalent severity, the wealthy offender might be required to perform a number of hours of community service in lieu of paying the $1,000 fine. The Swedish "day fine" approach, which bases the sanction on the offender's daily wages, multiplied by a figure that represents the seriousness of the offence, is based on this principle.
This document prepared by Christopher Bright. Copyright 1997 by Prison Fellowship International.
Warner argues that restorative justice could impose disproportionate sanctions on offenders committing similar offences (Warner, 1994), since it allows different victims to place different demands on offenders who may have committed similar offences. Some victims may only want a simple apology, while others may expect full restoration by the offender.
Four responses have been made to this criticism. First of all, any informal processes used in a diversionary scheme would necessarily present problems of consistency and proportionality (Morris, et al., 1996 at 230). To say that restorative processes are illegitimate on this basis is to say that all informal processes are illegitimate. This would effectively elevate formal procedures of liberal Western democracies above the informal procedures of indigenous cultures.
Secondly, the traditional criminal justice system has not been successful at eliminating this problem (230). Research indicates that many of the same factors that influence the severity of sanctions imposed in FGCs do likewise in traditional processes. Research in Brussels indicates that subjective factors--attitude of minors, support of the family, and situation at school--were taken into account when imposing a number of hours of community service on juveniles committing similar offences. This, at times, resulted in disproportionate number of hours worked.
In practice, the formal justice system strikes a balance struck between uniformity and flexibility. As the traditional system takes account of mitigating and aggravating factors to either reduce or increase the "average" sanction in a formal process (Galaway and Hudson, 1996 at 12-13), a restorative process allows the parties to consider the particular circumstances surrounding the crime when negotiating an agreement.
Thirdly, guidelines and rules could be developed to limit the likelihood of unduly harsh sanctions being imposed. An oversight role given to the courts could assure that there are no great disparities in sanctions imposed on offenders in informal processes (12-13). Braithwaite shares Warner's concern only to the extent that FGCs exceed upper limits; that is, conferences imposing incarcerative orders or sanctions punitive in effect that exceed those that formal courts would typically impose. This concern, for Braithwaite, is alleviated by reserving an appellate role for formal courts overseeing the agreements reached in FGCs (Braithwaite, 1994 at 203-204). The courts could strike down agreements that are overly oppressive.
Finally, consistency and proportionality of outcomes serve "abstract notions of justice" within a traditional system which is at odds with the values underlying a restorative system. A traditional system values proportionate outcomes of antiseptic formal processes at the expense of proactively involving the victim and the offender. Conversely, restorative justice seeks to restore the social imbalance within the affected community caused by the crime (Morris, et al., 1996 at 230). In other words, the two systems of justice operate on two fundamentally different foundations, which ultimately shape their different conceptions of fairness. This in turn affects the relative importance each gives to proportionality.
Proportionality is how retributive justice satisfies notions of fairness. Focused as it is on punishment and "just deserts" retributive justice must result in proportionate outcomes to achieve legitimacy. Restorative justice operates on a fundamentally different conception of fairness--not absolute uniformity, but satisfaction of the participants in the process. Proportionate outcomes, then, become secondary to its primary aim of proactively involving the victim and the offender in a process that handled them fairly (Hudson and Galaway, 1996 at 12-13). The debate over proportionality becomes a debate over which paradigm of justice, and all of its implications, one subscribes to and seeks to achieve.
Van Ness and Strong contend that with a plurality of sentencing goals--deterrence, incapacitation, rehabilitation, and retribution--we often see discordant assessments of the primary aim of traditional criminal justice system sentencing schemes. It is no wonder then why we see disparate imposition of sanctions on offenders committing similar offences (Van Ness and Strong, 1997 at 51-53).
Restorative justice advocates, on the other hand, declare a single overarching purpose--the "reintegration into safe communities of victims and offenders who have resolved their conflicts" (Van Ness and Strong, 1997 at 51-53). They suggest that this would be the determining goal, limited only to the extent that public safety requires that the offender be incapacitated because he/she presents such a high risk of seriously re-offending and injuring others. Resolution of the conflict would be the primary aim, limited only by a compelling, overriding public safety reason for incapacitation.
The amount of a particular sanction would be based on the nature and gravity of offence and harm, paid in one of several equivalent units of a common currency. The method could be determined on the basis of which sanctioning method is most successful at preventing crime, and which is most appropriate for the particular offender (accounting for economic inequities).
Retributivists anchor the seriousness of both the crime and punishment to the extent to which each impedes the standard of living of the typical person. Restorative proportionality allows the parties involved in a restorative process to substitute real persons for the abstract "typical" person. The parties then can negotiate an agreement comparing it to the range of possible alternatives (Van Ness, 1997 at 18-21). Restorative proportionality then links the severity of the harm to the degree of "'restorative effort'" required by the offender (19).
Participants in a restorative process would be provided with a range of alternative sanctions for the typical offence involved, with opportunity to alter the sanction within this range to take account of the particular circumstances surrounding the commission of the offence. If an agreement could not be reached, a sentencing judge could impose the sanction within the pertinent range (Van Ness and Strong, 1997 at 58). If the victim's actual loss was less than the minimum established, the victim would be paid the actual amount of loss, with the remainder put into a victim compensation fund for those victims whose losses exceeded the range.
Disparity between sanctions imposed may arise when the offender is sentenced according to the offence alone; according to the actual harm caused alone; or when offenders have different abilities to make reparations. In part, this disparity may be alleviated by the use of different sanctions, but with equivalent severity. A system of units of comparable severity may be derived for sanctions (Van Ness and Strong, 1997 at 57-59). For example, while a $1,000 fine may be relatively inconsequential to a wealthy offender, it may be relatively burdensome to a poor offender. To exact sanctions with equivalent severity, the wealthy offender might be required to perform a number of hours of community service in lieu of paying the $1,000 fine. The Swedish "day fine" approach, which bases the sanction on the offender's daily wages, multiplied by a figure that represents the seriousness of the offence, is based on this principle.
This document prepared by Christopher Bright. Copyright 1997 by Prison Fellowship International.
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