Retribution and Restoration
During the early years of the restorative justice movement restoration was often contrasted with retribution in an attempt to illustrate what was different about restorative justice. Some proponents then and now argue that there is no place for infliction of pain in a restorative response to crime. Others have adopted the position that restorative justice actually accomplishes retributive purposes, perhaps better than conventional punishment does.
Howard Zehr developed a much-used diagram illustrating the difference between what he called retributive justice and restorative justice. More recently he has moved away from his earlier position that the two were polar opposites, apparently convinced by Conrad Brunk that this conceded too much to retributivists.
Others, however, argue that retribution is antithetical to restoration; if the purpose of justice is to repair harm, how can that be done by inflicting harm? Lode Walgrave is one of the most articulate proponents of this position.
Still others had never been convinced that the two were in opposition, reasoning that restorative outcomes require something of the offender, something they would not have done if not for the outcome.
Following are articles exploring these issues:Zehr, Howard. Changing Lenses: A New Focus for Crime and Justice.
This essay examines common assumptions about crime and justice, which it terms a "retributive" lens or paradigm, and considers historical, biblical and practical alternatives. A "restorative" model is proposed that is based on the needs of victims and offenders, past ways of responding to crime, recent experiments and biblical principles. Topics include: the experience of crime; justice as paradigm; community justice; covenant justice; and the victim-offender reconciliation program and the role of the church.
Brunk, observing a lack of philosophical investigation of restorative justice by philosophers and even by advocates of restorative justice, examines key issues relating to restorative justice. His aim is to demonstrate the advantages of restorative justice in addressing the questions that traditional philosophical theories of punishment have sought to answer. Fundamental ethical questions or concerns have to do with the justice of legal punishment: should anyone be punished; who should justly be punished; and what forms of punishment can justly be inflicted? Brunk discusses major approaches to these questions: retributive; utilitarian deterrence; rehabilitative; restitutionist; and then restorative. In particular he examines restorative justice in relation to the following: the retributive concern for 'just deserts'; the utilitarian concern for deterrence and social protection; the rehabilitative emphasis on a therapeutic analysis of and response to offenses; and the restitutionist emphasis on an economic construal of and response to offenses. Brunk maintains that each of the other approaches at best addresses only one of the primary ethical and jurisprudential concerns in understanding and responding to offenses. Restorative justice, as against each of the other approaches, provides a much more satisfying, comprehensive, and effective understanding of the nature of wrongdoing and how to respond to it.
Walgrave, Lode. Has Restorative Justice Appropriately Responded to
Retribution Theory and Impulses?
Lode Walgrave observes at the outset of this chapter that no society can survive without rules and enforcement of those rules. In view of this, for centuries the mainstream response in the West to crime has been punishment or retribution by public authorities. Advocates of restorative justice have challenged that approach in recent decades. Along the way restorative justice itself has been challenged. One challenge has been to the opposition between retributive justice and restorative justice. Walgrave, therefore, examines the relationship between retribution and restoration. After clarifying the differences between punishment and restoration, he explores retribution as a major philosophical justification for criminal punishment. He retains one argument for punishment from this philosophical position: namely, punishment as censure of wrongful behavior. This leads to his contention that restoration is a more effective and more ethical way of censuring such behavior. Then, extending his argument through comparison of the essentials of retribution and restoration, he posits that restoration can be seen as a kind of reversed retribution.
- Daly, Kathleen. Does Punishment Have a Place in Restorative Justice?
This paper presents preliminary findings from the South Australia Juvenile Justice Research on Conferencing Project. The author urges colleagues to rethink the oppositional contrast between restorative justice and retributive justice. Her experience from observing family or diversionary conferences in Australia is that routine practices do not reflect a model of strong contrasts.
- Kenya: Justice for the victims, and the nation
- from the article by Ndung’u Gethenji in New Vision: In post-conflict countries, like Kenya in 2008, there are almost never clear winners in the showdown. Thank God for that: such victory usually follows genocide or mass murder, where one side is annihilated. Instead of such murderous clarity, millions of Kenyans must find the political accommodation that secures the sanctity, society and continuity of the nation. That approach is recognised worldwide as a fundamental practice for protecting a fragile peace. The 2004 Report of the UN Secretary-General on ``The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies' asserts that ``we must learn to eschew one-size-fits-all formulas and the importation of foreign models, and, instead, base our support on national assessments, national participation and national needs and aspirations'. The Secretary-General goes on to support the ICC's existence as a necessary part of the array of approaches to finding justice and peace.
- Promoting Restorative Justice for Children
- from the report released by the Special Representative of the Secretary-General on Violence Against Children: Today, more than 1 million children are deprived of their liberty worldwide,and countless children face violent and degrading treatment throughout the criminal justice process. In light of this dramatic situation, it is imperative to promote strategies that provide an alternative to detention and custodial sentences for children. This report examines the potential of restorative justice programmes to facilitate conflict resolution and provide appropriate protection to children. This applies to the justice system, whether children are victims, offenders or witnesses, but it also applies in a range of other contexts, including at school, in residential care units, in social welfare settings and in the community.
- Juvenile crime rises after Newman government cuts rehab program
- from the article on the Brisbanetimes.com.au: The president of the Queensland children's court has urged the Newman government to re-instate a juvenile offenders' program it cut at the start of 2013. With the latest statistics showing an increase in juvenile offenders, Judge Michael Shanahan criticised the government's decision to end the court-ordered Youth Justice Conference program.
- Shirley on Violent juveniles serving life without parole: When victims of crime disagree
- I think juvniles need another çhange they let alot of people out that kill.
- Healing memory, ontological intimacy, and U.S. imprisonment: Toward a Christian politics of "good punishment" in civil society
- from the article by James Logan in Law and Contemporary Problems: ....Christian moral theology focused on criminal justice contributes to society by imagining and translating something of the “peaceable” virtues of “good punishment” into better state-sponsored practices of criminal justice. I hope to persuade civil authorities and the public to pursue forms of criminal sanction that do not function under the alienating spell of retribution as the primary purposeful aim of punishment. For the past several years, I have been developing and refining a theological ethics of good punishment most significantly by way of a reconstructive critique of Stanley Hauerwas’s theological ethics of punishment.
- Carolyn Shadle on Controversies around restorative justice
- Thank you for bringing Restorative Justice to light. You may be interested in this adult curriculum which enables small study groups to learn about R.J. [...]
- Review: Why Punishment? How Much?
- Why Punishment? How Much? Editor Michael Tonry, Oxford University Press, New York, 2011 publication , www.oup.com, Hardcover 443 pages reviewed by Eric Assur Those interested in restorative justice (RJ) will often only explore the world of the contemporary justice scene through literature which largely reflects on the application of RJ in all of its flavors over the past two or three decades. This punishment collection with a catchy title, edited by a Univ. of Minnesota law professor, looks at the bigger picture with RJ providing one slice of the larger discussion.
- justice and understanding
- Dear Anne, Thank you for your comments. Your questions are good ones and point to why restorative processes are useful. The context of the dialogue [...]
- "woman must wear idot sign"
- Thank you for your article. In my opinion without understanding, there can be no true justice. Ms. Parker, I would add some further questions to [...]
- Justice denied: Our worst retreat since Dunkirk
- from Peter Hitchens' column in Mail on Sunday: In my Mail on Sunday column last Sunday (11th November) I promised a fuller account of the scandalous downgrading of serious crime by the authorities in England and Wales ( I have not made a similar analysis of Scotland, which has its own separate legal system, but suspect something similar will be under way there). What was most distressing was to receive several personal confirmations of police uninterest in pursuing quite serious matters. The use of so-called ‘restorative justice’ to negotiate a supposed reconciliation between criminal (or in value-free jargon ’offender’) and victim is a growing part of this array of devices to reduce pressure on prisons, massage crime figures downwards and give the illusion of action. Here is what I have found.
- Justice? What about understanding?
- by Lynette Parker Scrolling through RSS feeds I saw a link for, “After driving on sidewalk to pass school bus, woman must wear ‘idiot’ sign.” I admit clicking the link to see what it was about. The first line quotes someone as declaring, “Justice has been served!” before going into how a woman had driven on a sidewalk to get around a parked school bus with children on it. The penalty was to stand near the scene of the incident wearing a sign that says, “Only an idiot would drive on the sidewalk to avoid the school bus.” She will also pay a $250 fine.
- Review: The Collapse of American Criminal Justice
- reviewed by Michael Corbin on Crime and Punishment: “The rule of law has vanished in America’s criminal justice system.” That is how Harvard University Press begins its description of last year’s The Collapse of American Criminal Justice--Harvard professor William Stuntz’s magisterial, synoptic look at our country’s system of punishment.
- Book Review: The Machinery of Criminal Justice
- from the review by Andrew Taslitz on Jotwell: ....Bibas’s new book, The Machinery of Criminal Justice, is so humane and thoughtful an analysis of the reforms needed in our criminal justice system that I find myself drawn to giving him still more good press....Bibas’s argument turns on three central ideas: (1) the system pretends to a mechanistic efficiency deaf to the emotions and meaningful expressions that undergird any sound system of criminal justice; (2) lawyers and other experts have hijacked the system to serve their own needs, displacing defendants, victims, and even judges; and (3) the political forces at work are skewed toward undue penal harshness and elite control rather than adequately balanced by informed lay participation.
- Restoring a sense of justice in broken communities
- from Stephen Moffatt's entry on Open Democracy's 50.50: Last summer major cities in the UK saw serious urban unrest for the first time in a generation. The underlying causes, reasons for the rapid escalation and reaction of public services to the unrest have been the subject of several studies, notably Reading the Riots ↑ and the Independent Riots Communities and Victims Panel ↑ , whose work continues. The evidence that emerged has already established a clear link between deprivation and rioting, a fact acknowledged by the Independent Riots Panel in their interim report.
- Even murderers can be changed for good
- In relation to the argument that someone who decides to take a life has lost his/her humanity and therefore deserves to be treated as such [...]
- So, what's the punishment?
- by Lynette Parker I have several RSS feeds related to restorative justice, prison reform, and criminal justice. Usually, the headlines speak of unsafe prison conditions and the need for governments to make real changes to criminal justice policy. The articles highlight the problems created by prison crowding that results from an over-reliance on incarceration and pre-trial detention. High levels of recidivism and the lack of rehabilitative programming for prisoners are decried.
- Divine justice as restorative justice
- from the article by Chris Marshall in Baylor's Christian Reflections issue on Prison: The word “retribution” (from the Latin retribuere) simply means “repayment”—the giving back to someone of what they deserve, whether in terms of reimbursement, reward, or reproof. Usually the term is used in the negative sense of punishment for wrongful deeds rather than in the positive sense of reward for good behavior. When the word is used in isolation, it tends to evoke the idea of vengeance or retaliation. When it is paired with the word “justice” however, it implies a more measured delivery of punishment as due recompense for wrongdoing.
- Controversies Around Restorative Justice
- As a long-standing proponent of Restorative Justice and a long-term employee in the criminal justice field, I think media and elections will play a big [...]
- Controversies around restorative justice
- from David Belden's article in Tikkun: Restorative justice may be poised for a breakthrough into public awareness. It would be a boon for budget-cutting politicians and taxpayers if only the public could buy into it. For example, in the San Francisco Bay Area it costs around $50,000 to run a juvenile offender through the justice system, not counting the cost of incarceration if there is to be any, versus about $4,500 for a restorative process that typically leaves the victim much more satisfied, the young person reintegrated into the community without even being charged with a crime and much less likely to reoffend, and many community members relieved and grateful. Multiply the criminal justice cost many times for adults locked away for years.
- Mass incarceration
- from the transcript of Religion & Ethics: POTTER: More than two million Americans are now imprisoned, four times as many as 30 years ago. The major reason: mandatory sentencing for non-violent crimes and drug charges. But the war on drugs, declared in the 1980s, has not had the effect its backers predicted. Arkansas Circuit Judge Wendell Griffen has seen the results. JUDGE WENDELL GRIFFEN (Arkansas Circuit Court): Drug use has not declined. All it has done has produced an explosion on our prison population. The whole mandatory sentencing guideline mantra was sort of like the Kool-Aid that we should never have drunk.