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Theory Articles -- Full List

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Achilles, Mary. Will Restorative Justice Live up to Its Promise to Victims?

Several years ago Mary Achilles collaborated with Howard Zehr on an article on the promises and challenges of restorative justice with respect to victims. They raised concerns about what they perceived as the offender-centered nature of many restorative justice programs and practitioners. As she writes in this chapter, Achilles still believes those concerns to be legitimate, yet she is also now inclined to take a more expanded view about the possibility that restorative justice can live up to its promise to victims. Specifically, she sees the promise of restorative justice to be the elevation of victims to the position of stakeholders in a justice process that begins immediately from the point of the harm caused by wrongdoing. With that in mind, she sketches how restorative justice can be the basis for changing the way we respond to victims to their benefit.

Acorn, Annalise. Compulsory Compassion: A Critique of Restorative Justice

At first, writes Annalise Acorn, restorative justice ideas and practices appealed greatly to her. She had deep misgivings about criminal justice as commonly conceived and applied; especially, as she puts it, with criminal justice as a “conflation of justice with punishment as imprisonment – or as any pure infliction of suffering on the wrongdoer.�? Restorative justice seemed so much more right and worthy as an approach to wrongdoing and injustice. Eventually, however, doubts about restorative justice began to chip away at her initially positive assessment. Her growing skepticism came from several sources, including reflection on her own personal experience, her sense of moral intuition, discomfort with what she perceived as a kind of wishful-thinking “romanticism�? in restorative justice perspectives, and analysis of restorative justice concepts. With all of this in mind, Acorn seeks in this book a critical examination of restorative justice. In particular, she critically assesses the claim that restorative justice can successfully bring together the values of love and compassion, on the one hand, and the requirement of justice and accountability, on the other hand. Toward these ends, she discusses the seductive vision of restorative justice; justice and the teachableness of universal love; restorative optimism; sentimental justice; love and justice; compulsory compassion; and restorative utopias.

Allen, Jonathan. Memory and Politics: Three Theories of Justice in Regime Transitions

In his essay, “The Contest of the Faculties�, published in 1798, Immanuel Kant presents an intriguing reflection on the French Revolution. The moral significance of the revolution, he suggests, is to be found, not in any event directly connected to it, but in the reaction of “disinterested sympathy� towards the revolutionary cause on the part of onlookers. Because this response was potentially hazardous and had nothing to do with selfinterest, Kant sees it as the result of a “moral disposition within the human race�, and thus as a moral phenomenon that can never be forgotten. Presumably for Kant, this serves as grounds for hope of moral progress in the form of movement towards a global “federal union� of independent republics, a union that would secure universal peace. Though I am no latter-day Kant, my central aim in this paper is to identify a novel moral phenomenon that is surely as significant, though considerably less exhilarating, than the circumstances noted by Kant in 1798. I am referring here to the remarkable rise of a series of practices and institutions operating at both the national and global level, designed to respond to war crimes, atrocities, human rights abuses, and grave injustices committed by states or political movements against minorities and individuals. Arguably, this is a development that takes its inception in the Nuremberg Trials and the passage of the United Nations Genocide Convention in 1948. The Eichmann Trial of 1961 also played an important role in alerting people to the idea that past human rights abuses require a response in the present; indeed, most of the manifestations of memory politics that concern me here have occurred since this trial. (excerpt)

Archibald, Bruce P. Citizen Participation in Canadian Criminal Justice: The Emergence of “Inclusionary Adversarial� and “Restorative� Models

Changes in how citizens relate to criminal justice are in the air. Perennial demands to “get tough on crime» continue. But as a society, we are “getting smart about getting tough�. As the new Youth Criminal Justice Act and the relatively recent amendments to the sentencing provisions of the Criminal Code attest, Canada is at the forefront of international developments which acknowledge the importance of integrating restorative and more traditional paradigms of criminal justice. Moreover, the character of traditional criminal justice is changing. All of these initiatives are rooted in varying degrees of citizen alienation from what traditionally has happened in our criminal justice system. Individual citizens and identifiable communities are demanding greater participation in the administration of criminal justice. Courts, legislators and criminal justice policy makers are responding to these demands with measures, sometimes ad hoc and sometimes more coordinated, to increase the capacities of those affected by criminal harms, and their procedural aftermath, to participate meaningfully in effective societal responses to these wrongs. Meanwhile there is ferment in the scholarly literature about concepts of citizenship and theories of democracy. This paper is intended to sketch a map of these changes and reflect on the various new trails that are being blazed over what might otherwise be thought to be somewhat familiar territory. (excerpt)

Archibald, Bruce P. Co-ordinating Canada’s Restorative and Inclusionary Models of Criminal Justice: The Legal Profession and the Exercise of Discretion under a Reflexive Rule of Law

The paper outlines the historical origins and current significance of traditional adversarial models of justice (punitive, rehabilitative and corrective), and explains how these have mutated into a model of criminal justice which is procedurally formal but inclusive of victims’ interests. This formal inclusionary model is to be contrasted with the more flexible restorative model which has recently been adopted, in varying degrees and in various guises (for both youth and adult criminal justice), and which operates in tandem with the formal, inclusionary approach. The paper then discusses the manner in which such a hybrid system requires careful professional attention to the exercise of discretion at all levels in order to ensure fairness, equality and effectiveness. Police, prosecutors, defence counsel, judges, correctional officials, various non-legal professionals and lay members of the community must be committed to, and integrated in different ways with, both the formal, inclusionary model and the restorative model in order to ensure these different approaches operate in a mutually supportive fashion rather than being at odds with one another. The full complexity of integrating these different models may not always be appreciated by all participants in the process, including the Supreme Court of Canada, as evidenced even in such otherwise progressive and innovative sentencing decisions as R. v. Gladue and R. v. Proulx. This situation provides new challenges for the legal profession. The paper concludes with an assessment of the capacities of the new integrated system of hybrid criminal justice to meet the goals set for it in the relatively recent sentencing provisions of the Criminal Code and in the policies of the new Youth Criminal Justice Act. (excerpt)

Assur, Eric. Book Review: Devils and Angels: Youth Policy and Crime.

In recent years, youth justice in the UK has increasingly incorporated the language of restorative justice into policy and practice. In her book Devils and Angels, Julia Fionda explores the development of youth justice in the UK and calls for further development of restorative alternatives.

Barnard, Jayne W. Reintegrative Shaming in Corporate Sentencing

The Organizational Sentencing Guidelines were intended to be an organic document to be altered as experience suggests additional ways in which sentencing procedures could be more effective in minimizing criminal activities.201 This Article proposes an amendment to the Guidelines, designed (1) to increase the likelihood of corporate self-reporting of crimes and cooperation with investigators in determining the scope and extent of a corporation’s crime, and (2) to increase the likelihood that corporations— especially public ones—will be more attentive to legal compliance values, and more assiduous in establishing internal compliance programs. Both of these objectives are salutary and achievable. (excerpt)

Barsh, Russell Lawrence. Evaluating the Quality of Justice

Barsh, a professor at a Canadian university, notes different meanings for the concept "justice," depending on one's cultural context. For example, non-Aboriginal students tended to define justice as equality before the law. Aboriginal students tended to speak of harmony or related ideas. Barsh observes that there have been few empirical studies hazarding a measurement of the extent to which modern Western legal systems apply rules equally. There are even greater challenges to meet before attempting to measure "justice" in the Aboriginal sense. He then discusses possible indicators or measures for evaluating justice in the Aboriginal sense.

Batley, Mike. Restorative justice in the South African context.

Batley’s article focuses on what restorative justice does and does not mean. He quotes the “four Rs� coined by Rev. Don Misener as the cornerstone of the restorative justice philosophy: facing reality, accepting responsibility, expressing repentance, knowing reconciliation and making restitution. Batley then addresses common criticisms of restorative justice, i.e. not fitting the thinking of legal practitioners, being a soft option, increasing the number of offenders, and not effectively addressing the issues it claims to. In response to these criticisms, Batley describes the common misconceptions of restorative justice and explains how these misconceptions lead to the criticisms outlined. Especially interesting is the analysis of restorative justice in light of different theories of the purpose of the criminal justice system. Abstract courtesy of the Marquette University Law School-Restorative Justice Initiative http://law.marquette.edu/cgi-bin/site.pl?2130&pageID=1831

Bazemore, Gordon and Bell, Dee. What is the Appropriate Relationship Between Restorative Justice and Treatment?

Inquiring into the appropriate relationship between restorative justice and treatment, Bazemore and Bell make the following points. Treatment programs, no matter how effective, are not restorative in themselves. However, they can be carried out in more or less restorative ways when they account for the needs of victims and the community as far as possible. As for restorative justice, it can sometimes be rehabilitative. That is, it can be rehabilitative because it does not frame the problem as something that is wrong with the offender that must be “fixed� by professionals. Rather, it frames the problem as a problem for a support group around the offender, and that support group can provide a solution that will increase the likelihood of offender (and victim) reintegration. On these bases, Bazemore and Bell argue that there are ways for restorative justice to maximize this potential for offender rehabilitation.

Bazemore, Gordon and Walgrave, Lode. "Restorative juvenile justice: In search of fundamentals and an outline for systemic reform."

The authors observe that support for restorative justice has converged with other emerging movements: the victims' movement; community-oriented policing; indigenous dispute resolution and justice; the women's movement; and critiques of just deserts perspectives and of traditional juvenile justice approaches. Hence, it is not surprising to find considerable ambiguity and even tension over core values and definitions in restorative justice. With all of this in view, Bazemore and Walgrave attempt to describe what is fundamentally common concerning the definition of restorative justice. They identify core principles or values of restorative justice. Then they apply these ideas and principles to juvenile justice to outline systemic reform of juvenile justice in terms of a restorative paradigm.

Berzins, Lorraine. "Perspectives on Achieving Satisfying Justice: The Challenge before Us.

Within a Canadian context, the author argues for a new approach to criminal justice that seeks an overall positive, healing purpose, for victims and communities as well as for offenders and their families, instead of the punitive, adversarial philosophy she claims exists.

Bibas, Stephanos and Bierschbach, Richard A. Integrating Remorse and Apology into Criminal Procedure

As Stephanos Bibas and Richard Bierschbach observe, remorse and apology are powerful forces in everyday life. Expressions of remorse and apology are required or ritualized in many spheres of life xe2x80x93 family, religion, and politics, to name but a few. People value remorse and apology because they promote healing of emotional wounds, teach moral lessons, and foster repair of damaged relationships. Bibas and Bierschbach also note how significant these expressions can be in the criminal arena. Victims and victimized communities often experience remorse and apology as essential elements of justice in the aftermath of crime. Yet, the authors point out, remorse and apology play little role in criminal procedure. In the assembly line approach to criminal justice, these expressions figure in at most as indicators that individual defendants are less bad and hence deserving of less deterrence, incapacitation, or retribution. Bibas and Bierschbach characterize this defendant-centered approach to remorse and apology as the xe2x80x9cindividual badness model.xe2x80x9d The authors criticize this approach and argue instead for remorse and apology as fundamental to social interactions and relationships. Referring to this as a multi-actor perspective on remorse and apology, they term it the xe2x80x9crelational approach.xe2x80x9d In this paper then, Bibas and Bierschbach explore remorse and apology as powerful rituals for offenders, victims, and communities xe2x80x93 rituals that should be incorporated into criminal procedure.

Bilz, Kenworthey and Darley, John M. What's Wrong with Harmless Theories of Punishment

In Part I, we show that when discussing particular punishment policy proposals, academics usually insist that one cannot be both a consequentialist and a retributivist at the same time; and policies that purport to do both simultaneously are assailed as incoherent. In Part II, we challenge this conclusion, by arguing that neither retributivism nor consequentialismxe2x80x94in either their pure or hybrid formsxe2x80x94can address the issues at play in a typical punishment policy debate. This is because both are indeterminate when it comes to telling us who and what to punish, and how much. Part III is the heart of our Article. There, we use findings from philosophical and empirical literature to suggest an alternative approach to understanding the purposes of punishmentxe2x80x94one that focuses on a more sophisticated specification of the harms of crime. In this part, we describe the nature of the harms of crime generally, and also offer a specific schedule of potential candidates for the harms of crime. We also describe the nature of disputes about these harms; namely, that various harms either are or are not empirically real or morally worthy of recognition. We also offer two examples of how specific punishment policy debates would look different, if they focused on harms instead of on punishment philosophies. Finally, in Part IV, we offer an illustration of how the recognition of diverse crime harms can be addressed by one especially flexible and creative approach to criminal punishing: restorative justice. In this final part, we argue that a multiplicity of harms can often best be cured with a multiplicity of punishments. We also describe how several scholars are currently criticizing restorative justice for its failure to commit to a (standard) purist punishment philosophy, and we caution that forcing it to do so undermines its genuine potential for improving punishment regimes. (excerpt)

Botchkovar, Ekaterina V. and Tittle, Charles R.. Crime, Shame, and Reintegration in Russia

The article begins with an extensive examination of shaming theory and prior research relating to it. Braithwaite’s shaming theory posits that reintegrative shaming inhibits future misbehavior and that those who participate in the shaming process are less likely to misbehave in the first place. Based on this examination, the authors hypothesize that: 1) participation in shaming is negatively associated with misbehavior; 2) having been reintegratively shamed is negatively associated with misbehavior; and 3) stigmatizing experience is positively associated with future misconduct. Four subsidiary hypotheses were also examined. Data were collected from interviews conducted in July and August 2002 with 224 Russian citizens, of which 70 percent were women. Dependent variables measured were the chance of personally committing one of four specific offenses; independent variables were participating in gossip, being reintegratively shamed, and being disintegratively shamed. Analyses of the data resulted in mixed evidence about shaming theory. The results suggest that contrary to the contention that reintegrative shaming would have a positive effect while disintegrative shaming would have a negative effect, the results provide evidence that shaming of any kind, whether reintegrative or disintegrative, may have negative consequences. The findings also show that participating in gossip is unrelated to future deviance and that guilt or fear of losing respect for others for potential misbehavior do not seem to be related to past shaming experiences nor do they mediate supposed relationships between past shaming experiences and misconduct. These findings, along with previous research, suggest that shaming theory may need further refinement. Study limitations are discussed. Abstract courtesy of the National Criminal Justice Reference Service, www.ncjrs.gov.

Boyes-Watson, Carolyn. Seeds of Change: Using Peacemaking Circles to Build a Village for Every Child

Roca, Inc., a grassroots human development and community organization, has adopted the peacemaking circle as a tool in its relationship building with youth, communities, and formal systems. Circles are a method of communication derived from aboriginal and native traditions. In Massachusetts, the Department of Social Services and the Department of Youth Services are exploring the application of the circle in programming with youth and families. By providing a consistent structure for open, democratic communication, peacemaking circles enhance the formation of positive relationships in families, communities, and systems. The outcome is a stronger community with greater unity across truly diverse participants. This article presents the theory and practice of peacemaking circles, the lessons and challenges of implementing circles in formal organizations, and the potential of the circle to support a strengths-based and community-based approach to child welfare. Author's abstract.

Braithwaite, John. Restorative Justice and a Better Future

This essay discusses the principles of restorative justice from the perspective of a case involving a robbery. Through a restorative justice conference, Sam and his victim find the social support they need to repair the damage and find healing. Combining reintegrative shaming crime theory with the principles of restorative justice offers a fundamentally different approach that contains cultural universals, that offers an alternative to retribution and rehabilitation, and can restore harmony based on a feeling that justice has been done. The social movement imbedded in restorative justice will continue to grow because it works for the people most directly involved.

Braithwaite, John. Restorative Justice: Theories and Worries

In this paper I consider a set of theories that increasingly seem to have strong relationships with one another-- theories of reintegrative shaming, procedural justice, unacknowledged shame and defiance-- that offer an explanation of why restorative justice processes might be effective in reducing crime and accomplishing other kinds of restoration. Some of these theoretical claims are sure to be proved untrue by the kind of R & D advocated here. Equally, where these theoretical claims turn out to be true, we will find that the potential of this truth has not been sufficiently built into the design of restorative justice programmes. (excerpt)

Braithwaite, John. The Evolution of Restorative Justice

A new Western wave of restorative justice began with victim-offender mediation programmes in Canada and the United States in the 1970s. Then at the end of the 1980s family group conferences more like the one used in the story of Hiroshi were first developed in New Zealand. Since then there has been a proliferation of new and varied models of restorative justice. My contention is that the defining thing they have in common is that they are a process where all the stakeholders affected by a crime can come together to discuss the consequences of the crime and what can be done to right the wrong. (excerpt)

Bucqueroux, Bonnie. Restorative Community Justice: A Comprehensive Approach to Reducing Crime and Violence in Our Culture

While the United States has made dramatic strides in reducing the crime rate in recent years, the gains have come at the price of the world's highest rate of incarceration and crime rates are still too high and communities continue to suffer. This paper on Building a Restorative Community Justice model offers a vision of an effective alternative to the fragmented criminal and juvenile justice systems of today, as well as a three-phase plan to make this vision a reality: 1) Develop a Restorative Community Justice model - Synthesize the essence of the major criminal and juvenile justice reforms into a comprehensive, system-wide Restorative Community Justice model. 2) Promote learning organizations - Transform police, prosecutors, courts and corrections into Learning organizations that can apply systems thinking to changing times and new challenges. 3) Strengthen Communities - Create capacity within communities so that they become full partners in the process of merging formal and informal social control into a unified, community-based approach. (excerpt)