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Retribution and Restoration

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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)

Claassen, Ron. "The Myth of Redemptive Violence: Restorative Justice Challenges the 'Myth of Redemptive Violence

This is one in a series of papers on basic principles of restorative justice. In it Claassen refers to Walter Wink's assertion that our society's preferred response to violence is vengeance, which Wink labels as the "myth of redemptive violence" - the belief that violence is a necessary and appropriate response, and even healing for the victim, especially when administered by the state on a victim's behalf. Against this, Wink points out that Jesus rejected violence as a constructive way of responding to a wrong or injustice, and Wink helps us to understand that there are alternatives to violence

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.

Daly, Kathleen. Revisiting the relationship between retributive and restorative justice

Convinced that this is a critical issue for advocates of restorative justice, Daly raises the question of the role of punishment in restorative justice. She frames the question largely in relation to certain restorative justice processes -- namely, family conferences as used in response to youth crime in Australia and New Zealand. Her discussion proceeds through elaboration of a series of points or assertions about retributive and restorative justice: (1) the retributive-restorative oppositional contrast is wrong; (2) there are key differences in traditional and restorative justice; (3) restorative justice processes and outcomes are alternative punishments, not alternatives to punishment; (4) there is reason to assert a complex meshing of censure, symbolic reparation, restorative processes, and "just-ness"; and (5) there are ethical problems in the practice of restorative justice.

Editor. "Simple Society" Statements Focus on Restorative vs. Retributive Justice

The New Hampshire-based Simple Alliance for Human Empowerment recently organized an electronic dialogue on restorative vs. retributive justice. The "Simple Society" was established in 1993 by John Watkins, who was motivated by his conviction that there are infinitely simpler, more cost-effective and more humane approaches to most of society's problems. According the group's Website (http://simsoc.org), "Complexity is not only a significant barrier to solving problems, it may have become the principal problem. (Watkins) believes that complexity is the result of a fragmented approach to problem solving. The fragmented approach is usually caused by the lack of a unified vision of principled human relationship." In this issue, we reprint edited versions of the "opening statements" of several of those persons who participated in this dialogue. (excerpt)

Garvey, Stephen P.. Forum on Liberalism and Punishment: Lifting the Veil on Punishment

State punishment of a person involves a variety of possible actions including taking away that person’s property, incarcerating the person, and other forms of interfering with his or her liberty. Theories of punishment seek to explain the moral permissibility and even obligatory nature of such actions. These theories, Stephen Garvey comments, often seem to assume that the state in question is an upright one. In reality, however, states and their criminal justice systems are morally ambiguous and flawed. This leads Garvey to ask this question: if an ideal state is morally permitted or even obligated to punish, can the same be said of morally ambiguous states like the real ones in which people live? Furthermore, if the answer is yes, then what principles must guide such flawed states in order to give legitimacy to the punishment they impose? With particular reference to ideas presented in Sharon Dolovich’s 2004 article on “Legitimate Punishment in Liberal Democracy� (Buffalo Criminal Law Review 7: 307), these are the questions Garvey explores in this paper.

Immarigeon, Russ. What is the Place of Punishment and Imprisonment in Restorative Justice?

Restorative justice measures, along with other alternative responses to crime, have been promoted for a number of reasons, including the hope that they would significantly challenge and even replace incarceration as a dominant response to crime. However, remarks Russ Immarigeon, the part of the restorative justice vision that linked it to incarceration has changed or faded as the movement ages, except perhaps as efforts to apply restorative justice inside prisons, even to the point of using it as a set of guidelines for the operation of prisons. Against this background, Immarigeon argues that restorative justice measures rarely divert anyone from prison, particularly in the United States. Instead, restorative justice sentences commonly increase the burden of these sanctions on those who are convicted. All of this leads Immarigeon to speculate whether restorative justice measures are challenging and replacing current criminal justice practices, or whether they are being captured or co-opted by mainstream policies and practices.

Kaptein, Hendrik. Against the Pain of Punishment: Retribution as Reparation through Penal Servitude

While restorative justice ideas and practices have gained considerable currency and approval in criminology and criminal justice, questions have also arisen, writes Hendrik Kaptein. For example, typical restorative justice measures, such as victim-offender mediation, may be adequate for certain kinds of lesser crime, such as property crime. Yet would restorative justice processes be adequate for more serious and violent crime, such as murder? Is it the case that, for some kinds of crime, punishment as infliction of pain for public purposes is inescapable? As restorative justice is commonly construed and advocated, retribution and restorative justice are seen as incompatible. Is there an insurmountable predicament, then, between restorative justice and retribution when the whole scope of crimes is considered? Kaptein argues for a way out of the predicament through reinterpretation of retribution as "to pay back, to restore, in contrast to its current 'meaning' in terms of hitting back in kind or worse." In other words, retribution should mean that "offenders are to completely compensate for what they did wrong." Retribution understood as complete compensation for victims by offenders is thus to replace punishment as suffering.

Rowland, Amy. Care and Punishment: Imagining an Integrated Response to Wrongdoing

Traditional theories of state-sanctioned punishment, specifically retributivism and deterrence, are critiqued from a feminist ethic of care perspective. The argument is made that the integration of care-based reasoning into punishment theory is essential to the development and practice of punishment as a fair and just institution. The argument rests on the premise that the care and justice theories are best understood as complementary, each lending critical contributions to our understanding of fair and reasonable practices. Two sub-theses are developed: the ideal, in which it is argued that care theory gives us reason to re-conceptualize our responses to wrongdoing in ways that are not dependent on punitive measures, and the non-ideal, in which it is argued that care-based reasoning can address some of the shortcomings of traditional theories and practices, particularly those relating to concerns about human dignity and respect, and can provide justifications for improvements. Author's abstract.

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.

Walgrave, Lode. Imposing Restoration Instead of Inflicting Pain

Lode Walgrave begins from the perspective that restorative justice fundamentally consists of doing justice by repairing the harm of crime inflicted on the victim and the community, and even social damage which the offender caused to himself or herself by the offense. Hence, in contrast to both punitive and rehabilitative justice, restorative justice is not primarily characterized by the kind of action to which the offender must submit. Indeed, restorative justice can proceed rather far without the involvement of the offender. In this view, the involvement of the offender is primarily a matter of enhancing the restoration of the victim and addressing public confidence. Only secondarily is it a matter of possibly influencing (i.e., deterring or rehabilitating) the offender. Furthermore, Walgrave states that the quality of restoration will be significantly improved if the offender cooperates freely. Nevertheless, for a variety of reasons, coercion may be needed and may be imposed by the judicial system. With all of this in mind, Walgrave devotes the majority of his paper to an examination of the coercive imposition of obligations on the offender in view of restoration. More specifically, he explores two significant issues: whether coerced restorative sanctions undermine the essential elements of the restorative approach; and whether a systemic, restorative approach to crime can be inserted into the principles of a constitutional state.