Conceptual Issues and Justifications

These articles consider a variety of theoretical or conceptual (as opposed to practical) issues posed by restorative justice practice.

Consedine, Jim. Restorative Justice – Creative Peacemaking.

This article outlines the problems with a purely retributive view of justice. It goes on to describe principles of Biblical justice and restorative justice.

Cunneen, Chris and Hoyle, Carolyn. Debating restorative justice.

In this first volume of the series Carolyn Hoyle argues that communities and the state should be more restorative in responding to harms caused by crimes, antisocial behaviour and other incivilities. She supports the exclusive use of restorative jsutice for many non-serious offences, and favours approaches that, by integrating restorative and retributive philosophies, take restorative practices into the 'deep end' of criminal justice. While acknowledging that restorative justice appears to have much to offer in terms of criminal justice reform, Chris Cunneen offers a different account, contending that the theoretical cogency of restorative ideas is limited by their lack of a coherent analysis of social and political power. He goes on to argue that after several decades of experimentation, restorative justice has not produced significant change in the criminal justice system and that the attempt to establish it as a feasible alternative to dominant practices of criminal justice has failed. This lively and valuable debate will be of great interest to everyone interested in the criminal justice system. (publisher's description).

Daicoff, Susan. Therapeutic Jurisprudence at the Conference of the International Association of Law & Mental Health in Padua, Italy: Growing Pains: The Integration vs. Specialization Question for Therapeutic Jurisprudence and Other Comprehensive Law Approaches

The history and definition of therapeutic jurisprudence and the comprehensive law movement will be briefly discussed, and the current status of training in these movements will be explored. The advantages and disadvantages of integration versus specialization will be debated. Finally, various obstacles to the growth of the movements will be discussed. (excerpt)

Debating restorative justice

Chris Cunneen and Carolyn Hoyle. Debating restorative justice. Oxford and Portland, OR: Hart Publishing. 2010. 195 pp. £15.00 (ISBN 13: 9781849460224) reviewed by Martin Wright This is the first of a new series of law books, each containing two essays of about 30,000 words on different sides of a current debate. Carolyn Hoyle suggests that there is more talk than action, and some of the action called restorative is actually punitive, such as the community service performed in conspicuous clothes. In her discussion of communitarianism she regards community participation as the presence of supporters and others at a restorative conference, but does not refer to the involvement of independent voluntary-sector mediation services (and admittedly they are thin on the ground). She considers that communitarians go too far in rejecting the state. In her view restorative justice and criminal justice are complementary: courts are necessary if the accused doesn’t admit involvement. This is true; Hoyle does not exclude the use of prison for retribution, but surely in a fully restorative system the courts would impose reparative, not punitive, sanctions. She does not explore whether these should try to be proportionate to the offender’s culpability or the harm suffered by the victim.

Dignan, James and Cavadino, Michael. Towards a framework for conceptualising and evaluating models of criminal justice from a victim's perspective

Recent empirical findings and theoretical writings are reviewed in order to evaluate 3 distinct models of restorative justice within a typology of victim-based measures proposed or adopted in the U.K.: the civilian, victim-offender reparation, and communitarian approaches. The communitarian model is the most coherent, credible and constructive challenger to the hitherto predominant retributive model. This model avoids many of the criticisms to which earlier alternative models were vulnerable.

Doak, Jonathan. Honing the stone: refining restorative justice as a vehicle for emotional redress.

Commentators have frequently claimed that restorative justice (RJ) programs hold the potential to deliver therapeutic outcomes. However, if we are serious about integrating a therapeutic agenda into criminal justice, our current understanding of the mechanics of RJ is incomplete. Having established a case for doing justice better, proponents of RJ now need to think in much more concrete terms about the ways in which the process is designed in order to reap a tangible sense of forgiveness, reconciliation, and closure for victims of crime. From the evidence to date, it is suggested that there are four ‘keys’ which may be used to unlock the therapeutic potential of RJ. These are: (1) personal narratives; (2) apology; (3) forgiveness; and (4) procedural justice within restorative programs. A major challenge for future research in the area is to attempt to measure how these aspects of RJ operate at a micro-level to transform emotions.(author's abstract)

Dunn, Jennifer L.. Judging Victims: Why We Stigmatize Survivors, and How They Reclaim Respect

Dunn explores the shifting perceptions over time of victims as blameworthy, blameless, pathetic, or heroic figures. She also links those images to their real-world consequences, demonstrating that they dominate the ways in which people think about intimate violence and individual responsibility. Her analysis cuts to the core of fundamental issues at the center of debates about crime and deviance, victimization, and social problems. (Excerpt)

Elsbernd, Mary. Social Ethics

The survey addresses recent publications in five areas: (1) foundational resources and approaches; (2) Catholic social thought; (3) faith and public life; (4) reconciliation and social conflict; and (5) environmental and economic ethics. Recurring issues include: praxis-based approaches, the common good and human rights, religion's role in public life, restorative justice, as well as attention to the marginalized. Author's abstract.

Faget, Jacques. Epistemological Reflections on the Evaluation of Restorative Justice Practices

This paper presents a reflection on the reasons which motivate the evaluation of restorative justice practices. In a social and institutional domain crowded with believes and symbols it debates what this need for understanding means. With the help of simple questions: who evaluates, for what reasons, what is evaluated and how, it proposes to researchers a small exercise in scientific hygiene useful for both improving their necessary distance and for understanding better the difficulties of evaluative reasoning within the field of restorative justice. (author's abstract)

Fairness, justice and restoring lives

from the article by Steven Teske on Juvenile Justice Information Exchange During a hot summer day, daycare workers removed children from a van, except one — Jazzmin Green. She was two years old. Sixteen-year-old Miesha Ridley was responsible for checking off the names of the children as they were removed. There was a mark next to Jazzmin’s name. An hour passed before anyone noticed she was missing. They found her in the van unconscious — still strapped to her car seat. She died from the heat. Miesha and two adult workers were arrested. Miesha admitted to voluntary manslaughter — it was time for disposition. Jazzmin’s parents made it clear that anything other than prison for Miesha would be “unfair.” They just buried their child and the pain was eating at them. During the hearing, Mr. Green shared these feelings of unfairness and asked that “justice” be done.

Gabbay, Zvi. Justifying Restorative Justice: A Practical and Theoretical Justification for Restorative Practices.

As proponents of restorative justice, we tend to believe that these processes should be integrated into the criminal justice system because they work, they make sense and they address the real needs of the people. To us, the justification for using restorative practices in almost self evident , However, the truth is that most criminal justice practitioners are extremely skeptical about these processes, and are concerned with their feasibility, effectiveness and theoretical justification. If we want the justice system to employ restorative practices we must address these concerns. In this paper I will first present evidence that shows the potential of the restorative practices to better address victim’s interests, the way in which the criminal justice system is perceived and the effectiveness of this system. Them I will demonstrate the theoretical compatibility of restorative practices with the two main theories of punishment: retribution and deterrence, hence providing a theoretical justification for the use of restorative processes. (excerpt)

Gabbay, Zvi. Restorative Justice: A Passing Trend or a Fundamental Change in Public Response to Crime.

This thesis describes and analyses the restorative justice paradigm and its various practices in the United States and its role within the criminal justice system. More specifically, it argues that restorative justice practices are compatible with dominant punishment theories and can improve the current public response to crime, but only if they are held accountable and applied in the appropriate cases. The dissertation consists of three articles entitled "Justifying Restorative Justice: A Theoretical Justification for the Use for Restorative Justice Practices," "Holding Restorative Justice Accountable: Using Democratic Experimentalism to Monitor and Evaluate Restorative Justice Programs in the United States," "Exploring the Limits of the Restorative Justice Paradigm: Restorative Justice and White-Collar Crime," and a fourth essay that highlights the overarching themes and explains the connections between the three articles. (author's abstract).

Gelb, Karen and Freiberg, Arie. Penal Populism, Sentencing Councils and Sentencing.

Penal Populism presents theoretical perspectives on the role of the public in the development of sentencing policy. It places particular emphasis on the emerging role of sentencing commissions, advisory councils or panels in a number of English speaking countries: Australia, New Zealand, the United States, the United Kingdom (including Scotland), and South Africa. (publisher's description)

Gerkin, Patrick M.. Who owns this conflict? The challenge of community involvement in restorative justice.

As an alternative means of achieving justice, restorative practices are touted as community based. The ownership of decisions regarding the response to crime belongs to the key stakeholders, including victim(s), offender(s), and members of the community, both large and small. Each is invited to participate and through their participation, the stakeholders come to own the justice process and its outcomes. One challenge facing restorative practices lies in getting the community to participate. Without the community, several aspects of justice that are restorative, including forgiveness, support for participants, and reintegration are unlikely outcomes. This research examines community involvement in a victim–offender mediation program through observation and analysis of the agreements produced. The findings suggest that while restorative justice is theorized as community based, the community, in this case, appears absent. (author's abstract)

Grant, Bruce Wallace Charles. Adapting Western-Based Restorative Justice Models to Account for Cultural Distinctiveness

Are cultural assumptions and biases inherent in the theory and practice of victim-offender mediation (VORP), and if so, what are they? How, if at all, do cultural factors affect the overall experience and outcome for participants of a victim-offender facilitation? Is it possible for a Western-based VORP model to accommodate the cultural needs, traditions, beliefs, and norms of a minority cultural group such as the Indo-Canadian community, and if so, how? This action research project integrated what is already known in theory and practice by exploring the role of cultural analysis and cultural experts in the development of suitable models of restorative justice. The research examined the flexibility of the VORP model and the willingness/ability of the participants to adapt the model to account for and better suit their cultural variances. The research looks at the broader implications of the findings for restorative justice practitioners and other multi-cultural conflict settings. Author's abstract.

Greentree, Louise. Conversion: the overlooked and underrated element in restorative practices?

The theory of restorative practices is focused on three areas or elements that make up the foundation for the process: the first area is shame theory, the second area is restorative versus retributive theory and the third area focuses on the healing qualities of repentance and forgiveness. The three areas together provide a compelling argument in favour of restorative practices and give an explanation of why restorative conferences are effective in criminological, sociological, psychological and spiritual terms. (excerpt)

Gromet, Dena M. and Darley, John M. Political ideology and reactions to crime victims: Preferences for restorative and punitive responses.

We investigate the hypothesis that there are ideological differences in views about how crime victims can be restored. Across two studies, we found that liberal responses to victimization (Study 1) and crime (Study 2) are more reflective of a reparative mindset that directly addresses the needs and concerns of victims, whereas conservative responses are at least equally reflective of a punitive mindset that addresses victim harm through offender punishment. Furthermore, the salience of victim concerns, and whether people could carefully evaluate their judgments, affected the expression of these differing justice mindsets on people's satisfaction with the use of restoration and punishment in response to serious wrongdoing. When participants' cognitive resources were depleted, liberal satisfaction remained constant, whereas conservative satisfaction with the use of restoration decreased when victim concerns were salient. These results indicate that there are ideological differences in the adoption of both punitive and reparative justice mindsets, which can facilitate differing responses to victim concerns. (Author's abstract)

Gromet, Dena M. and Darley, John M.. Retributive and restorative justice: Importance of crime severity and shared identity in people’s justice responses.

Retributive and restorative justice present two different responses to wrongdoing: one that focuses on addressing the moral wrong through punitive sanctions (retribution) and one that focuses on addressing the harm that has been caused through reparative sanctions (restoration). Psychological investigations of what factors influence which justice outcome that people desire (retributive, restorative, or both) have focused on two constructs: crime severity and shared identity. The crime severity approach contends that people can have multiple justice goals, and which justice goals people want to fulfil is dependent on the salient features of the situation (such as offence seriousness). The shared identity approach argues that people’s desire for restoration or retribution is dependent on the shared identity and perceptions of value consensus between offender and victim in the judgement context. The findings related to both of these factors are reviewed, and possibilities for future research integrating these two approaches are discussed. (author's abstract)

Group-Conflict Resolution: Sources of Resistance to Reconciliation

To what extent can insights from apology and forgiveness in dyadic disputes be imported into the group conflict context? How might differences between the two types of disputes necessitate differing dispute resolution techniques? How is disputant resistance to conflict resolution changed or amplified in the group-conflict context? These questions are the focus of the articles published in the spring 2009 issue of the journal Law and Contemporary Problems. The articles grew out of presentations made at a conference organised by the Law and Human Behavior progamme at Vanderbilt University Law School with financial assistance from the Andrus Family Fund.

Gunderson, Gregory Gilbert and Zeigler, Sara L.. "The gendered dimensions of conflict's aftermath: a victim-centered approach to compensation."

In this essay, we first identify the ways in which women's interests are disregarded and sacrificed as peace agreements are reached, criminal courts and tribunals are established, and relief efforts are planned. Incorporating reports from nongovernmental organizations (NGOs), the UN, and news accounts, we assess the ethical problems with what might be called a "perpetrator-centered" approach to coping with conflict's aftermath that exacerbates and prolongs women's suffering. Not only do conventional trial procedures dismiss the victims' trauma and needs as secondary to the process of adjudicating the question of the perpetrator's guilt, but many also privilege the right of the accused to confront and question the victims over the additional suffering the victims must endure in giving testimony. (2) After delineating the gendered effects of conflict, we then study the operation of compensation boards following recent conflicts. (3) Even in those instances in which rape has been specifically identified and prosecuted as a war crime, existing structures fail to provide significant relief to female victims, as they neglect the underlying social, cultural, and economic practices that reinforce patriarchal systems, and thus hold women accountable for their own victimization; the traditional legalistic models that are typically employed in peace settlements and tribunals simply fail to meet the needs of the victims. (4) Finally, in response to the limitations of peace agreements and tribunals in addressing human suffering, we identify an alternative model for conducting such negotiations and for securing restitution to the victims of wartime abuses and their effects--a "victim-centered" approach to war crimes adjudication and compensation procedures. (excerpt)