Retribution and Restoration

Is there a role for punishment in restorative justice? And if so, how would its use be different from punishment as we use it now?

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)

Ellwanger, Joseph W.. Restorative Justice vs. Retributive Justice.

[1] “Restorative justice” is a concept that has been written about, talked about, and argued about. However, only a few people have actually been engaged in the practice of “restorative justice.” Fortunately, the number of such practitioners is growing, and the faith community is discovering that restorative justice is closely related to such biblical truths as redemption, reconciliation and healing.(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.

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.

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.

Internally displaced people in Colombia: Victims in permanent transition

by Dan Van Ness I have just received a copy of a research study on the peace negotiations in Colombia: Internally displaced people in Colombia: Victims in permanent transition: Ethical and political dilemmas of reparative justice in the midst of internal armed conflict by Sandro Jiménez Ocampo, et al. From 2004 to 2007, the Colombian Government conducted peace negotiations with paramilitary groups. One of the issues negotiated had to do with the claims of people who had been killed or forcibly displace from their land, lands that were held by the combatants when the negotiations began. Forced displacement and deaths continued during the course of the negotiations, creating new claims. While reparation to victims was supposed to be a prominent outcome to the negotiations, the difficulties of negotiating peace in the course of a violent conflict together with the absence of the victims of displacement from the negotiation meant that there were claims of serious inadequacies with the results.

It's time to make the punishment fit the white-collar crime

from the Nelson Mail (NZ) editorial: ....it's not easy to maintain a clear-eyed focus on justice. Very few New Zealanders will feel that this is what happened when Blue Chip co-founder Mark Bryers entered the dock on Thursday to be sentenced on 34 charges. Most, and particularly the Blue Chip investors who have lost their nest eggs, will feel that his sentence was a perfect case of the "slap on the wrist with a wet bus ticket".

John Braithwaite video introduction to restorative justice

John Braithwaite is a leader in restorative justice (and in many other fields). He teaches at Australian National University which has now posted an 18 minute video in which he explains the basic theories and applications of restorative justice. It is well done, and is presented in segments, which means it can be used in whole or in part.

Justice and an ethic of care

[Bloggingheads.tv] recently hosted an interesting discussion between two psychologists—Michael McCullough and Dacher Keltner–on the evolutionary role of revenge and its place in contemporary society. The whole discussion is worth listening to but about 28 minutes into the videocast they discuss the idea of restorative justice, which takes repairing relationships to be central to the idea of justice. Repairing relationships is the main feature of an ethics of care as well, and it seems to me this is where an ethic of care is able to fill out our notion of justice.

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.

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.

Levad, Amy. Restorative Justice: Theories and Practices of Moral Imagination.

Criminal justice systems in the United States are in crisis. Currently over 7.3 million adults in the U.S. are under some form of supervision, including probation, prison, and parole, by state, local, or federal criminal justice systems. At midyear 2009, nearly 1.6 million of these people were in prion, and nearly 800,000 were in jail. While these numbers are troubling enough to raise serious questions about our criminal justice systems, discrepancies related to race and ethnicity among prison and jail populations add greater urgency to addressing this crisis. Racial and ethnic minority populations are incarcerated at astounding rates in comparison with whites. This identity crisis suggests that addressing high rates of incarceration as well as the disparities that riddle criminal and juvenile justice systems requires reconsideration of basic ideologies and practices of justice. Among the questions that must arise in this process of reconsideration is whether justice is being realized in any meaningful sense. True, people must face the consequences of their crimes. Bu what do we understand "justice" to mean, and how can we know if it is being realized? What should the nature of our criminal and juvenile justice systems be? What consequences do our interpretations of justice entail for victims, offenders, and our communities in the wake of crime? How should our ideologies of justice be instituted in practice? (Excerpt).

Limiting DNA testing and denying justice to victims

from Lisa Rea, writing at Change.org: But for God’s sake, if we know we have hundreds or thousands of innocents behind bars must we not do everything in our power to set them free if we live in a civilized society? Absolutely. This court ruling will now make this work harder and slower. As I said earlier, crime victims are hurt - not helped - by this ruling. The challenge on top of this urgent need to free those who are wrongfully convicted is to remember then that someone who is actually guilty of that crime is free at large. Ask a crime victim how they would view that fact. Having worked in the restorative justice field for 15 years I can tell you that crime victims want the system to get it right. There can be no restoration of crime victims, nor can there be offender accountability - two key elements of restorative justice, if the real perpetrator is not caught.

Linehan, Elizabeth. Retribution and Restoration: The Two Paths

Using specific examples from the correctional and criminal justice systems, Elizabeth Linehan echoes Nils Christie's characterization of corrections as a 'pain system.' There is, in other words, a basic assumption in this system that the proper response to criminal wrongdoing should involve the infliction of 'units of suffering' in correspondence to the 'units of wrongdoing.' With this in mind, Linehan in this article examines the basic assumptions and operations of our system of criminal justice, based as it is on retribution. She then explores an alternative model based on restoration, a model that she believes is morally superior to the retributive model. She also believes that restorative justice can be practical. To make her argument she surveys key ideas and realities with respect to the nature and use of retribution, compares them with principles and practices of restorative justice, and evaluates prospects for the consistent and thoroughgoing implementation of restorative justice as the criminal justice system.

Martin Luther King and making amends

from Sanuel Newhouse's articly in Brooklyn Daily Eagle: “Life’s most persistent and urgent question is: What are you doing for others?” This quote by King is helping recovering drug addicts find the wisdom behind restorative justice in the Brooklyn courts. “Martin Luther King Day has really become a day of volunteer work, and encouraging people to do volunteer work,” said Brooklyn Supreme Court Justice Jo Ann Ferdinand, supervising judge of Brooklyn Treatment Court (BTC). Nonviolent drug-offenders and criminal defendants in the BTC receive lesser sentences for successful completion of treatment and courses. Besides basic drug rehabilitation, the BTC mandates that the drug offenders volunteer their time and “give back to the community” that they harmed.

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.

Mayor of London's proposal for restorative justice after the riots

from the entry on CyberborisJohnson: Our Mayor has suggested that restorative justice would be a good way of facing looters with the consequences of their actions. Speaking after this morning’s COBRA meeting, the Mayor of London said that young people involved in last week’s riots would lose their rights to things like free travel, but could earn them back through restorative justice programmes, like his Payback London scheme.

McKee, Ian and Strelan, Peter and Feather, N. T. . Retributive and Inclusive Justice Goals and Forgiveness: The Influence of Motivational Values.

Who is more likely to forgive, given that justice is important and motivating for people? In this article, we argue that the relation between justice and forgiveness depends on the type of justice involved; specifically, the goals of justice, i.e. retributive versus inclusive. We also explored the influence of motivational values on justice goals and forgiveness. Using data from 178 undergraduate psychology students who responded to measures of retributive and inclusive justice attitudes, forgiveness attitudes and dispositions, and values, we found support for our hypotheses that retributive justice goals are negatively related to forgiving attitudes and dispositions; inclusive justice goals are positively related to forgiveness; and benevolence and power values play the dominant role in predicting forgiveness. The results have implications for how the relation between justice and forgiveness is conceptualised and applied. (Excerpt).

Nigerian lawyers insist on criminal justice reforms

from the article by John Chuks Azu on allAfrica.com: Professor Kelvin Nwosu a former Director Academics of the Nigerian Law School had argued that the country's legal system which places much emphasis on retributive rather than restorative justice "has given rise to lack of remorse on the part of offenders who now demand proof of their culpability during trial rather than show remorse." Nwosu, who was speaking in Abuja during the launch of the book: "Current Issues on Sentencing, Custodial Reforms and The Criminal Administration in Nigeria", written in honour of Justice Lawal Hassan Gummi, the Chief Judge of the Federal Capital Territory High Court, wondered why the sentencing and custodial option should be adopted and thereafter public funds are spent again to decongest the prisons.