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.

Sequencing the administration of justice to enable the pursuit of peace: Can the ICC play a role in complementing restorative justice?

from the article by Tim Murithi: The notion of justice remains an essentially contested concept. In fact there are multiple dimensions to justice. Retributive justice seeks to ensure prosecution followed by punishment for crimes or atrocities committed. Restorative justice strives to promote societal harmony through a quasi-judicial process of truth telling, acknowledgement, remorse, reparations, forgiveness, healing and reconciliation. Retributive or punitive justice is generally administered by a state-sanctioned legal institution or through the remit of international law. Restorative justice draws upon a range of mechanisms including truth commissions and other societal reconciliation institutions.

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".

Proposed "three strikes" legislation in New Zealand

from the May 2010 newsletter of Rethinking Crime and Punishment: In recent months, the three strikes legislation has created concern across the political and ideological spectrum. The Maxim Institute, sponsored a speaking tour by Professor Warren Brookbanks and Senior Lecturer Richard Ekins of Auckland University. They also published an excellent report setting out the facts about the three strikes legislation. ....Brookbanks and Ekins report “Criminal Injustice and the Three Strikes Law” considers the legislation is both wrong and unjust for the following reasons:

Restorative justice considers the merits of cases not just rules…

from Lorenn Walker's entry on Restorative Justice and Other Public Health Approaches for Healing: The disturbing case of Albert Holland whose lawyer failed to adequately represent him points out a growing problem with our traditional courts: the focus on the law and rules vs. the facts and merits of particular cases in making rulings. Most American legal cases are being decided on procedure and law, “the rules,” and not on equity or the merits of cases. See Michael J. Sandel’s Democracy’s Discontent: America in Search of a Public Philosophy. The merits are about people and the particular facts about their unique experience in every conflict. Our courts should be places where people can go to find fairness and justice. Court should be a place where people know they can go to have the facts of their cases heard and considered by other people, judges, who care.

'Pizza thief' walks the line

From the Los Angeles Times article by Jack Leonard: If he ever returns to prison, Jerry Dewayne Williams knows he'll probably never get out. To stay clear of trouble, he has left behind the Compton neighborhood where police knew him and cut ties with friends from wilder days. Once a hard partyer, the 43-year-old says he prefers the company of a mystery novel or a "Law and Order" episode on television. Williams is one of more than 14,000 felons who, under California's three-strikes law, face a possible life sentence if they commit another felony. But few, if any, grasp the reality of that threat better than Williams.

Panel: Tribunals as restorative justice

from Erin Walrath's blog: Just a day ago I attended a panel titled Tribunals as Restorative Justice. The purpose behind this attendance was to orient myself with the judicial side of tribunals. Technically, I would argue that there is not another side of tribunals but I am sure that others would disagree with me. (Assuming that some others see tribunals as a sort of a SA Truth and Reconciliation equal, though they are quite different). The panel was a number of Korbel professors... with a range of knowledge regarding law, international law, and tribunals. Restorative justice was the primary concern. It incorporates a focus on victims, the harm done and the needs of those harmed, obligations and accountability, and participation of relevant stakeholders. According to Susan Sharpe (in Restorative Justice: A Vision for Healing and Change) there is an aim to put key decisions in the hands of those most affected by crime, make justice more healing and, ideally, more transformative, and reduce the likelihood or future offenses. Restorative justice is more common in European court systems but it seems is making its way into the US, especially in juvenile cases... so I have heard. To follow a true R.J. model then, the victim is involved in the process and feels heard and satisfied at the outcome, offenders must understand how their actions affect others and accept responsibility for them, outcomes must repair the harm done and address the reasons behind the offense, and both the victim and offender gain a sense of "closure".

The world is not as it should be: Punitiveness as a response to societal change

by Kim Workman of Rethinking Crime and Punishment: ....As a policy, three strikes does a lot more than provide harsher punishment. It also takes discretionary authority away from the judiciary, who traditionally have had the flexibility to vary sentences in response to judgements about the nature of crime, the victim and the offender. In the United States, studies showed a long-term trend toward increasing skepticism and lack of confidence in the legal authorities. This in turn had led to: a. A tendency to ignore judicial orders and the law; b. Greater tolerance of vigilantism or extralegal behaviour of citizens; c. Jury behaviour which nullifies the law.

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.

Review: When Brute Force Fails: How to have less crime and less punishment

from Robert H. Frank's review in the New York Times: Law enforcement policy in the United States rests implicitly on the “rational actor” model of traditional economics, which holds that people take only those actions whose benefits exceed their costs. This model says that crime will be deterred if the expected punishment is strong enough — a prediction that has not been borne out in practice. Although long sentences are now common and the incarceration rate is five times what it was during most of the 20th century, the crime rate is still two and a half times the average of 1950-62.

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.

Criminal justice organisations want new Titan prisons abandoned.

Can you believe this, at a time when you can’t open a newspaper without reading about someone being murdered, when carrying of guns is commonplace, 1,000’s of criminals are getting away without prison sentences and some of our prisons only hold foreigners thirty-five leading criminal justice organisations have today written to Justice Secretary Jack Straw calling for the Government’s plans for three Titan prisons to be abandoned.

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.

Dangers of the big tent

In making the case for restorative justice, Erik Luna invokes the familiar narrative of a pathological American criminal justice system—political demagogues pushing ever tougher sentencing policies on an uninformed public, resulting in wildly escalating prisons populations and fiscal burdens—and asserts that restorative justice cannot possibly do any worse. Indeed, he suggests, restorative justice may bring about a change in heart among the demagogues: the theory and principles of restorative justice may force policymakers “to reevaluate their own intellectual commitments and the merits of their chosen sentencing methodologies.

Drunk driving and the purpose of punishment

From John G. Spragge's entry on Open Hand/Open Eye: ....But I know this too: that the justice system makes no sense at all when it makes distinctions not between harms but between instruments. The law ought to discriminate between harm done by negligence and harm done by malice. But the courts ought not to make a distinction between a child killed by negligence with a car bumper and negligence with a Glock....

Violent juveniles serving life without parole: When victims of crime disagree

By Lisa Rea I would like to draw your attention to a very controversial piece of US federal legislation, HR 2289, which seeks to address the problem of juvenile lifers who are serving life sentences. The expressed purpose of the bill is to "establish a meaningful opportunity for parole or similar release of juvenile offenders sentenced to life in prison."

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.

An interesting reason to use restorative justice

"We're looking at thousands of dollars in damage and the courts would never impose that on first offenders. Nor would there be any sort of punitive action taken. With the restorative justice forum, the expectation - and my belief - is that they are going to be dealt with much more harshly through an RJ than they would be in the provincial court system or the youth courts. The courts would probably simply give them a conditional sentence and send them on their way. With the RJ forum we're looking at restitution and we'll be looking at some community input.

We live in a relational and moral universe

At the 2nd National Conference on Restorative Justice in San Antonio, Jennifer Llewellyn spoke of the importance of relationships. “We live in a relational universe,” she said. This is why restorative justice is so powerful – it addresses something real, something that is part of the fabric of life itself. Relationships are core to who we are.

Roche, Declan. Retribution and restorative justice

"This chapter begins by retracing the origins of this contrast in restorative justice, examining why this dichotomous approach was so widely employed, before going on to consider its shortcomings, and the newer approaches to defining restorative and retributive justice. The final section considers the implications of these debates for practice, in particular the implications for the question of where restorative justice programmes should be located in the criminal justice system and the safeguards and checks and balances that should accompany them." (excerpt)

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.