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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.

Howard Zehr developed a much-used diagram illustrating the difference between what he called retributive justice and restorative justice. More recently he has moved away from his earlier position that the two were polar opposites, apparently convinced by Conrad Brunk that this conceded too much to retributivists.

Others, however, argue that retribution is antithetical to restoration; if the purpose of justice is to repair harm, how can that be done by inflicting harm? Lode Walgrave is one of the most articulate proponents of this position.

Still others had never been convinced that the two were in opposition, reasoning that restorative outcomes require something of the offender, something they would not have done if not for the outcome.

Following are articles exploring these issues:

Zehr, Howard. Changing Lenses: A New Focus for Crime and Justice. 

This essay examines common assumptions about crime and justice, which it terms a "retributive" lens or paradigm, and considers historical, biblical and practical alternatives. A "restorative" model is proposed that is based on the needs of victims and offenders, past ways of responding to crime, recent experiments and biblical principles. Topics include: the experience of crime; justice as paradigm; community justice; covenant justice; and the victim-offender reconciliation program and the role of the church.

Brunk, Conrad G. Restorative justice and the philosophical theories of criminal punishment.

Brunk, observing a lack of philosophical investigation of restorative justice by philosophers and even by advocates of restorative justice, examines key issues relating to restorative justice. His aim is to demonstrate the advantages of restorative justice in addressing the questions that traditional philosophical theories of punishment have sought to answer. Fundamental ethical questions or concerns have to do with the justice of legal punishment: should anyone be punished; who should justly be punished; and what forms of punishment can justly be inflicted? Brunk discusses major approaches to these questions: retributive; utilitarian deterrence; rehabilitative; restitutionist; and then restorative. In particular he examines restorative justice in relation to the following: the retributive concern for 'just deserts'; the utilitarian concern for deterrence and social protection; the rehabilitative emphasis on a therapeutic analysis of and response to offenses; and the restitutionist emphasis on an economic construal of and response to offenses. Brunk maintains that each of the other approaches at best addresses only one of the primary ethical and jurisprudential concerns in understanding and responding to offenses. Restorative justice, as against each of the other approaches, provides a much more satisfying, comprehensive, and effective understanding of the nature of wrongdoing and how to respond to it.

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.

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.

Antkowiak, Thomas M.. Remedial Approaches to Human Rights Violations: The Inter-American Court of Human Rights and Beyond
This Article argues that reparative approaches that include only compensation and declarative relief are not only insufficient in egregious cases such as Plan de Sanchez, but they are also inadequate, inefficient, and even unwanted in many other scenarios of rights abuse. Thus, I espouse a remedial model that emphasizes the restorative measures of satisfaction and rehabilitation, as well as general assurances of non-repetition, in response to all human rights violations. (excerpt)
Rosevear, Wendell. Doing Justice to Prisoners: What Does It Mean?
The author lists conflicting cultural attitudes about how to treat prisoners. Ultimately, he distills it to a policy of revenge versus a policy of rehabilitation. The author strongly supports the latter policy and uses experiential anecdotes and references to specific programs in probing the emotional aspect of revenge and rehabilitation for prisoners.
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).
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).
Walsh, Tim. Punishment
Walsh theorizes that punishment does not work to reduce long-term recidivism, but that it has an immediate effect of compliance that can be crucially helpful in creating a window for actual learning. For him, the question is "how, to what degreee, and when to use it, not whether to use it."
. Policy conflict: Women's groups and institutionalized restorative justice.
The Nova Scotia Restorative Justice (NSRJ) program is a province wide, systemic juvenile restorative justice program in Nova Scotia. This program offers restorative justice intervention, at varying points in the criminal justice process, for all crimes except sexual assault and intimate partner violence. This study, a case study of the policy process, reveals that this exception is not based on restorative justice (RJ) theory but instead reflects local political struggles. This case reminds policy makers that they must consider local context and stakeholders when crafting RJ programming. (author's abstract)

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