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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.

Life without parole for Juvenile offenders
Aura - You are going far beyond the narrow issue of JLWOP, and raising some broad concerns which I mostly share. But while I share [...]
Life without parole for Juvenile offenders
This is my personal opinion and I would like to express my respect for the victims' families as well as the offender's families. It have [...]
the victims families left behind
Lisa - I know that most genuine RJ advocates welcome victims to the table. I continue to watch with some concern the thankfully few prison [...]
the victims families left behind
Hello, Jennifer. Good to see your comments. I think all those in the restorative justice movement want to see crime victims involved in any dialogue [...]
the victims families left behind
Thanks to Lisa for posting on this important topic and to all who are chiming in on this important public policy debate. The tone of [...]
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....
lifetime imprisonment without parole
Lifetime imprisonment is not a punishment. it is revenge and only. punishment must have a rehabilitative nature. rehabilitation is bounded to future. no rehabilitation without [...]
juvenile offenders & life without parole
Thanks, Elizabeth. I appreciate your comments. Everyone has a story to tell. Thanks for writing in from North Carolina. Lisa
Life without Parole sentencing for juveniles
LWOP sentencing makes no sense. Squeaky Fromme of Charles Manson/Gerald Ford Assassination attempt is being paroled in mid-August after receiving a life sentence for trying [...]
LIfe without parole for juveniles
I agree wholeheartedly in Lisa's statement "without the victim in the center all good reforms of the criminal justice are not restorative justice." The goal [...]
juvenile offenders
We have befriended David since he was 13 years old. He is now in prison ( for life) for killing his girlfriend and hiding her [...]
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.
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.
Waldman, Ellen A. Healing Hearts or Righting Wrongs?: A Meditation on the Goals of “Restorative Justice"
Only a stone could sit unmoved by the stories recounted in the public halls and private gatherings at Hamline’s symposium on Restorative Justice. Restorative Justice practitioners told of their work on tribal reservations and inner cities. They told of troubled youth, sitting before community elders, feeling, for the first time, abashed and ashamed. They told of victims, flush from a confrontation with their tormentors, released at last from the lacerations of anger, grief, and fear. They told of community authorities, taking stock of the many ways in which violator and violated alike were abandoned, and vowing to do better. These are powerful stories. Taken together, they envisioned a radical reinvention of our current criminal justice system grounded in retributive principles. They imagined a system that replaces punishment with empathy, alienation with integration, and retribution with ubuntu, the African term for communitarian recognition. Restorative Justice adherents clearly have the faith of believers. Indeed, the symposium vibrated, at times, with the fervor of a Baptist revival. But, as with any utopian movement, enthusiasm for the cause occasionally outran reasoned self reflection and criticism. While Restorative Justice principles are undeniably attractive, questions regarding their normative underpinnings and practical application remain... This essay will explore these different understandings of the various goals of justice in restorative and retributive schemas, and situate these understandings in a brief accounting of South Africa’s experiment with restorative justice principles at the close of the apartheid era…. Rather than establish a criminal court akin to the Nuremburg tribunal assembled after World War II, the South African government convened the Truth and Reconciliation Commission (TRC). (excerpt)
Darley, John M and Bilz, Kenworthey. 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 consequentialism -- either their pure or hybrid forms -- can 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 punishment -- one 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)
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.
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.

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