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Distinguishing Restorative Justice

An approach used by many writers has been to contrast restorative justice from what is presented as conventional criminal justice (referred to as retribution, traditional criminal justice, or in other ways).

'Justice' can take different forms: Traditional punishment isn't always the best way
from the editorial in the Des Moines Register: ....Charleston accused McCarthy of paying only “lip service” to restorative justice. McCarthy insisted Charleston doesn’t even understand what that term means. “You need to get a book and look it up,” he said. That might not be a bad idea for many of us. What are they talking about? Howard Zehr wrote the widely cited, best-selling “The Little Book of Restorative Justice” for people “who have heard the term and are curious about what it implies.”
A different justice: Why Anders Breivik only got 21 years for killing 77 people
from the article by Max Fisher on The Atlantic: Although Breivik will likely be in prison permanently -- his sentence can be extended -- 21 years really is the norm even for very violent crimes. The much-studied Norwegian system is built on something called restorative justice. Proponents of this system might argue that it emphasizes healing: for the victims, for the society, and, yes, for the criminal him or herself.
A restorative lens on violence
from Jennifer Haslett and Alan Edwards' article for Restorative Justice Week 2011: ....In our 14 years of working together on RJ cases involving violence, we have found that maintaining a focus on RJ as a justice process is fundamental in that it holds central the priorities of reparation of harm, accountability, safety and voice. Justice in this context is not synonymous with the criminal justice system; rather, justice as something people seek in societies and also as individuals on a daily basis, whether within families, workplaces or interactions within communities.
After a death, a time for restorative justice?
from the article by Sayre Quevedo for Youth Radio: An interview with restorative justice advocate, Sujatha Baliga. Imagine victim and offender sitting across from each other in a small room containing a circle of chairs. There are no bailiffs or guards, just two people, maybe a lawyer and some family members, talking. They discuss ways to right old wrongs that allow both parties to move forward after a crime. It may sounds like a fantasy, but Sujatha Baliga, who heads the Restorative Justice Project at the National Council on Crime and Delinquency, says the practice works, even with the most severe crimes.
And justice for all: Restorative justice is better for everyone
from Melissa McAvoy's entry on ....The most extreme form of punishment in Australia under the liberal-democratic system is imprisonment. Unfortunately, as stated by Mildon in Prison Ineffective in Reducing Crime it is also one of the most ineffective andover-used. The liberal-democratic system is formalised, lengthy, complicated and expensive. Whilst these drawbacks could be justified if the liberal-democratic system was indeed adept at reducing the crime rate, this is unfortunately not the case, also noted by Mildon, with very high recidivism in particular a less than desirable feature. Restorative justice takes a different approach and is based on the premise of righting a wrong and rehabilitating as opposed to mere punishment. White & Perrone state that it is currently only really used for youth offences as a way of diverting young people away from the liberal-democratic criminal justice system via youth conferencing.
Berzins, Lorraine. "Perspectives on Achieving Satisfying Justice: The Challenge before Us.
Within a Canadian context, the author argues for a new approach to criminal justice that seeks an overall positive, healing purpose, for victims and communities as well as for offenders and their families, instead of the punitive, adversarial philosophy she claims exists.
Blogging the Non-Adversarial Justice Conference
from the entry by Michael King on Cutting Edge Law: It is finally here – the first day of the sessions of the Non-Adversarial Justice: Implications for the Legal System and Society conference in Melbourne, Australia. After well over a year of work and planning for the conference we will see how it all turns out. It is exciting – seeing old friends from around the world, meeting new ones. ....Below I give some thoughts and highlights from the first day of the conference. I cannot hope to be comprehensive. Some of the papers will be published by Monash University Law Review next year and will thereby be more easily accessible.
Can we create purely non-punitive restorative programs?
from Sylvia Clute's entry on Genuine Justice: One reason to ask this question is because there is a growing body of evidence that shows using punishment in the form of isolation, detention or suspension to address behavioral problems in schools only aggravates other issues, such as bullying, violence, substandard academic performance, the lack of parental involvement, high staff turnover and burnout. Meanwhile, restorative practices are proving to be an effective alternative to punitive measures. They provide an effective means of creating safe, supportive learning environments, often at far less cost than the punitive means, whether the cost is measured in terms of financial outlay, the time expended on discipline issues or the stress level experienced by those in the system. And restorative measures are proving to be an effective means of addressing the school-to-prison pipeline that has become of national concern. But can school or other programs be created that do not eventually resort to punitive measures for those who continue to misbehave? In researching various approaches to restorative school programs, most seem to continue the blend of restorative processes and punitive measures to varying degrees.
Carruthers, David. Restorative Justice: A Judicial Perspective.
This document represents an address by David Carruthers, Chief District Court Judge of New Zealand, at the 2005 annual conference of Sacro. "Sacro" stands for "Safeguarding Communities – Reducing Offending." Sacro is an organization aiming to promote community safety in Scotland through high quality services to reduce conflict and offending. From his perspective and experience as a judge, Carruthers reflects on restorative justice theory and practice in general, restorative justice in New Zealand (history and development of restorative justice in youth and adult settings, and the practice of restorative justice), and some common criticisms of restorative justice.
Characteristics of restorative / transformational justice approaches
from the entry by RadioGirl on Criminal Injustice Kos: There is no monolithic approach to restorative/transformational justice initiatives. Some initiatives emphasize community involvement and are intended to eventually replace the harsh punishment/expanded policing orientation of the criminal legal system, while others are designed to work wholly within that system, as a more recent feature of it. There are many "blended" approaches that involve the criminal legal system, but also have components that operate independently.
Circling self-interest and democracy
reviewed by Dan Van Ness Lode Walgrave begins his exceptional 2008 book Restorative Justice, Self-interest and Responsible Citizenship like many writers on restorative justice. He reviews the ancient and recent history of restorative approaches, proposes and explains a definition of restorative justice, and outlines various restorative schemes. He then contrasts restorative approaches from contemporary criminal practice and identifies ways in which the former resolves practical and ethical problems of the latter. The person who crosses this familiar territory with Lode is well rewarded because he writes with analytical precision, a scholar’s restraint, and the passion of someone with conviction. He has much to say that is worth hearing. He once again explains clearly why he favours a maximalist definition of restorative justice, one that is not limited to deliberative schemes but which applies only to harm caused by crime. He carefully and thoroughly builds his case against punishment and against restorative justice being considered an alternative punishment rather than an alternative to punishment.
Daly, Kathleen. New Visions of Justice
Crime control and justice policies have always been varied, but as O’Malley says (1999, p 176), there now exists an unprecedented “state of penological inconsistency”. Alternative justice forms, such as meetings between victims and offenders, or magistrates who take an active interest in helping defendants, sit alongside mandatory sentences for certain repeat offenders. Put simply, policies of inclusion sit alongside those of exclusion in any one country, and countries vary in the degree to which their policies are tipped more toward inclusion than exclusion. This chapter reviews and compares three innovative and inclusion-oriented approaches to justice: restorative justice, contemporary forms of Indigenous justice, and therapeutic jurisprudence. (author's abstract)
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.
Dzur, Albert W. Civic implications of restorative justice theory: Citizen participation and criminal justice policy
Restorative justice, a normative theory and reform movement emphasizing dialogue and reconciliation between victim, offender, and community, is a widespread, if experimental, part of the practice of criminal justice in the United States. This essay argues that restorative justice draws connections between civic engagement and punishment practices that distinguish it as a normative theory of criminal justice. Advocates of restorative justice expect the growth of non-punitive attitudes and the weakening of support for incarceration to emerge from a public and lay-oriented context of adjudication. The role of lay participation in achieving social change, although prominent in restorative justice critiques of mainstream criminal justice norms and practices, has not been clearly articulated in practical terms. Significant ambiguities remain regarding the degree of lay participation, scope of authority, and the focus of restorative justice forums. The essay argues that an adequate assessment of restorative justice experiments should include an analysis of their impact on public attitudes towards crime and crime control policy and not simply on their impact on the specific victims and offenders involved. The link between less incarceration and restorative justice forums is public willingness to grant them the authority to hear and sanction offenses that would ordinarily receive incarceration. Whether and how they can influence broader public attitudes, then, is a critical test of restorative justice effectiveness. Author's abstract.
Erbe, Carsten. What is the Role of Professionals in Restorative Justice?
Carsten Erbe begins his chapter with a rather bleak assumption that every movement eventually 'sells out' to the perspective that it once opposed. Put another way, every movement finally comes to a point where it no longer represents what it once claimed to be. Erbe fears that restorative justice, though still a young movement, is in danger of crossing this 'irresistible threshold.' Key to his assessment is his characterization of restorative justice as essentially a community-based movement in direct opposition to the large-scale, institutional, and professional way of dealing with conflict and wrongdoing. Erbe argues in this chapter that recent developments in the restorative justice movement manifest a sharp turning away from this core value, the principle that the community 'owns' the process, not professionals.
Friesen, Krista. Beyond punishment: Moving towards the application of conciliatory justice in the Canadian context.
Contending that the conventional criminal justice system inadequately deals with the results of crime, and even adds to the damage inflicted by crime, Friesen urges an alternative system of justice. In contrast to what she sees as the adversarial, retributive character of conventional justice, she proposes restorative justice as a better alternative. Friesen sketches theoretical underpinnings for both conventional criminal justice and restorative justice. Her emphasis is on facilitated discussion or mediation between victim and offender. As examples she looks at truth and reconciliation commissions in response to violence in various countries. Her aim is to develop a model of mediation that can be applied successfully in a Canadian context.
Howard Zehr on what restorative justice and revenge have in common
From his blog entry: Before you gasp and close this page, stay with me. I’m not trying to rehabilitate the practice of revenge or retribution. Nor is my intention to discount the importance of forgiveness. I do want to explore an underlying link between them, however.
Huculak, Bria. From the Power to Punish to the Power to Heal
In this discussion of sanctions, Huculak maintains that Canada uses imprisonment as a sanction second only to the United States of America in the western world. From its inception, imprisonment as a means of punishment for socially disapproved behavior has been a topic of concern and reform movements. Yet the prisons remain intact with greater numbers being built to meet the demand. The use of imprisonment as a legal sanction has a very complex conceptual base that is closely tied to the function and the purpose of law. The way a society deals with offenders has varied historically with diverse motivations: punishment; deterrence (both individually and general); retribution; the protection of society; incapacitation; humanitarianism; reform; treatment and rehabilitation. There is no consensus among contemporary authors as to the aims of legal sanctions. The philosophy of punishment has been described as a controversial, almost political subject. No doubt the concepts and methods used in dealing with offenders are interrelated and linked to the underlying view of crime and the criminal (free will vs. determination) which is bound up with the view of humans in the nature of society, culture, values and economics which are reflected in the law and other mechanisms of social control. Huculak goes on to discuss sentencing circles as an alternative to a punitive response to crime.
Hyams, Ross and Batagol, Becky and King, Michael S and Freiberg, Arie. Non-Adversarial Justice
This comprehensive book provides a large overview of emerging trends in Australian criminal justice. While the current system operates under adversarial justice, there have been increasing movements away from it. Some alternative forms of non-adversarial justice that have developed are therapeutic jurisprudence, restorative justice, preventive law, creative problem solving, holistic approaches to law, and appropriate or alternative dispute resolution. Each approach is presented in its own chapter, with information about their backgrounds, potential benefits, and potential drawbacks. The authors then compare and contrast procedure under adversarial justice and non-adversarial justice in the context of family law. Then the book shifts away from modes of justice to specific developments in the legal system that reflect growth away from adversarial justice. These include problem-oriented courts, diversion schemes and intervention programs, indigenous sentencing courts, and managerial and administrative justice. Lastly, the authors develop what the application of adversarial justice to coroners, court management (specifically the development of the judicial role), lawyers, and legal educators would look like.
In sentencing criminals, is Norway too soft? Or are we too harsh?
from the article by Liliana Segura in The Nation: ....“Western Europeans regard 10 or 12 years as an extremely long term, even for offenders sentenced in theory to life,” he said. Today, there are more than 41,000 people serving life without parole in the United States compared to fifty-nine in Australia, forty-one in England and thirty-seven in the Netherlands. That’s according to a study released this spring, which found that we are “in the minority of countries using several sentencing practices, such as life without parole, consecutive sentences, juvenile life without parole, juvenile transfer to adult courts, and successive prosecution of the same defendant by the state and federal government.”

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