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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).

The danger of compromise
from the article by Elaine Shpungin on OpEd Picture a stand-off between multiple parties. Perhaps it is between representatives of two nations sitting across a long polished table as they butt heads over a piece of land, or perhaps it is between red-faced members of an organization fighting over a budget item, voices raised, or maybe its kids on a grassy field arguing about which game to play. In our case, this morning, it was between our 9 yr old son (on sofa, arms crossed, body tight, face scowling) and his dad (on living room rug, visibly slowing down his breathing to be "patient," feet planted firmly).
Three justice orientations (or two?)
Howard Zehr, recently wrote in his Restorative Justice Blog: Stanford Law Professor Herbert Packer has argued that two opposing justice orientations dominate U.S. policy debates: crime control vs. due process. Could a restorative justice orientation provide a “third way?” that transcends these poles? The following identifies some assumptions of each. Crime control orientation: emphasis on order and security.... Due process orientation: emphasis on preventing misuse of the punishment system.... Restorative justice orientation - emphasis on repair and responsibility.... Read the whole entry.
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.
Walgrave, Lode. Imposing Restoration Instead of Inflicting Pain
Lode Walgrave begins from the perspective that restorative justice fundamentally consists of doing justice by repairing the harm of crime inflicted on the victim and the community, and even social damage which the offender caused to himself or herself by the offense. Hence, in contrast to both punitive and rehabilitative justice, restorative justice is not primarily characterized by the kind of action to which the offender must submit. Indeed, restorative justice can proceed rather far without the involvement of the offender. In this view, the involvement of the offender is primarily a matter of enhancing the restoration of the victim and addressing public confidence. Only secondarily is it a matter of possibly influencing (i.e., deterring or rehabilitating) the offender. Furthermore, Walgrave states that the quality of restoration will be significantly improved if the offender cooperates freely. Nevertheless, for a variety of reasons, coercion may be needed and may be imposed by the judicial system. With all of this in mind, Walgrave devotes the majority of his paper to an examination of the coercive imposition of obligations on the offender in view of restoration. More specifically, he explores two significant issues: whether coerced restorative sanctions undermine the essential elements of the restorative approach; and whether a systemic, restorative approach to crime can be inserted into the principles of a constitutional state.
Walgrave, Lode. Restorative Justice and Beyond -- An Agenda for Europe.
Restorative justice is obviously an attractive concept. So called restorative justice practices are being implemented far beyond the field of criminalizable matters, such as in schooldiscipline, neighbourhood conflicts, or in peacemaking and peacebuilding. However, it needs deeply different actions and even different expertise, for example, to bring a victim and an offender of a burglary together to find a constructive solution which is satisfying for both protagonists, to set up meetings with representatives of population groups as a pathway towards reconciliation after a period of systematic mutual violence and gross violations of human rights, or to try and find a peaceful way of living together in a conflictuous neighbourhood. And still, these practices all are called ‘restorative justice’. What is common to them? (excerpt)
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.
What is the difference between unitive justice and restorative justice?
from Sylvia Clute's entry in Genuine Justice: When you are providing restorative justice services to a criminal court, the way the court defines the problem, i.e., who broke the law, makes identifying the offender easy. But if you stop there, you fail to give context its due consideration. While context does not dictate personal choice, it certainly impacts it. A boy who grows up surrounded by drug dealers is far more likely to see that as a career option than a boy who has no drug dealers in his neighborhood. Moreover, when you broaden the lens and include more about context, who the offender is depends on which moment in time you are referring to, and from which perspective you choose to look. In the larger scheme of things, there is no easily defined line that can be drawn between offenders and victims, as it is a muddled mix of choices made in the past, and in real time and embedded in the future game plan.
Wheeldon, Johannes. Finding common ground: restorative justice and its theoretical construction(s)
Restorative justice presents important opportunities for those who work in the criminal justice system and those interested in community building through informal mechanisms of social control. Yet fears exist that as a result of the 'paradoxical identity' (Pavlich, 2005) of restorative justice, greater integration within the traditional justice system will lead to its co-optation. This article argues that any identity challenge can be addressed by re-situating restorative justice principles within existent criminological theories such as social disorganization, social learning and moral development. In this way, the values and characteristics central to restorative processes can be seen as complimentary and consistent and common theoretical ground can serve as the basis for greater cooperative ventures between individuals, communities and the state. (author's abstract)
Wright, Martin and Foucault, Orlane. Community Involvement in Restorative Justice
It has been pointed out that there are differences between restorative justice and community justice. Restorative justice is primarily reactive, and tends to deal with individual cases; community justice looks not only at the wider effects of the crime after it has been committed, but also at the social pressures which lead people to commit crime. Its advocates would also maintain, however, that social reforms should be introduced because they improve everyon's quality of life, and not merely because they may reduce crime (Crawford and Clear 2001). This paper considers the idea that the advantages of restorative justice are even greater if it is also community-based (or "democratic" as defined by Wright 2000), that is, if there is a considerable amount of involvement of members of the public. But it recognizes that there are limits to this, and some difficulties of principle, as well as practical ones of putting it into effect. This section outlines some characteristics of community-based restorative justice, and describes a small survey to give a preliminary indication of the extent of community involvement in Europe. Then, after a note on the limitations of the survey, we will present a brief summary of the findings. (excerpt)
Wright, Martin. How Far Can and Should RJ Distance Itself from Criminal Justice?
Many advocates of restorative justice see it as a new philosophy of justice, based on reparation and dialogue. To the extent it had been implemented, it has shown very promising results: the great majority of victims are satisfied, offenders feel that the method is fair, and re-offending rates as good or better in almost all cases. But in some countries restorative justice is being put into effect in a very piecemeal fashion, omitting many of the features that the full-blown philosophy would require: for example, victims are often not involved, or if they are, they are not empowered. Some do not involve members of the public. The workshop will invite participants to take on the roles of researchers, practitioners and policymakers, and explore how they could work together to consider the uneasy relationship between restorative justice and the established criminal justice system. Can they be combined, or is there a fundamental division between them? An alternative model will be considered in which the service would be provided by a network of voluntary organizations, with an ethos and standards governed by a national NGO. It has been suggested that such model would inevitably remain marginalized – can that be overcome, or would it be a price worth paying for holding to the core restorative principles? Cases which could not be dealt with in this way would have to go to the conventional system; is it conceivable that it too could, in time, operate on restorative lines, in ‘restorative prisons’ as John Blad has called them? (excerpt)
Wright, Martin. International Approach: What is Restorative Justice?
Wright begins this essay by discussing the differences between restorative justice and the traditional criminal justice system.
Wright, Martin. The Rights and Needs of Victims in the Criminal Justice Process
Martin Wright begins this essay with the broad question of the purpose of the criminal law. He answers this broad question with the proposition that the purpose of the criminal law is to create a just and stable society. The accomplishment of a just and stable society, he further states, would be based as much as possible on consent and as little as possible on coercion. In short, this society aims, as far as possible, to persuade people to act within acceptable boundaries without the use of repression. Moreover, when people act outside of those boundaries, the principles of maximum consent and minimum coercion still apply in society’s dealing with them. In his essay, then, Wright explores this vision through an examination of the following matters: some of the words used in the context of criminal justice (e.g., crime, punishment, deterrent, harm, restorative justice); restorative justice with respect to the conventional criminal justice system; a radical vision of a how a society could respond when one person harms another; the restorative use of criminal law, especially from the victim’s point of view; and ways in which a restorative approach could transform society as a whole.
van Krieken, Robert. Crime, Government and Civilization: Rethinking Elias in Criminology
The placement of criminal law within the realm of sovereignty has always been part of an attempt to civilize its operation, both restraining the workings of law on those inflicting particular kinds of harms, and rendering those workings, supposedly, more effective. However, the reconfiguration of the authority of the state in relation to criminal law since the 1970s has led most criminologists to reject the whole notion of a long-term civilizing process encompassing criminal law, turning instead to analyses of the inner logic of the various new responses to crime characterizing advanced liberal societies over the past three decades. This essay outlines the major features of contemporary crime control and punishment identified within this approach: the transition from disciplinary modes of exercising power to 'governing through freedom', the emphasis on 'designing out crime' or actuarial justice, and the changed place of emotions in 'affective governance', including a turn to popular punitiveness. It then identifies some central empirical and conceptual problems shared by these accounts of contemporary crime control, and outlines the contribution that Elias's work on long-term processes of civilization and decivilization can make not just to understanding the historical development of punishment, but also current developments across the whole field of criminal justice, focusing on the examples of restorative justice and popular punitiveness. Author's abstract.

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