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Theory Articles -- Full List

Articles discussing theoretical issues related to restorative justice.

Archibald, Bruce P. Co-ordinating Canada’s Restorative and Inclusionary Models of Criminal Justice: The Legal Profession and the Exercise of Discretion under a Reflexive Rule of Law
The paper outlines the historical origins and current significance of traditional adversarial models of justice (punitive, rehabilitative and corrective), and explains how these have mutated into a model of criminal justice which is procedurally formal but inclusive of victims’ interests. This formal inclusionary model is to be contrasted with the more flexible restorative model which has recently been adopted, in varying degrees and in various guises (for both youth and adult criminal justice), and which operates in tandem with the formal, inclusionary approach. The paper then discusses the manner in which such a hybrid system requires careful professional attention to the exercise of discretion at all levels in order to ensure fairness, equality and effectiveness. Police, prosecutors, defence counsel, judges, correctional officials, various non-legal professionals and lay members of the community must be committed to, and integrated in different ways with, both the formal, inclusionary model and the restorative model in order to ensure these different approaches operate in a mutually supportive fashion rather than being at odds with one another. The full complexity of integrating these different models may not always be appreciated by all participants in the process, including the Supreme Court of Canada, as evidenced even in such otherwise progressive and innovative sentencing decisions as R. v. Gladue and R. v. Proulx. This situation provides new challenges for the legal profession. The paper concludes with an assessment of the capacities of the new integrated system of hybrid criminal justice to meet the goals set for it in the relatively recent sentencing provisions of the Criminal Code and in the policies of the new Youth Criminal Justice Act. (excerpt)
Archibald, Bruce P. Coordinating Canada's Restorative and Inclusionary Models of Criminal Justice: The Legal Profession and the Exercise of Discretion under a Reflexive Rule of Law
Canadian criminal justice has moved to a hybrid system involving a formal but inclusionary criminal trial as the predominant model with an informal restorative justice model as an increasingly significant alternative. This system invokes traditional punitive, rehabilitative and corrective elements yet deploys them in new institutionalized contexts. The formal inclusionary model integrates victims' concerns at all levels from policing and prosecution through the trial to sentencing and parole, while maintaining due process protections for the accused. The informal restorative model responds to criminal harms by bringing together victims, offenders, their respective families and community representatives in a deliberative process which can result in accountability, reparation and community based solutions to go to the root of crime causations... These developments in Canadian criminal justice reflect the postmodern conditions of our regulatory or supervisory state. Such participatory processes, rejecting a purely hierarchical approach, are characteristic of what has been termed a reflexive rule of law in deliberative constitutional democracies, and are parallel to legal evolution in other domains. If properly co-ordinated, these models have great potential for enhancing criminal justice in current Canadian society which exhibits increasing structural complexity, social diversity and public alienation from legal institutions. However, members of the legal profession, including bench, bar and chair must accept their responsibilities and new obligations in order to endure the new hybrid system functions effectively. (excerpt)
Arrigo, Bruce A. Identity, International Terrorism, and Negotiating Peace: Hamas and Ethics-Based Considerations from Critical Restorative Justice.
This paper conceptually examines one specifi c case of international terrorism, including the emergence and maintenance of membership-allegiance in its militant extremist group. This is the case of the Islamic Resistance Movement (or Hamas) and the manifestation of its corresponding Palestinian identity. Although the social person is constituted by symbols and objects, acts and social acts, meanings, and role-taking and role-making, questions persist about how best to promote peaceful coexistence, advance the interests of non-violence and ensure the protection of basic human rights. These practices constitute an ethic grounded in Aristotelian virtue. The delineation of key principles emanating from critical restorative justice helps to specify this brand of moral reasoning. The integration of these principles with the proposed symbolic interactionist framework demonstrates how extremist violence can be mediated. Suggestive examples of the same involving Hamas and those with whom it struggles (Palestine, Israel and the United States) are used to guide the analysis. The proposed conceptual framework is then briefl y assessed for its overall explanatory capabilities, especially in relation to furthering terrorism studies. (author's abstract)
Arrigo, Bruce A.. Postmodernism's challenges to restorative justice
This article explores postmodernism’s assessment of restorative justice (RJ) both in theory and in practice. In particular, the conceptual underpinnings of RJ and its procedural extension, victim offender mediation (VOM), are critically examined. At issue are the limits to justice, humanism, and change that unwittingly are legitimized and reproduced through the VOM dialogical exchange. This is a pivotal interaction involving the offender, victim and mediator. The undoing of a more complete experience of justice is problematic; especially given RJ’s genuine commitment to promoting redemption, mercy, forgiveness and compassion. These are dimensions of a healing process that intend to foster a transformative experience for all parties concerned. (excerpt)
Ashton Smith, Polly. William Godwin's moral education theory of punishment: Is it a restorative approach to justice?
This article focuses on a significant historical foundation for the contemporary restorative justice perspective on punishment and corrections. William Godwin's views, which are characterised here as a version of the moral education theory of punishment -- retribution, deterrence, and rehabilitation -- that have informed correctional policy and practice since his own era, two hundred years ago. The assumptions of the moral education theory lead him to reject coercive punishment as a morally or politically viable method of social control. Instead, he outlines an approach that is based on informal control, with a least restrictive standard applied to the type and duration of coercion used to restrain offenders who threaten safety, and a set of duties owed to offender by community members. (excerpt)
Bakht, Natasha. Problem Solving Courts as Agents of Change.
Problem solving courts have expanded rapidly across the United States in an attempt to find new solutions to difficult socio-legal problems. The dispute resolution model of problem-solving courts is founded upon the principles of therapeutic jurisprudence, an approach to the law that regards legal phenomena as having therapeutic and anti-therapeutic consequences.1 Beginning in the area of mental health, this approach has expanded to consider matters within criminal law such as drug abuse and domestic violence and has spread from the U.S. to many jurisdictions. Canada has not yet embraced problem solving courts to the same extent as has the U.S., although there are signs that both federal and provincial governments in Canada are keen to do so. There are currently Drug Treatment Courts (DTCs) in Toronto, Vancouver and St. John and the Canadian Department of Justice announced its plan to create three new DTCs in the next 12 months. Problem solving court processes have also arisen in Canada in cases concerning mental health, aboriginal justice and domestic violence.(extract)
Ball, Jennifer and Caldwell, Wayne and Pranis, Kay. Doing Democracy With Circles
In this book, we explore the potentials for using Circles to solve the multifaceted and often intensely emotional problems that public planers face on a regular basis. We have written this book specifically for the planning practitioner, the student of planning, and the community member who seeks better public decisions. Yet, it is also true that much of the information that we offer about Circles and how to adapt them to problem-solving may be useful to those who want to apply Circles for other purposes as well. (Excerpt)
Barak, Gregg. "A Reciprocal Approach to Peacemaking Criminology"
In the process of characterizing the dialects of adversarialism and mutualism, a case is made for a reciprocal approach to peacemaking criminology. As part of the rationale for a reciprocity of making war or making peace, critics are leveled at both 'peacemaking' and 'warmaking' criminology. The purposes of this essay are, on the one hand, to reinvigorate peacemaking criminology that is often too isolated and marginalized from hegemonic interaction to influence struggles for positive peace and social justice. On the other hand, the article seeks to expose the kinds of reflective thinking and social analysis that a peacemaking criminology must confront if its goals of overcoming or neutralizing a warmaking criminology are ever to materialize at home and abroad. "Authors Abstract"
Barnard, Jayne W. Reintegrative Shaming in Corporate Sentencing
The Organizational Sentencing Guidelines were intended to be an organic document to be altered as experience suggests additional ways in which sentencing procedures could be more effective in minimizing criminal activities.201 This Article proposes an amendment to the Guidelines, designed (1) to increase the likelihood of corporate self-reporting of crimes and cooperation with investigators in determining the scope and extent of a corporation’s crime, and (2) to increase the likelihood that corporations— especially public ones—will be more attentive to legal compliance values, and more assiduous in establishing internal compliance programs. Both of these objectives are salutary and achievable. (excerpt)
Barsh, Russell Lawrence. Evaluating the Quality of Justice
Barsh, a professor at a Canadian university, notes different meanings for the concept "justice," depending on one's cultural context. For example, non-Aboriginal students tended to define justice as equality before the law. Aboriginal students tended to speak of harmony or related ideas. Barsh observes that there have been few empirical studies hazarding a measurement of the extent to which modern Western legal systems apply rules equally. There are even greater challenges to meet before attempting to measure "justice" in the Aboriginal sense. He then discusses possible indicators or measures for evaluating justice in the Aboriginal sense.
Barton, Charles. Empowerment and Retribution in Criminal and Restorative Justice
Contrary to the implied suggestion in many restorative justice critiques of the status quo, the chief strength of restorative justice interventions does not lie in their rejection of punitiveness and retribution, but the empowerment of communities of care who are the most likely to respond effectively to both the causes and the consequences of criminal wrongdoing. Thus, it is the empowerment of affected stakeholders on both sides that is the crucial feature of restorative justice, and the feature whose absence causes both conventional and restorative justice to fail.
Basler, Stan L.. Restorative Justice as a Third School of Criminology.
The evidence is clear that the two traditional schools of criminology have some merit. Neither theory explains all criminal behavior nor provides solutions for it. Yet sadly, the criminal justice system and correctional complex as we know it is indebted almost entirely to the classical system. This includes the classical system's seriously flawed reliance upon the belief in legislation and law enforcement to control and reduce criminal behavior. Further, it includes the equally naive, arguably immoral assumption that there exists some sort of universal equanimity in the quantification of free will. My hope in this examination is to precipitate some introspection in the legal education community and the criminology education community. The vision is that a serious discussion will begin about the need to adapt the system to the realities with the recognition that people are influenced by many factors in making criminal decisions and that a cookie-cutter approach is neither effective nor just. With that recognition, I believe that restorative justice can emerge as a school of criminology because it is a synthesis of the existing schools and includes concepts that, if implemented, will facilitate positive systemic change unaddressed by existing schools of thought. (excerpt)
Batley, Mike. Restorative justice in the South African context.
Batley’s article focuses on what restorative justice does and does not mean. He quotes the “four Rsâ€? coined by Rev. Don Misener as the cornerstone of the restorative justice philosophy: facing reality, accepting responsibility, expressing repentance, knowing reconciliation and making restitution. Batley then addresses common criticisms of restorative justice, i.e. not fitting the thinking of legal practitioners, being a soft option, increasing the number of offenders, and not effectively addressing the issues it claims to. In response to these criticisms, Batley describes the common misconceptions of restorative justice and explains how these misconceptions lead to the criticisms outlined. Especially interesting is the analysis of restorative justice in light of different theories of the purpose of the criminal justice system. Abstract courtesy of the Marquette University Law School-Restorative Justice Initiative http://law.marquette.edu/cgi-bin/site.pl?2130&pageID=1831
Batley, Mike. What is the Appropriate Role of Spirituality in Restorative Justice?
Many people have found restorative justice to be rooted in spiritual principles and experiences, writes Michael Batley, whether they consider themselves as adherents of a specific faith or as unconnected to a specific faith. Batley explores in this chapter what all of this means and how it affects the practice of restorative justice. Toward this end, he examines the terms 'spiritual' and 'spirituality' and discusses the links these concepts may have with restorative justice concepts. He then builds on these ideas to reflect on their implications for restorative justice practice. In doing so, he highlights possible problems for restorative justice practice, and he outlines some models for practice that are intended to help in avoiding those problems.
Bazemore, Gordon and Bell, Dee. What is the Appropriate Relationship Between Restorative Justice and Treatment?
Inquiring into the appropriate relationship between restorative justice and treatment, Bazemore and Bell make the following points. Treatment programs, no matter how effective, are not restorative in themselves. However, they can be carried out in more or less restorative ways when they account for the needs of victims and the community as far as possible. As for restorative justice, it can sometimes be rehabilitative. That is, it can be rehabilitative because it does not frame the problem as something that is wrong with the offender that must be “fixedâ€? by professionals. Rather, it frames the problem as a problem for a support group around the offender, and that support group can provide a solution that will increase the likelihood of offender (and victim) reintegration. On these bases, Bazemore and Bell argue that there are ways for restorative justice to maximize this potential for offender rehabilitation.
Bazemore, Gordon and Walgrave, Lode. "Restorative juvenile justice: In search of fundamentals and an outline for systemic reform."
The authors observe that support for restorative justice has converged with other emerging movements: the victims' movement; community-oriented policing; indigenous dispute resolution and justice; the women's movement; and critiques of just deserts perspectives and of traditional juvenile justice approaches. Hence, it is not surprising to find considerable ambiguity and even tension over core values and definitions in restorative justice. With all of this in view, Bazemore and Walgrave attempt to describe what is fundamentally common concerning the definition of restorative justice. They identify core principles or values of restorative justice. Then they apply these ideas and principles to juvenile justice to outline systemic reform of juvenile justice in terms of a restorative paradigm.
Bennett, Trevor and Brookman, Fiona and Pierpoint, Harriet and Maguire, Mike. Handbook on Crime
The Handbook on Crime provides analysis and explanation of the nature, extent, patterns and causes of over 40 different forms of crime, in each case drawing attention to key contemporary debates and social and criminal justice responses. It also challenges many popular and official conceptions of crime. (Excerpt)
Benson, M.L. "Emotions and Adjudication: Status Degradation among White-Collar Criminals."
A study uses interview data to explore the emotional experiences of 30 white-collar offenders. Adjudication generated anger and rage, as well as shame and embarrassment, in the respondents. Both anger and rage have potentially dysfunctional effects in that they undermine commitment to the legitimacy of the law. Following Braithwaite (1989), it is argued that the U.S. justice system, which is based on "disintegrative" rather than "reintegrative" shaming, is counterproductive.
Bertelsmann, E.. Restorative Justice in Sentencing: South Africa
In a recent sentencing decision in a murder case, Judge E. Bertelsmann of the High Court of South Africa wrote of the importance of restorative justice in the South Africa context. The full decision is presented here with a downloadable version attached.
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.

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