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Retribution and Restoration

Is there a role for punishment in restorative justice? And if so, how would its use be different from punishment as we use it now?

'Pizza thief' walks the line
From the Los Angeles Times article by Jack Leonard: If he ever returns to prison, Jerry Dewayne Williams knows he'll probably never get out. To stay clear of trouble, he has left behind the Compton neighborhood where police knew him and cut ties with friends from wilder days. Once a hard partyer, the 43-year-old says he prefers the company of a mystery novel or a "Law and Order" episode on television. Williams is one of more than 14,000 felons who, under California's three-strikes law, face a possible life sentence if they commit another felony. But few, if any, grasp the reality of that threat better than Williams.
'Tear up the sentencing guidelines and jail EVERY looter': Crackdown on looters revealed
from Louise Boyle's article in the Mail Online: Magistrates have been ordered to send all those involved in last week's riots and looting to jail, a court heard today. Chair of the bench at Camberwell Green Magistrates Court, Novello Noades, revealed the instructions while sentencing one looter to six months in prison. London courts had allegedly been emailed by a clerk within HM Courts and Tribunals Service, telling them to ignore normal guidelines which might have recommended non-custodial sentences for riot-related cases.
. Feed me Seymour: The never-ending hunger of the criminal process for procedural rights and removing children from its shop of horrors.
In preparation for participation in Professor Arnold Loewy's Texas Tech University School of Law Annual Criminal Law Symposium, I was tasked with a specific query: Do (should) juveniles have more, less, the same, or different procedural rights than are accorded to adults? This Article briefly addresses the procedural rights of adults-delineating, contrasting, and comparing them to the rights of children within the modern juvenile justice process, primarily within the State of Texas. This histology of juvenile rights highlights the fundamental ongoing criminalization of our children. We must dissect the way we treat children accused of a violation of the criminal law at the very organic or cellular level. It is time to ignore the lies of the correctional monster we have created-a monster that must be continually fed with the lives of our young. (exdcerpt)
. 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)
. The TJ mainstreaming project: An evaluation of the Israeli Youth Act.
This Article is a product of the mainstreaming project, which will enhance the project's international reach by examining Israeli law. Specifically, this Article will evaluate the legal landscape of youth justice legislation in Israel to see whether TJ can be mainstreamed and thrive within. In doing so, this Article will rely on a recent paper by David B. Wexler, who suggested that we can conceptualize practices and techniques of TJ as a kind of "liquid" and we can look at the legal landscape as a "bottle."' By examining the legal rules and proceedings, we can evaluate "how much of the TJ liquid can be poured into the assorted bottles." In particular, this Article looks at legislation regarding youth defendants or offenders in Israel, examines these legal rules and procedures to see how much liquid can be poured into the bottle, and whether this legal landscape is TJ friendly. Such an evaluation will teach us whether the legal landscape, as is, will allow for easy mainstreaming of TJ within youth courts. We can also learn what aspects may provide a challenge in mainstreaming TJ, as well as what changes can be made to enhance TJ potential. Before we turn to a discussion on youth justice in Israel, it will be helpful to elaborate some more on TJ and specific practices and techniques.
. The criminal republic: Democratic breakdown as a cause of mass incarceration.
First, more informed decisions will be better ones. That requires some deference to criminal justice experts. But encouraging such deference simultaneously requires better educating the public. "Teaching" is useless, however, unless students are attentive and open-minded. Deliberative mechanisms that engage the public with the specifics of concrete cases and compel them to engage with people outside their social sphere and ideas outside their political one help to encourage such attentiveness and open-mindedness. Indeed, such mechanisms better enable ordinary persons to draw on their own justice instincts in a more effective, informed way. Unfortunately, these mechanisms require smallgroup contact, making them hard to implement on a widespread basis. Second, any mechanism that encourages greater empathy for other groups will moderate carceral impulses. Again, such empathy requires prolonged, increased contact with members of such groups in shared tasks. Such contact is likewise hard to foster society-wide. Ultimately, therefore, reformers should encourage any empathy-promoting, accurate information-expanding, and particularly inclusive deliberative efforts in connection with criminal justice. That may lead to small victories and gradual improvement in currently harsh carceral policies. More likely, however, if the thesis suggested here is correct, more fundamental changes in America's political system to move away from raw populism toward more deliberative populism will be necessary. I can see no such changes on the horizon. Absent unexpected shocks to the political system, therefore, I see an immediate future of, at best, modest improvement in a bleak carceral justice polity. (excerpt)
A role for restorative justice post-riots?
from the blog of Kerry McCarthy, Labour MP: Last post for a while – well, for tonight anyway – on the riots. It occurs to me that this presents the best possible scenario for an absolute blitz on restorative justice, something which is often talked about in parliament and almost universally supported and praised, but never really implemented on the scale it could be.
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.
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)
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.
Bibas, Stephanos. Restoration but also more justice.
The problem, though, is restorative justice’s megalomaniacal ambition to sweep away the traditional goals and processes of criminal justice instead of merely supplementing them. To restorative justice advocates, retribution for retribution’s sake seems pointless. Their overoptimism about human nature leads them to slight deterrence and incapacitation as at best secondary, at worst needless. Prison seems like a pure waste of human life. But punishment is supposed to hurt. The bite of punishment sends an unequivocal message condemning the wrongdoer and vindicating the victim. It pays the criminal’s debt to society. It teaches criminals and others not to hurt others, humbling proud wrongdoers. Restitution and fines can supplement prison and perhaps reduce the need for it. But because they lack the bite of condemnation and pain, they send too soft a message, overlooking the wrong and trying to hurry by it too fast. Criminals need to atone, to be humbled, to suffer. If they do not, the criminal does not learn a lesson and victims and the public never see justice done, leaving them dissatisfied. True, there are more minor offenses for which prison may not be necessary. Thus, it is no surprise that restorative justice is most prevalent for juvenile crime and minor adult crimes, not violent felonies. Shaming punishments are among the most promising alternatives to prison; they can do what fines and restitution cannot, precisely because they unequivocally blame and inflict pain. And until the public sees serious criminals suffer, it is reluctant to reintegrate and welcome them back. Restorative justice deserves more of a role in American criminal justice. Already, several states have instituted restorative processes for victims and inmates to meet after conviction and sentence. Shorn of its political baggage and reflexive hostility to punishment, restorative justice has much to teach us. But to restore victims and criminals who commit serious crimes, the state must first punish before it and we can forgive. Cheap grace and promiscuous forgiveness demean the crime and the victim. (excerpt)
Boersma, Hans. Atonement, violence and the restoration of hope
In this essay, Hans Boersma, professor at Trinity Western University, examines issues of violence (both outward and inward violence), hope, and the self in modern thought and culture. The outward expressions of violence are manifest in domestic violence, regional military conflicts, and more. There is also an inner violence in modernity. He argues that modernity’s myth of progress and its constant reconstruction of the self are unraveling and failing, thus revealing the inner violence of modernity. Hence, the sense of direction and stability of the self are threatened and undone. Is there a way to break the cycle of violence? Too often, reactions to violence are purely punitive and retributive – stricter legislation and longer prison sentences. At the same time, theological reflection about issues of repentance and forgiveness are on the increase. Amidst all of this, Boersma contends that the retrieval of a narrative of substitutionary atonement can form a theological foundation capable of breaking the cycle of violence, providing healing and restoration, and reigniting hope.
Book Review: The Machinery of Criminal Justice
from the review by Andrew Taslitz on Jotwell: ....Bibas’s new book, The Machinery of Criminal Justice, is so humane and thoughtful an analysis of the reforms needed in our criminal justice system that I find myself drawn to giving him still more good press....Bibas’s argument turns on three central ideas: (1) the system pretends to a mechanistic efficiency deaf to the emotions and meaningful expressions that undergird any sound system of criminal justice; (2) lawyers and other experts have hijacked the system to serve their own needs, displacing defendants, victims, and even judges; and (3) the political forces at work are skewed toward undue penal harshness and elite control rather than adequately balanced by informed lay participation.
Bryant, Michael and Judah, Eleanor Hannon. Rethinking Criminal Justice: Retribution vs. Restoration
In this introduction to a special journal issue entitled, 'Criminal Justice: Retribution vs. Restoration', the guest editors present reasons to reform the criminal justice system, using restorative justice as a better way, 'an idea whose time has come'.
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.
Claassen, Ron. "The Myth of Redemptive Violence: Restorative Justice Challenges the 'Myth of Redemptive Violence
This is one in a series of papers on basic principles of restorative justice. In it Claassen refers to Walter Wink's assertion that our society's preferred response to violence is vengeance, which Wink labels as the "myth of redemptive violence" - the belief that violence is a necessary and appropriate response, and even healing for the victim, especially when administered by the state on a victim's behalf. Against this, Wink points out that Jesus rejected violence as a constructive way of responding to a wrong or injustice, and Wink helps us to understand that there are alternatives to violence
Controversies around restorative justice
from David Belden's article in Tikkun: Restorative justice may be poised for a breakthrough into public awareness. It would be a boon for budget-cutting politicians and taxpayers if only the public could buy into it. For example, in the San Francisco Bay Area it costs around $50,000 to run a juvenile offender through the justice system, not counting the cost of incarceration if there is to be any, versus about $4,500 for a restorative process that typically leaves the victim much more satisfied, the young person reintegrated into the community without even being charged with a crime and much less likely to reoffend, and many community members relieved and grateful. Multiply the criminal justice cost many times for adults locked away for years.
Criminal justice organisations want new Titan prisons abandoned.
Can you believe this, at a time when you can’t open a newspaper without reading about someone being murdered, when carrying of guns is commonplace, 1,000’s of criminals are getting away without prison sentences and some of our prisons only hold foreigners thirty-five leading criminal justice organisations have today written to Justice Secretary Jack Straw calling for the Government’s plans for three Titan prisons to be abandoned.
Daly, Kathleen. Revisiting the relationship between retributive and restorative justice
Convinced that this is a critical issue for advocates of restorative justice, Daly raises the question of the role of punishment in restorative justice. She frames the question largely in relation to certain restorative justice processes -- namely, family conferences as used in response to youth crime in Australia and New Zealand. Her discussion proceeds through elaboration of a series of points or assertions about retributive and restorative justice: (1) the retributive-restorative oppositional contrast is wrong; (2) there are key differences in traditional and restorative justice; (3) restorative justice processes and outcomes are alternative punishments, not alternatives to punishment; (4) there is reason to assert a complex meshing of censure, symbolic reparation, restorative processes, and "just-ness"; and (5) there are ethical problems in the practice of restorative justice.
Dangers of the big tent
In making the case for restorative justice, Erik Luna invokes the familiar narrative of a pathological American criminal justice system—political demagogues pushing ever tougher sentencing policies on an uninformed public, resulting in wildly escalating prisons populations and fiscal burdens—and asserts that restorative justice cannot possibly do any worse. Indeed, he suggests, restorative justice may bring about a change in heart among the demagogues: the theory and principles of restorative justice may force policymakers “to reevaluate their own intellectual commitments and the merits of their chosen sentencing methodologies.

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