Abstract and Keywords
This chapter begins with a discussion of restorative processes and restorative justice. It then argues that an antidesert agenda in large part motivates the academic originators of the “restorative justice” movement. It further argues that restorative processes are not necessarily incompatible with a system of doing justice. Certain restorative processes will be more likely to do justice better than others — in particular, those with more participants rather than fewer — and justice is more likely where restorative processes are used as an integral part of the criminal justice adjudication process rather than as a wholesale substitute for it.
Strictly speaking, “restorative justice,” as its academic originators call it, does not offer a distributive principle but rather a distributive process. There are no articulated criteria by which punishment is to be determined but rather a process, such as victim-offender mediation, sentencing circles, or family group conferences, to name just a few.396 The result will depend not upon any articulated rules but rather upon the intuitions and preferences of the particular people involved in the process at hand.
Such restorative processes have some interesting similarities and differences to empirical desert. Part of the attraction and success of restorative processes derives from the fact that they seem to give the participants (p. 214 ) what they want, and in that way they reflect a recognition that lay perceptions can be important, a theme underlying empirical desert as a distributive principle. Indeed, one might even speculate that given that there is much agreement among laypersons about principles of justice the dispositions agreed upon in restorative processes may well naturally track those shared intuitions of justice, in other words, may track an empirical desert distribution.
On the other hand, because the participants include the victim and offender and commonly their family and friends, the biases that would naturally inhere in being in such a relationship may deflect one's views from the justice principles that one would normally apply to other cases in which one had no partiality (or, if not deflecting from principles of justice, at least altering one's perception of the relevant case facts). Thus, while a disposition may satisfy the participants at hand, it may well seriously conflict with the notions of justice of the community at large as occurs in some reported cases. In other cases, however, the potential distortions of empirical desert are held in check by the presence of participants with allegiances to each side of the case, potentially cancelling out one another. It is possible, then, that the results in restorative processes may operate like a de facto empirical desert principle and track the community's shared intuitions of justice. This is ironic given that, as Section B explains, an antidesert agenda in large part motivates the academic originators of the “restorative justice” movement. As Section C explains, restorative processes are not necessarily incompatible with a system of doing justice. Certain restorative processes will be more likely to do justice better than others—in particular, those with more participants rather than fewer—and justice is more likely where restorative processes are used as an integral part of the criminal justice adjudication process rather than as a wholesale substitute for it.
Ultimately, it is argued here that restorative processes can be used in ways entirely consistent with doing justice, that they can and should be used more widely, and that the best thing for the restorative processes movement would be to publicly disavow the antijustice agenda of the “restorative justice” movement.397
(p. 215 ) A. The Virtues of Restorative Processes, the Vices of “Restorative Justice”
Restorative processes include a wide variety of mechanisms that can be quite valuable in helping both victims and offenders, providing something that nothing in the traditional criminal justice can. For offenders, the processes can provide a better understanding of the real effect of their offenses and can put a human face on their victims. They also can give offenders an important insight into the norms they violated: during the process they see people who they know and respect openly expressing disapproval of their conduct. As Chapter 8 suggests, the potential influence of this kind of social interaction should not be underestimated.
Restorative processes also have a special benefit for victims. Consider the case of an elderly woman who had her house burglarized by a neighborhood youth.398 The emotional cost to her was devastating. She was afraid to go out, yet afraid when she stayed in. The incident turned into a generalized fear of everything around her. As part of the offender's reparations, the youth agreed to do some household chores for her and, by design, came to know her better and her him. That contact let the victim to better understand what had happened and how, and with that understanding, her generalized fear faded.
But one may quarrel with some of the “restorative justice” advocates who see these benefits as the only relevant effects. Victims and offenders are not the only people who have a stake in how we deal with wrongdoing. The adjudication of criminal wrongs is not a private affair, which is why criminal cases are treated as state prosecutions and not civil disputes. Important societal interests are at stake. Consider one case example to help bring the issues into focus. In Patrick Clotworthy,399 a New Zealand case about which John Braithwaite, one of the major proponents of “restorative justice,” speaks in admiring terms,400 the defendant stabbed (p. 216 ) the victim six times during a vicious robbery, puncturing the victim's lung and diaphragm and seriously disfiguring his face. It was the disfigurement that had the most devastating effect on the victim, for the result was sufficiently repulsive to people that it interfered with the victim's normal social interactions. In the mediation session, it was agreed that Clotworthy would not go to prison but, instead, would work to earn money to pay the $15,000 needed for the surgical operation to diminish the victim's disfigurement. Braithwaite thought this a wonderful disposition, an example of a restorative success. One might offer this an example, however, of what is wrong with his vision of “restorative justice.”
One can understand why the defendant would agree to such a disposition: he was desperate to reestablish his appearance of humanity and thereby his social relationships. And one can understand why Clotworthy thought this a great disposition: it was as if he was just paying civil compensation with no punishment for his attack (and not even fair compensation at that, because there was no compensation for the horrors that the victim had been put through). But the victim should never have been put to a choice of getting justice or getting his life back. To take advantage of his desperate situation to get him to agree to such a disposition is simply to victimize him again—this time with official institutions approving the dirty deed.
The result is objectionable; to approve it as a desirable disposition, as Braithwaite does, is even more so. It illustrates how unfortunately indifferent the “restorative justice” proponents can be to the importance of doing justice, important not just to victims but to the rest of society. Society has an important interest at stake here—doing justice—and dispositions such as Clotworthy undermine that interest. A justice disposition would have Clotworthy stay out of prison long enough to make the money needed for the operation, then go to prison or to suffer whatever additional punishment was deserved.401
As chapters 7 and 8 reviewed, the society's interest in doing justice can be both deontological—the transcendent moral value of justice—and practical—doing justice avoids future crime by enhancing the criminal law's moral credibility. Adopting dispositional rules that let wrongdoers (p. 217 ) such as Clotworthy get off with paying their victim's medical bills would seriously undermine the system's moral credibility with the community, with all of the resulting damage to crime control that would follow. Perhaps for this reason, the “restorative” decision in Clotworthy was overturned by the supervising court in favor of a prison sentence.402
B. “Restorative Justice” and Doing Justice
For the academic supporters of “restorative justice,” it may be the potential to undermine deserved punishment that makes restorative processes attractive. Many of these advocates use the term “restorative justice” as if it were interchangeable with restorative processes, but the literature make clear that a system based upon “restorative justice” ideally would ban “punishment,” by which is meant, apparently, banning punishment based on just deserts. Though in practice participants in restorative sessions commonly bring to bear their own intuitions of justice in sorting out an acceptable disposition, the advocates concede, the “restorative justice” ideal nonetheless is forgiveness, not deserved punishment. Bowing to what they see as the crime-control demands of reality, the “restorative justice” advocates reluctantly direct the use of deterrence mechanisms if restorative processes fail and incapacitation mechanisms if deterrence fails,403 but giving offenders the punishment they deserve is rejected as never an appropriate goal.
The centrality of this antijustice view is expressed in the movement's name, “restorative justice.” The point of the naming exercise is to present restorative processes as if they were a form of doing justice. But, of course, (p. 218 ) such word games only work so far. Calling something “justice” does not make it so. The term “justice” has an independent meaning and a common usage that cannot so easily be cast aside: “reward or penalty as deserved; just deserts.”404 (In this text, the term “restorative justice” is used to include the more ambitious, antijustice agenda, and the term “restorative processes” to refer to just the processes themselves.) The naming move can create confusion, and perhaps that is all the leaders of “restorative justice” want at this point: time to get a foothold in common practice before it becomes too obvious that their “restorative justice” program is in fact antijustice. But such word trickery is not likely to be sufficient for gaining longer-term or wider support. For that, they must face the antijustice issue squarely and persuade people, if they can, that people ought to no longer care about doing justice. There are good reasons to think that such a task is not possible.
That “restorative justice” adds this anti-desert agenda to restorative processes is somewhat odd and unfortunate. It is odd because, as noted previously, there is every reason to believe that it is the shared intuitions of justice of the persons participating in the restorative process that is shaping its disposition. In other words, group restorative processes are empirical desert in action. As social science research reported in Chapter 8 has confirmed, the criterion that drives people in assessing appropriate punishment is desert, an offender's blameworthiness.405 Thus, when members of a sentencing circle are sorting out an appropriate disposition for a case, what is driving their thinking is in large measure their intuitions of justice—in other words, desert. As Chapter 8 also makes clear, the studies suggest that these intuitions are quite strongly held and widely shared. It seems quite odd, then, that the “restorative justice” proponents approve of restorative processes that commonly run on the participants' shared intuitions of justice, yet at the same time claim that desert is to be opposed as a basis for assessing punishment.
(p. 219 ) Nor is desert as a distributive principle inconsistent with the use of nonincarcerative sanctions that are encouraged in restorative processes. Distributing punishment consistent with the degree of an offender's blameworthiness can be done through punishment in any form. Prison is one possibility but there are many other possibilities, including the full range of things that restorative processes might agree upon for an offender. As Chapter 7 makes clear, all that desert demands is that the sum total of all punishment add up to a total that matches the amount of punishment that the offender deserves according to the degree of his or her blameworthiness. So, for example, a prison term of X amount might be “converted” into a fine of Y amount or Z hours of community service, and so forth. The goal in these efforts is to provide as much flexibility as possible in the selection of sentencing method, while at the same time ensuring that offenders get the amount of punishment they deserve, no more, no less.
One may wonder why, if there is nothing in restorative processes that is inconsistent with desert, Braithwaite and other “restorative justice” proponents are so opposed to desert? One might speculate that they misconceive modern desert as being what Chapter 7 terms “vengeful desert.” This is certainly consistent with how they speak of desert.406 On the other hand, as the conclusion to Chapter 7 hints, the cause and effect may be reversed: they may adopt “vengeful desert” as their conception of desert because it makes the easiest strawman to attack.
C. Using Restorative Processes More Widely and in More Serious Cases
The opposition of the “restorative justice” academics to desert is not only odd but also unfortunate because it inevitably produces both political and public resistance to restorative processes. The anti-desert stance associates restorative processes with a failure of justice, which translates into political opposition. Despite the wonderful things that restorative processes can do, today they typically remain limited in use to cases of juveniles and minor offenses.407 In contrast, evidence suggests that their (p. 220 ) greatest benefits may be found in their use in the more serious cases,408 where more is at stake for both for victims and offenders. But it seems clear that restorative processes will never get the chance to be used in these serious cases as long as they are trapped by the anti-desert agenda of their academic proponents.
Can restorative processes be used in a way that would permit expansion to serious offenses? There is reason to believe so. First, if the seriousness of the authorized dispositions by restorative processes is increased, the kinds of cases dealt with could be widened. Some people will be hesitant to give serious sentencing authority, such as imprisonment, to a restorative process body, no matter what an offender's veto power. But one can conceive of versions of restorative processes that include judicial participation and/or include guidelines that structure the exercise of discretion.
A second point may be the most important for expanding restorative processes. As Chapter 7 discusses, justice cares about amount, not method of punishment. Thus, one could impose deserved punishment through any variety of alternative methods without undercutting justice—fine, community service, house arrest, curfew, regular reporting, diary keeping, and so forth—as long as the total punitive “bite” of the disposition (the “punishment units”) satisfies the total punishment the offender deserves, no more, no less.
This characteristic of justice has two important implications for restorative processes. First, because all forms of sanction can give rise to “punishment credit,” good-faith participation in restorative processes itself can count toward satisfying the required punishment, at least to the extent of the personal suffering that produces in the offender. No doubt there can be discomfort in attending a meeting where family and friends have gathered to discuss one's wrongdoing. Second, the restorative processes may provide an effective means for sorting out just how the total punishment units called for are best “spent”—that is, they may be a particularly effective means of fashioning a disposition from among the wide (p. 221 ) variety of available methods that will best advance the interests of restoring the victim, the offender, and society.
Finally, limitations on the dispositional authority of restorative processes are a problem only where such restorative processes are used as the sole dispositional process—that is, where they are substituting for the criminal justice system. However, where such processes are only complementary to the criminal justice system—where they operate in parallel to or as an integrated part of the criminal justice system—there is no practical limit on the available dispositions and no reason to impose any such limit. For example, if the criminal justice system remains available to review the fairness and justice of dispositions proposed by restorative processes, then the full range of dispositions, including the most serious, can be made available.
Ideally, we ought to use restorative processes whenever we think such processes can give benefit and make available a wide range of sanctioning methods, including serious sanctions. Unfortunately, the broader use of restorative processes may never have a chance as long as restorative processes are sold as “restorative justice,” with its agenda of undermining justice rather than of achieving it for all parties. (p. 222 )
(396) see , e.g., Leena Kurki, Restorative and Community Justice in the United States, 27 Crime & Just. 235, 280–281 (2000) (explaining that sentencing circles involve victim, offender, key community members; that they are also open to the public; and that the agreements reached in the circles are either recommendations for the judge or the final sentence); Ilyssa Wellikoff, Note, Victim-Offender Mediation and Violent Crimes: On the Way to Justice, 5 Cardozo Online Journal of Conflict Resolution 2 (2004) (explicating that for victim-offender mediation the victim is able to question his or her offender and discuss how the crime affected his or her life). Other mechanisms include conferencing, victim assistance, ex-offender assistance, restitution, and community service. see Restorative Justice Online—Introduction, available at http://www.restorativejustice.org/intro; Paul H. Robinson, The Virtues of Restorative Processes, the Vices of Restorative Justice, Symposium on Restorative Justice, 2003 Utah L. Rev. 3.
(397) This chapter is drawn primarily from Paul H. Robinson, The Virtues of Restorative Processes, the Vices of Restorative Justice, in Symposium on Restorative Justice, 2003 Utah L. Rev. 375; Paul H. Robinson, Restorative Processes and Doing Justice, Symposium Issue, 3 Univ. St. Thomas L. Rev, 421 (2006).
(398) see Kathy Elton & Michelle M. Roybal, Restoration, A Component of Justice, 2003 Utah L. Rev. 43, 53 n.57 (2003) (citing Mark S. Umbreit with Robert B. Coates & Boris Kalanj, Victim Meets Offender: The Impact of Restorative Justice and Mediation 160 (1994)) (highlighting the case of an elderly woman whose home was burglarized by a neighborhood youth as one where restorative processes were used appropriately and successfully).
(57) Bureau of Justice Statistics, U.S. Dep't of Justice, State Court Sentencing of Convicted Felons—1998, Table 3.11 (2001).
(399) The Queen v. Clotworthy, T.971545 (D.C. April 24, 1998) (N.Z.), available athttp://www.restorativejustice.org.nz/Judgements%20Page.htm (follow “Sentencing Notes” hyperlink). But see infra note (reversing disposition in Clotworthy).
(400) John Braithwaite, Restorative Justice: Assessing Optimistic and Pessimistic Accounts, 25 Crime & Just. 1, 87–88 (1999).
(401) For an account of how “restorative justice” can conflict with desert, see David Dolinko, Restorative Justice and the Justification of Punishment, 2003 Utah L. Rev. 319, 331– 334; Stephen P. Garvey, Restorative Justice, Punishment, and Atonement, 2003 Utah L. Rev. 303, 306–308.
(402) The Queen v. Clotworthy, CA 114/98 (C.A. June 29, 1998) (N.Z.), available athttp://www.restorativejustice.org.nz/Judgements%20Page.htm (follow “New Zealand Court of Appeal” hyperlink).
(403) see John Braithwaite, A Future Where Punishment is Marginalized: Realistic or Utopian?, 46 UCLA L. Rev. 1727, 1746 (1999) (classifying restorative justice as competing with punitive justice); Burt Galaway & Joe Hudson, Criminal Justice, Restitution, and Reconciliation 1–2 (Burt Galaway & Joe Hudson eds.,1990) (“The central notion [of restorative justice] is to reject traditional justifications, both retributive and utilitarian …and to suggest that the purpose of state intervention in criminal matters should be to bring about peace among the participants and restore loss.”); Howard Zehr, Changing Lenses: A New Focus for Crime and Justice 209–210 (1990) (“If there is room for punishment as a restorative approach, its place would not be central.”); see also Steven P. Garvey, Punishment as Atonement, 46 UCLA L. Rev. 1801, 1843–1844 (1999) (“Put bluntly, restorativists really don't much care for punishment…. Missing from [their] agenda …is the idea of punishment as moral condemnation.”).
(404) Webster's New World Dictionary of the American Language 766 (1970).
(405) see , e.g., Kevin Carlsmith, John M. Darley & Paul H. Robinson, Why Do We Punish?, supra note 380, at 284. (concluding that laypersons are highly sensitive to factors uniquely associated with just desert principles and that their individual sentencing decisions are exclusively driven by just desert concerns); Darley, Carlsmith & Robinson, Incapacitation and Just Deserts as Motives, supra note 207, at 659, 676. (deducing that just desert was the primary sentencing motive since research participants increased punishment as the seriousness of the offense increased and did not alter punishment based upon variations in the likelihood of committing future offense).
(380) see Darley, Carlsmith & Robinson, Incapacitation and Just Deserts as Motives, supra note 207, at 659; Kevin M. Carlsmith, John M. Darley & Paul H. Robinson, Why Do We Punish? Deterrence and Just Deserts as Motives for Punishment, 83 J. Personality & Soc. Psychol. 284 (2002).
(207) Modern academics have become comfortable with using nondesert crime-control principles, such as deterrence and the incapacitation of dangerous people, to govern the distribution of criminal punishment. Laypersons, however, generally do not share this perspective. see , e.g., John M. Darley, Kevin M. Carlsmith & Paul H. Robinson, Incapacitation and Just Deserts as Motives for Punishment, 24 Law & Hum. Behav. 659, 659 (2000).
(298) see , e.g., John Braithwaite & Philip Petit, Not Just Deserts: A Republican Theory of Criminal Justice 180 (1990) (“The vagueness of desert …masks mistakes.”); R.A. Duff, Penal Communications: Recent Work in the Philosophy of Punishment, 20 Crime & Just. 1, 7 (1996) (“It is not enough simply to appeal to the supposedly shared intuition that the guilty deserve to suffer …since such an intuition, however widely shared, needs explanation: what do they deserve to suffer, and why?”).
(407) see Paul H. Robinson, Virtues of Restorative Processes, supra note 397, at 384–385 (reviewing the scope of present programs using restorative processes); Kurki, supra note 396, at 240 (“[R]estorative justice initiatives in the United States are typically used as diversion programs for juveniles in minor, nonviolent, and nonsexual crimes”).
(408) see Heather Strang & Lawrence W. Sherman, Repairing the Harm: Victims and Restorative Justice, 2003 Utah L. Rev. 15, 40 (mentioning recent studies which indicate that restorative justice is more effective in reducing violent crime than property crime).