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Monday, February 13, 2006

Restorative Justice: Some Reservations

      Restorative justice is an attractive response to crime in part because it promises to respect victims and respond to past wrongdoing, and in part because the direct and collateral consequences of conventional punishment are so unattractive. Restorative processes attempt to bring all parties with a stake in a particular offense together to craft a response to the offense and its aftermath which satisfies all involved. The stakeholders are victims, offenders, and affected communities; the resolution is generally determined through some form of informal mediation; and a successful outcome typically includes apology, forgiveness, and a plan for restitution determined by the parties. Although I feel the attraction of these practices, I also find myself troubled by certain structural features they seem to share. Conceived of as an ideal of justice, restorative processes seem to place an unacceptable choice in the hands of offenders.

Conceived of as an alternative to punishment within a mixed system of retributive and restorative justice, restorative processes seem to place an undesirable choice in the hands of victims. My concern is not with how offenders and victims will exercise their choices but rather with the fact of choice itself. For instance, it is true but uninteresting that without the threat of punishment few offenders will participate in restorative processes. But even at the level of ideal theory, if justice requires reconciliation then justice lies in the hands of offenders and not merely in the hands of victims. Whether victims receive justice is left up to those who denied them justice once before. Restorative processes do not terminate the relationship of domination between offender and victim established by crime but rather extend that relationship into the remedial phase.

      Might reconciliation nonetheless form part of a mixed ideal of justice, as an alternative to punishment? On this view, wrongdoers decide not whether justice will be done but what form justice will take. I suspect, however, that this version of restorativism errs by placing a burdensome choice in the hands of victims: Since victim participation in restorative processes is indispensable, victims have the power to deny offenders the opportunity for reconciliation and consign them to ordinary punishment. Critics like Richard Delgado argue that such a choice will be exercised idiosyncratically, resulting in disparate treatment of similar offenders. I wish to explore a different possibility, namely that it might be unfair to victims to place such a choice in their hands.

  The general proposition that one can harm an individual by expanding rather than contracting the range of options available to her may seem counter-intuitive, but has been documented in a variety of contexts, ranging from strategic bargaining, to physician-assisted suicide. It can be rational to decline additional options, just as it can be rational to foreclose existing options, to avoid psychological pressures that might compromise rational decision-making. In “Sophie’s Choice” situations, one might prefer either of two bad outcomes to a choice between them, for one’s own agency is corrupted when one chooses even the lesser of two evils. The normative status of an outcome might also depend on the manner in which it is brought about. To take an example of David Velleman’s, one’s absence from a friend’s dinner table is neutral if no invitation was made, but rude or worse when an offer is made and refused, an option created and declined. Hence it might be rational to attend if invited but hope not to be. Finally, on one influential view (that of Robert Nozick; sorry I couldn’t find a link) the difference between threats and offers is that the former put their recipients to a choice they would choose not to have.

      Even if it is possible to harm an individual by expanding her options, it remains to be seen what harm, if any, is done to victims by leaving it up to them whether offenders will be punished or will have the option to participate in restorative processes. My sense at this stage is that just as the state ought to act as a conduit for individual duties of humanitarian assistance and distributive justice, thereby freeing individuals to concentrate their attention on their personal obligations and goals, so too should the state relieve its citizens of the psychological burden of demanding punishment or granting mercy. An important function of the criminal process is to relieve victims and their families of the responsibility to seek retribution, a task which distracts them from healing their injuries, from mourning their losses, from moving past their suffering and on with their lives. Jeffrie Murphy may be right that retributive hatred is an instrumentally justified emotional response, since it provides the strong motivation necessary to willingly incur future costs to punish past wrongdoing. Yet even if so justified, retributive hatred can be psychologically debilitating, for it requires that victims and their families continue to live in the past, constantly revisiting their loss to refresh or reinforce their anger. A mixed system of criminal justice may therefore impede the healing process of victims and families. Giving victims a choice between punishment and reconciliation may make forgiveness and reconciliation more difficult. More importantly, victims would be better off, at least along one dimension, if they were not burdened by the choice proposed.

      In modern societies, willingness to inflict justified suffering upon others is a role-specific virtue. Soldiers, police officers, and prison guards take comfort in the fact that the harm they do reflects their official role and not their individual qualities. Individuals who do not occupy these roles are encouraged to develop a strong instinctive aversion to harming others, a pre-reflective revulsion which would make it psychologically difficult to inflict even justified suffering upon a person who poses no immediate threat to oneself or others. One reason why military drafts are widely though regrettable is that the draft forces ordinary citizens into social roles that require inflicting suffering and even death upon other human beings. In at least one way, placing the fate of offenders in the hands of victims is even more oppressive, for victims do not even occupy a rule-governed institutional role which victims can use to distance themselves from the suffering they may choose to inflict. Sentencing judges can convince themselves that their decisions are directed by law; victims facing comparable decisions know the outcome will be the product of their emotions, desires, and character traits. For this reason, too, the choice between punishment and reconciliation might be an unwelcome one.

Posted by Adil Haque on February 13, 2006 at 05:23 PM in Criminal Law | Permalink

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Looks like another good precis for an article. I wonder if maybe there are Lockean undercurrents here as well, since victims and offenders will be biased in predictable ways in determining appropriate forms and levels of punishment. Hence the need for an impartial arbiter to avoid the "inconveniences" of personal retribution.

Posted by: m | Feb 13, 2006 6:08:30 PM

I agree with you. Restorative justice as you posit it is a primitive concept. Not for an advanced society. I say "as you posit it" because society treating an offense against the individual as an offense against the whole of society is of immense value (restorative) to the victim and to the other empathetic members of society. Much more so than "wergild". Not so much retribution as vindication retrospectively and comfort, acceptance and restored faith in the security promised by society prospectively. Not that I disagree with your reasons. Individuals sacrifice a great deal to belong to a society and one of the things they can demand in return is not being obligated to reinvent justice on an ad hoc basis.

Posted by: nk | Feb 13, 2006 9:46:39 PM

"Soldiers, police officers, and prison guards take comfort in the fact that the harm they do reflects their official role and not their individual qualities."

I think Cool Hand Luke put it best: "Calling it your job don't make it right, boss."

Posted by: Paul Newman | Feb 13, 2006 9:57:29 PM

Adil,

Have any jurisdictions actually enacted such approaches? It seems like it might work in Cambridge, MA, or Berkeley, CA, but not really anywhere else.

Posted by: thelawgal | Feb 14, 2006 10:06:30 AM

Thanks to all. To thelawgal: John Braithwaite has chronicled experiments with restorative justice in Australia and New Zealand, and U.S. and U.K. community drug courts are a parallel experiment for victimless crimes. There are also older practices in African and Native American societies, on which the modern innovations are modeled.

Posted by: Adil Haque | Feb 14, 2006 10:36:32 AM

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