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Friday, October 20, 2006

The Future of Shaming (and Restorative Justice), Part 7 of 7

See here for previous related links to the first through sixth posts in this series. What follows in today's post is the last excerpt of a forthcoming piece that addresses Dan Kahan's recent renunciation of shaming punishments and subsequent embrace of restorative justice as an alternative to incarceration. The essay was just accepted for publication in the Texas Law Review, and a draft including footnotes is available here.

In light of the reasons Kahan gives to explain his reversal on shaming punishments (see post five), I confess I am now puzzled by Kahan’s embrace of restorative justice strategies as an alternative to incarceration. As I explain below, restorative justice seems susceptible to the same kinds of concerns about divisiveness raised by Kahan with respect to shaming punishments.

Kahan explains his support of restorative justice by appealing to the previously mentioned principle of “expressive overdetermination.” To quickly recap, what Kahan likes about restorative justice is that he believes it will be a cheaper alternative to incarceration that, unlike shaming punishments, is capable of appealing to the four cultural worldviews he discusses: individualistic, hierarchical, communal, and egalitarian.

By urging crime control responses that have appeal to all these various worldviews, Kahan appears, at first blush, to be drawing from the same well as his former colleague, Cass Sunstein—who has generally urged judges to decide cases on narrow grounds. This judicial minimalism, which itself relies on incompletely theorized agreements, allows legislatures to devise pragmatic solutions for contemporary problems without being overly constrained by judges who may lack accountability or expertise on the issues at hand. Kahan’s search for expressive overdetermination in punishment modes may be viewed as trying to replicate the virtues of incompletely theorized agreements. On this view, the less said publicly about the justification for a social practice, the more likely others can interpret it as being consistent with their cultural worldview and the more likely social conflict will be avoided. But whereas Sunstein’s embrace of judicial minimalism is designed to displace and channel political conflict to the appropriate political sphere, Kahan’s pragmatic search for expressive overdetermination appears aimed at downsizing, if not squelching, the play of the democratic process altogether.

Regardless of whether a reduction in socio-political conflicts is an unqualified benefit for democracies -- and I am not sure it is -- I suspect Kahan’s new enthusiasm for restorative justice approaches will erode if he tethers his pragmatic support for restorative justice simply to the principle of expressive overdetermination. That’s because once people understand the prototypical mechanisms of restorative justice, those programs will likely be deemed incompatible with the basic values of at least some of the four archetypal worldviews. Let me explain.

Putting aside the concerns one might have about the artifice of these four worldviews, let’s understand first what Kahan thinks restorative justice entails and then whether restorative justice is compatible with all four worldviews. Kahan describes the standard restorative justice approach as a program that

contemplates the diversion of a case from the criminal justice system to an informal mediation process involving the offender, the victim, and representatives of the community. Under the guidance of a professional facilitator, the participants negotiate an appropriate disposition, one that ordinarily includes some type of apology by the offender and an agreement on his part to furnish monetary or in-kind reparations to the victim. In addition, community representatives typically devise employment opportunities for the offender and steer him or her into counseling or support groups (often faith-based ones).

Kahan also notes that these kinds of sentencing circles are used for a broad variety of crimes including “theft, burglary, drunk driving, domestic and stranger assaults, and minor sex offenses.”

Kahan thinks restorative justice approaches can succeed as an alternative to incarceration because people with different worldviews can sign onto it for different reasons. It is plausible that communitarians or solidarists might sign onto restorative justice because a special role is carved out for communal participation in the meting out of restorative justice. Indeed, given the ideological origins of restorative justice programs, it is unsurprising that church groups supervise more than 20% of the restorative justice programs in the United States, and that restorative justice would find support among various religious bodies. But why should we think that egalitarians, for example, will embrace restorative justice?

Kahan’s explanation is that egalitarians will embrace restorative justice because restorative justice approaches can be interpreted as avoiding status degradation and instead focusing on the “reintegrate[ion of] offenders in a way that affirms their dignity.” This explanation is a slender reed. To begin with, one might reasonably think that affirming an offender’s dignity is really an individualist value and not a specifically egalitarian one. No matter. Some proponents of restorative justice have pitched it as an egalitarian enterprise on other grounds. On this view, the breach of social equality (represented by the criminal offense) is repaired by a negotiated agreement among the stakeholders that seeks to restore (or elevate) offender and victim to an ideal of social equality manifested by equal concern and respect for each other.

While some egalitarians might subscribe to the view that restorative justice measures are vehicles capable of promoting social equality, others might wonder if egalitarianism requires something else in the context of responding to criminal offenses. These other egalitarians might think, in other words, that institutions of distributive justice should be used to ensure and promote social equality but at the same time they see the onset of a criminal offense as a claim to superiority by the offender, a claim whose plausibility should be contested by the victim or the state.

Moreover, egalitarians of different stripes may wish to ensure there is an evenhandedness in punishment among similarly situated offenders (and victims). Importantly, many egalitarians (and probably those holding other modern worldviews) would share strong rule of law values that promote treating similar cases similarly. But restorative justice approaches, as I explain below, raise profound rule of law concerns. And achieving evenhandedness and respect for equality of all citizens turns out, perhaps paradoxically, to be serious problems for restorative justice defenders.

Why would this be? Consider first that on most accounts of restorative justice, participation by the offender and victim must be voluntary. Additionally, the resulting “resolution” to an offender’s crime is often “negotiated” by the various stakeholders inside the sentencing circle. If you think about the implications of these two factors, you realize how connected the outcomes are to the contingent features of who is in the sentencing circle in many scenarios. For example, do you have a forgiving victim or a hateful one? Do you have multiple victims with conflicting views about the nature of the harm or the appropriate resolution? Is the offender recalcitrant or insistent on his innocence or sincerely contrite or gifted at giving the appearance of contrition? Are the community representatives who appear in the restorative justice sentencing circles drawn from religious traditions or social clusters that might unduly pressure the victim or the offender?

The answers to these questions will greatly affect the application and result of a restorative justice approach, since, under many restorative justice programs, the voluntary participation of the offender and the victim is critical. For example, say you are the offender and very contrite, but your victim wants nothing to do with you, perhaps fearing that she will be victimized again through a process in which she will be pressured to agree to something under the influence of the “mediator” or “community.” Or say you are the victim and seek a restorative justice approach, but your offender shares the same aversion to public displays of self-abasement as David Lurie, the main character in J.M. Coetzee's novel, Disgrace. In such situations, your access to restorative justice is foreclosed.

What’s more, because restorative justice sentencing circles operate voluntarily and in an environment that is largely devoid of standards to ensure that similar crimes are punished similarly, restorative justice, with all its attendant reliance on the role of luck—and the illiberal outsourcing of punishment authority away from the state and into the unaccountable hands of “community” figures —effectively abandons pursuit of the goal of equal justice under law. Restorative justice, then, risks leaving two rule of law “casualties” in its wake: equality of application of law as well as certainty of sanctions. The two are connected. With the range of punishments likely to be broader than structured sentencing schemes, their application will be context dependent, which means different people will be punished in different ways, and predictability and certainty of punishment will be lessened. This may be a profound policy problem, as well as a problem of constitutional dimensions.

All this generates two conclusions. First, I am personally less captivated than Kahan is by the allure of the conventional restorative justice picture painted by Kahan. Second, and more important for Kahan’s pragmatic purposes, my sense is that there might be large numbers of people who might share my view, i.e., that restorative justice (as typically practiced) threatens commitments to equality and rule of law. If that’s the case, then Kahan will soon see (and perhaps should have already seen) real and persistent values-based opposition to restorative justice as an alternative sanctions strategy – much as he did with shaming. Indeed, based on the returns so far, the academic criticisms of restorative justice have been similarly unsparing, though to be sure, there are far more academic supporters of restorative justice than there are of shaming.

In defending restorative justice, Kahan points to its alleged theoretical incoherence as a virtue—the better that it can serve as a pragmatic alternative that will entice citizens with differing worldviews. But restorative justice doesn’t suffer (at least not chiefly) from “coherence deficits” so much as from “justice deficits.” When restorative justice approaches are practiced—in the absence of coercion determined and imposed by an impartial state—such methods render the institutions of punishment unattractive because they undermine the fair application of the criminal law and the proper expenditure of its precious moral capital. In other words, pace Kahan, it is not the coherence of restorative justice that is at issue for its critics, but its attractiveness. If “[m]embers of society … expect punishments—and essentially all laws for that matter—to affirm the core values that animate their preferred ways of life,” then Kahan will have to continue looking elsewhere for consensus.

Posted by Dan Markel on October 20, 2006 at 01:18 AM in Article Spotlight, Criminal Law, Dan Markel | Permalink


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Because the idea of ‘restorative justice’ is rooted in a ‘Protestant ethic’ of the antinomian variety, at once radically egalitarian and individualistic, we can readily ascertain why the ‘justice deficits’ might have been predicted owing to conceptual ‘coherence deficits’ (at least from the perspective of criminal justice in a would-be Liberal democratic state), as they are of a piece and, I would contend, causally related to each other. This argument is not mine, but rather that of Lawrence Sherman in his essay, ‘Two Protestant Ethics and the Spirit of Restoration’ (in Heather Strang and John Braithwaite, eds., Restorative Justice and Civil Society, 2001). This specific Protestant ethic (by way of contrast to the Calvinist Puritan ethic) is exemplified by the Quakers, Mennonites, Amish and Anabaptists, for example, and is, as Sherman says, ‘at once democratic and anarchistic, literate and anti-professional.’ Quoting an earlier analysis of the two ethics [as ideal types, mind you] by E. Digby Baltzell, Sherman notes a fundamental difference between the two ethics: ‘the Calvinist Puritan ethic is “optimistic about institutions, pessimistic about man,” while the antinomian Quaker ethic is “optimistic about man, pessimistic about institutions.” It is the pessimism about institutions that may lead the antinomianism of restorative community justice to undermine government [in our case, the criminal justice system] and civil society [with its commitment to the goal of equal justice under law]…. The history of these two ethics suggests the growth of restorative justice would foster an egalitarian individualism that breed disrespect for all institutions, including law itself.’

Hence the practical implications of this antinomian Protestant ethic are readily derived from its essential assumptions and tenets, predictably preferring ‘the illiberal outsourcing of punishment authority away from the state and into the unaccountable hand of “community figures”—effectively abandon[ing] [the] pursuit of the goal of equal justice under law.’ Again, ‘by supporting private conceptions of justice,’ writes Sherman, [the, loosely, Quaker ethic] can render the law irrelevant.’ There are other troubling consequences for such an ethic which are not relevant here (e.g., the apparent link between ignoring the law and creating the law with self-help, hence what the law labels ‘crime’ may be re-described by others as ‘righteous punishment’ of others). And I’m not speaking to any of the virtues of such an ethic, only its vices as it pertains to the pursuit of criminal justice in keeping with the topic at hand. Max Weber, paraphrased here by Sherman, informed us some time ago that ‘it was considered taboo among antinomian sects to call on the law courts for any purpose (on pain of expulsion from the church).’ Sherman ends with some suggestions by way of addressing the problems he identifies with the Quaker ethic, explaining how it might be possible to develop civil society institutions in support of restorative justice AND the basic institutions of law. However, he admits to the almost insuperable obstacles that would have to be overcome for this to occur, and his own analysis would suggest that, even if theoretically possible (a utopian proposal if you will) it’s highly unlikely to happen in practice.

So, I think restorative justice does principally suffer from theoretical incoherence of a kind in the light of its fundamental incompatibility with our criminal justice system and it is that incoherence and incompatibility that ‘serves to undermine the fair application of the criminal law and the proper expenditure of its precious moral capital.’

Posted by: Patrick S. O'Donnell | Oct 20, 2006 9:46:00 AM

Patrick, I think that's a friendly amendment. My sense, and perhaps I didn't accurately convey it, was that restorative justice need not be incoherent even if often the accounts propounded as RJ are. A historical account of the ideology of RJ such as the one your comment gestures at would be more inclined to lead to incoherence because of the nature of historical contingency. But working in a vaccuum I suspect one could think up a relatively coherent account--it just might not be attractive to many of us when realized to its full effect. Thanks.

Posted by: Dan Markel | Oct 20, 2006 10:03:37 AM


Yes, it was a friendly amendment: I wanted to further strengthen your argument.

Posted by: Patrick S. O'Donnell | Oct 20, 2006 10:08:53 AM

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