Retributive and Restorative Justice

RETRIBUTIVE AND RESTORATIVE JUSTICE
"Retribution means we eventually do to ourselves what we do to others" (Eric Hoffer)

Retributive justice is a systematic infliction of punishment justified on grounds that the wrongdoing committed by a criminal has created an imbalance in the social order that must be addressed by action against the criminal. Restorative justice is a systematic response to wrongdoing that emphasizes healing the wounds of victims, offenders and communities caused or revealed by the criminal behavior. When restorative justice is applied beyond the domain of criminal justice, such as in the areas of bankruptcy law, corporate law, environmental law, and family law, it is called transformative justice.

Restorative justice is a growing movement that strives to achieve reconciliation between crime victims and the persons who have harmed them through the use of various forms of mediation and nonviolent conflict resolution. Many programs using the restorative approach have been launched in North America, Europe and Australasia, and it is the predominant approach found among "Truth Commissions" which investigate international human rights violations. Restorative justice challenges the very heart of concepts commonly found in the field of criminal justice, concepts such as deterrence, rehabilitation, incapacitation, and crime prevention. These terms either do not exist or have little meaning under the restorative approach. As we shall see, neither do these terms have much meaning under the retributivist approach.

Retributive justice has its origins in the time of the Norman Conquest when feudalism was developed, and servants or vassals swore allegiance or "fealty" to their king. This made any criminal offense a crime against the state, not a crime against another person. Restorative justice has its origins in the communal practices of pre-modern societies where the offender's family and the victim's family got together and reconciled matters privately. The contemporary American interest in restorative justice can be traced to a time around 1974 when Canadian and U.S. courts began experimenting with victim-offender reconciliation programs (VORP). During the 1980s, there were many activists, such as Zehr (1990; 2002) who were influential in spreading word of the restorative justice movement. Before restorative justice can be understood, it is best to explain the basic and advanced ("further" as Pollock 2004 calls them) issues in retributive justice.

Restorative justice is sometimes called communitarian, reintegrative, or redemptive justice, and although subtle differences exist, almost all varieties try to maximize forgiveness, hope, accountability, and positive outcomes for all parties, especially but not limited to communities which have experienced the most harm and could benefit the most from harm reversal. Redemption is the critical ingredient, and redemption, of course, is always better when it is earned redemption, so this philosophical approach is not necessarily tied to an apology-based perspective. Restorative justice is a broad field (technically a philosophy which seeks to implement values), and those who wish to become informed of it would do well to read some of the classic works by Howard Zehr and others. Current redemptive philosophy in criminal justice tends to be about faith-based initiatives, and/or religious-based correctional interventions (conservative, fundamentalist Presidents are probably to thank for that). However, in criminology, there is actually much more scholarship that needs to be done, both theoretically and empirically. No one has yet created the criminological model which lays out the path by which (religious) faith or belief affects law-abiding behavior, and all that is really known is that (according to a set of studies known as the Florida Chaplaincy studies) the more religious activities a prisoner attends, the fewer the number of misconduct reports he/she receives. The Catechism of the Catholic Church (Article 5, section 2266) provides the classic statement on redemption as a philosophy of punishment:

The primary effect of punishment is to redress the disorder caused by the offense. When this punishment is voluntarily accepted by the offender, it takes on the value of expiation. Moreover, punishment has the effect of preserving the public order and the safety of persons. Finally, punishment has a medicinal value; as far as possible it should contribute to the correction of the offender.

Retribution is a rationale for the existence and limits of law. Retributivism is a theory of punishment. Retributivism answers the question "why punish" by saying that the offender deserves punishment, and as simple as this statement sounds, its underlying meaning contains a couple of important points about morality and law. Retributivism as a theory of punishment requires retribution as a rationale for law. A retributionist assumes that the law exists for a reason -- a moral reason. All crime, even victimless crime, involves a social harm -- a moral harm. In other words, violating the law not only offends against the law of the land, but the moral code of the land. As Moore (1997) states, retributivism holds to a legal moralist theory of law where the only worthwhile legislation is that which addresses morally wrongful behavior, or in other words, legislates morality. Since the law as written not only includes a description of the criminal act, but the appropriate penalties and punishment for that act, it follows that the exercise of punishment -- as the law demands -- is a moral act in itself. This is what a retributivist means by saying the punishment is deserved. It's not so much that the offender deserves punishment (that wouldn't be much more than retaliation or revenge), but that the majesty of the law requires the automatic carrying out of punishment (as the moral law prescribes). It's well-accepted that criminal law, as opposed to all other kinds of law, carries a sense of morally blameworthiness with it. To punish is simply carrying out a moral obligation in seeing the moral law come to completion. There is no expectation that the punishment will accomplish any purpose or consequence. Punishment is not something we "ought" to do; it's just something that "is." As such, it's a kind of suffering, strife, or struggle that the offender must go through.

Retributivists sometimes talk about punishment as restoring the dignity of the offender, and the concept of blameworthiness is again involved in this. Blameworthiness (in criminal law) consists of both culpability and responsibility. Culpability is well-known to most criminal justice students as the mental state, or mens rea element, in crime. It's the level of intent, and most students of criminal law are familiar with the four Model Penal Code standards of culpability -- purposely; knowingly, recklessly; and negligently. However, it's the concept of responsibility that is related to dignity, as a concept of free will, or volition. The offender freely chooses to commit the crime, and so, the offender must freely choose what they get out of suffering the punishment for the crime, and it is this preservation of the offender's free will that restores dignity to the offender. Suffering the punishment is the ONLY justification or explanation of punishment that is needed in retributivism. In this sense, retributivism stands in sharp contrast with utilitarian and rehabilitative theories of punishment.

Retributivism has a rather unique approach to victimology. Many people misunderstand what retributivism is about in this regard. The average person thinks that retribution is the same as vengeance, "getting even," or taking law into your own hands, but these ideas are all wrong. Likewise, some people think that if the state punishes criminals on behalf of the victim, then that produces some kind of catharsis effect (by expressing society's outrage and decreasing the potential for vigilante justice). However, this idea is also wrong. Making victims feel good is not part of retributive justice. Retributivism holds that each offender must be punished, even if the victim wishes to forgive the offender or extend mercy. Forgiveness and mercy are NOT part of retributivist justice, but they are a part of restorative justice. This raises the question of what is the proper emotional stance to take toward punishment under a retributivist philosophy. Should the state look upon it as an unpleasant duty? Should the state punish out of glee? Friedrich Nietzsche (1844-1900), the famous philosopher of ethical irrationalism (irrationalism being the study of illogical emotions), said there were few moral facts to go by with an ethical skepticism like retributivism, and sought to distinguish between virtuous emotional states (moral hatred) and nonvirtuous emotional states (hatred). In philosophy, all the nonvirtuous emotional states, such as ordinary hatred, which are associated with cowardice, envy, sadism, and the like, are lumped under the word "ressentiment." Ressentiment is something to be avoided at all costs. Hence, the necessity of punishment under retributivism must be done for no other reason than it needs to be done -- cold, emotionless, and out of consideration for the state's "will to power," the motive of power being the only motive worthy of ethical admiration. The state must declare that it is powerful through punishment, just as individuals pursue what they love (their "fate") to become powerful at their chosen pursuit. This is also part of the notion of a higher calling, or the "heroism" involved in becoming a criminal justice professional.

Getting back to victimology for a moment, there is a necessity for victim services under the philosophy of retributivism, but not for the reasons one might think. Victims are seen as having a blood "lust" and society is seen as having a blood "guilt." Society must punish, regardless if the punishment deters crime or satisfies the victim, to purge itself of this guilt. A well-ordered society based on free will and responsibility, as retributivism seeks, should go about its business of punishment in such a way as to maximize or expand the possibilities for individual freedom, character building, self-choice, and dignity. Pollock (2004) tries to apply retributive justice to the "further" issues of special populations other than the ordinary criminal offender. These special populations include juveniles, the mentally ill, white collar criminals, and victims. Each of these present unique difficulties to retributivism.

The appropriate retributivist stance toward juveniles is one of legal paternalism. To be paternalistic means to protect people from their own foolish mistakes, acting as some sort of stern parent giving "fatherly" advice to them. Paternalism is only appropriate when age or mental impairment justifies forcing one's moral judgments or self-righteousness upon another (Thompson 1980). Secondly, paternalism is only appropriate when it is as limited as possible. For example, there are times when a juvenile may do something foolish, but it's not life-threatening. It's only when the behavior might represent an irreversible error that paternalistic intervention is justified. Now, a lot of laws are paternalistic. Vice crimes, like gambling, intoxication, drugs, prostitution, etc., are often addressed by paternalistic laws, but there are yet other reasons why laws such as these are enacted, as follows:

These are but a few of the various ways that Pollock (2004) implies are justifications for moral law and legal paternalism. Hate crime, for example, would make for an excellent subject of study from a Nietzschean perspective, since average, or "ordinary" hate should be outlawed, irregardless of the harm that hate causes. Likewise, one might question the execution of the mentally ill (Guilty but Mentally Ill) or the mentally handicapped (i.e., mentally retarded) on retributivist grounds. Lewis (1998), for example, confronts this issue when she argues that the death penalty ought to be limited in application to those who can truly understand what is happening to them.

The problem that corporate crime, environmental crime, and white collar crime presents to retributivism is the problem of WHO is accountable. Corporations consist of many different people, all of whom may have had a part in the criminal or immoral behavior. The standard approach at law is to NOT hold corporations criminally liable, but to hold them accountable under civil justice. Corporations usually pay a fine, for example, and then tend to go on polluting the environment or making unsafe products. What should a retributivist think about this? Unfortunately, there is no standard answer. One could look at the level of intent, as retributivism calls for, and argue that the intent was diffused throughout the whole corporation, or the intent was somehow connected to a sense of societal-level greed, but another way of looking at it is from the "dignity" standpoint. A white-collar criminal probably has many more personal resources at their disposal to restore their dignity than a poor person has. Hence, punishing them criminally might not make much sense from a retributivist standpoint because they would probably not "suffer" the punishment as much as a poor person might. It is both a philosophic and criminal justice problem as to what are the appropriate punishments for white collar criminals.

This brings us back around to the topic of victims, victimology, and victim's rights. The traditional approach regarding victims has been a philosophy of RESTITUTION, which we have learned is a rather crude, emotional, and ressentiment-based form of justice. The idea of paying someone off to make things "even" is NOT a good ethical system to follow according to retributivism. There are different ways to approach the problems with victims from a retributivist standpoint. One, there is the idea of victim-precipitation, which holds that in some instances, the victim is as equally guilty as the offender in playing a role at making the crime happen (Karmen 1984). This isn't exactly a popular approach and runs counter to the victim's rights approach, but a retributivist might say that we need to be honest and start including victim precipitation as "mitigating" factors when we sentence criminal offenders. Victims are rarely seen as part of the "crime problem" and it's perhaps time we started looking at them that way.

A more salient issue is how much support can a victim expect from the criminal justice system? As we've seen, the retributivist approach to criminal offenders is to simply punish them and leave whatever regret or remorse is their's up to them. A restorative approach would seek for the offender to achieve regret or remorse, and this is precisely the point at which retribution ends and restorative justice begins. Putting victims first, or taking victim's rights seriously, requires restorative justice. Retribution can only go so far, and might only justify limited victim assistance services (such as police escorts to court or police sensitivity training). In the extreme, retributivism might support, albeit reluctantly, victim compensation programs. Restorative justice usually requires the offender and victim confront one another in some way as well as see that the victims obtains some compensation or means of being make "whole" again. The whole idea of restorative justice is to repair the breach in moral trust and establish lasting peace instead of lasting hurt, regret, or conflict. Some refer to the restorative justice approach as a "peacemaking" ethics (Braswell & Gold 2002), and it includes the following characteristics:

PRINTED RESOURCES
Braithwaite, J. (2002). Restorative Justice & Responsive Regulation. NY: Oxford Univ. Press. [Sample Excerpt]
Braswell, M. & Gold, J. (2002). "Peacemaking, Justice, and Ethics." Pp. 25-43 in M. Braswell, B. McCarthy & B. McCarthy (eds.) Justice, Crime and Ethics. Cincinnati: Anderson LexisNexis.
Chessick, R. (1983). A Brief Introduction to the Genius of Nietzsche. Lanham, MA: Univ. Press of America.
Elliott, E. & Gordon, R. (Eds.) (2005). New Directions in Restorative Justice. Portland, OR: Willan Publishing.
Hadley, M. (2001). The Spiritual Roots of Restorative Justice. Albany, NY: SUNY Press.
Judah, E. & Bryant, M. (Eds.) (2004). Criminal Justice: Retribution vs. Restoration. Binghamton, NY: Haworth.
Karmen, A. (1984). Crime Victims: An Introduction to Victimology. Pacific Grove, CA: Brooks/Cole.
Lewis, D. (1998). Guilty by Reason of Insanity. NY: Ivy Books.
Minow, M. (1999). Between Vengeance and Forgiveness. Boston: Beacon Press.
Moore, M. (1997). Placing Blame: A General Theory of the Criminal Law. Oxford, UK: Clarendon Press.
Moore, M. (2002). "Retributivism," Pp. 1338-342 in J. Dressler (ed.) Encyclopedia of Crime and Justice, 2e. Chicago: Thomson Gale.
Pollock, J. (2004). Ethics in Crime and Justice, 4e. Belmont, CA: Wadsworth.
Rotberg, R. & Thompson, D. (Eds.) (2000). Truth v. Justice. Princeton, NJ: Princeton Univ. Press.
Snyder, T. (2000). The Protestant Ethic and the Spirit of Punishment. NY: Wm. B. Eerdmans-Lightning Source.
Sullivan, D. & Tifft, L. (2001). Restorative Justice. Monsey, NY: Willow Tree Press.
Thompson, D. (1980). "Paternalism in Medicine, Law, and Public Policy." Pp. 3-20 in D. Callahan & S. Bok (eds.) Ethics Training in Higher Education. Hastings, NY: Hastings Center.
Van Ness, D. & Strong, K. (2002). Restoring Justice, 2e. Florence, KY: LexisNexis.
Zehr, H. (1990). Changing Lenses: A New Focus for Crime & Justice. Philadelphia: Herald Press.
Zehr, H. (2002). The Little Book of Restorative Justice. Philadelphia: Good Books.

Last updated: Sept. 30, 2006
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