Retributive and Restorative Justice
‘Justice’ is a term that invokes for many the concept of revenge through punishment of the offender. Indeed this is the premise upon which Western (criminal) law is based. However, retribution does not always equal justice for the victim (1) or the offender (2). As a result, Restorative Justice (RJ) is now replacing – in some instances – the punitive model of dealing with crime. Below I will compare and evaluate some of the main elements of these two forms of justice.
- Punishment: punishing the offender is the key to addressing an injustice.
- Power and Coercion: the State (i.e. the government makes the laws which the police enforce) takes legal action against the offender. The Judge hands down a verdict/sentence which both the victim and offender must accept as just (3).
- Win/Lose: the adversarial nature of this system means that one side only will usually benefit from the outcome. That is, if the transgressor is ‘guilty’ the victim wins but if found ‘not guilty’ s/he wins by not being punished. However, in the former scenario the victim may lose if the Judge’s sentence is too lenient.
- Lack of Responsibility: the transgressor takes no responsibility. Even if s/he pleads ‘guilty’ it is usually only to get a lighter sentence as such a plea is supposed to demonstrate remorse.
- Offender is Condemned: the offender is vilified for the harmful act s/he has committed.
- Reparation: the primary goal is to repair the harm done to the victim and any secondary victims, such as, family and neighbors. The focus is on healing social relationships – this has its roots in traditional Navajo Justice (or Peacemaking) as well as forms of justice used by other indigenous peoples around the world (4).
- Egalitarianism and Cooperation: the victim, transgressor and related parties are treated equally and take part voluntarily. Everyone has a turn voicing her/his feelings, opinions etc. In Navajo Justice, this equality and sense of oneness is symbolized by the circle which is why RJ meetings are usually held with all parties sitting in a circle. These gatherings are mediated by various people including police officers, academics (e.g. criminologists, social scientists, lawyers, RJ students or graduates), or trained volunteers. In Peacemaking, a well-respected member of the community who is wise and fair, is qualified to be a ‘Peacemaker.’
- Win/Win: this is about finding a just outcome for all. This includes the victim having a say in what type of reparation s/he wants as well as addressing any concerns related to the offender, who is often a victim her/himself (e.g. addiction, mental illness, poverty etc).
- Self-responsibility: the offender takes responsibility for the consequences of her/his actions by admitting to them and then making things as right as possible for the victim.
- Harmful Act Condemned: the transgressor’s wrongful action is denounced.
In my opinion, RJ or Peacemaking is more beneficial due to the balanced way in which justice is delivered. All parties have a say – this includes the victim, who within the Western criminal arena remains powerless to speak of the ways in which her/his life was affected by the offender’s misdeed and does not get to put forward a just outcome of her/his own. In the restorative model, for instance, a woman who has her car stolen by a 17-year-old boy gets to talk about how shocking it was to have it disappear and how she missed two days of work as she had no other form of transportation. Her car is returned intact but the loss of her wages ($200) is one thing she would like to be compensated for. Since the boy cannot pay this, she proposes that he does some work around her yard (usually undertaken by a gardener) until this loss is recovered (5). This is very empowering for the victim.
This sense of empowerment is also true for the transgressor for a few reasons: s/he gets to take responsibility by doing something constructive in order to make amends; condemning the act instead of the individual helps to preserve her/his self-esteem and being confronted by the victim is an effective way for a person to learn from her/his mistakes, much more so than reading about it or hearing it from a third party. Each of these elements also contributes to a reduction in the likelihood that the transgressor will reoffend which benefits the entire community.
Overall, what makes RJ so worthwhile is its focus on healing. That is, everyone is treated equally (i.e. with respect), gets to talk about what happened and how to deal with it in a positive way for all concerned – this is very much like a group therapy session. In other words, justice and healing go hand-in-hand. This was recognized by indigenous cultures long before the West realized that punishment does not work in most cases.
Despite these affirmative attributes, RJ will not be effective in certain scenarios. Namely, when an agreement (or reconciliation) cannot be reached; when one or both parties does not want to confront the other; when the victim prefers the punitive model of justice and when the crime is so serious (e.g. excessive violence, child molestation, rape or murder) that the criminal must be incarcerated in order to protect the victim(s) and the community. Therefore, the retributive model of justice is still necessary in certain situations.
Of course, there are negative aspects to the retributive system, one being the possibility of turning a first-time and/or minor offender into a seasoned criminal. A victim may also feel as if s/he did not get a fair outcome which creates a greater sense of disempowerment. This is indeed a quandary.
A solution to this dilemma is put forward by the Director of The Center for Peacemaking and Conflict Studies at Fresno Pacific University (California), Ron Claassen. He proposes that the name ‘Criminal Justice System’ is changed to ‘Restorative Justice System’ in order to shift the focus from punishment to reparation. He suggests that the use of punitive/coercive measures be limited to when the offender does not participate voluntarily within the restorative system. That is, in order to avoid imprisonment s/he may choose to cooperate in a RJ meeting. This is constructive because it combines the retributive and restorative models whilst the focus remains on the system which has the most beneficial outcome for everyone. I would add to this some flexibility in the model which allows for a victim to choose her/his preferred form of justice.
In spite of the benefits of this proposal, simply changing the name is inadequate if practices in the majority of cases remain the same. There would also be much opposition to such a system from those who stand to lose money and/or their careers: lawyers, Judges and the State (which receives revenue from fines imposed as punishment in many criminal cases). However, since the retributive system is still needed, it will be necessary to keep some Judges and lawyers – others have the option of becoming RJ mediators. The State will save money by having fewer cases going through the Courts.
Ultimately, a ‘new’ justice system, regardless of its name, needs to include practices which bring about the best outcome for all concerned: victim, offender and the wider community in which they live. Restorative Justice (or Peacemaking) is the right model for this in the majority of criminal cases.
- ‘Victim’ can also mean her/his family, especially when the victim is deceased.
- There can be more than one offender, transgressor or criminal.
- For a serious criminal offence where the offender pleads ‘not guilty,’ the case goes to trial where the jury decide on the verdict and the Judge determines the sentence if s/he is found ‘guilty.’
- It must be stated from the outset of this description of RJ that the principles which comprise it have been practiced by indigenous races for eons so they predate Western RJ (i.e. there has been an appropriation of Aboriginal forms of justice by the West).
- In Peacemaking, a distributive model of justice is used whereby the offender’s family is also responsible for making amends to the victim as well as ensuring that s/he does not reoffend. The relatives of the victim are also entitled to any compensation. This type of reparation deals with the welfare of the whole community.
Center for Peacemaking and Conflict Studies
Oliver M, Beyond the lock-up – a Different Kind of Justice, Living NOW magazine, Melbourne, January/February 2004, p.26.
Yazzie R, Navajo Justice: Traditional Tribal Peacemaking Heals Rather Than Punishes, Flagstaff Tea Party, December 2000, Vol. 1 No. 5. (www.flagteaparty.org – A community forum for the discussion of progressive ideas).
Yazzie R, Life Comes From It: Navajo Justice, The Ecology Of Justice (IC#38), Spring 1994, p.29. http://www.context.org/ICLIB/IC38/Yazzie.htm
Zion J. W., Indian Restorative Healing, from a session presented at “Dreaming of a New Reality,” the Third International Conference on Conferencing, Circles and other Restorative Practices, August 8-10, 2002, Minneapolis, Minnesota.
© New Age Power (Helen Papadopoulos)
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