An open model for restorative justice: is there room for punishment?

Abstract

An argument is made that restorative justice should incorporate some punishment in its practices. Instead of categorizing punishment and reparation as contrasting justice practices, an effort should be made to embrace and not eliminate punishment from the restorative process. In order to embrace punishment, restorative justice needs to be seen as an open approach that incorporates flexibility into its practices. This eclectic approach not only enhances restorative justices as a paradigm, but presents it as a viable option that has more to offer to the judicial process than simply dealing with petty crimes.

Keywords:

• criminology theories
• detention
• harm
• justice
• just deserts
• punishment
• reparation
• restorative justice
• reintegrative shaming
• regulating conflicts
• retribution

Notes

1. See Wright (1991) for more on the early history of the term ‘restorative justice’.

2. Hirschi (1969) identified four social bonds that promote conformity. These are attachment, commitment, involvement, and belief. The higher the individual’s attachments to these four bonds, the less likely he or she will be to deviate from the law.

3. See footnote number 17 in Barton’s (2000) article for a brief explanation of this issue.

4. Christie (1981) argued that if the infliction of physical pain is used in punishment, it should be without an ulterior purpose. Pain should only be inflicted under conditions that will reduce the level of pain infliction (see Zehr, 1990, p. 210).

5. There is an enormous body of academic literature on the philosophy and origin of the term ‘punishment’. For the purpose of this article, I will only present a cursory discussion of why the term has negative connotations.

6. I used the term ‘community’ here with some reservation. The word ‘community’ can mean different things and does not have a universal meaning. The word is more discursively relevant than empirically justified. In cases where the idealistic notion of the term ‘community’ is questioned, Liz Elliott (2004) notes, the term can be defined as a ‘community of interest’ – school, work, recreation, etc. More importantly, ‘community of interest’ must not be interpreted to mean elected, appointed, or self‐appointed community representatives, but rather a collection of people who share the same concerns about the offender, the victim, the offense, and its consequences, and who can contribute towards a solution to the problem which the crime presents or represents (see Morris & Young, 2000, p. 14).

7. Mead (1918) notes that we assume we can stigmatize, punish, and persecute the offender and still retain towards him the attitude that he will be reinstated into the community as soon as he demonstrates conforming behavioural traits. However, the two attitudes – controlling the offender’s behavior with hostile punitive policies and controlling through social and psychological conditions – cannot be combined. To treat offenders as if they are ‘misfits’ in society is to deny them what the law affirms: justice. The pursuit of criminal justice in this manner awakens a hostile attitude of the offender towards the state and renders mutual cooperation impossible (see Mead, 1918, for an in‐depth discussion on this issue). For Durkheim (1893/1960), crime is a normal occurrence in society.

By condemning the crime, we are reaffirming the bonds of conformity among law‐abiding citizens. Durkheim contends that crime under certain conditions serves as a social ritual which brings together community members and provides a forum for reaffirming and intensifying their commitment to shared values and a common identity. This further strengthens the collective conscience and maintains social order (see Miethe & Lu, 2005, p. 6).

8. Duff seems to be conceptualizing punishment as some sort of censure for the crime, which may include but not be limited to added sanctions such as community service or restitution.

9. Garvey (1999, p. 1806) describes Duff’s conceptualization of punishment as a ‘fused’ theory that is neither teleological nor purely deontological, but a combination of both.