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Abstract
Criminal justice policy faces the twin challenges of improving our crime reduction efforts while increasing public confidence. These challenges are exacerbated by the fact that at least some measures popular with the public are counterproductive to greater crime reduction. How to achieve greater crime reduction without sacrificing public confidence? While restorative justice approaches offer a promising alternative to traditional sentencing with the potential to achieve these goals, they suffer from several serious obstacles, not least their relatively limited applicability, flexibility, and public support. Punitive restoration is a new and distinctive idea about restorative justice modeled on an important principle of stakeholding, which states that those who have a stake in penal outcomes should have a say about them. Punitive restoration is restorative insofar as it aims to achieve the restoration of rights infringed or threatened by criminal offences. Punitive restoration is punitive insofar as the available options for this agreement are more punitive than found in most restorative justice approaches, such as the option of some form of hard treatment. Punitive restoration sheds new light on how we may meet the twin challenges of improving our efforts to reduce reoffending without sacrificing public confidence, demonstrating how restorative practices can be embedded deeper within the criminal justice system.
Notes
[Disclosure Statement: No potential conflict of interest was reported by the authors.]
[Earlier versions of this article were presented to the annual Howard League for Penal Reform conference at Keble College, Oxford; the Political Theory Workshop at Sciences Po, Paris; the Political Theory Colloquium at Harvard University’s JFK School of Government; the School of Social Sciences, Law and Business at Teesside University; the School of Public Policy at University College, London; a Punishment and Prisons conference at Bowling Green State University, and the City University of Hong Kong. I have benefited from comments from an anonymous referee for this journal and from Jacob Abolafia, Hilary Benn, Chris Bennett, Nick Bowes, Frances Crook, Albert Dzur, Douglas Husak, Sadiq Khan, Rick Lippke, Matt Matravers, Martha Nussbaum, Nicky Padfield, Bhikhu Parekh, Avia Pasternack, Andrei Poama, Harvey Redgrave, Julian Roberts, Paul Robinson, Michael Rosen, Avital Simhony, Astrid von Busekist and Albert Weale.]
1 See Braithwaite, Restorative Justice; and Brooks, Punishment, 64–85.
2 Johnstone and Van Ness, “Meaning of Restorative Justice,” 5.
3 See Shapland, Robinson, and Sorsby, Restorative Justice in Practice. “The restorative justice agenda … ,” Shapland, Robinson, and Sorsby write, “encompasses a very broad range of practices and approaches, such that a definitive definition has proven elusive” (4). See also Cunneen and Hoyle, Debating Restorative Justice.
4 See Morrison, “Schools and Restorative Justice”; Van Ness, “Prisons and Restorative Justice”; and Llewellyn and Howse, “Institutions for Restorative Justice” respectively.
5 This focus and the specification it provides is important. There is a need to provide a more definitive and less contested model of restorative practices. The focus on one—admittedly significant—part of restorative practices is intended to help identify this new model, in part, by its distinctive form of application for England and Wales. This new model, punitive restoration, is discussed in this context, but it is not suggested that it cannot have a wider applicability to other jurisdictions.
6 See Shapland, Robinson, and Sorsby, Restorative Justice in Practice, 4.
7 Marshall, Restorative Justice, 5.
8 Gardner, “Crime,” 31.
9 Offenders admitting guilt to a criminal offence for the purposes of engaging in victim–offender mediation or restorative conferencing, and who either do not agree to a restorative contract or fail to honor its terms in full, need not admit guilt for this offence if the case is transferred to either a magistrates’ court or the Crown Court. This would appear to undermine the sincerity of the earlier admittance and it might be preferable to end this anomaly, given that any admittance of guilt remains free of coercion and legal representation for offenders continues to be available, although this policy suggestion is not considered further here.
10 See Shapland et al., Restorative Justice in Practice: Second Report, 1; and Shapland et al., Restorative Justice: The Views of Victims, 27.
11 See Shapland et al., Does Restorative Justice Affect Reconviction?; and Restorative Justice Council, What Does Ministry of Justice Research Tell Us?
12 Christie, “Conflicts as Property,” 314.
13 See Shapland, et al., Does Restorative Justice Affect Reconviction?, 25–6.
14 See Shapland et al., Restorative Justice in Practice: Second Report; and Restorative Justice Council, What Does Ministry of Justice Research Tell Us?
15 I use restorative approaches and restorative practices interchangeably.
16 See Roche, Accountability in Restorative Justice.
17 See Brooks, Punishment, 173–88; and Dignan, “Juvenile Justice.”
18 See Brooks, Punishment, 67–8.
19 See Cullen, Fischer, and Applegate, “Public Opinion about Punishment”; and Zemring, Hawkins, and Kamin, Punishment and Democracy.
20 See Durlauf and Nagin, “Imprisonment and Crime,” 28; and Brown v. Plata, 563 U.S. (2011).
21 See Williams, “Beyond the Retributive Public.”
22 See Ashworth, “Sentencing,” 822.
23 See Brooks, Punishment, 179–87.
24 See Durlauf and Nagin, “Imprisonment and Crime,” 14, 21–3. See also Lippke, Rethinking Imprisonment; and Tonry, “Less Imprisonment,” 138, 140–1.
25 See Braithwaite, Restorative Justice.
26 See ibid.
27 Ashworth, Sentencing and Criminal Justice, 94. See also Braithwaite, “Setting Standards.”
28 Ashworth, “Responsibilities, Rights and Restorative Justice,” 583.
29 See Parekh, New Politics of Identity, 1, 21–6.
30 There is a further concern about a gap between the rhetoric of restorative justice approaches and their practical achievements that will not be considered here. See Kathleen Daly, “Mind the Gap.”
31 See Brooks, Punishment, 123, 132, 136, 142–3, 147–8; and Brooks, “Stakeholder Sentencing.”
32 Criminal offences infringe, or threaten the infringement of, rights. For example, theft is a violation of an individual's right to property. Attempted offences are instances where the violation of rights is threatened. An attempted robbery is an instance where my rights to property and self are in jeopardy. Punishment as a restoration of rights recognizes offences, including attempts, as the infringements, or threatened infringements, of rights that they are and it seeks to render their maintenance and future protection more secure by acknowledging just deserts and addressing underlying causes to rehabilitate if necessary and deter where possible. See Brooks, “Criminal Harms.”
33 See von Hirsch and Ashworth, Proportionate Sentencing, 110–11.
34 See Brooks, “Punitive Restoration”
35 See Brooks, “Justice as Stakeholding.”
36 Marshall, Restorative Justice, 5 (emphasis added).
37 See Braithwaite, Restorative Justice, 11, 50, 55.
38 One study found that restorative conferences often include friends and family of the victim and of the offender respectively in 73% and 78% of cases examined. Parents were far more likely to attend restorative conferences (50% of offenders and 23% of victims) than partners (3% of offenders and 5% of victims). Shapland et al., Restorative Justice in Practice: Second Report, 20.
39 See ibid.
40 See Brooks, “Punitive Restoration: Giving the Public a Say.”
41 See Restorative Justice Council, “Standards and Quality.”
42 An objection to this argument might be that the people rarely express their voices in the criminal justice system. With over 90% of cases in the U.S. and U.K. never going to trial, victims rarely get much opportunity to speak. It might be objected that making people's voices heard more regularly is problematic because they should be heard no more than they are already. However, it should be countered that the minority of cases where their voices are heard—in both the jury box or witness stand—are the most serious cases. If the public's voice matters for the most serious criminal cases, then it could be argued their voice should be heard in less serious cases as well. See Brooks, “Right to Trial by Jury.”
43 See Restorative Justice Council, “Standards and Quality.”
44 See Liebling, Prisons and Their Moral Performance.
45 See Brooks, Punishment, 66–7, 73–5. On prison-based programs designed to improve tackling drug and alcohol abuse, see Towl, “Drug-Misuse Intervention Work.”
46 See Perez and Jennings, “Treatment Behind Bars.”
47 See Chapman and Smith, “Cutting Crime,” 215, 228.
48 See Joe et al., “Evaluation.”
49 See Marilyn Daly et al., “Cost-Effectiveness.”
50 The fact that a restorative contract might include hard treatment for any breach of contract need not mean offenders would be very unlikely to agree to such a contract. This is especially true for cases where failure to agree to a contract would entail hard treatment, anyway.
51 It is not suggested that probation officers always make the right decision, and no one has a crystal ball providing perfect predictions of the future. Yet officers may be able to ascertain where offenders are subjected to a strongly negative support network that could warrant a disruption as offered by punitive restoration, such as a cooling-off period.
52 See Joe et al., “Evaluation,”; and Marilyn Daly et al., “Cost-Effectiveness.”
53 See Ashworth and Redmayne, Criminal Process, 6–7.
54 It might be objected that some victims may see the opportunity to confront offenders as a chance to lavish anger and hostility on them. This is not what happens most often in practice. Yet even if it were so, the conference setting gives victims a voice but not the only say—and any contract (punitive or otherwise) must be acceptable by the offender to have any effect. Furthermore, contracts are not constructed in some “anything goes” fashion. There are guidelines to ensure that flexibility is restrained to ensure some consistency.
55 Hence the claim that if we want to find an approach that reduces crime more and increases public confidence then punitive restoration is a possibility we should consider because of its likely results and the positive experiences of participants. Yet this is not about grafting punitive restoration onto an already criminogenic criminal justice system—it is the aim to help launch a shift towards more, not less, restorative justice within the criminal justice system, thereby reducing the system's criminogenic features.
56 See Brooks, Punishment, 89–100.
57 For example, see Sentencing Council, “Definitive Guidelines.”
58 On penal pluralism, see Brooks, “On F. H. Bradley's” and Brooks, “In Defence of Punishment.”
59 A unified theory of punishment may be constructed in different ways. The construction favored here is to view crime as a harm to individual rights and punishment as a response to crime with the purpose of protecting and maintaining individual rights. This model rejects the view that penalties and hard treatment have different justificatory foundations, but asserts rather that they share a common justificatory source: the protection and maintenance of rights. The model of a unified theory can then better address the fact that penal outcomes are often multidimensional and include both financial and punitive elements. See Brooks, Punishment, 123–48 for a defence of the unified theory of punishment.
60 If satisfied, these conditions may be consistent with the idea of empirical desert.
61 See Brooks, “Punishment: Political, Not Moral”; and Brooks, “Hegel and Unified Theory.” It is not argued here that other approaches could not also be consistent with a unified theory of punishment—only that punitive restoration is one illustration of such a theory.
62 While it is suggested that expanding penal options would extend the applicability of punitive restoration, I am silent on how far this expansion might extend. Yet whatever limits there might be, and regardless of the crimes that cannot be incorporated into a restorative framework for whatever reason, the claim is that more would be incorporated and not that all would or must be incorporated.
63 It has been suggested to me that this argument for punitive restoration is akin to a Trojan Horse strategy: restorative justice is dressed up in something more punitive, but if let through the thick impenetrable walls of the criminal justice system it will bring about a swift appearance of less punitiveness overall. This characterization aptly captures a part of my strategy, except that my aim in making criminal justice less punitive is not intended to be a surprise, but an achievement. I am grateful to Albert Dzur for this view.