Responding to retributivists: a restorative justice rejoinder to the big three Desert theories

Abstract

Retributive theories of legal punishment fail to justify the imprisonment of convicted offenders. There are three prominent retributive theories that attempt this: Fair Play theory, Moral Communication theory, and Intuitive Desert theory. Fair Play retributivists seek to imprison offenders in order to re-balance the distribution of benefits and burdens, which is upset by criminal offences. Moral Communication retributivists seek to imprison offenders as a means of communicating society’s condemnation of criminality. Intuitive Desert retributivists seek to imprison offenders because it is a deserved response to wrongdoing (the supporting evidence is our intuitive reactions to criminality). These theories are critiqued and attention is drawn to the superiority of certain restorative justice values and practices.

Keywords:

• restorative justice
• retribution
• Desert
• punishment
• censure
• amends

Notes

1. In the 1990s, von Hirsch and Ashworth jointly published two articles critiquing John Braithwaite and Phillip Pettit’s model of criminal justice which included restorative justice values and practices. Independently, Ashworth attacked preeminent restorative justice advocate/scholar Daniel Van Ness in his article ‘Some Doubts about Restorative Justice’ and further criticized restorative justice programs in his article ‘Responsibilities, Rights and Restorative Justice’. In 2003, von Hirsch and Ashworth, collaborating with Clifford Shearing, published ‘Specifying Aims and Limits for Restorative Justice: A “Making Amends” Model?’ in which the authors argue that prominent restorative justice models are not conceptually coherent and they do not provide meaningful guidance for policy.

2. The prominence of these three theories is acknowledged by Boonin (2008) and Duff (2008).

3. Morris claims that forgiveness (pardon) of the criminal offender’s debt can also restore the equilibrium. He analogizes pardoning with giving the offender a gift, erasing his debt.

4. See Boonin, The Problem of Punishment for an excellent definition of secondary victims.

5. See for example, Van Ness and Strong (2006) at p. 3.

6. See R v Gladue ([1999] 1 SCR 688), for an excellent collection of evidence.

7. For example, in Canada, criminal sentencing breaks from the proportionate scheme in order to indefinitely incapacitate offenders who meet the stringent criteria of ‘dangerous offender’.

8. I explain my composite-aims model in Moss (2011), Specifying Aims and Limits for Restorative Justice Models: A Reply to von Hirsch, Ashworth and Shearing.