RESTORATIVE CRIMINAL JUSTICE

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RESTORATIVECRIMINAL JUSTICE

Hadar Dancig-Rosenberg & Tali Gal

ABSTRACT

This Article develops a model that integrates restorative justice within the

conventional punitive system of criminal responsibility and punishment.

Contrary to the conventional wisdom, we demonstrate that restorative justice

should form a synergy with retributivism, deterrence, incapacitation, and

other punitive goals of criminal law. We show how this synergy can beformed, illustrate its operation and identify its potential contribution to social

welfare.

TABLE OF CONTENTS

INTRODUCTION.............................................................................................................. 2314I. CRIMINAL JUSTICE:PUNITIVE VERSUS RESTORATIVE......................................... 2316

A. Understanding and Responding to Crime............................................... 2317B. Punitive and Restorative Approaches Compared................................... 2319

II. THE GOALS OF THE CRIMINAL PROCESS............................................................... 2324

A. What Do Punitive and Restorative Approaches Try to Accomplish?... 2325B. Requital....................................................................................................... 2333

III. INTEGRATION.......................................................................................................... 2335A. Synergizing Punitive and Restorative Approaches................................. 2336

Hadar Dancig-Rosenberg is an Assistant Professor at Bar-Ilan University Law School,Israel. Tali Gal is an Assistant Professor at the School of Criminology, University of Haifa,Israel. We would like to express our gratitude first and foremost to Alex Stein for his detailedcomments and critical insights. We are also grateful to Ori Aronson, Michal Alberstein, IttaiBar-Siman-Tov, Briana Barocas, Richard Bierschbach, John Braithwaite, Nerya Cohen, TsillyDagan, Rashmi Goel, Anat Horovitz, Shahar Lifshitz, James Ptacek, Dana Pugach, Leslie Sebba,

Ron Shapiro, David Wexler, Uri Yanay, and participants in workshops and presentations at theBar-Ilan University Law School, Hebrew University of Jerusalem Law School, the Israeli Lawand Society Association 2011 Annual Meeting, Osgoode Hall Law School, and the University ofPuerto Rico School of Law for many insightful comments and suggestions. Last but not least,we thank Hadas Osher-Lahav for excellent research assistance and the Wexler Foundation forfinancial support.


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B. Practical Implications................................................................................ 2339CONCLUSION................................................................................................................... 2345

INTRODUCTION

The last three decades marked the ascendance of restorative justiceasa crime-control mechanism. Restorative justice has been developed asa supplement to, or a replacement for, the traditional criminalprocess.Although both approaches try to develop a socially optimal response tocriminal behavior, each of them represents a distinct ideology.Academic literature cultivates this separationist stance by treating thetwo approaches as conflicting paradigms.1F1 Much of this literaturefocuses on the pros and cons of restorative versus punitive modes ofcriminal justice, while trying to appraise empirically the efficacy ofspecific restorative programs.

2F

2 The interplay between restorative andpunitive justice in the normative and conceptual domains of criminallaw remains under-theorized. This Article fills this gap.

We posit that restorative justice is a viable community-basedmechanism for regulating criminal behavior. Contrary to the common

1 See, e.g., Gordon Bazemore, Restorative Justice and Earned Redemption,41 AM.BEHAV.SCI. 768 (1998); Lode Walgrave, Restoration in Youth Justice, 31 CRIME & JUST. 543 (2004).More recent scholarship acknowledges commonalities, as well. See, e.g., Kathleen Daly,Conventional and Innovative Justice Responses to Sexual Violence, 12 AUSTL. CENTRE FORSTUDY OF SEXUAL ASSAULT ISSUES1 (2011); Barbara Hudson, Restorative Justice and GenderedViolence: Diversion or Effective Justice?,42 BRIT. J. CRIMINOLOGY616 (2002); Daniel W. Van

Ness, New Wine and Old Wineskins: Four Challenges of Restorative Justice, 4 CRIM. L.F. 251(1993).

2 See, e.g., HEATHER STRANG, REPAIR OR REVENGE: VICTIMS AND RESTORATIVE JUSTICE(2002) (presenting findings from the Reintegrative Shaming Experiments (RISE) comparingcases randomly assigned to either court or conference in Canberra, Australia); James Bonta etal., Restorative Justice and Recidivism: Promises Made, Promises Kept?, in HANDBOOK OFRESTORATIVE JUSTICE:AGLOBAL PERSPECTIVE108, 11415 (Dennis Sullivan & Larry Tifft eds.,2006) (presenting a meta-analytic review of findings regarding recidivism rates followingpunitive and restorative processes, and concluding that restorative interventions have anapproximately seven percent reduction impact on recidivism). For a meta-analytic review offindings regarding the effectiveness of restorative justice programs in comparison with formalpunitive processes, see Jeff Latimer, Craig Dowden & Danielle Muise, The Effectiveness ofRestorative Justice Practices: A Meta-Analysis, 85 PRISON J. 127 (2005). Effectiveness in thisstudy was measured by victim and offender satisfaction, restitution compliance, and recidivismrates. The meta-analysis concluded that restorative justice interventions resulted in small, butsignificant reductions in recidivism and were more effective with low-risk offenders. Id.Program effectiveness improved during the mid-nineties as programs became more structuredand more theoretically anchored within restorative justice theory. Id.For a systematic review ofevidence drawn from reasonably unbiased tests comparing restorative justice with conventionalcriminal justice, see LAWRENCE W. SHERMAN & HEATHER STRANG, THE SMITH INST.,RESTORATIVE JUSTICE:THE EVIDENCE (2007).The review reveals that, with only one exception,rigorous tests of restorative justice showed significant reductions in recidivism rates. Id.at 6871. Restorative justice reduces crime more effectively in more serious crimes, in violence ratherthan in property crimes, and when there is a personal victim. Id.


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wisdom, we show that the punitive approach is not the only means bywhich society can respond to and reduce crime. Indeed, we demonstratethat restorative justice provides an equally efficacious, if not superior,

social response to crime. Most important, we develop a model thatintegrates the punitive and the restorative approaches within criminallaw.

Our proposed model re-conceptualizes criminal liability by makingit ideologically more inclusive and multifaceted and, consequently,more responsive to the needs of politically complex society. This re-conceptualization tracks the well-known criticism made by ProfessorsBibas and Bierschbach that criminal procedure leaves virtually no roomfor apology and repentance, and provides no opportunities for victimsand offenders to engage in a dialogue.3 Our analysis, however, goesbeyond that criticism and shows that restorative justice is criminal

justice. We posit that, institutionally, restorative mechanisms monitoredby state agencies and implemented under the formal legal frameworkform an integral part of criminal law. As far as substantive criminal lawis concerned, we demonstrate that a synergetic application of thepunitive and restorative mechanisms can achieve a differentandsocially beneficialblend of the criminal law objectives.

We capture the relationship between the punitive and restorativeapproaches in the form of two alternatives. One alternative is embeddedin two partly overlapping circles: the intersecting part represents thegoals of criminal law potentially achievable by both punitive andrestorative approaches. These common goals include rehabilitation,deterrence, incapacitation, and denunciation of crime. The separate

parts of the circlesrepresent the approaches distinct goals: retribution(as a distinct goal of punitive justice) and reparation of harm andcommunity empowerment (as two distinct goals of restorative justice).Another alternative situates itself within two concentric circles. Thesmall circle represents the goals of punitive justice. The large circlerepresents restorative justice, which, in appropriate cases, promotes thegoals of punitive approach as well (including retribution in a broadsense, which we term requital) in conjunction with the restorativeobjectives that include reparation of harm and communityempowerment.

This scheme has many methodological advantages: It uncoversnumerous points of intersection between the punitive and the

restorative approaches to criminal law; it enables a more precisedefinition of the relationship between restorative and punitive justice;

3 See generally Stephanos Bibas & Richard A. Bierschbach, Integrating Remorse andApology into Criminal Procedure, 114 YALE L.J. 85 (2004).


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and it also helps identify the virtues and the vices of each respectiveapproach across a variety of contexts.

Structurally, our Article proceeds as follows. In Part I, we present

the restorative and the punitive approaches as competing paradigms,reflecting the way they have largely been described in the literature. InPart II, we analyze the goals that the two approaches strive to achieveand identify the points of intersection between those goals. In Part IIIwe present our model and discuss its advantages over other models ofcriminal justice. As part of this discussion, we consider the recent NewJersey Superior Court decision in State v. Ravi.4F4 We show that in thishigh-profile case, all of the parties involvedthe defendant, the victims,and the entire communitycould benefit from a restorative procedurethat could bring about a socially desirable resolution of the case at hand.We conclude this Article by outlining future applications of ourintegrative model in theory and in practice.

I. CRIMINAL JUSTICE:PUNITIVE VERSUS RESTORATIVE

Restorative justice grew out of disappointment with the punitiveapproach.5F5The criticism of the criminal justice system related both toits ineffectiveness in reducing criminality

6F

6 and to its failure to addressvictims needs.7F7 Influenced by other emerging approaches such asAlternative Dispute Resolution (ADR)

8F

8 and community justice,9F

9 localinitiatives sprang up aspiring to provide better responses to crime. 10F10

4N.J. Super. No. 11-04-00596, 2012 N.J. Super. Unpub. LEXIS 1757 (App. Div. May 21,2012).

5 STRANG,supranote2, at 43.6 SeeAndrew Ashworth & Lucia Zedner, Defending the Criminal Law: Reflections on the

Changing Character of Crime, Procedure, and Sanctions, 2 CRIM. L. & PHIL. 21 (2008)(summarizing the criticism against punitive justice as being ineffective, unneeded, expensive,and unjust); John Braithwaite, A Future Where Punishment Is Marginalized: Realistic orUtopian?, 46 UCLA L. REV. 1727 (1999); Robert Martinson, What Works? Questions andAnswers About Prison Reform, 35PUB. INT. 22 (1974) (showing punitive measures, as well asrehabilitative ones, to be largely ineffective); Heinz Steinert, Is There Justice? NoJust Us!:Justice as an Attempt toControl Domination and the Problem of State-Organized Pain Infliction,25 ISR. L. REV. 710 (1991) (describing the claims made by abolitionists against the punitiveapproach).

7 LESLIE SEBBA, THIRD PARTIES: VICTIMS AND THE CRIMINAL JUSTICE SYSTEM 25, 5556(1996) (describing the punitive paradigm as ignoring victims needs, considering them asevidentiary tool and frequently causing secondary victimization).

8 See Nils Christie, Conflicts as Property, 17 BRIT. J. CRIMINOLOGY 1 (1977) (coining theterm conflict as property and arguing that conflicts should be handled largely by the directstakeholders rather than by the state).

9 SeeDANIEL W.VAN NESS &KAREN HEETDERKS STRONG,RESTORING JUSTICE 1219 (3ded. 2006) (summarizing the ideological movements that contributed to the evolution of therestorative justice movement).

10 See Rashmi Goel, Aboriginal Women and Political Pursuit in Canadian SentencingCircles: At Cross Roads or Cross Purposes?, inRESTORATIVE JUSTICE AND VIOLENCE AGAINST


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Gradually these programs modus operandi was conceptualized andabstracted, resulting in the construction of restorative justice as theantithesis of punitive justice.11

A. Understanding and Responding to Crime

Punitive justice perceives crime largely as harm to protected socialvalues. The perception of crime as causing a conflict between anindividual and society is one of the distinct characteristics of criminallaw. Liberal theory provides an explanation for the great importance ofdefendants rights. The role of the sovereign is to regulate behavior, andin doing so, to determine guilt and punishment. Defendants rights weredeveloped to protect the individual against the mighty sovereign and itspotentially arbitrary, harmful exertion of power. 12

Punitive justice authorities ask three questions in their reaction tocrime: Who committed it; whether the elements of criminal offenseexist; and which penalty should be imposed on the perpetrator. Whenthe perpetrators guilt is proved, sentencing is carried out in asstructured and uniform a manner as possible by state-appointedcourts.13Punishment is proportional to the severity of the crime and isinfluenced by mitigating and aggravating circumstances.

WOMEN 60 (James Ptacek ed., 2010) (describing justice circles operated by aboriginalcommunities in Canada); Allison Morris & Gabrielle Maxwell, Restorative Justice in NewZealand, in RESTORATIVE JUSTICE AND CRIMINAL JUSTICE: COMPETING OR RECONCILABLEPARADIGMS 257(Andrew Von Hirsch et al. eds., 2003)(describingfamily group conferences inNew Zealand, conducted pursuant to the 1989 Children, Young Offenders and their FamiliesAct); Mark S. Umbreit et al., Restorative Justice: An Empirically Grounded Movement FacingMany Opportunities and Pitfalls, 8 CARDOZO J. CONFLICT RESOL. 511 (2007) (describing thefirst victim-offender mediation processes and their development).

11 CompareCHARLES K.B.BARTON,RESTORATIVE JUSTICE:THE EMPOWERMENT MODEL1516 (2003) (arguing that the punitive approach inherently disempowers the primarystakeholders in the conflict while restorative justice empowers them), H OWARD ZEHR,CHANGING LENSES: A NEW FOCUS FOR CRIME AND JUSTICE 180 (1990) (defining restorativejustice as a new lens through which to look at crime and reactions to it), andBazemore, supranote 1 (describing restorative justice processes as ceremonies of earned redemption foroffenders and positioning restorative justice against the retributive/rehabilitative dichotomy),withMARK S.UMBREIT &MARILYN PETERSON ARMOUR,RESTORATIVE JUSTICE DIALOGUE:ANESSENTIAL GUIDE FOR RESEARCH AND PRACTICE 8(2011) (explaining that after over twenty-fiveyears of practice and research, Zehr and others have come to the understanding that the sharp

polarization between the punitive and restorative approaches is somewhat misleading),andPaul McCold, Toward a Holistic Vision of Restorative Juvenile Justice: A Reply to the MaximalistModel, 3 CONTEMP.JUST.REV. 357 (2000) (presenting a purist approach of restorative justice).

12 Ashworth & Zedner, supranote6.13 Andrew Ashworth, Responsibilities, Rights and Restorative Justice, 42 BRIT. J.

CRIMINOLOGY 578,58182 (2002).


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The restorative approach, in contrast, emphasizes the personal andrelational harms caused by crime. Crime is perceived primarily as an actof personal harm. Accordingly, processes create space for discussing the

actual harm caused to the direct and indirect victims, and forconsidering ways to promote a sense of safety and belonging amongcommunity members.14 The restorative justice approach focuses,therefore, on three questions: Who has been harmed; what are theirresulting needs; and who is responsible for meeting those needs.15Thesequestions are answered directly and jointly by the stakeholders: Theoffender and the victim, members of their families and representativesof their surrounding communities.

The formal definition of the offense is no more than a startingpoint in restorative processes; its concrete significance is shaped by thevictim and others describing the way it affected them. At the same time,the severity of the offense is not defined exclusively by its directoutcome, nor is it regarded merely as a private conflict. Whereas thepunitive approach ascribes importance to the negative messageconveyed by the perpetrator in committing the crime to society as awhole,16the restorative approach emphasizes the feeling of contempt forhuman dignity, rights or needs, which was experienced by the victimand others who have been affected. The emphasis on the ripple effectscreated by crime explains the communitys interest in responding to thecrime.

According to some restorativists, restorative justice reflects arepublican worldview,17 in which community members regulate theirown behavior.18 Accordingly, the participants of restorative processes

14 The different terminologies used by the restorative and punitive approaches are alsoindicative of the vast differences between the two. Whereas punitive justice vocabulary includesterms such as offense, defendant/criminal, and suspect, restorative justice terminologyuses alternative terms such as wrong/harm and wrongdoer. The frequent shifts from oneapproach to the other in this Article, in the course of comparing them, made it difficult toremain faithful to the respective terminologies. We emphasize, however, that restorative justicejargon excludes stigmatizing labels that associate the crime with the person who committed it,such as criminal.

15 HOWARD ZEHR,THE LITTLE BOOK OF RESTORATIVE JUSTICE20 (2002). We thank JohnBraithwaite for commenting on an earlier draft that at times the person who is expected to takeresponsibility is someone other than the person accountable for the crime, such as in cases ofchild offenders.

16 SeeDan M. Kahan, The Anatomy of Disgust in Criminal Law, 96 MICH. L. REV. 1621,1641 (1998) (portraying crime as an act of communicating the offenders disregard of socialvalues).

17 See JOHN BRAITHWAITE &PHILLIP PETTIT,NOT JUST DESERTS:A REPUBLICAN THEORYOF CRIMINAL JUSTICE(1990); see alsoWalgrave, supranote1,at 56163 (describing restorativejustice as a communitarian approach).

18 SeeBRAITHWAITE &PETTIT,supranote17 (emphasizing that unlike liberal theory, whichfocuses on protecting individuals against the sovereign, republican theory relates to protectionagainst other forms of domination resulting from social injustice and violence); see alsoErikLuna, Punishment Theory, Holism, and the Procedural Conception of Restorative Justice , 2003


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jointly and actively make decisions concerning the harm, itsimplications, and the proper responses to it. The role of the sovereign isrestricted to preserving basic human rights in addition to defining

substantive criminal law. As long as there is no deviation from the redlines set by the state, the community is free to manage behavior as itwishes.19

The two theories also have different approaches to the nature of thereaction to crime. Restorative justice considers penal sanctions asadministrative aggression, imposed by the state in response to theaggression by the offender. Conversely, restorative justice processes seekto achieve restorative, corrective measures that can put right the harmdone.20 Focusing on restoration does not mean abstaining from aresponse, or even providing a milder response; rather, it reflects areaction which combines high social control with high social support.21

B. Punitive and Restorative Approaches Compared

The criminal process opens with an investigation of the reportedcrime. The investigative material is passed on to the prosecution forindictment. Once an indictment has been filed, the legal process begins,with adjudication as its first stage and sentencing as the second.Adjudication becomes unnecessary in many cases, when the partiesagree to a plea bargain. The decision on whether a trial is to beconducted is forced on both the victim and the offender.22The process

UTAH L.REV.205, 231 (explaining the differences between restorative justice, which is based onrepublicanism, and punitive justice, which is based on liberalism); Walgrave, supranote1,at55455.

19 John Braithwaite, Holism, Justice, and Atonement,2003UTAH L.REV. 389 (discussing therole of state-issued rules in ensuring victims ability to express their positions freely, as well asprovisions for minimal emotional and physical support); John Braithwaite, Setting Standardsfor Restorative Justice, 42 BRIT. J. CRIMINOLOGY 563 (2002) (discussing state-imposedboundaries that proscribe any violent or coercive expressions); Luna, supra note 18, at 289(explaining that while lawmakers are least capable of making suitable decisions in concretecases, they are most capable of setting general boundaries for punishment in differentcategories of crime, reflecting widely shared values and constitutional constraints; thestakeholders are then free to reach an agreeable outcome within these boundaries).

20 ZEHR,supranote11, at 186.21 See Ted Wachtel & Paul McCold, Restorative Justice in Everyday Life, in RESTORATIVE

JUSTICE AND CIVIL SOCIETY 114, 11617 (Heather Strang & John Braithwaite eds., 2001)(explaining that the restorative reaction to crime differs from the punitive approach, which

reacts to crime through high social control and low social support, and that both approachesdiffer from a neglectful approach, which provides both low social support and low socialcontrol, and a permissive, or rehabilitative approach, which provides high social support butlow social control (the social discipline window)).

22 This description is limited to Anglo-American legal systems in which adversarialcriminal processes are customary. Criminal justice processes in Continental legal systems carry


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culminates in the imposition of punishment, which often ravages thedefendants freedom and dignity.23

The restorative justice approach offers processes that differ

substantially from the criminal processes.24 A precondition for arestorative justice process to take place is the offenders admission of thecrime. Secondly, both the offender and the victim are required toconsent to a face-to-face restorative dialogue, and this voluntarism isreexamined throughout the process.25The practical significance of thesetwo conditions is that restorative justice is inapplicable in many cases. 26

In restorative processes the interested parties themselvesas wellas affected community membersare direct parties to the process. Theprofessionals involved act largely as suppliers of information and serviceproviders rather than as decision-makers. Attorneys are generally notinvited to be part of the process, and if they are present, their role islimited to the provision of information. Each participants voice is heardin its authentic form, without being processed through procedural orevidentiary filters. The only restriction is a prohibition against pressure,violence, and domination.27

Crime victims are called to speak of their needs and the damagewhich they incurred as well as to propose ways of repairing the harmand preventing additional damage.28 Offenders are expected to takeexplicit responsibility for their actions, to listen and respond to what the

entirely different characteristics, affecting, among other things, the status of the victim.23 Nils Jareborg, Criminalization as Last Resort (Ultima Ratio),2OHIO ST.J.CRIM.L.521,

526 (2005).24 See TONY F. MARSHALL, RESTORATIVE JUSTICE: AN OVERVIEW 5 (1999) (defining

restorative justice as a process whereby parties with a stake in a specific offence collectivelyresolve how to deal with the aftermath of the offence and its implications for the future).

25 Different restorative justice programs define the requirement for the victims consentdifferently. See, e.g., SHERMAN &STRANG, supranote 2, at 36 (stating that victims involved inthe RISE experiments in Canberra, Australia, were simply asked to name a time and date theycould attend . . . a conference, instead of being formally requested to give their consent to theprocess); Gabrielle Maxwell & Allison Morris, Youth Justice in New Zealand: Restorative Justicein Practice?, 62 J. SOC. ISSUES239, 253 (2006) (presenting findings that victims participate inabout a half of the New Zealand youth justice family group conferences, which take place evenwithout the victims consent to the process, but the victim is free to decide whether toparticipate in them or not); see alsoE.S.C. Res. 2002/12, II(7), U.N. Doc. E/2002/INF/2 (Aug.3, 2002) (providing that restorative justice processes should not be used without the free andvoluntary consent of the victims and that they should be able to withdraw their consent at anytime during the process).

26 Mostly-restorative processes, however, are possible when there is no specific victim,such as in cases of vandalism, tax fraud, and drunk driving. For a typology of fully, mostly,and partly restorative justice processes, see Paul McCold & Ted Wachtel, In Pursuit ofParadigm: A Theory of Restorative Justice, RESTORATIVE PRACTICES E-FORUM (Aug. 1015,2003) (presented at the thirteenth World Congress of Criminology), available athttp://www.iirp.edu/iirpWebsites/web/uploads/article_pdfs/paradigm.pdf.

27 Braithwaite, Setting Standards for Restorative Justice, supranote19,at 565.28 The conception of the victim as a partner in the decision-making process following a

crime is one of the key innovations of restorative justice. See David Miers, Situating andResearching Restorative Justice in Great Britain,6PUNISHMENT &SOCY 23(2004).


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victims have to say, and to propose their own ways of repairing theharm and preventing any recurrence of the offenses. Consequently, theoutcomes of restorative justice processes are shaped by the parties

themselves according to their needs and can be unique in nature.29Therestorative process has therefore often been described as an empoweringexperience, by contrast to the criminal process, which is commonlycriticized as reawakening the trauma and disempowering the victim.30

Finally, the restorative process is not adversarial. Becauserestorative justice processes follow the offenders admission, there is noneed to convince anyone present of the veracity of one party at theexpense of the other, or to agree on a plea bargain. 31Since the objectiveof the process is not to penalize, the offender may take off the mantle ofdefense and engage in a sincere dialogue toward the formulation of areparation plan.32 A reparation plan typically includes both monetaryreparation and a rehabilitative program. Community work is also oftenagreed upon by the participants.

There are several models of face-to-face restorative justiceprocesses, the most common being Victim-Offender Mediation (VOM),Conferencing, and the Circle. The models differ primarily by thenumber of participants and the level of community involvement inthem. VOM involves an intimate encounter between the victim and theoffender, together with a mediator.33Conferences include the victim, theoffender, and their respective communities of support, as well ascommunity representatives and professionals.34 Circles are practicedmainly in native communities.35 They often involve members of an

29 Joanna Shapland et al., Situating Restorative Justice Within Criminal Justice, 10THEORETICAL CRIMINOLOGY505 (2006).

30See, e.g.,BARTON,supranote11,at 15, 16.31 See Bazemore, supra note 1, at 797 (suggesting that restorative justice only applies to

offenders who have admitted guilt or who have been found guilty, in contrast with punitivejustice which, despite due process protections, is often based on "bargaining in the service ofretributive ends" and attorneys interests).

32 Id.(portraying restorative justice as leading to win-win solutions; only by attending tothe needs of the victim and the community following the crime can the offender berehabilitated); see also STRANG, supranote 2,at 15591 (providing a statistical proof for thewin-win outcome of restorative justice: When victims responded positively to restorativejustice conferences offenders responded positively as well in the majority of cases. Win-winresults relating to dimensions such as participation, legitimacy, emotional restoration, andprocedural justice occurred significantly more often in conferences than in court, while win-lose occurred significantly more often in court.).

33 Mark S. Umbreit, Crime Victims Seeking Fairness, Not Revenge: Toward RestorativeJustice, 53FED.PROBATION52, 53 (1989).

34 SeeShapland et al., supra note29,at 52021 (describing conferences as strengthening thesocial bonds between offenders and their family members, between victims and their relatives,and among the various supporters).

35 Julian V. Roberts & Kent Roach, Restorative Justice in Canada: From Sentencing Circles to


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entire community, and include spiritual and traditional elementsrepresenting the uniqueness of the specific community. In all threemodels, the processes are conducted by a neutral, professional

facilitator. Before the encounter, a thorough preparation phase takesplace, administered by the facilitator. During the gathering theparticipants discuss the offense and its implications, and collectivelyshape the reparation plan. When necessary, an additional meeting isheld. After the gathering, the implementation of the decisions ismonitored and reported to the state authorities. When a criminalprocess has begun, the state authorities decide whether or not to pursueit according to the results of the restorative process. In cases where thereparation plan has not been carried out, the case is transferred to (orremains in) the criminal process. Although the community plays adominant role in all of these models, state officials participate in theprocesses and monitor their implementation, thus retaining the statesinvolvement.

Beyond the practical differences between restorative and criminalprocesses, proponents of each approach have emphasized theweaknesses of the respective rivals, continuing to portray the twoapproaches as irreconcilable with each other. Restorativists argue thatthe criminal process is based on a confrontational paradigm thatexcludes victims. The trial is perceived as a rivalry between theprosecution and the defense, and the binary structure of the verdict inthe criminal process creates a zero-sum game, whereby the victory ofone party is perceived as the failure of the other.

Punitivists, on the other hand, have raised serious concerns

regarding the ability of restorative justice processes to protect offendersdue process rights, and in particular the presumption of innocence. Theadmission requirement creates a risk of false admissions, particularlyamong offenders belonging to minority groups, those with mentalillnesses, and juveniles.36 When restorative processes begin after theadmission or finding of guilt, due process rights protect the offendersinterests other than maintaining their innocence.37But when restorative

Sentencing Principles, in RESTORATIVE JUSTICE AND CRIMINAL JUSTICE: COMPETING ORRECONCILABLE PARADIGMS?,supra note10,at 237, 237, 240.

36 Arthur L. Rizer III, The Race Effect on Wrongful Convictions, 29 WM.MITCHELL L.REV.845 (2003). But see Gina Villar, Joanne Arciuli & Helen M. Paterson, Remorse in Oral andHandwritten False Confessions, 18 LEGAL & CRIMINOLOGICAL PSYCHOL. (forthcoming 2013)(showing that expressions of remorse are significantly more elaborated and more common incases of true confessions compared with false ones).

37 But see Tamar M. Meekins, Specialized Justice: The Over-Emergence of Specialty Courtsand the Threat of a New Criminal Defense Paradigm, inREHABILITATING LAWYERS:PRINCIPLESOF THERAPEUTIC JURISPRUDENCE FOR CRIMINAL LAW PRACTICE46, 77 (David B. Wexler ed.,2008) (considering the role of defense attorneys in drug courts as the promoters of their clientsbest interests); Mae C. Quinn, Whose Team Am I on Anyway? Musings of a Public Defender


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justice is used as a diversion from the criminal process or takes placebefore the admission or finding of guilt, the risk of false admission raisesconstitutional concerns.38 Punitivists also question the ability of

restorative justice to provide deterrent, effective, and just reactions toserious crimes. Restorative justice, in other words, is perceived as a softoption by punitivists.

In practice, restorative justice processes are currently being used inthousands of programs throughout the world. 39 Many studiesconsistently indicate the effectiveness of restorative processes inreducing recidivism rates.40 Empirical findings also indicate thesatisfaction of victims and the improvement in their emotional state as aresult of their participation in restorative processes.41 Therefore,irrespective of ones position toward restorative justice, it is clearly hereto stay. Our purpose in this Article is to identify the position ofrestorative justice vis--vis punitive justice, focusing on their respectivegoals.

About Drug Treatment Court Practice, 26 N.Y.U. REV. L. & SOC. CHANGE 37, 5859 (2000)(discussing similar concerns relating to problem-solving courts).

38 But see SHERMAN & STRANG, supra note 2, at 13 (proving that, in fact, offenders whowere referred to restorative justice processes were more likely to experience the process as fairthan those who were referred to court); STRANG, supra note 2, at 12629; see also ADAMCRAWFORD &TOM BURDEN,INTEGRATING VICTIMS IN RESTORATIVE YOUTH JUSTICE58, 7071(2005) (demonstrating that even young offenders who met directly with their victims felt thatthe process outcomes were fair and that they were treated with respect by their victims);Kathleen Daly, Mind the Gap: Restorative Justice in Theory and Practice, in RESTORATIVEJUSTICE AND CRIMINAL JUSTICE:COMPETING OR RECONCILABLE PARADIGMS?,supra note10,at219 (providing similar results for juvenile offenders).

39 Mark S. Umbreit, Robert B. Coates & Betty Vos, The Practice of Victim OffenderMediation: A Look at the Evidence, in INTERNATIONAL HANDBOOK OF PENOLOGY ANDCRIMINAL JUSTICE 691, 692 (Shlomo Giora Shoham, Ori Beck & Martin Kett eds., 2008).

40 SHERMAN & STRANG, supra note 2, at 6871 (comparing court and conferencingprocesses in Canberra, Australia); Bonta et al., supra note2,at 11315 (reviewing thirty-ninerestorative justice studies in various jurisdictions, and presenting small, but significant andconsistent reductions in recidivism rates); Latimer, Dowden & Muise, supranote2,at 13739(conducting a meta-analysis of findings from twenty-two studies regarding recidivism ratesfollowing restorative justice programs and showing a significant reduction of crime comparedwith recidivism rates following court processes).

41 STRANG, supra note 2, at 13239 (presenting findings regarding enhanced satisfactionand healing for victims whose cases were randomly assigned to conferences instead of court inCanberra, Australia); Barton Poulson, A Third Voice: A Review of Empirical Research on thePsychological Outcomes of Restorative Justice, 2003 UTAH L. REV. 167 (combining data fromseven evaluation studies comparing restorative justice and court processes, and showing that inall psychological measures restorative justice produced significantly better outcomes for

victims); Caroline M. Angel, Crime Victims Meet Their Offenders: Testing the Impact ofRestorative Justice Conferences on Victims Post-Traumatic Stress Symptoms (Jan. 1, 2005)(unpublished Ph.D. dissertation, University of Pennsylvania), available at http://repository.upenn.edu/dissertations/AAI3165634 (presenting findings regarding reduced post-traumasymptoms among robbery and burglary victims whose cases were randomly referred toconferences).


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II. THE GOALS OF THE CRIMINAL PROCESS

Whereas the punitive approach generally considers retribution,deterrence (general and personal), rehabilitation, incapacitation, anddenunciation of the crime42 as the goals of penal sanctions, manyrestorative justice scholars present it as promoting entirely differentgoals.43 Restorative justice, however, can in fact achieve the punitivegoals in addition to its unique consequentialist objectives. Section Apresents the arguments explaining how both approaches may achievethe goals of criminal law as well as those presenting the uniqueobjectives of restorative justice. The dispute largely revolves around thequestion of whether requital44is either attainable or desirable within therestorative philosophy. We will address this question in Section B.

42 Denunciation does not always appear as a separate traditional goal of punitive justice.We chose, however, to present it in this Article as one of the punitive justice goals because of itscentrality for both deontologists and utilitarians. SeeBRAITHWAITE &PETTIT, supranote17,at48 (presenting denunciation as a utilitarian justification for punishment); A NDREW VONHIRSCH, CENSURE AND SANCTIONS (1993) (presenting censure as a justification forpunishment within a retributivist approach). For simplicity we categorize denunciation as autilitarian goal since it encapsulates, inter alia, utilitarian components. We acknowledge,however, that denunciation also involves, at least for some writers, other meanings, as well.

43See, e.g., BRAITHWAITE &PETTIT,supranote17, at 5485, 9192 (arguing that the goal ofrestorative justice is promoting equal dominion among all members of society).

44 We choose the term requital for its broad meaning which includes the variousinterpretations on retribution. Requital is also a neutral term which has been left outside theacademic discourse about punishment and its justification. See, e.g., BRAITHWAITE & PETTIT,supra note 17 (using, critically, the term retribution); JOEL FEINBERG, DOING ANDDESERVING: ESSAYS IN THE THEORY OF RESPONSIBILITY 98 (1970) (proposing the term hardtreatment); VON HIRSCH, supra note 42 (considering censure as a goal of punishment).


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A. What Do Punitive and Restorative Approaches Tryto Accomplish?

Table 1The goals of the retributive and restorative paradigms

Restorative JusticePunitive Justice

Internal incentives:reintegrativeshaming andprocedural fairness

encouraging self-regulation

Externalincentives:escalatingpunishments

combinedwith strictenforcement

PersonalDeterrence

Utilitarian Goals:

Crime Reduction

Increasingreporting rates andstrengtheningcommunity ties

Consistent andpredictablesanctions

GeneralDeterrence

Focusing on thecrime, not thecriminal; offendersinvolvement in

decision-making;rehabilitationwithin thecommunity

Rehabilitationprograms asalternatives orsupplements topunishment

Rehabilitation

Spreadingresponsibility onmany amongoffenderscommunity

Imprisonment;death penalty

Incapacitation

Authenticexpressions by

process participantsbacked up byreparation plan;offenders remorse

Public judicialdecisions

Denunciation,Norm-Setting


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Addressing needs ofanybody affected bycrime

Reparation ofHarm

AdditionalConsequential

Goals

Recruitingcommunities ofsupport in craftingand implementingreparation plan

CommunityEmpowerment

Illegitimate goal;reparation plan asburden;reparation asrestoration ofjustice

Just desert,proportionality

RequitalDeontologicalGoals

In what ways can restorative justice serve the utilitarian objectivesof the punitive approach?

45F

45 Punishment, according to utilitarianism,may be justified only when it is imposed in order to attain objectiveswhich result in benefit to society: for the sake of deterrence, theprevention of recidivism and the rehabilitation of the offender. 46F46 AsTable 1 demonstrates, restorative justice can potentially achieve theobjectives of the classic utilitarian school in addition to its own statedgoals.

47F

47 Accordingly, criticism is not directed principally at theutilitarian goals themselves, but rather at the inefficient, unjust, andcoercive methods that the punitive approach adopts in pursuing them.

48F

48Punitive justice justifies punishment for its deterrent effect.

Deterrence theory assumes rationality, 49F49but at least in certain types ofoffenses and certain segments of the population, it is doubtful whether

45 See JOHN STUART MILL, UTILITARIANISM(1861), reprinted inUTILITARIANISM,LIBERTYAND REPRESENTATIVE GOVERNMENT1, 6 (Wildside Press 2007) (1910) (defining the utilitarianethical theory, which holds that the criterion for examining the worthiness of any given actionis its ability to achieve the maximization of happiness and minimization of suffering).

46 See JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS ANDLEGISLATION (J.H. Burns & H.L.A. Hart eds., Univ. of London 1970) (1789) (arguing thatpunishing a first-time offender when reoffending is unlikely to occur is immoral andunjustified).

47 See BRAITHWAITE &PETTIT,supranote17,at 6465; Philip Pettit,Republican Theory andCriminal Punishment, 9 UTILITAS 59 (1997) (presenting a republican approach which adoptsthe consequentialist goal of dominion or freedom as non-domination).

48 MICHAEL H. TONRY, MALIGN NEGLECT: RACE, CRIME, AND PUNISHMENT IN AMERICA(1995); LUCIA ZEDNER, CRIMINAL JUSTICE 94 (2004). But see BRAITHWAITE & PETTIT, supranote17,at 5253, 202 (criticizing utilitarianism as vague and preferring a consequential theorythe goal of which is the promotion of personal dominion).

49 Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. POL. ECON. 169(1968)(explaining that a person committing an offense considers whether the expected utilityof the crime exceeds its anticipated damage, and that the damage is a function of the probabilityof conviction and the estimated punishment).
http://www.princeton.edu/~ppettit/papers/RepublicanTheory_Utilitas_1997.pdfhttp://www.princeton.edu/~ppettit/papers/RepublicanTheory_Utilitas_1997.pdfhttp://www.princeton.edu/~ppettit/papers/RepublicanTheory_Utilitas_1997.pdfhttp://www.princeton.edu/~ppettit/papers/RepublicanTheory_Utilitas_1997.pdfhttp://www.princeton.edu/~ppettit/papers/RepublicanTheory_Utilitas_1997.pdfhttp://www.princeton.edu/~ppettit/papers/RepublicanTheory_Utilitas_1997.pdf


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the severity of the punishment affects the future behavior of offenders.50In a reality of high case attrition,51the certainty of enforcement is low aswell. What actually deters people from committing crimes, according to

restorativists, is shame. According to Braithwaites reintegrativeshaming theory, restorative justice provides a more efficient personaldeterrent, because it creates a space in which the community shamesoffenders for their deeds, while expressing commitment and concerntoward them. The combined message of denunciation of the wrongfulact with the acceptance of the wrongdoer enables the offender toreintegrate into society after having taken measures to repair the harmcaused by the crime.52

Tom Tylers procedural justice theory establishes that respectfuland inclusive processes are more effective than threatening, aggressivediscourses.53 Offenders who took part in restorative justice processesreported feelings of fairness, attentive listening, neutrality, and theability to influence, which encouraged them to fulfill theirundertakings.54 The theory of procedural justice and the theory ofreintegrative shaming provide two prominent explanations for theempirical findings that restorative justice is generally more efficient thanthe criminal process in reducing recidivism rates. 55

Consistent and predictable penal sanctions are also intended toachieve general deterrence, according to punitivists. Proponents ofrestorative justice, however, question the validity of the punitivistsgeneral deterrence theory. Instead, they suggest that systemic use ofrestorative justice processes will lead to general deterrence and to adecrease in the crime rate. The alliance between victims and community

members that is created through restorative processes produces greatersatisfaction and trust, consequently increasing the percentages ofreported new crimes. The rise in the reporting rates increases the risk of

50 SeeLuna, supranote18,at 21213.51 JOAN R. PETERSILIA, ALLAN ABRAHAMSE & JAMES Q. WILSON, RAND CORP., POLICE

PERFORMANCE AND CASE ATTRITION (1987), available athttp://www.rand.org/pubs/reports/R3515 (aiming to examine the reasons for the high case attrition rate in the United States,where less than half of all felony arrests result in conviction, and identifying some policepractices and community characteristics which explain approximately half of the variation inattrition rates across different police agencies).

52 JOHN BRAITHWAITE,CRIME,SHAME AND REINTEGRATION (1989).53 Tom R. Tyler, Restorative Justice and Procedural Justice: Dealing with Rule Breaking, 62J.

SOC.ISSUES 307(2006).54 STRANG, supranote2,at 17077.55These findings were verified in randomized-assignment tests. See SHERMAN & STRANG,

supranote2;Latimer, Dowden & Muise,supranote2.Other studies have identified diversity inthe effectiveness of restorative justice in reducing reoffending. SeeBonta et al., supranote2.


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being caught and hence the reluctance of potential offenders to commitoffenses.56

Indeed, punitivists question the ability of restorative justice to

achieve general deterrence because restorative processes are contingentupon the victims consent. This variability decreases the certainty oflegal reactions to crime and reduces public trust in the justice system.The restorativist response is that as restorative practices become morevisible and more attuned to victims expectations, victims consent ratesincrease, thus increasing the probability of enforcement throughrestorative processes.57Yet, as long as restorative justice remains at themargins of legal systems, it is impossible to expect a critical mass ofcases handled restoratively and an increase in reporting rates thereby;and as long as the general deterrent effect of restorative justice is notsubstantiated by empirical evidence it is unlikely that it would becomethe mainstream enforcement mechanism. A realistic view of restorativejustice, then, acknowledges its limitations in achieving generaldeterrence. At the same time, a realistic view of punitive justiceacknowledges its own weakness in achieving this goal.58

Offenders rehabilitation is another utilitarian goal of punitivejustice. Imprisonment is expected to provide rehabilitative measures inaddition to its incapacitative roles, while other (non)-punitive measuresinvolve even more explicit rehabilitative goals. But according to criticsthe criminal process condemns offenders, not only their deeds;59 theirimprisonment removes them from the law-abiding community, andprison is known as the best school of crime. 60 In restorative justice

56 John Braithwaite, Restorative Justice: Assessing Optimistic and Pessimistic Accounts , 25CRIME &JUST. 1, 60 (1999).

57 See LAWRENCE W. SHERMAN & HEATHER STRANG, RESTORATIVE JUSTICE: THEEVIDENCE, supranote2,at 15.

58 See RYAN S. KING, MARC MAUER & MALCOLM C. YOUNG, THE SENTENCING PROJECT,INCARCERATION AND CRIME: A COMPLEX RELATIONSHIP 4 (2005) (explaining that no morethan twenty-five percent of the crime reduction of the 1990s can be attributed to increasedincarceration); Francis T. Cullen, Cheryl Lero Jonson & Daniel S. Nagin, Prisons Do Not ReduceRecidivism: The High Cost of Ignoring Science, 91 PRISON J.48S (2011); see alsoSteven D. Levitt,Understanding Why Crime Fell in the 1990s: Four Factors that Explain the Decline and Six thatDo Not, 18J.ECON.PERSP. 163, 17879 (2004) (estimating that approximately one-third of thecrime reduction of the 1990s was related to increased incarceration, but that this can beattributed to the incapacitation effect rather than future deterrence).

59 See Braithwaite, supra note 56, at 6870 (arguing that even when the sanction isrehabilitative, the outcome is still one of labeling offendersif not as evil, then as sick; ifnot as criminals, then as crazy; in addition, the imposition of rehabilitative sanctionsleaves offenders in a passive position after having been diagnosed as in need of recovery,passiveness that reduces the prospects for successful rehabilitation).

60 JEFFREY REIMAN &PAUL LEIGHTON,THE RICH GET RICHER AND THE POOR GET PRISON:IDEOLOGY, CLASS, AND CRIMINAL JUSTICE (2010) (arguing that the difficulties in findingemployment, as well as the societal and familial troubles encountered by ex-convicts push themback into criminal behavior and prevent their reintegration into society); ZEDNER, supranote48,at 94;Michael A. Hallett, Race, Crime and For-Profit Imprisonment: Social Disorganizationas Market Opportunity, 4 PUNISHMENT & SOCY 369, 37981 (2002) (explaining that the
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processes, by contrast, the active involvement of offenders and theirsupporters in selecting the rehabilitation program, along with thestrengthening of their own familial and societal bonds, make restorative

justice an effective means of rehabilitating offenders.61Incapacitating offenders is considered an additional utilitarian goal

of punitive justice. Proponents of restorative justice, however, point outthe high percentage of violence in prisons and the increase in recidivismpost-release.62 Erroneous identifications and speculative riskassessments are additional obstacles toward effective incapacitation. 63Inrestorative justice, it is suggested, the community can incapacitateoffenders in creative ways, such as placing in-house inspectors inscofflaw businesses, having a relative move into the offenders home, ortaking away the offenders car keys on weekends. 64If activity at this leveldoes not accomplish prevention, it will be necessary to move up in theenforcement pyramid65toward more coercive measures.66

Another utilitarian objective of punishment is denunciation ofcrime.67 More broadly, and more recently, a goal of exchangingmessages between the various parties to the criminal process has been

negative effects of prisons are greater than their positive impact on prisoners); Martin H.Pritikin, Is Prison Increasing Crime?, 2008WIS.L.REV.1049,105456.

61 In the Canadian province of Newfoundland and Labrador, for instance, restorativeconferences that were used in family violence cases strengthened family ties considerably. SeeJoan Pennell & Gale Burford, Family Group Decision Making: Protecting Children and Women ,79CHILD WELFARE 131 (2000).

62 ZEDNER, supra note48, at 94 (explaining that the stigmatizing effects of imprisonmentand the intrusion in family life increase the likelihood of reoffending); Ezzat A. Fattah, A

Critical Assessment of Two Justice Paradigms: Contrasting the Restorative and Retributive JusticeModels, inSUPPORT FOR CRIME VICTIMS IN A COMPARATIVE PERSPECTIVE 99,99100(Ezzat A.Fattah & Tony Peters eds., 1998) (describing the detrimental implications of imprisonment).

63 Luna, supranote18,at 211.64 As Professor Braithwaite vividly describes:

[T]he Uncle Harrys of this world come up with ideas more attuned to the reality ofthe offenders circumstances than can a judge, and are better monitors of theirimplementation than police officers because one Uncle Harry might have morecontacts with the offender in a month than all the police in the city during a year.Intimates, in short, can incapacitate more intensively, more creatively, moresensitively, more consensually, and in a more dynamically responsive way than thecriminal justice system.

Braithwaite, supranote56,at 67.65 JOHN BRAITHWAITE, RESTORATIVE JUSTICE AND RESPONSIVE REGULATION 30 (2002)

(presenting the regulatory pyramid which has at its base the most restorative dialogue-based

approach for securing compliance with the law; as we move up the pyramid more coercivemethods are used to enforce the law).

66 Braithwaite, supra note 56, at 5356. Many abolitionists hold a similar view. See JimThomas & Sharon Boehlefeld, Rethinking Abolitionism: What Do We Do with Henry? Reviewof de Haan,ThePolitics of Redress, SOC.JUST.,Fall 1991,at239.

67 ANDREW ASHWORTH,PRINCIPLES OF CRIMINAL LAW 18(6th ed. 2009).


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identified. Moving beyond the traditional goals of punitive justice,expressive theories emphasize the negative message that the crimeconveys and the condemning message that punishment

communicates.68 Punishment, from this perspective, is perceived as away to express negative emotions held by the public at large.69Restorative justice processes attain the goal of social condemnation aswell, when all those present express their sorrow, shame, or anger atwhat happened, provide details of the damage caused, and formulate amultidimensional reparation plan.70 Such a message is arguably morecredible and more effective than a sentence handed down by anunfamiliar judge.71 Moreover, offenders typically express remorse,72thereby validating the denunciatory message even further. In fact, thedistinction made in restorative justice processes between thedenunciation of the crime and acceptance of the offender enablesoffenders and their supporters to condemn the criminal actwholeheartedly, by contrast to the criminal process, which incentivizesdefendants to minimize their responsibility.

A claimed limitation, however, of restorative justice is that, while itcan educate and strengthen micro-communities, such as an extendedfamily, a school or a social circle,

73F

73 it falls short of transforming wholecommunities. Our response to this argument is that, when there is aneed to convey a clear public message, reparation plans can be madepublic while maintaining the anonymity of the participants.

One of the concerns against restorative justice is that strengtheningthe status of traditional community institutions as law enforcementagents might hinder the promotion of acceptable norms of behavior.

74F

74

68 See, e.g., FEINBERG, supra note 44, at 9899; Kyron Huigens, On CommonplacePunishment Theory, 2005 U.CHI.LEGAL F.437, 441.

69 See Kahan, supra note 16, at 1641 (discussing punishment having the function ofreflecting the repugnance of the community, i.e., the emotions of the community).

70 Kay Pranis, Conferencing and the Community, inFAMILY GROUP CONFERENCING:NEWDIRECTIONS IN COMMUNITY-CENTERED CHILD & FAMILY PRACTICE 40 (Gale Burford & JoeHudson eds., 2000).

71 Barbara Hudson, Restorative Justice: The Challenge of Sexual and Racial Violence,25J.L.& SOCY 237, 252 (1998) (emphasizing that the message is especially powerful when thereparation plan is backed by community and government services and supervised by theenforcement authorities).

72 Expressions of remorse and requests for forgiveness occur in many restorative processes.SeeSHERMAN &STRANG,supranote2;STRANG,supranote2,at 11415.

73 Braithwaite, supranote56,at 37.74 See, e.g., Nadera Shalhoub-Kevorkian & Edna Erez, Integrating a Victim Voice in

Community Policing: A Feminist Critique, 9 INTL REV. VICTIMOLOGY 113 (2002) (describingthe complexity of policing domestic violence in Arab communities); Julie Stubbs, DomesticViolence and Womens Safety: Feminist Challenges to Restorative Justice, in RESTORATIVEJUSTICE AND FAMILY VIOLENCE 42, 49 (Heather Strang & John Braithwaite eds., 2002)(discussing the problems in some restorative justice programs addressing family violence inindigenous communities where the safety of women was placed at the hands of local men, someof whom were themselves abusers).


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Traditional customs such as female genital mutilation and violenceagainst women and children may be overlooked or even justified, andthe victims and their stories silenced.75 It is important, therefore, to

involve state authorities as watchdogs in community-based restorativeprocesses, to warn against violations of basic human rights. 76 Thequestion whether restorative processes are successful in resolving theseproblems depends largely on how they are practiced.77

Beyond the utilitarian goals of punitive justice, the restorativeapproach has its own unique consequential objectives. 78By contrast tothe punitive approach, restorative justice focuses on victims, and thereparation of the harm done to them and to others constitutes itsprimary goal.79 The restorative approach criticizes punitive justice fortaking a high toll from victims in the promotion of societal goals. As analternative, it offers processes that can empower victims, strengthensocial bonds, and heal, irrespective of their outcomes. 80In fact, findingshave shown that victims who participated in restorative justice processesexperienced a dramatic decrease in their post-trauma symptoms. Thetherapeutic effect was so dramatic that those processes were comparedto cognitive-behavioral therapy, an effective psychological treatmentmethod for reducing post-trauma symptoms.81Victims rights reformsacross the globe have brought the punitive approach closer to restorativejustice in terms of empowering victims. But the gap between the twoapproaches is still significant; promoting the wellbeing of victims is nota primary goal of punitive justice.82

75 But seeBraithwaite, supranote19 at 564 (arguing that empirical evidence indicates that,in fact, womens voices are heard more frequently than males in restorative justice processes, incontrast with the reality in formal courtrooms).

76 An example is the involvement of judges in sentencing circles in Canada and in theUnited States. The judge is passive during the circle but it is within his (or her) authority todecide whether or not to accept the outcome plan as a part of the sentence or as a replacementto it. SeeGoel, supranote10,at 6465.

77 See Barbara Hudson, Beyond White Mans Justice: Race, Gender and Justice in LateModernity, 10 THEORETICAL CRIMINOLOGY 29, 2930 (2006) (suggesting that restorativeprocesses should meet the principles of discursiveness, relationalism and reflectiveness toaddress this concern).

78 SeeBRAITHWAITE &PETTIT, supranote17,at 2553 (explaining why it is a consequentialtheory of justice).

79 ZEHR, supranote11,at 184; Fattah, supranote62,at 104; Martin Wright, The Court asLast Resort: Victim-Sensitive, Community-Based Responses to Crime,42BRIT.J.CRIMINOLOGY

654 (2002).80 See BARTON, supra note 11, at 16, 21, 27(explaining the notion of empowerment in

restorative processes as therapeutic).81 Angel, supranote41.82Hadar Dancig-Rosenberg & Dana Pugach, Pain, Love, and Voice: The Role of Domestic

Violence Victims in Sentencing, 18 MICH.J.GENDER &L. 423 (2012).


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An additional stated goal of restorative justice is to repair andstrengthen community ties.83 While the punitive approach focuses onoffenders as individuals and considers the community a passive victim

at most, the restorative approach places the community at the center ofthe process. Indeed, community is a vague, illusive concept in ourmodern urban society. A community in the restorative sense is not anentity defined by geography. Rather, it is a network of different social,familial, and professional ties.84 Restorative justice processes awakeninactive ties and strengthen functioning ones by recruitingacquaintances of offenders and victims to sit together and discuss thecrime and the appropriate reactions to it.85The community is perceivedas (secondarily) responsible for the occurrence of the offense and as a(secondary) victim.86 Community members, representing the sharedresponsibility of the community, are invited to restorative processes totake part in the design of the restoration plan. As a (secondary) victim,the community needs are strengthening social bonds, regainingresidents sense of security, and reducing crime rates. 87 Communitybonds are strengthened through the intensive discussion of theconsequences of the offense, as well as by the active participation in, andsupervision of, the reparation plan.88

Restorative justice, then, can potentially address the utilitariangoals of the punitive approach, all aimed at reducing crime. Restorativejustice deters offenders from committing additional crimesthrough theuse of fair and rehabilitative shaming ceremonies. System-widerestorative justice may potentially achieve general deterrence as well, byraising the level of certainty that offenses will be reported and handled.

Restorative justice processes also constitute effective communitymechanisms for censuring offenses and confirming norms.Incapacitation can be achieved through the recruitment of family,community, and governmental enforcement mechanisms that preventoffenders from reoffending. Restorative justice also provides a response

83 Albert W. Dzur & Susan M. Olson, The Value of Community Participation in RestorativeJustice, 35J.SOC.PHIL. 91, 96 (2004).

84 Mimi Kim, Alternative Interventions to Intimate Violence: Defining Political andPragmatic Challenges, in RESTORATIVE JUSTICE AND VIOLENCE AGAINST WOMEN, supranote10,at 193, 19596.

85 See RANDALL COLLINS, INTERACTION RITUAL CHAINS (2004) (describing restorativejustice processes as a social ritual). Collins explains how such rituals reinforce a sense ofbelonging among their participants, strengthen social norms, create group energy and reduceanger among the participants. Id.

86 Bazemore, supranote1.87 LODE WALGRAVE,RESTORATIVE JUSTICE,SELF-INTEREST AND RESPONSIBLE CITIZENSHIP

76 (2008) (portraying the community as both a means and an end).88Robert White, Social Justice, Community Building and Restorative Strategies, 3 CONTEMP.

JUSTICE REV. 55, 68 (2000) (demonstrating how community empowerment can be achievedthrough the assignment of voluntary activities to minors participating in restorative justiceconferences).


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to two additional distinct consequentialist objectives, namely thereparation of harm and community empowerment.

B. Requital

While the dispute between the restorative and the punitiveapproaches regarding the utilitarian purposes focuses on the ways toachieve them, the dispute around requital is fundamental to the veryconcept.89 The theory of retribution is derived from the deontologicalmoral philosophy,90which holds that, irrespective of the outcome of thepenal sanction, it is morally necessary to ensure that the punishment isproportionate to the severity of the offense. Causing harm to a personwho harmed societal values has intrinsic positive moral value. 91

Restorativists differ about the deontological theory.92Some utterly

reject the notion of justifying punishment through requital93 and holdthat punishment can only be justified when it promotes the commongood. The desire to revenge, although natural, is irrational andunworthy.94Consequently, if there is evidence that restorative justice islikely to reduce criminal behavior while severe punishment is not, it ispreferable to take a pragmatic approach and waive the primitive urgefor requital or revenge.95 Another school of thought opposes thedeontological approach on the grounds that the existence of a publicdesire to requite offenders is not supported by findings; rather, crimevictims seek to achieve entirely different objectivesprincipally those ofa fair and respectful process, compensation, acknowledgment of theirsuffering, and opportunities to influence the outcome of the process. 96

89By requital we mean both the goal of achieving proportionality in punishment (justdeserts), and the goal of making offenders pay for their deeds (retribution).

90 Deontological moral theories highlight the intrinsic value of actions and norms. SeeGEORGE P. FLETCHER, THE GRAMMAR OF CRIMINAL LAW: AMERICAN, COMPARATIVE, ANDINTERNATIONAL19899 (2007).

91 See John Rawls, Two Concepts of Rules, 64 PHIL. REV. 3, 5 (1955) (explaining that,according to the retributivist approach, [t]he state of affairs where a wrongdoer sufferspunishment is morally better than the state of affairs where he does not).

92 For a review of the various positions regarding retribution within restorative justice seeMICHAEL KING ET AL.,NON-ADVERSARIAL JUSTICE4445 (2009).

93 SeeMARTIN WRIGHT,JUSTICE FOR VICTIMS AND OFFENDERS:ARESTORATIVE RESPONSETO CRIME 13335(Waterside Press 2d ed.1996)(1991); Daniel Van Ness, supranote 1, at 25152, 25859.

94 Lode Walgrave, Restorative Justice for Juveniles: Just a Technique or a Fully FledgedAlternative?,34HOW.J.CRIM.JUST. 228, 233, 235, 242 (1995).

95 Id.96 STRANG, supranote2,at 923; Jo-Anne Wemmers, The Meaning of Justice for Victims, in

THE INTERNATIONAL HANDBOOK OF VICTIMOLOGY27 (Shlomo Giora Shoham, Paul Knepper& Martin Kett eds., 2010).


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Indeed one could argue that retributivism is normative and should notbe subjected to the influence of empirical arguments. Anyone whoattributes at least some significance to empirical findings, however, will

have difficulty ignoring the changes in the perception of justice by thepublic in general and by victims in particular.

Other restorativists acknowledge the legitimacy of requital andhold that the restorative approach includes components ofpunishment.97 While requital is not an objective of restorative justice,reparation plans constitute, in practice, a burden on the perpetrator thatis a function of the severity of the offense.98 Furthermore, a detaileddiscussion of the implications of the offense and of the offendersliability potentially results in fairer and more proportional sanction thanthe sentence pronounced by a judge.99 More importantly, thepunishment is more constructive and more significant than thestandard punitive justice sentence, as it can meet the actual needs of thevictim, the community, and the offender.100

The difficulty arising from this line of argument is that the tailor-made treatment produces highly distinct outcomes, violating theequality requirement.101 The restorativist response to the inequalityconcern is that referring every admitting offender to restorative justiceprocesses according to known criteria represents equal treatment.Equality in its restorative meaning is followed through the respectfuland fair treatment of all participants during the process,notwithstanding its outcomes. Furthermore, restorativists argue that byinvolving crime victims in various junctions of the criminal process it is

97 See R.A. Duff, Alternatives to Punishmentor Alternative Punishments?, inRETRIBUTIVISM AND ITS CRITICS 43 (Wesley Cragg ed.,1992) (arguing that restorative justiceprocesses do not offer alternatives to punishment but rather alternative forms of punishments);Luna, supranote 18, at 295, 299 (arguing that successful restorative justice processes may leadto agreed-upon resolutions that represent the participants varying interests and punishmentideologies).

98 See, e.g.,ZEHR,supranote11,at 210; Walgrave, supranote1,at 55859; Kathleen Daly,Professor, Griffith Univ., Address before the Australia and New Zealand Society ofCriminology Annual Conference: Does Punishment Have a Place in Restorative Justice? (Sept. 2830,1999).

99 JOANNA SHAPLAND ET AL., RESTORATIVE JUSTICE: THE VIEWS OF VICTIMS ANDOFFENDERSTHE THIRD REPORT FROM THE EVALUATION OF THREE SCHEMES 4445 (2007),available at http://www.restorativejustice.org.uk/resource/ministry_of_justice_evaluation_does_restorative_justice_affect_reconviction_the_fourth_report_from_the_evaluation_of_three_schemes/#.USeHUqVTEUU (stating that approximately three-quarters of victims andoffenders found conference outcomes satisfying).

100 Michael Wenzel et al., Retributive and Restorative Justice, 32 LAW &HUM.BEHAV. 375,37677(2008).

101 Andrew Von Hirsch & Andrew Ashworth, Not Just Deserts: A Response to Braithwaiteand Pettit, 12 OXFORD J.LEGAL STUD. 83, 9294 (1992). But see Michael Moore, Victims andRetribution: A Reply to Professor Fletcher, 3 BUFF.CRIM.L.REV. 65, 77 (1999) (explaining whyvictims wishes regarding the appropriate punishment should not be considered according toretribution theory).


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the punitive approach that has moved away from the strictly just desertideology.102

Another stream in the restorative justice literature does not rule

out the deontological approach, but rather confers a broad, positiveinterpretation of requital, beyond the classical understanding of justiceinspired by Hegelian and Kantian thinking. The attainment of justiceand the rectification of moral balance can be obtained by having thestakeholders agree on the appropriate reaction instead of imposingforcible punishment.103The offenders efforts to make amends and thepromotion of the victims wellbeing are likely to restore the moralbalance which was disrupted by the offense (righting the wrong),104thus becoming the offenders secular penance,105without imposing painupon him. This is how justice in the restorative sense is achieved. 106

III. INTEGRATION

This part proposes a model for re-conceptualizing the relationshipbetween the restorative and the punitive approaches. While we echothose who criticize punitive justice for failing to provide opportunitiesfor apology and repentance,107 we argue that symbolic reparation canindeed occur within our criminal law system once we understandrestorative justice as part of it. Restorative justice is not private justice.Admittedly, the community takes over most of the facilitative roletraditionally allotted to the state. Nonetheless, the state retains thepossibility of intervention. The state refers cases to restorative processes;it often monitors the fulfillment of the reparation plan; and staterepresentatives have the authority to decide whether or not to drop thecase after a restorative process has been completed. Accordingly,criminal law does not axiomatically imply the punitive approach as itssole executor. Criminal law constitutes a procedural and substantiveplatform for regulating behavior in response to the perpetration ofcrimes; as such, it represents a framework into which various types ofvalues-oriented content may be injected through different procedures.Restorative justice provides another toolin addition to punitive

102 Cf. Moore, supra 101, at 77 (arguing that the involvement of victims in the criminalprocess contradicts the principles of just desert).

103 Wenzel et al., supranote100,at 377.104 Stephen P. Garvey, Restorative Justice, Punishment, and Atonement,2003UTAH L.REV.

303, 317 (explaining that punishment is the way for offenders to right the wrongs they havecommitted, and that restorative justice transforms punishment into penance).

105 Seeid.at 315.106 Seeid.107 Bibas & Bierschbach, supranote3,at 8792.


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justicethrough which socially desirable values may be injected intocriminal law. The restorative justice tool is capable of promoting societaland therapeutic objectives; but it can, at least to some extent, also

achieve requital in its restorative sense. This means that bothapproaches may find shelter under the wings of the criminal law system.In other words, in appropriate cases, criminal justice is restorativejustice.

Our analysis in the previous Part showed that the restorativephilosophy can potentially attain the utilitarian objectives of deterrence,condemnation, incapacitation, and rehabilitation, although they are notits stated goals. The principal instrument of the punitive approach ispunishment. The principal instrument of the restorative justiceapproach is social capitalthe community surrounding the offenderand the victim. Restorative justice also promotes its own stated anddistinct goalsreparation of harm and community empowerment.Notwithstanding the empirical question as to which of the philosophiescan better achieve the utilitarian goals of criminal law, at the end of theday, much of the debate eventually boils down to the question on howeach approach views requital as a goal.

A. Synergizing Punitive and Restorative Approaches

Given the ambivalence displayed by restorative justice proponentsto requital, the relationship between the two paradigmspunitive andrestorativemay be described in two alternative ways. The first is interms of two equal, partially intersecting circles (see Figure 1). Theintersecting area reflects the goals that both approaches can potentiallyachieve. The separate areas reflect the distinct goals of each paradigm. 108This version seems preferable for anyone who remains faithful torequital in its strict retributive meaning, which only the punitiveapproach seeks to promote. The second alternative portrays therelationship in two concentric circles. The smaller circle, whichrepresents the goals of the punitive approach, is encompassed by thelarger, which represents the goals of the restorative approach (see Figure2). According to this description, restorative justice can potentiallyattain the objectives of punitive justice in their entirety, including that ofrequital in its restorative sense, as well as its own. This version may

seem appealing for those who assign a broad, positive meaning to

108We chose retribution in the part representing the distinct goals of punitive justice toclarify its purely retributive meaning, in contrast with requital, which can enclose thedifferent restorative meanings of punishment. We return to the broader word requital inFigure 2, below, to emphasize its capacity to include both retributivist and restorativistmeanings of deontological reactions to crime.


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requital. Punitive justice, by contrast, assigns little or no weight to thereparation of harm.109Although it does not object to the promotion of

victims wellbeing, this goal is relegated when in conflict with others.

Community empowerment is likewise not one of the goals of punitivejustice, which considers the community as a passive victim.Accordingly, it is the restorative justice circle that encompasses thepunitive justice circle, and not the opposite.

109 Bruce J. Winick, Therapeutic Jurisprudence and Victims of Crime, in THERAPEUTICJURISPRUDENCE AND VICTIM PARTICIPATION IN JUSTICE: INTERNATIONAL PERSPECTIVES 3(Edna Erez, Michael Kilchling & Jo-Anne Wemmers eds., 2011) (explaining the tensionbetween the needs of the criminal justice system and victims needs). In the last decades stateshave introduced far-reaching reforms providing legal and constitutional rights to crime victimsconcerning their participation in the legal process, their privacy and safety. Nevertheless,

despite the substantial softening of the pure adversarial criminal process it is still far frombeing victim-oriented. See generally DOUGLAS E.BELOOF,PAUL G.CASSELL &STEVEN J.TWIST,VICTIMS IN CRIMINAL PROCEDURE(3d ed. 2010); Erin Ann OHara, Victim Participation in theCriminal Process, 13 J.L. & POLY 229 (2005) (describing recent developments in victimsrights); Erin C. Blondel, Note, Victims Rights in an Adversary System, 58 DUKE L.J. 237 (2008)(arguing that despite victims reforms the adversarial process is not victim-centered).

DeterrenceIncapacitation

Rehabilitation

Condemnation

Goals ofPunitive

Justice

Reparation of

harm

Community

empowerment

Retribution

Goals of

RestorativeJustice

Figure 1

Relationship between the goals of the restorative and the

punitive approaches: partially overlapping circles


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Emphasizing the retributiveness in requital distances restorativejustice from that purpose while emphasizing the component ofproportionality (just deserts) or of justice in its positive sense brings itcloser. Generally speaking, in most offenses, reparative measures may beconsidered as the infliction of pain on the offender in proportion withthe severity of the offense. Reparative measures may also be consideredsteps for righting the wrong or rebalancing the imbalance created by

the offense. This tool is distinct from punishment, but its purpose issimilarthe restoration of justice. Emphasizing the punitiveness ofrequital accentuates the gap between punitive and restorative tools, inlight of the fundamental objection to considerations of revenge which isinherent to the restorative philosophy.

The debate among restorativists about the meaning and legitimacyof requital becomes acute when considering crimes of the most seriousnature, such as murder, rape, or extreme violence. The more serious thecrime, the more difficult it is to regard the burdens imposed on theoffender through the reparation plan as just deserts. It is equally difficultto regard the reparation measures as restoring justice or righting thewrong in those severe crimes. When restorative processes lead to

symbolic and material reparation for victims and community but areunable to achieve requital there is no escape from a value-based decisionon whether to prioritize punitivism or restorativism.110

110 Cf. Luna, supranote 18 (presenting a holistic perception of restorative justice processes,according to which participants holding different punishment theories, including that of justdesert, may be satisfied with the process outcomes once its core procedural principles have

DeterrenceIncapacitation

RehabilitationCondemnation

Requital

Figure 2

Relationship between the goals of the restorative and the

punitive approaches: concentric circles

Goals ofPunitive

Justice

Reparation of harm

Community empowerment

Goals of

RestorativeJustice


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Accordingly, the model predicts that in the most serious types ofcrime the part of the punitive circle representing the goal of retributionwill be pushed out of the restorative circle, and the two circles will

overlap only in part (Figure 1). In most offenses, however, the modelillustrates how the restorative justice philosophy addresses the full scopeof the goals. Requital can also be achieved through restorative justice,because the reparative measures may be perceived as a proportionalinfliction of burden and as acts of righting the wrong, thus restoringthe balance of justice (Figure 2).

The model does not reflect a sweeping preference for either one ofthe philosophies, nor does it imply that either one of them can fullyattain the stated goals of criminal law in every case. Rather, it presentsthe theoretical explanations each philosophy provides for its potential inaddressing the various goals. Similarly, we do not intend to determinethe proper interpretation of requital nor do we wish to make conclusivestatements about its appropriateness as an independent justification forpunishment. Rather, our goal is to demonstrate the way in which themeaning and significance assigned to requital affects the relationshipbetween the restorative and punitive approaches. The proposedtypology holds that, the more we accept a broad understanding ofrequital, the greater the degree to which restorative justice may beperceived as attaining the full scope of criminal law goals. Alternatively,a strictly retributive interpretation of requital amplifies the tensionbetween retribution and restoration.

B. Practical Implications

Our model highlights that restorative justice is suitable for systemicuse not only in jurisdictions that prioritize victim empowerment andoffender rehabilitation; it can equally fulfill criminal law objectives inlegal systems that assign prominence to deterrence and incapacitation.Many states in America, therefore, might find restorative justice at leastas (if not more) suitable for achieving these goals as the punitive justiceapproach.111 Moreover, even jurisdictions that explicitly construct

been met). We agree that the individual stakeholders in a certain case might indeed holdconflicting punishment ideologies and still share similar levels of satisfaction with the processand its outcomes. Other community members, however, and the public in general, may object

to the use of restorative justice processes in cases of crimes of the most serious nature evenwhen these processes yield satisfactory results for their participants.

111 See, e.g., Umbreit et al., supra note 10, at 55154 (reviewing the range and types oflegislative provisions relating to victim-offender mediation in the United States). According tothe review, as of 2005, statutes in twenty-nine states have at least a reference to victim-offendermediation or a similar program. Id.Seven of these states provide comprehensive guidelines for


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plan restorative justice may fail to achieve rehabilitation andincapacitation. Similarly, the attainment of a clear norm-settingdepends, among other things, on the willingness of community

members to condemn the crime expressly. Without a wall-to-wallagreement on the wrongfulness of the act expressed by communitymembers, restorative justice is less likely to achieve the goals ofdenunciation of the crime and victim healing. Without the willingnessof at least some community members to condemn the crime and takepart in fulfilling the restorative outcomes many of the advantages ofrestorative justice are lost.115 The centrality of the State as the soledecision-maker in punitive justice becomes virtuous in these cases.

The importance and feasibility of a sincere apology provide anadditional parameter. The exchange of an apology and forgivenessbetween victims and offenders is one of the central assets of restorativejustice.116 In cases where the sincerity of the apology is inherentlyquestionable,117or when the victim does not assign importance to it, 118restorative justice loses much of its advantage over punitive justice.

The seriousness of the crime is another factor for selecting thepreferable philosophy in concrete cases. The more serious the offense,the greater the difficulty in achieving requital through the restorativeapproach alone. At the same time, the level of emotional harm caused tothe victim is a predictor for the success of restorative justice processes.119In other words, when the crime is heinous in nature and has causedsignificant harm to the victim, restorative justice has the most to offer interms of victim healingbut has the least to offer in terms ofretribution. In these cases there would be a need for a value-based

115 The concern re

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