Tuesday, December 21, 2004

Restorative Justice

Today's Press discusses restorative justice:
It was a high-profile burglary of items of priceless heritage, and they were going to jail for it. [... Reverend Kaa's] passionate speech won over the judge, who in a rare courtroom move changed his mind and sentenced the trio to community service terms of varying lengths.

The decision also sparked a debate over the restorative justice system – where all the parties with a stake in a particular offence come together to resolve how to deal with the aftermath of the incident and its implications for the future.

If the three burglars were truly remorseful and do not return before the courts, the restorative justice process followed by the judge's sentence will have allowed them to lead productive lives and the community will be spared the expense of jailing them.

However, if they slide back into bad ways, restorative justice procedures will be damned as being soft on crime and allowing offenders to talk their way out of trouble.

Whichever way the future unfolds, the restorative justice meeting the trio went to would most likely not have been easy for them, Denny Anker, the chairman of Restorative Justice Services Christchurch, says.

"It is a common misconception of restorative justice that it asks victims to be soft on criminals. They actually don't go soft. They can be very, very harsh and frank," she says.

"If you speak to offenders who have been through a prison sentence or a restorative justice conference, many will say restorative justice is much harder. Having to personalise those you have harmed, having to confront them and be challenged about accepting responsibility and having to confront yourself in that process is much harder for some people than being locked away or serving some other sentence."

Restorative justice points to a different way of resolving the aftermath of crime, Anker says.

"Some of us believe the current retributive system doesn't work. It revictimises victims, it doesn't acknowledge that offenders may be victims, it takes the pursuit of justice out of the hands of those offended against.

"It doesn't acknowledge that offending harms the community as well as the primary people offended against. It is not personally challenging to offenders. They're not called to account or held responsible."

That said, Anker stresses not everyone wants restorative justice or, indeed, needs it. What different victims need – and when they need it – is crucial for restorative justice to be effective.

I certainly like the idea of restorative justice. (I've said before that prison should be our last resort.) It'll be interesting to see how this case turns out...

Update: Macht has more over at Prosthesis.


  1. I certainly dislike retributive justice. It's like electric shock therapy, except the shock comes so long after the event that it does more to fulfil the desire for revenge than it does exert any moral force.

    I think this is a fantastic idea, because it un-marginalises the criminals. In terms of net gain, I'm confident it's a better solution. Revenge for me holds nothing but false utility, and I'm sure that a positive program would be better for the psychology of the individuals involved. Crime is just the result of psychological disturbance or false reasoning. It's what happens when people see it as easier than the alternative (usually they are wrong) or are lacking in conscience (common). Sometimes though the law sets up situations where there are economic pressures towards crime - like drug trafficking as a highly profitable exercise. 

    Posted by Tennessee Leeuwenburg

  2. I agree in principle that retribution is not a good way of looking at it

    Strangely though the article seems to be "selling" restorative justice as a harsher form of retributive justice.

    >>>>> Having to personalise those you have harmed, having to confront them and be challenged about accepting responsibility and having to confront yourself in that process is much harder for some people than being locked away or serving some other sentence."

    Personally I think the above is not true (in fact fairly obviously so) and worse yet to use it as an argument is contrary to the philosophy and implies dishonesty.


    I would suggest that restorative justice needs to create more value than the normal system beause asking the victim to front up to a criminal is - in most cases - a cost in itself. In the absence of a good psychologist I expect it will - under most situations - reinforce the crime in their minds to cause them stress to make them more likely to be offended against by the person in question (as opposed to him offending against a random person) etc.

    It may still be beneficial to society - but I am HIGHLY dubious in regard to it being good for the victim. 

    Posted by GeniusNZ

  3. You know what i hate, fatial Errors, they kill comments.

    First of all i have a few questions.
    1) In restorative justice is there a jury?
    2) If there is a jury, do they pick from a few judge made up senteces or do they make up the sentenced and the judge makes them up. Or are neater of these two way right.
    3) If there is not a jury, who is to keep the judge from going bad.

    I kind of like this restorative justice idea. If done right, i think it could really help fix our horrible court system.

    - GeniusNZ -

    You said "under most situations - reinforce the crime in their minds to cause them stress to make them more likely to be offended against by the person in question", but i think that this is only true for close crimes. If i kill someone i dont know, have nothing to do with, meeting there family will only let me see what pain i have caused. It could very well make me feel sad. But if I kill my wife, meeting her family, will most likely make me remember why i killed her, plus add ten more reasons to.

    I think that restorative justice is a great idea for "random" crimes. By "random" i mean crimes that are afflicted on people at random, or on a random person. But for cimes of passion, we need to keep todays ways. It will brew less hate.

    Posted by Chase Whittemore

  4. No, there's no jury. My understanding of it is that it takes place as a discussion (negotiation?) between the offender and victim, aided by a mediator. A judge probably gives final approval, but I don't think they're normally involved in the actual mediation process.

    It probably isn't appropriate for very serious crimes. (I imagine it would be far too traumatic for most victims of rape or other violence.) But for minor offenses, e.g. theft, vandalism, etc., I think it could do a lot of good all round.

    Victims can ask questions (e.g. "why me?") to try to make sense of what happened to them. And they can arrange for compensation (something the traditional justice system rarely bothers with, or so I've heard). As for the criminals themselves, I think that facing their victims and taking personal responsibility would be good for them. (In a rehabilitative, not merely retributive, sense.) 

    Posted by Richard

  5. (Recall that juries are only there to decide guilt or innocence, not sentencing. A prerequisite for restorative justice is that the offender acknowledge their responsibility for the crime [i.e. plead guilty]. So a jury would be superfluous.) 

    Posted by Richard

  6. It appears that restorative justice will work only if the criminal has a conscience. The criminal has to value certain principles for the restorative sanctions to work. This is what I think the writer means when s/he says that it is harder than other forms of retributive justice.

    For one, the criminal has to see other humans as intrinsically valuable for restorative justice to work. Not all criminals see other humans as intrinsically valuable. For example, murderers tend to see their victims as pawns in a game. They see the victim as an object, no more valuable than a table or chair. If criminals don't see other humans as intrinsically valuable, then restorative justice might not work. 

    Posted by Joe

  7. I disagree. If the criminal has a conscience, then they'll feel guilty about it regardless of what you do. Putting them in prison just puts them in a prison.

    Murderers, almost definitially, are insane - i.e. think that murder is a realistic kind of choice. Ipso facto, they don't feel the same way about it as we do. But maybe that's because some kid kicked their sandwich into the dirt at school, or because they got brought up on rotting hard-rubbish couches in a ghetto, or their daddy was a drunk, or their mommy was a drunk. Stuff like that messes with your head. Restorative justice plays off the idea that by trying to reach these people, you might be able to re-enable their conscience.

    It's well-known that most murderers don't see jail-time as a significant dis-incentive, another sign that their minds just don't work right, because rationally it should be one hell of a bummer.

    The hope is that people can reconnect. Prison has no rehabilitative function - it is just a place to put people to take revenge or protect society from them for a while.


    Posted by Tennessee Leeuwenburg

  8. (Recall that juries are only there to decide guilt or innocence, not sentencing.

    was the jury not the ones who gave that guy in californa the death penitaly a few weeks ago?

    I agree with Tennessee views on this 

    Posted by Chase Whittemore


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