EXAMPLE 1 Justice: Retribution or Restoration?

Every day when I pick up my newspaper I read about crime. What strikes me as tragic in these discussions is that the solutions which are proposed are simply more of the same: bigger threats, more punishment. Few people ask more basic questions about whether punishment ought to be our main concern. Even fewer seem genuinely concerned about victims and what they need.

Consequently, victims’ needs and wishes continue to be ignored. Prisons are massively crowded, and the call for a return to the death penalty is back with a vengeance. The costs to us as taxpayers keep soaring.

Actually, there is good reason why we ignore victims and focus instead on more punishment for offenders. It has to do with our very definitions of what constitutes crime and what justice entails.

If you have been a victim, you know something about the fear, the anger, the shame, the sense of violation that this experience generates. You know something about the needs that result: needs for repayment, for a chance to talk, for support, for involvement, for an experience that feels like justice. Unfortunately, you may also know from personal experience how little help, information and involvement you can expect from the justice process.

If you have experienced crime, you know for a fact that you yourself are the victim, and you would like to be remembered in what happens thereafter. But the legal system does not define the offence that way and does not assume that you have a central role.

Legally, the essence of the crime lies in breaking a law rather than the actual damage done. More importantly, the official victim is the state, not you. It is no accident, then, that victims and their needs are so often forgotten: they are not even part of the equation, not part of the definition of the offence!

When a crime occurs, the state as victim decides what must be done, and the process of deciding focuses primarily on two questions: “Is the person guilty? If so, how much punishment does he or she deserve?” Our definitions of crime and justice, then, might be summarized like this:

This way of viewing crime might be called “retributive justice.” It has little place for victims, uses what some scholars have called a “battle model” for settling things, and, because it is centred so heavily on establishing blame, looks primarily to the past rather than the future. It assumes that punishment or pain, usually in the form of a prison term, is the normal outcome.

This process concentrates almost exclusively on offenders, but, ironically, does not hold them accountable. To be accountable, offenders ought to be helped to understand and acknowledge the human consequences of their actions. Then they ought to be encouraged to take responsibility for what happens thereafter, including taking steps to right the wrong. Yet this rarely happens; indeed, the justice process discourages responsibility. Thus neither victim nor offender is offered the kind of opportunities that might aid healing and resolution for both.

But what is the alternative? How should we understand crime and justice?

An alternate understanding of crime and justice might look something like this:

A restorative approach to justice would understand that the essence of crime is a violation of people and of harmonious relations between them. Instead of asking first of all, “Who ‘done’ it? What should they get?” (and rarely going beyond this), a restorative approach to justice would ask “Who has been hurt? What can be done to make things right, and whose responsibility is it?” True justice would have as its goals restoration, reconciliation, and responsibility rather than retribution.

Restorative justice would aim to be personal. Insofar as possible, it would seek to empower victims and offenders to be involved in their own cases and, in the process, to learn something about one another. As in the Victim-Offender Reconciliation Program (VORP), which operates in many communities in the U.S. and Canada, when circumstances permit, justice would offer victims and offenders an opportunity to meet in order to exchange information and decide what is to be done. Understanding of one another, acceptance of responsibility, healing of injuries, and empowerment of participants would be important goals.

Is restorative approach practical? Can it work? The experience of the VORP suggests that while there are limitations and pitfalls, restoration and reconciliation can happen, even in some tough cases. Moreover, our own history points in this direction. Through most of western history, most crimes were understood to be harms done to people by other people. Such wrongs created obligations to make right, and the normal process was to negotiate some sort of restitution agreement. Only in the past several centuries did our present retributive understanding displace this more reparative approach.

If our ancestors could view crime and justice this way, why can’t we?

Adapted from: Zehr, H. (n.d.). Justice: Retribution or Restoration? Retrieved from: http://www.peaceworkmagazine.org/pwork/0499/049910.htm

EXAMPLE 2 Retribution

Retribution is perhaps the most intuitive—and the most questionable—aim of punishment in the criminal law. Quite contrary to the idea of rehabilitation and distinct from the utilitarian purposes of restraint and deterrence, the purpose of retribution is actively to injure criminal offenders, ideally in proportion with their injuries to society, and so expiate them of guilt.

The impulse to do harm to someone who does harm to you is older than human society, older than the human race itself (go to the zoo and watch the monkey cage for a demonstration.) It’s also one of the most powerful human impulses—so powerful that at times it can overwhelm all else. One of the hallmarks of civilization is to relinquish the personal right to act on this impulse, and transfer responsibility for retribution to some governing body that acts, presumably, on behalf of society entire. When society executes retribution on criminals by means of fines, incarceration, or death, these punishments are a social expression of the personal vengeance the criminal’s victims feel, rationally confined (it is hoped) to what is best for society as a whole.

While “it’s natural” tends not to carry much weight in the criminal law, “it’s morally right” can. Moral feelings and convictions are considered, even by the criminal law, to be some of the most powerful and binding expressions of our humanity. In binding criminal trial juries to restrict guilty verdicts to situations of the highest certainty, “beyond a reasonable doubt” is also often described as “to a moral certainty.” It is to their moral feelings of what is truly right that jury members are asked look before delivering a verdict. It’s perhaps not too much of a stretch, then, to argue that it’s morally right to make criminals suffer as their victims have suffered, if that’s the way one’s moral certainty points.

No matter what one’s moral feelings are about inflicting deliberate harm on a human being, the majority of the citizenry still holds that it’s right to exact retribution on criminal offenders. This is almost certainly true of the majority of victims, and their loved ones, for whom equanimity becomes more and more difficult depending on the severity of the crime. What rape victim does not wish to see her attacker suffer? What parent does not hate the one who killed their child? The outrage that would result from leaving these passions for revenge unsatisfied might be seen as a dramatic failure of the entire criminal justice system. It’s a good argument for retributive justice, then, that in this world public vengeance is necessary in order to avoid the chaos ensuing from individuals taking revenge into their own hands. And, until the moral certainty of a majority of society points towards compassion rather than revenge, this is the form the criminal law must take.

Adapted from: The Lectric Law Library. (n.d.). Retribution. Retrieved from: http://www.lectlaw.com/mjl/cl062.htm