Forgiveness and public deliberation: The practice of restorative justice

Criminal Justice Ethics

Volumn 21, Issue 1, 2002, Pages 3-20

  Dzur, Albert W ^a   Wertheimer, Alan ^b  

^a BOWLING GREEN STATE UNIVERSITY   (United States)

^b UNIVERSITY OF VERMONT   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34147222644     PISSN: 0731129X     EISSN: 19375948     Source Type: Journal    
DOI: 10.1080/0731129X.2002.9992112     Document Type: Article

References (79)

1. ARISTOTLE, NICOMACHEAN ETHICS 1109 B15.
2. McGary, Forgiveness, 26 AM PHIL. Q. 343-351 (1989)
3. J. MURPHY & J. HAMPTON, FORGIVENESS AND MERCY (1988)
4. Bazemore & Umbreit, A Comparison of Four Restorative Justice Conferencing Models, OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION BULLETIN (2001).
5. J. BOHMAN, PUBLIC DELIBERATION: PLURALISM, COMPLEXITY, AND DEMOCRACY (1996)
6. J. HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF DEMOCRACY (1996).
7. J.S. MILL, ON LIBERTY ch. 2 (1859).
8. Barnet, Restitution: A New Paradigm of Criminal Justice, 87 ETHICS 284-5 (1977).
9. Id. at 287.
10. Id. at 293.
11. Umbreit, The Meaning of Fairness to Burglary Victims, in CRIMINAL JUSTICE, RESTITUTION AND RECONCILIATION (B. Galaway & J. Hudson ed. 1990).
12. H. ZEHR, CHANGING LENSES: A NEW FOCUS FOR CRIMINAL JUSTICE 27 (1990).
13. J. MURPHY & J. HAMPTON, supra note 2.
14. H. ZEHR, supra note 10, at 31.
15. Id. at 58-9.
16. Id. at 41.
17. These parallels are implicit in much restorative justice writing and are explicit in the work of Braithwaite and Pettit. They connect criminal justice theory with political theory through their discussion and defense of the value of dominion, a form of self-government, which they think should guide criminal justice and other basic policy decisions.
18. J. BRAITHWAITE & P. PETTIT, NOT JUST DESERTS: A REPUBLICAN THEORY OF CRIMINAL JUSTICE (1990).
19. Our discussion of deliberative democratic theory draws on J. BOHMAN, supra note 4
20. J. HABERMAS, supra note 4
21. J. FISHKIN, DEMOCRACY AND DELIBERATION: NEW DIRECTIONS FOR DEMOCRATIC REFORM (1991)
22. A. GUTMANN & D. THOMPSON, DEMOCRACY AND DISAGREEMENT (1996).
23. Braithwaite holds that restorative justice programs are proving to be an alternative ritual of social control for the multicultural metropolis and indeed allow community empowerment to flourish. Survey Article: Repentence Rituals and Restorative Justice, 8 J. POLIT. PHIL. 119 (2000).
24. Braithwaite and Pettit endorse Nils Christie's argument that the state has stolen conflicts from people by criminalizing, prosecuting, and punishing. J. BRAITHWAITE & P. PETTIT, supra note 15, at 1 and 118. The implication is that when the state returns what it has stolen, individuals will be motivated to resolve their conflicts in the community and without professionals.
25. Christie, Conflicts as Property, 17 BRIT. J. CRIMINOLOGY 1-15 (1977).
26. Coates, Victim-Offender Reconciliation Programs in North America: An Assessment, in CRIMINAL JUSTICE, RESTITUTION AND RECONCILIATION (B. Galaway & J. Hudson eds. 1990). Of course, being coerced into a process does not preclude that process having important psychological effects.
27. Miller, Deliberative Democracy and Social Choice, in PROSPECTS FOR DEMOCRACY: NORTH, SOUTH, EAST, WEST (D. Held ed. 1993).
28. Sunstein, Democracy and Shifting Preferences, in THE IDEA OF DEMOCRACY (D. Copp, J. Hampton, & J.E. Roemer eds. 1993).
29. H. ZEHR, supra note 10, at 51-2.
30. Van Ness & Strong argue that, ideally, communities and their members assume responsibility for addressing the underlying social, economic, and moral factors that contribute to conflict within the community, RESTORING JUSTICE 35 (1997).
31. McCold, Restorative Justice and the Role of Community, in RESTORATIVE JUSTICE: INTERNATIONAL PERSPECTIVES 94 (B. Galaway & J. Hudson eds. 1996).
32. Clear & Karp, The Community Justice Movement, in COMMUNITY JUSTICE: AN EMERGING FIELD (D. Karp ed. 1998).
33. Van Ness, Restorative Justice and International Human Rights, in RESTORATIVE JUSTICE: INTERNATIONAL PERSPECTIVES 24 (B. Galaway & J. Hudson eds. 1996).
34. Whiteley, The Victim and the Justification of Punishment, 17 CRIM. JUST. ETHICS 45 (1998).
35. J. BRAITHWAITE, CRIME, SHAME AND REINTEGRATION 55 (1989).
36. Bazemore & Umbreit, supra note 3.
37. Perry & Gorczyk, Restructuring Corrections: Using Market Research in Vermont, 1 CORRECTIONS MANAGEMENT Q. 27 (1997).
38. Walther & Perry, The Vermont Reparative Probation Program, 8 ICCA J. COMMUNITY CORRECTIONS 2 (1997).
39. Department administrators note that We initiated this program without the full knowledge of the restorative justice literature that we have gained since we started but state that they have come to see the program as informed by restorative justice ideals and believe that the Vermont program is a largescale experiment of those ideals, id. at 5. Interviews with department administrators confirm this growing recognition of restorative justice theory as Vermont reparative probation was planned and implemented.
40. Common reparative offenses include some relatively serious crimes, such as burglary unoccupied, attempted grand larceny, driving to endanger, DUI first and repeated offense. In a study that videotaped one meeting from nearly all the community reparative boards statewide, the cases heard included 16 drunk driving, 11 thefts or frauds, 8 underage drinking, 5 simple assaults, 4 furnishing alcohol to minors, 4 miscellaneous driving offenses, 2 harassments by telephone, 1 controlled substance possession, 1 false identification. Karp, Harm and Repair: Observing Restorative Justice in Vermont, 18 JUST. Q. 735 (2001).
41. If the offender refuses reparative probation then the judge determines and imposes the conditions of the sentence.
42. In some stories about the program newspapers publish the names and phone numbers of contact persons so that readers can volunteer.
43. Reparative Board seeks volunteers, St. Albans Messenger (Jan. 21, 1998).
44. In Karp's study of community reparative board meetings 47 of 52 of the cases (or 90%) had identifiable victims, yet a victim attended a board meeting in only 4 cases (or 8%). Supra note 33, at 741.
45. For more on the theory and practice of offender-board dialogue in Vermont,
46. Bazemore & Umbreit, supra note 3
47. Karp supra note 33
48. Karp, The Offender/Community Encounter: Stakeholder Involvement in Vermont Reparative Boards in WHAT IS COMMUNITY JUSTICE? CASE STUDIES OF RESTORATIVE JUSTICE AND COMMUNITY SUPERVISION (T. Clear & D. Karp eds. forthcoming).
49. For example, a DUI offender might be asked by the board to attend a one-hour Encare session involving emergency room nurses who relate their experiences with drunk driving accidents.
50. Walther & Perry, supra note 31, at 5.
51. VERMONT DEPARTMENT OF CORRECTIONS, FIVE GOALS OF THE REPARATIVE PROBATION PROCESS.
52. Walther & Perry, supra note 31, at 7.
53. Id. at 8.
54. In fact we do have doubts about the reliance upon a notion of community that presupposes a stable set of shared norms common in debates over restorative justice, and equally strong doubts about the efficacy of public discourse. As noted above we think contemporary appeals to public deliberation as a solvent to injustice, ignorance, and selfishness are optimistic given the complexity of both social relations and individual life histories. Our doubts about efficacy are lent credence by the relatively low-level offences deemed appropriate for restorative justice programs like Vermont's.
55. J.L. AUSTIN, HOW TO DO THINGS WITH WORDS (1962).
56. I. KANT, On the Right to Punish, in THE METAPHYSICS OF MORALS 140-44 (1991).
57. J. BRAITHWAITE & P. PETTIT, supra note 15
58. von Hirsh & Ashworth, Not Not Just Deserts: A Response to Braithwaite and Pettit, 12 OXFORD J. LEGAL STUD. 83-98 (1992).
59. VERMONT DEPARTMENT OF CORRECTIONS, supra note 40.
60. Moore, Shame, Forgiveness, and Juvenile Justice, 12 CRIM. JUST. ETHICS 17 (1993).
61. VERMONT DEPARTMENT OF CORRECTIONS, PROGRAM SUMMARY: REPARATIVE PROBATION. We are sympathetic with von Hirsch's complaint that restoring the community is an elusive idea in restorative justice theory since no clear principles have been suggested or come readily to mind on how such communal injury can be assessed.
62. von Hirsch, Penal Theories, in THE HANDBOOK OF CRIME & PUNISHMENT (M. Tonry ed. 1998, at 675).
63. VERMONT DEPARTMENT OF CORRECTIONS, PROGRAM SUMMARY: REPARATIVE PROBATION.
64. It might be argued that we have misunderstood the Vermont restorative justice approach, that it does not rest on the view that incarceration of violent offenders is better for the community. Rather, it rests on a political judgment that not incarcerating violent offenders is not a viable option, because the public does not fully appreciate the advantages of the restorative approach with respect to such offenders. Although we cannot preclude this possibility, we think it unlikely. Without evidence that the statement is disingenuous, we prefer to take it at face value. We thank an anonymous reviewer for raising this objection.
65. Braithwaite, Restorative Justice: Assessing Optimistic and Pessimistic Accounts, in 25 CRIME AND JUSTICE: A REVIEW OF RESEARCH (M. Tonry ed. 1999).
66. Id. at 107.
67. L.G. FORER, CRIMINALS AND VICTIMS: A TRIAL JUDGE REFLECTS ON CRIME AND PUNISHMENT 5 (1980).
68. M. WRIGHT, JUSTICE FOR VICTIMS AND OFFENDERS: A RESTORATIVE RESPONSE TO CRIME 530 (1991).
69. J. BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION ch. 14, sec. 18 (1996).
70. It may be objected that we are deterred from crime mainly by our own consciences and by the shaming of others whose respect we value, not mainly by rational calculations of the costs imposed by courts of law,
71. J. BRAITHWAITE & P. PETTIT, supra note 15 at 142. We think such an objection rests on a debatable theory that requires more empirical support. It also violate s standards of rationality Braithwaite and Pettit hold as crucial for assessing theories of criminal justice
72. id. at 38.
73. A. WERTHEIMER, EXPLOITATION ch. 7 (1996).
74. This point was raised by an anonymous reviewer.
75. The quotation is taken from the comments of an anonymous reviewer. We thank the reviewer for pressing us on this point.
76. This objection was raised by an anonymous reviewer.
77. Becker, Criminal Attempts and the Theory of the Law of Crimes, 3 PHIL. & PUB. AFF. (1974).
78. R. NOZICK, ANARCHY, STATE, AND UTOPIA 247 (1974).
79. I. BERLIN, TWO Concepts of Liberty, in FOUR ESSAYS ON LIBERTY 169 (1969).