Restorative Justice, Shame and Forgiveness

Restorative conferencing is a new style of criminal justice intervention which is being increasingly used in Britain, especially as a method of delivering police cautions to youth offenders.Is is currently the subject of a lively debate, focusing on its effectiveness as a method of crime reduction, its benefits tovictims, its feasibility in modern society, its effect upon procedural rights of arrestees, and the danger of it becoming a degradation ceremony. This paper seeks to extend the debate to include less obvious, but equally important, issues. The paper focuses on the processes of reintegrative shaming which, inspired by the work of John Braithwaite, are at the core of restorative conferencing. It places these processes in broader historical and cultural contexts, such as the re-emergence ofshame sanctions in the USA, the attack on the notion ofshame launched by cultural radicals, and the changes which have occurred historically in our emotional response to offenders.Three sets of questions emerge: What is the political –as distinct from penal – meaning of the practice of shaming offenders? How does the practice affect the progressive cultural aim of fuller realization of the individual? At what point doesforgiveness become less of a virtue, more of a vice?     

Restorative Justice,Consistency and Proportionality: Examining the Trade-off

Abstract

Restorative justice conferences that operate as sentencing mechanisms involve the making of a trade-off between empowering lay participants to make their own decisions, and the requirements of consistency and proportionality, which are established principles of sentencing. In current restorative justice practice, this trade-off tends to be made more in favour of consistency and proportionality, at the expense of the empowerment of lay participants.

Empowerment is central to key benefits of restorative justice, such as reducing recidivism and increasing victim satisfaction. However, its importance to the effectiveness of restorative justice is not always properly acknowledged. In addition to this lack of acknowledgment, there are both conceptual and practical problems with the principles of consistency and proportionality (particularly in the way that they are presented when considered in relation to restorative justice) that are often overlooked. As a result, the tendency is for assumptions to be made about the necessary supremacy of these principles over empowerment. This paper urges more acknowledgement of the importance of empowerment in restorative justice, together with a greater appreciation of the problems with consistency and proportionality, with a view to challenging assumptions about the way that the trade-off must be made.     

恢复性司法程序之思考

本文对恢复性司法程序的内容、制度基础以及历史渊源进行考察,并对恢复性司法程序的利弊加以分析,最后论述在我国构建恢复性司法程序的障碍及有利因素的基础上,提出了构建该程序的初步设想。     

论恢复性司法

恢复性司法是古代司法模式的更高层次的回归,目前在数十个国家都有立法或实践,并巳受到国际社会关注.恢复性司法蕴含着被害人、被告人、社区利益平衡理念与恢复关系的司法理念.并且创生了一种新的利益争端解决方式,形成对传统司法之有益补充.由于其有利于完善我国刑事司法体系,解决实际问题,因而有引进的必要.并且我国也具备借鉴恢复性司法之观念和相关制度基础,因而有引进的可行性.     

论修复性司法

与传统刑事司法相比,修复性司法在满足各方当事人需要、吸引社会公众参与、预防和减少犯罪、降低成本、提高成效等方面具有优势,但也有过度依赖当事人、适合处理的案件有限、社会控制的不当扩大和对弱势群体及当事人权利保护不力等局限。修复性司法在国家在刑事司法中的地位、刑事司法的功能、对正义的理解和犯罪解决机制多元化等方面对我们有重要启示。改革我国刑事司法,应跨越单纯改革刑事诉讼程序的狭隘思路,对刑事司法机制进行重塑,逐步建立统一协调、良性互动、功能互补、程序衔接、彼此支持的双轨制,以更好地解决犯罪问题。     

Revisiting Informal Justice: Restorative Justice and Democratic Professionalism

Restorative justice is a form of informal justice growing rapidly among criminal justice practitioners. It decenters the focus of criminal justice from the offender breaking a law of the state to the harm caused the victim and community. Resolution is said to come from offenders taking responsibility and making amends for the harm done and from communities supporting the victim and providing offenders with opportunities and skills to reintegrate as contributing members.
Restorative justice theory largely ignores the role of professionals in the criminal justice process, and yet professionals have played a dominant part in initiating many restorative justice programs. Several theoretical traditions recognize professionals as being important intermediaries between citizens and the state. The theory of democratic professionalism argues that professionals can play crucial roles in increasing and improving democratic participation in public affairs. This article examines two functioning restorative justice programs to flesh out what democratic professionalism might look like in operation—what tasks professionals perform and what citizen involvement means to the professionals. We argue that restorative justice cannot get along without professionals and that democratic professionalism may help restorative justice to avoid some of the problems associated with other approaches to informal justice by increasing true community participation but balancing it with concern for individuals' rights.     

Researching Restorative Justice: Politics,Policy and Process

The purpose of this paper is to explore some questions around the process of engaging in research in restorative justice in the contemporary political and economic climate of the UK. Its key concern is to endeavour to create a framework in which it is possible to develop an understanding of the process whereby restorative justice was transformed from the ‘dead duck’ of the late 1980s to its current popularity. It takes as its example for understanding this transformation the problems and possibilities of engaging in research in restorative justice and how such research needs to be contextualised within a wider understanding of the policy and political process. This paper does not set out to offer any answers to the questions it raises, but is primarily concerned to bring to the fore some of the absences that can be detected within the contemporary embrace of restorative justice in the UK.     

Retributive and Restorative Justice

The emergence of restorative justice as an alternative model to Western, court-based criminal justice may have important implications for the psychology of justice. It is proposed that two different notions of justice affect responses to rule-breaking: restorative and retributive justice. Retributive justice essentially refers to the repair of justice through unilateral imposition of punishment, whereas restorative justice means the repair of justice through reaffirming a shared value-consensus in a bilateral process. Among the symbolic implications of transgressions, concerns about status and power are primarily related to retributive justice and concerns about shared values are primarily related to restorative justice. At the core of these processes, however, lies the parties’ construal of their identity relation, specifically whether or not respondents perceive to share an identity with the offender. The specific case of intergroup transgressions is discussed, as are implications for future research on restoring a sense of justice after rule-breaking.     

Restorative Justice,Policing and Insurgency: Learning from Pakistan

Pakistan state law and Taliban rule of Sharia law are at different ends of a politico‐legal spectrum. They share advocacy of one system of law and attraction to eradication of alternatives. Muslahathi Committees in Pakistan are used to explore legal pluralism, hybrid institutions that allow deliberative democracy to seek workable responses to injustice. Formal and traditional systems can show mutual respect and check each other. On the basis of purely qualitative evidence, it is argued that Muslahathi Committees are restorative justice programs that sustainably reduce revenge violence, make a contribution to preventing Pakistan from spiraling into civil war, and assist a police force with low legitimacy to become somewhat more accountable to local civil society. These contributions are limited, but could be more significant with modest investment in human rights and gender awareness training to control abuses and increase accountability. The ruthless, murderous, divisive politics of policing and restorative justice in Pakistan seems a least likely case for deliberative democracy to work. In limited ways it does.     

论修复性司法模式

与重惩罚的传统刑事司法模式不同,修复性司法模式,强调的是如何对犯罪造成的损害进行修复,而非单纯惩罚犯罪人。修复性司法作为一种刑事司法改革运动与一种刑事司法理念,还不是一个完全成熟的理论。因此,其内涵关系真实性是否存在还需要进一步检验,同样,修复性司法在我国能否进入实务过程似乎还有一段困难的路要走,仍有待加强实证研究。     

Punitive Restoration and Restorative Justice

Criminal justice policy faces the twin challenges of improving our crime reduction efforts while increasing public confidence. These challenges are exacerbated by the fact that at least some measures popular with the public are counterproductive to greater crime reduction. How to achieve greater crime reduction without sacrificing public confidence? While restorative justice approaches offer a promising alternative to traditional sentencing with the potential to achieve these goals, they suffer from several serious obstacles, not least their relatively limited applicability, flexibility, and public support. Punitive restoration is a new and distinctive idea about restorative justice modeled on an important principle of stakeholding, which states that those who have a stake in penal outcomes should have a say about them. Punitive restoration is restorative insofar as it aims to achieve the restoration of rights infringed or threatened by criminal offences. Punitive restoration is punitive insofar as the available options for this agreement are more punitive than found in most restorative justice approaches, such as the option of some form of hard treatment. Punitive restoration sheds new light on how we may meet the twin challenges of improving our efforts to reduce reoffending without sacrificing public confidence, demonstrating how restorative practices can be embedded deeper within the criminal justice system.     

Female Delinquents and Restorative Justice

As imprisonment rates increase in America, women are being adversely affected. Although women are still a minority in terms of the total number of persons incarcerated, their numbers are rising faster than those of men. This article looks at this disheartening trend and makes the case the restorative justice can be used as gender-specific programming for female delinquents.     

Juvenile Justice in Oregon: Balanced and Restorative Justice in Action

The goals of Balanced and Restorative Justice (BARJ) are to hold juvenile offenders meaningfully accountable, hear and empower crime victims and engage communities both as stakeholders who have been negatively impacted and as advocates to make things right for the crime victim, offender, and community. This article examines how several Oregon juvenile justice agencies have put BARJ into action over the last 25 years, highlighting specific examples of how several agencies have made this the philosophical underpinning of their work. An overview of the philosophical principles, values, and goals that drive this approach is also discussed.     

Fictions of Restorative Justice,Vincent Geeraets

In this paper, I argue that scholars such as John Braithwaite and Lode Walgrave rely on fictions when presenting their utopian vision of restorative justice. Three claims in particular are shown to be fictitious. Proponents of restorative justice maintain, first, that the offender and the victim voluntarily attend the restorative conference. Second, that the restorative conference enables the offender and the victim to take on active responsibility. Third, that the reparatory tasks on which the parties agree should not be understood in terms of the intentional infliction of harm. These fictions, so I argue, are not merely a mistake, but instead serve an important function: the various parties need to believe that they adequately capture the reality of the restorative conference as they are more likely to acquiesce if they believe the fictions to be true. I conclude that the fictions are the driving force within the restorative endeavour.     

Regret,Reconciliation, and Restorative Justice: Introduction to a Special Issue of Social Justice Research

Social Justice Research -