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Balancing the Scale

A series of action steps are also proposed for the victim community, including its practitioners and advocates, suggesting pivotal and catalytic roles in the following six areas:

  • Develop guidelines and standards for programming in the victim community, including restorative justice initiatives that seek to ensure and maximize victim input and impact, and minimize further harm to victims.
  • Advocate for restorative justice where it is responsive to and a reflex of victim needs.
  • Encourage training and education in the victim community on the philosophy and practice of restorative justice. Take an active and leadership role in training (and other technical interventions and assistance) for restorative justice advocates and practitioners that enables them to work effectively, responsively, and responsibly with the victim community.
  • Maintain a high profile in deliberations of programs that affect victims. Participate in efforts to promote state-wide and national dialogue about responsive justice approaches to the harms and obligations that flow from crime, as well as local listening initiatives.
  • Continually assess, document, and articulate the concerns and needs of victims. Advocate for what victims want, even in new and uncomfortable areas.
  • Become more vocal and involved in defining the community role in justice (specifically, the community role in restorative justice), careful to differentiate between what individual victims need, and the larger context of societal harms and needs.

To reiterate, while these items are nominally assigned to either the restorative justice or victim communities of interest and practice, they are nonetheless highly interdependent. At the end of the day, the commonality of this multifaceted agenda is most likely to produce the desired result of effective and responsive justice for victims.

Retributivism

Retribution is the focus on “punishment of lawbreakers and compensation of victims” and is intended to have a punishment of equal weight to the crime

Restorationism Philosophy

Principles of Retributivism

  • That those who commit certain kinds of wrongful acts, paradigmatically serious crimes, morally deserve to suffer a proportionate punishment
  • That it is intrinsically morally good—good without reference to any other goods that might arise—if some legitimate punisher gives them the punishment they deserve
  • That it is morally impermissible intentionally to punish the innocent or to inflict disproportionately large punishments on wrongdoers.

Four elements of punishment:

  • must impose some sort of cost or hardship on, or at the very least withdraw a benefit that would otherwise be enjoyed by, the person being punished.
  • the punisher must do so intentionally, not as an accident, and not as a side-effect of pursuing some other end
  • the hardship or loss must be imposed in response to what is believed to be a wrongful act or omission. It is a confusion to take oneself to be “punishing” another for some fact over which he has or had no control
  • the hardship or loss must be imposed, at least in part, as a way of sending a message of condemnation or censure for what is believed to be a wrongful act or omission

Retributivism Criticisms

Retributive justice has a range of issues or criticisms by those who do not understand it

  • the nature of the desert claim and questions it raises
  • the proper identity of the punisher
  • the normative status of suffering
  • the meaning of proportionality
  • the strength of retributive reasons
  • whether retributivism should be thought of as a consequentialist or deontological theory

Words like restorationist are slippery, and the primitivist impulse appears in a number of different religious movements in the first centuries after Europeans colonized the American continent, few had detailed or accurate knowledge about that ancient, original order, insofar as such a thing existed.

Often, then, the restorationist impulse has served as a way to lend the authoritative rhetoric of history to a certain set of religious values, not as a way to accurately reproduce the past. Thus, exploring the impulse reveals a great deal about how these religious movements imagine and construct themselves.

Richard Hughes distinguishes among three impulses restorationist rhetoric might serve.

  • First, “ethical” to restore moral rigor and a commitment to holy living present in the earliest generations of a religious tradition.
  • Second, “ecclesiastical” believe that proper forms of worship and organization have been lost and require renewal.
  • Third, experiential are convinced that a particular emotional and experiential encounter with the divine, present in earlier times, is needed to vitalize religious experience in the present.

Retributivism Justifications

showing how such treatment “follows from some yet more general principle of justice that we think to be true”

showing that it fits with a theory of punishment that “best accounts for those of our more particular judgments that we also believe to be true”

Retributive Philosophy

Restorativism

Code of Ur-Nammu (c. 2050 bce), the Laws of Eshnunna (c. 2000 bce), and the better-known Babylonian Code of Hammurabi (c. 1750 bce) are the earliest forms of cuneiform law where crime is considered a breach of human rights and victims would be compensated for intentional and unintentional harm.

lex talionis = law of retaliation is formed from Exodus 21:24 “eye for an eye” → Branders would be punished for helping slaves remove their slave marks by getting hands chopped off

Mens Rea → forbids the punishment of those who cannot be held responsible for their actions

“True deterrence doctrine, according to the utilitarian philosophy of Jeremy Bentham, allows for the punishment of innocent individuals if doing so would serve a valuable societal function (e.g., creating and maintaining an image that crime is detected and punished so that others are deterred from crime).” →

Restorationism Criticisms

Restorative justice lacks specificity and detail to guide the system and does not provide substantial claims or reasoning to define their principles and purpose.

  • Restorative justice assumes relationships between victims and offenders and can be misconstrued as an anti-victim system, as it excludes victims in scenarios where positive victim and offender relationships logistically cannot be formed.
  • Restorationism does not prioritize safety of victims and inserts the victim into various situations in which they would be vulnerable excluding the initiating assault to begin the process of mediation.

Restorationism Justifications

Restorative justice is tied to religion, more specifically Christianity, and was founded around 1800 during the Second Great Awakening. With the rise of institutionalized religions came the rise of restorationism. It operates on the belief that responses to criminal activity must be based upon holistic healing that includes the offender, victim, and community.

  • Crime causes harm and justice should focus on repairing that harm.
  • The people most affected by the crime should be able to participate in its resolution.
  • The responsibility of the government is to maintain order and of the community to build peace

Where financial restitution remains the primary objective of mediation practice, it is questionable whether mediation is at all appropriate for personal crimes involving violence. Domestic violence and sexual assault are certainly ill suited to an intervention with restitution as its centerpiece. Restorative justice presumes to be a rational, contemplative process in response to events (crimes).

The emphasis of restorative justice on how crime affects the community tends, in the view of some, to again marginalize those immediately affected by crime, distorting and diverting justice responses to victim needs. Not unlike conventional justice programming and policy, restorative justice uses victims to promote and rationalize its agenda.

Without credible evaluation of restorative justice programs, there will continue to be resistance to their blanket implementation and reluctance in the victim community to embrace them. "Turf" disputes about the ownership of restorative justice ideas and programs will deflect from their impact and potential. In a relatively short period of time, some perceive that restorative justice has become overly professionalized, undermining its professed goals of inclusiveness and accessibility.

Retributivism vs Restorationism as Philosophies of Justice

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