Source: (2009) Scholarship at Penn Law. Paper 262.

The problem, though, is restorative justice’s megalomaniacal ambition to sweep away the traditional goals and processes of criminal justice instead of merely supplementing them. To restorative justice advocates, retribution for retribution’s sake seems pointless. Their overoptimism about human nature leads them to slight deterrence and incapacitation as at best secondary, at worst needless. Prison seems like a pure waste of human life. But punishment is supposed to hurt. The bite of punishment sends an unequivocal message condemning the wrongdoer and vindicating the victim. It pays the criminal’s debt to society. It teaches criminals and others not to hurt others, humbling proud wrongdoers. Restitution and fines can supplement prison and perhaps reduce the need for it. But because they lack the bite of condemnation and pain, they send too soft a message, overlooking the wrong and trying to hurry by it too fast. Criminals need to atone, to be humbled, to suffer. If they do not, the criminal does not learn a lesson and victims and the public never see justice done, leaving them dissatisfied. True, there are more minor offenses for which prison may not be necessary. Thus, it is no surprise that restorative justice is most prevalent for juvenile crime and minor adult crimes, not violent felonies. Shaming punishments are among the most promising alternatives to prison; they can do what fines and restitution cannot, precisely because they unequivocally blame and inflict pain. And until the public sees serious criminals suffer, it is reluctant to reintegrate and welcome them back. Restorative justice deserves more of a role in American criminal justice. Already, several states have instituted restorative processes for victims and inmates to meet after conviction and sentence. Shorn of its political baggage and reflexive hostility to punishment, restorative justice has much to teach us. But to restore victims and criminals who commit serious crimes, the state must first punish before it and we can forgive. Cheap grace and promiscuous forgiveness demean the crime and the victim. (excerpt)


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