Source: (2012) Oxford and New York: Oxford University Press.

My suggestions for an individualized, participatory criminal justice system bear some resemblance to three recent criminal justice movements: victims’ rights, restorative justice, and therapeutic jurisprudence. Each of these movements has valuable insights but off ers only a part of the morality play for which the public thirsts. First, the victims’ rights movement restores a crucial focus on the needs of victims, who often get lost in lawyer-dominated criminal procedure brought in the name of the state. Some victim advocates rightly emphasize the need to treat victims respectfully and hear their voices. But much of what passes for victims’ rights rhetoric is unbalanced and vengeful, a cloak for law-and-order toughness. It often suggests that the only way to make victims happier is to punish defendants more, even though victims often care more about respectful treatment and apologies. Second, restorative justice emphasizes mediation to let victims, defendants, and their families confront and talk with one another. Th e idea of transcending a one-dimensional, zerosum struggle between prosecutor and defense counsel is attractive, and participants seem to come away more satisfi ed. Th e diffi culty is that most restorative justice enthusiasts, such as John Braithwaite, leave too little role for the state, blame, or punishment. Finally, the therapeutic jurisprudence movement rightly focuses on how the legal system’s procedures can serve as (or obstruct) emotional and psychological therapy for wrongdoers, victims, and others. On the other hand, the rhetoric of therapy and psychology has a clinical ring, eschewing blame in favor of treatment. Here, as with restorative justice, the reluctance to blame and speak moral language leaves therapeutic jurisprudence incomplete. (excerpt)