Imposing Restoration Instead of Inflicting Pain

Source: (2003) In, Andrew von Hirsch, et. al., eds., Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms? Oxford and Portland, Orgeon: Hart Publishing. Pp. 61-78.

Lode Walgrave begins from the perspective that restorative justice fundamentally consists of doing justice by repairing the harm of crime inflicted on the victim and the community, and even social damage which the offender caused to himself or herself by the offense. Hence, in contrast to both punitive and rehabilitative justice, restorative justice is not primarily characterized by the kind of action to which the offender must submit. Indeed, restorative justice can proceed rather far without the involvement of the offender. In this view, the involvement of the offender is primarily a matter of enhancing the restoration of the victim and addressing public confidence. Only secondarily is it a matter of possibly influencing (i.e., deterring or rehabilitating) the offender. Furthermore, Walgrave states that the quality of restoration will be significantly improved if the offender cooperates freely. Nevertheless, for a variety of reasons, coercion may be needed and may be imposed by the judicial system. With all of this in mind, Walgrave devotes the majority of his paper to an examination of the coercive imposition of obligations on the offender in view of restoration. More specifically, he explores two significant issues: whether coerced restorative sanctions undermine the essential elements of the restorative approach; and whether a systemic, restorative approach to crime can be inserted into the principles of a constitutional state.