Restorative Justice or Penal Law: Duet or Duel?

Source: (2001) Judicial Explorations (Justiteile verkenningen) 27(3).

According to the author, restorative justice has a social-ethical surplus value compared to punitive penal law. He also argues that penal law is an inadequate means of confirming and internalizing dominant, positive social norms, since punishment has a stigmatizing influence on the offender. The paper also argues that willfully inflicting harm on others is ethically wrong. Under the principles of restorative justice, the reparation of damages caused by the crime is the focus, rather than the punishment of the offender; such reparation may impose burdens perceived as punitive by the offender, but this is secondary to the achievement of reparation. Regarding the implementation of restorative justice, comparison with penal law procedures shows that victims who have been in a mediation procedure are more satisfied with their opportunities to vent their emotions and are more satisfied with the attention given to their injuries. They are also more satisfied with the outcomes of mediation, which focus on efforts to repair the harm done by the offender. The dynamics of the mediation experience have proven to be even more important to crime victims than the resulting material compensation. The author concludes that restorative justice policies ought to have priority over penal law options, although in many cases the goal of restoration is secondary to the concern for public safety.