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Review: Why Punishment? How Much?

January 2, 2013

Readers of part or all of this 2011 contribution will develop a more grounded, both historically and philosophically, picture of just how restorative ‘processes’ or practices can be related to traditional justice. The opening sentence in the book, certainly an understatement, is that “people have been thinking about punishment for a long time.” The first twenty or so pages (the introduction) offer the Cliff Notes version of punishment theory and thinking over the centuries. 

Restorative justice, drug courts, and mental health courts are included in the book that oddly enough does not follow a likely time line of changes through history. The book ends with several older, rather than contemporary, writings. The final chapter is on the birth of the prison. 

Only about sixty three (63) pages or four (4) chapters of the twenty eight (28) chapter book are devoted to the restorative justice discussion. That most up to date segment of the book offers new insights and considerations that may be missed or overlooked by the ‘true believer’ who seeks to see RJ become the most commonly seen or one size fits all style of justice.  

The book, a decent undergraduate or graduate level text, is interesting, informative and well presented. A “Cliff Notes type” lead-in summarizes each section and invites the reader to actually read the articles on justice and punishment to follow. Each chapter concludes with a solid list of annotations or footnotes. 

The book, divided into six categories or distinct segments, presents academic articles written by two dozen authors or theorists, including writings by Kant, Hegel, Durkheim, Jeremy Bentham and C.S. Lewis. Academic positions or credentials of the modern writers are omitted, but the 21st century reader can quickly Google or use any search engine to learn just who the RJ authors (Walgrave, Braithwaite, Robinson or R.A. Duff) might be.

The four ‘restorative theory’ articles are worth reading. The included footnotes can lead readers to the larger overview or the collection of RJ books (e.g. Van Ness, Dorne, Braithwaite, Umbreit, Zehr, Pranis, and others) that have come out in the past decades. 

One article provides a philosophical framework to understand RJ and why an individualized approach might have a place beside or even be better than more adversarial and just deserts court processes. The assessment or logic that “offenses should be thought of as problems to be solved rather than as crimes to be punished” is certainly not found in the criminal courts or even schools in much of the western world. But, why has it been so difficult to sell or implement RJ in most courthouses or law enforcement settings? 

The first article goes beyond the common discussion of RJ in schools and juvenile settings by looking into adult treatment by the criminal courts through a pyramid model. First try a ‘restorative’ approach. If that fails the next steps on the pyramid might be more traditional deterrence. Incapacitation might follow for the actor who reoffends and shows no benefit of the ‘first offender’ opportunity given via individualized community justice or restorative measures. The notion that it is better to try to restore, transform and empower before using hard sanctions is certainly supported. 

The articles all point out strengths and weakness of the wide range of RJ practices. One wisely differentiates between the restorative processes and the less defined term of RJ. Does not the term RJ in and of itself imply an ‘anti-justice’ criticism? 

Paul Robinson’s article makes one think of the many situations or cases where public or community protection and the danger of recidivism must be considered first. The RJ approach, while laudable, just does not apply in every area of jurisprudence, whereas mediation just might always fit best as a first step in civil or domestic litigation or conflict resolution. Robinson concedes that RJ may enhance the world of jurisprudence, but might not deliver ‘justice’ as it is defined by most citizens as something tantamount to equal treatment under the law. 

Sentencing guidelines might tend to help keep judges within the same ballpark in the sentencing courtroom. By its nature, there are not such codified or even suggested guidelines for most restorative process circles or tribunals. As one can imagine, restorative processes might yield very different results and impose varied consequences for co defendants and victims in the same or very similar cases. Vermont, New Zealand and New South Wales, Delaware and Minnesota are all cited as having made exemplary uses of the process of restoring.

In the chapter with a mind twisting title, Restorative Punishment and Punitive Restoration, R.A. Duff asks how we can blend retribution and restoration. He concedes that this is not an easy task. Readers are encouraged to look into his commentary on why society need not choose between the ‘punishment paradigm’ and the ‘restorative paradigm.’ The section on crime and mediation with the culpable defendant helps one understand steps being taken in some venues to blend the use of these two very different  â€˜corrections’ paradigms.

This is not a book for the reader who is largely unfamiliar with restorative justice overall. It is a good collection for the reader with more than an average level of understanding of the restorative process and application over past decades to reflect on. In the end, does anyone really answer the question posited in the title of ‘how much’ punishment is the right amount? 


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