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The machinery of criminal justice.

Bibas, Stephanos
June 4, 2015

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)


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