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Retribution and Restoration: The Two Paths

Elizabeth Linehan


Professor of Criminal Justice Ethics Elizabeth Linehan critiques the dominant retributive approach to criminal justice and evaluates it as morally and practically bankrupt. She then describes the major features of another approach, restorative justice, which offers hope of providing a more effective and just alternative.

On March 25, 2002 there was an article in the Baltimore Sun about a clever new form of punishment for prisoners in the Maryland Correctional System.[i] It’s called a “special management meal,” and involves baking these ingredients into a loaf: dehydrated potato flakes, grated imitation cheese, powdered skim milk, raisins, raw carrots, tomato paste, whole wheat bread, Great Northern beans, and a can of spinach. It’s nutritious, and it tastes horrible. For prisoners who have broken the rules, this loaf is served as breakfast, lunch and dinner and washed down with handfuls of tap water from their sinks. Apparently this punishment is effective, since the inmates find it torturous to be denied even the simple pleasure of the good tastes of food.

The warden of the Supermax prison in Baltimore, Thomas Corcoran, is quite proud of his solution to the problem of how to punish men for infractions they commit in prison, when there are so few deprivations that can be inflicted. It's perfect: painful without being physically harmful, and well within Constitutional limits.

I think it serves as a perfect illustration of the reason criminologist Nils Christie calls the system of corrections we have a "pain system."[ii] It is designed to allocate units of misery in response to units of lawbreaking. Criminal punishment, especially these days, is supposed to cause suffering, particularly emotional suffering. We are so accustomed to this assumption that we never question it, and we think ourselves paragons of social justice when we object to excessively harsh punishments.

In what follows I will review the basic assumptions and operations of the system of criminal justice we have, which is based on retribution, and explore an alternative model, the "restorative." This model is less developed, particularly in the United States. However, I believe that it is morally superior to the retributive model, and that it could be practical.

{I know this much is true: the worse, the more cruel and unjust, you think our present system is, the more willing you will be to put energy into exploring a promising alternative. What we are doing today is attempting to patch up a very dysfunctional criminal justice system -- over and over again. Instead, we need a Copernican revolution, a shift of paradigm.[iii] }

Let’s have a couple of examples in mind, as we proceed. #1 Recently in Reading, PA, a high school senior named Brian Njau used a friend’s unloaded BB gun to steal the car of an elementary school teacher. It turned out that he wanted the car to drive his date to the senior prom. His mother, a recent immigrant from Kenya, needed her car to get to work, and the kids he knew who had cars did not have dates for the prom. Njau said that he intended to return the car afterward. He had no criminal record, and in fact takes honors biology at the Catholic high school he attends. The last I knew, he was being held under $100,000 bond, charged with robbery and aggravated assault, along with other crimes.[iv]

#2 Second example: Richard Herrin, from the barrios of Los Angeles but a graduate of Yale University, bludgeoned his girlfriend Bonnie Garland to death with a hammer as she slept at her parents’ home. Richard was a guest in the Garland home at the time. Bonnie had been trying to tell Richard gently that while she would always love him, she wanted to date other men. Richard ultimately was found guilty of manslaughter and sentenced to 8½ to 25 years in prison, the maximum sentence for that crime but far less than he would have gotten for 2nd degree homicide. By the time Richard was sentenced, he thought the sentence too harsh, and the Garlands were outraged at the lenient treatment he had received.[v]

These offenders have now fallen into the hands of the criminal justice system. Let me suggest some goals I think you would endorse if either Brian or Richard were your son:

1. That the offender be accountable (and ideally, accept responsibility) for what he has done, and make restitution to the extent that is possible.

2. That the victim’s pain and injury be addressed as fully as possible. In the case of a homicide, the focus of this goal would be on the relatives and friends of the person who was killed.

3. That the community’s sense of safety, violated by the crime, be restored.

4. That the moral values of the society, reflected in the criminal law, be officially reiterated and reinforced.

5. That the chances of the offender repeating the crime, and of others committing the same crime in the future, be reduced.

Many people would want to add another goal, that the offender get his “just deserts."

I want to offer some criticism of that objective as we go along.

Part One: Retribution

Let me mention some current trends in societal response to crime to illustrate. I believe that these trends indicate serious failures in justice.

1. Judicial discretion in sentencing is being eliminated or severely restricted, in favor of mandatory minimums or such practices as "three strikes, you're out." This has on occasion led to injustices so patent that juries have refused to convict an obviously guilty person in order to avoid inflicting a seriously disproportionate penalty. {For example, someone in California was sentenced to a life term for stealing a piece of pizza (described on a “60 Minutes” segment some months ago). }

2. Longer sentences, especially for drug-related crimes, have led to serious prison overcrowding problems. The United States now has over two million men and women incarcerated, a higher proportion of its population than any other nation in the world. Anthony Lewis estimates that eight million people are incarcerated world-wide, which means that one-quarter of all state prisoners are in the U.S.[vi] In 1998 the number of prisoners per 100,000 population in the United States was 709, compared with 129 in Canada. For every 100,000 adults, the U.S. had 956 persons incarcerated. The numbers have gone up since then, and they are much greater in percentages for minorities. [vii]

As a result of the problem of overcrowding and the burden to some states of financing prisons, new prisons are being built in states with open spaces and unemployment problems, and prisoners are being sent far away from their homes to serve their sentences. Another "solution" being tried is handing over the responsibility for managing prisons to for-profit companies such as the Corrections Corporation of America and Wackenhut.

3. More "supermax" prisons are being built, to house "the worst of the worst." These institutions {are not simply designed to keep dangerous persons from escaping or from harming guards and fellow inmates at the prison. They }are designed to make life as unbearable as possible. For example, "segregated" inmates in Virginia's prison at Big Stone Gap are in tiny cells with only narrow slats to let in natural light. In order to deprive the prisoners of a view of the beautiful valley scene, prison officials have smoked the windows[viii].

4. Even in the juvenile arena, where reform and rehabilitation seem most desirable and possible, the trend is to harsh treatment. Trying disturbed young persons who have committed terrible crimes as adults is symptomatic of this trend. In Pennsylvania, for

example, murder defendants of any age must be tried as adults[ix]. Although no one under the age of 16 (at the time of the crime) can be sentenced to death[x], there is a genuine possibility of a twelve-year-old being sentenced to life in prison. The rhetoric for this harsh treatment focuses on the crime and its effects on the victim, not on the maturity or capacity for responsibility of the offender.

5. Mental disability defenses have fallen on hard times since the public uproar over the "not guilty by reason of insanity" verdict in the Hinkley case in 1982. Mitigation of punishment cannot be counted on even in cases of extreme mental illness.{ For example, Russell Weston killed two police officers guarding the Capitol building in Washington D.C. in 1998. He suffers from schizophrenia -- and suffered from it at the time of the crime (a fact that no one disputes). An editorial in the Washington Post describes him as a "textbook case for a successful insanity defense." However, his lawyers fought a court battle against medicating him to make him competent to stand trial, for fear that he may be sentenced to death for the crime.[xi] Last summer an appeals court ruled that he could be medicated – not because it is humane to mitigate his mental anguish, but because of the state’s interest in completing the judicial proceedings.}

We have a system of retribution, of “payback.” It is very popular with politicians who claim to be “tough on crime,” and apparently it is also popular with voters. Why? What values does it serve? Mainly these three, I think. First, we have a primitive sense that someone who wrongs another deserves to suffer some unpleasant consequence for that wrong, as a matter of justice. Second, society has an interest in preventing victims from taking private revenge. {Among other things, private revenge is likely to be excessive, and since due process safeguards are not involved, the recipient is prone to think it is unjust and retaliate back. }Third, we expect society to stand up for those who have been wronged, to take their side. In our present system, the way the society shows how strongly it takes the victim’s side is in the severity of the punishment it inflicts on the wrongdoer. In that sense retribution can be related to respecting persons who are victimized by crime.[xii] Advocates of retributive punishment have also argued that it respects the offender as well, by taking her seriously as a moral agent. Punishment responds to the choices the criminal has made. This dimension implies that punishment must be proportionate to the offense, and that excessive punishments are unjust to – disrespectful of – the offender. Too lenient punishments, on the other hand, fail to respect the victim adequately. Further, if a just punishment responds to choices, then subjective factors such as mental illness must be considered mitigating because they impair the ability to choose. {I take it that all of this is familiar to the reader, because this is the system we have at the moment.}

Let’s look a little more deeply at the way our present system proceeds. (For much of this analysis I am indebted to Howard Zehr, particularly his book Changing Lenses.[xiii]) Zehr lists five features of our response to the commission of a crime:

1. Fixing Blame: Once a suspect has been caught, the first question the system has to address is whether this individual is "guilty or not guilty." The rules and processes for this phase are quite elaborate, and they require the participation of trained professionals, particularly lawyers. One important step is the prosecutor's determination of the charges. They may seem to be something quite different from what the offender knows he actually did, or from what the victim experienced. {What is the relationship between “aggravated assault” and pointing an unloaded BB gun at someone, for instance?}

Prosecutors often "overcharge" in order to make a plea bargain attractive. If the defendant pleads guilty it is likely to be to a lesser charge, not to all that he actually did. Victims generally have no role in this and often feel disrespected by it. The alternative to a plea bargain is for the defendant to plead "not guilty" as a way of demanding that the state prove the charges beyond a reasonable doubt. Obviously a defendant who knows that he did commit the offense is entitled to plead not guilty. From that point on the defendant's stance is to deny his guilt and to do what his lawyer advises to make himself appear innocent. He might even come to believe it himself -- at least in the sense that what he did is not all that bad. (Zehr, 67) The outcome will be a verdict of either "guilty" or "not guilty"; the only flexible part is that juries sometimes have a choice of what the defendant is guilty of, as in Richard Herrin’s case.

2. Just Deserts: Once found guilty the offender is to be given his "just deserts" -- what he deserves for having committed this particular crime. We sometimes speak of this as "paying one's debt to society." The coin in which the debt is paid, typically, is years in prison. We need to examine this metaphor of paying a debt.

First of all, imprisonment is not payment in kind for most crimes. Payment in kind is impossible for most crimes (what would you do to an embezzler? a forger? an armed robber or a burglar?). For others it would be possible, but has been ruled out on moral grounds (rape, assault). Capital punishment is the only punishment we retain that attempts to do to the criminal what he has done to the victim. So how do we arrive at our scale of punishments? Roughly, by arranging crimes in order of severity, and arranging punishments in the same way, and then giving the most severe punishments in response to the worst crimes. This is called “proportional retribution.” It can be arbitrary in several ways:

a. As Jeffrey Murphy claims, we lack an adequate standard of the "objective seriousness" of crimes[xiv], and so current social prejudices affect the way we see certain crimes. {Examples: trivializing of rape, unless it is a Black man raping a white woman; how seriously -- or not -- domestic abuse is taken; disproportionate penalties for white collar vs. street crime, and for powder cocaine vs. crack cocaine. We debate the question of whether the death penalty ought to be at the top of the scale of punishments, but we neglect the equally serious issue of how we are to determine the "worst of the worst" crimes deserving of death.[xv] And so on down the line.}

b. Even if we are giving the harshest punishments for the truly worst crimes, we have to decide where the top and bottom of the scale of punishments will be. We also decide how finely graded the scale will be, and what factors will count as aggravating and mitigating when we apply it to actual offenders.

c. We mostly measure severity of punishments quantitatively, by numbers of months or years in prison. The kind of prison affects severity too, and not always in a deliberate fashion. There's the level of security, which may have a rational basis, but there are also the great disparities between federal and state prisons, and disparities between states in terms of prison living conditions. Not only that, but what predictably happens to many inmates in prison is no part of the official punishment, but is often regarded with indifference. Even if the sentences being handed down in our courtrooms were just, the actual punishments endured by those we convict and send to prison are much more harsh than the official "debt to society" requires. By "punishment" here I mean: the actual suffering we impose, including what is intended and what is a clearly foreseen additional effect. {For examples: being confined in a prison designed to hold half as many people as are inhabiting it; being constantly bombarded by noise and light; being assaulted and raped by other prisoners and, sometimes, even by guards; for security reasons that may be unrelated to one's own conduct, being "locked down" twenty-three hours a day, deprived of meaningful activity, reading material, and sometimes even TV. Increasingly, urban convicts are confined at such a distance from their homes that they are effectively cut off from family; they are able to make only collect phone calls to family, through the long distance carrier chosen by the state, often at such usurious rates that the family must choose between paying the phone bill and paying the rent. }

How does serving a prison term "pay a debt" to society? It does cost the inmate something precious, but what does it do for society? What does society get out of it? Basically nothing -- in fact, keeping a man or woman in prison is very expensive. If the prisoner poses a danger to others, we get protection, but this is a side benefit not logically connected with paying a debt. This is why I am calling the "debt-paying" idea metaphorical.

Not only is it metaphorical, but critics of our system call attention to the difficulty of ever having one's debt marked "paid." True, most inmates are released from prison. However, they are stigmatized forever by their prison record. Australian sociologist John Braithwaite describes our approach to crime as "disintegrative shaming." [xvi] We brand someone as a criminal, remove her ordinary citizenship rights, and exclude her from the community of the law-abiding. We take her away in handcuffs and leg irons, issue her a uniform and a number, and brand her for life as a felon. She will lose her right to vote and have great difficulty finding a job. By the time she emerges from prison she may have lost her family, through divorce and loss of child custody. The most available community for her to join is the community of fellow outcasts, filled with anger and resentment of the society that has stigmatized them. We then wonder why the rate of recidivism is so great.

So the debt is endless, no matter what the crime. The currency of the debt is pain and suffering. We have a taboo against revenge as a motive, so we do not face the fact that pain is the very point (but think of "the loaf," or even worse, of those smoked windows at the Big Stone Gap prison). We hire professionals to administer the pain for us, and so only the professionals (and the family members of prisoners) witness the pain being inflicted. (Zehr, p. 76) We are now moving in the direction of farming out the management of this process to private, profit-making corporations.

3. Procedural Justice: This kind of justice is defined by the process rather than by the outcome. Some of the characteristics of this process, as Zehr lists them (pp. 78 - 80):

The model is highly individualistic. It focuses on the individual offender, apart from any social context of her crime. It is adversarial{: the state of New York vs. Herrin}. The test of justice is equity of treatment. If the formal principle of justice is "Treat equals equally and unequals unequally," Zehr suggests that the criminal justice system in fact treats unequals equally," Zehr suggests that the system actually treats unequals equally. The focus is on equity of process, not on differentiating circumstances, such as poverty, abusive family background or lack of education. The features of the persons involved that are relevant are very narrowly circumscribed. In practice, the poverty of the accused has as much or more to do with his sentence than the crime he committed. The race of the crime victim is also a significant factor.

This process requires professionals because the rules are so complex. They represent the offender and the state, so victim and offender are bystanders. As Nils Christie puts it, their conflict has been stolen from them.[xvii] The quality of the professional representation makes a great difference in the outcome of the case.

{Perhaps the extreme of the emphasis on process to the exclusion of outcome is reflected in the Supreme Court decision in Herrera v. Collins (1993). Herrera came forward with new evidence pointing to his innocence, but the majority decision (written by Chief Justice Rehnquist) was that the appeals process is to correct procedural errors. not mistaken convictions. Once someone has been given his constitutional due process rights, it is not a violation of the constitution to execute him, even if he is factually innocent. This means that if you have a poorly prepared lawyer at the original trial, the appeals process will not help you, even if you are innocent.}

4. Crime as Lawbreaking: in contrast with focus on actual harm.

I once served on a jury for a case in which the defendant was accused of robbery, rape and aggravated assault. The amount of the robbery was approximately $2.00, and the aggravated assault involved two attempts to kill the victim by cutting her throat, and finally burying the five-inch knife blade in her face. Yet the penalty for the robbery was 10 - 20 years in prison, in contrast with 5 - 10 years for aggravated assault. (The jurors were unaware of the relative penalties when we debated whether the robbery had in fact taken place. Behind our debate was the unstated assumption that this was a trivial charge in any case, since only $2.00 had been stolen.)

5.State as the Victim: Despite the fact that standing up for victims is an important aim of a retributive system, we are not serving the victims of crime effectively. Our system actually neglects victims of crime in its exclusive focus on the offender and in the taking over of the role of aggrieved party by the state. The victim, like the offender, is represented by professionals and, as Nils Christie puts it, robbed of her opportunity to participate in her own conflict[xviii]. Victims are not consulted about plea bargains, not informed about trial schedules, sometimes even excluded from the courtroom (if they are scheduled to be called as witnesses), not allowed to speak unless the prosecutor decides that victim testimony would help the case, and then restricted to matters considered "legally relevant." A strong sense of disenfranchisement undergirds the movement for "victims' rights." Victims seldom have the chance to express in public what they have experienced, what they have lost, what they need. They are also effectively deprived of the opportunity to forgive the offender.

I believe, then, that our increasingly punitive system of criminal justice is approaching practical and moral bankruptcy. It fails to meet the requirements of respecting criminal offenders as persons, taking into account the subjective requirements of guilt, proportion between offense and punishment, preserving human dignity throughout. It also fails to meet the legitimate needs of crime victims. I believe that the excesses I have described are not accidental, but are the predictable outcomes of the practical logic of retribution. Theoretically, a retributive justification for punishment respects limits, but in practice it does not. The criticism that our system treats offenders unjustly, capriciously, excessively harshly is particularly damning if the justification of such a system is that it respects the rights and dignity of human persons.

Part Two: The Restorative Alternative

Let me first admit that this “other path” is much less well developed, not to mention tested, than the retributive path I have been discussing so far. If the Chinese proverb that “a journey of a thousand miles begins with a single step” is a wise one, then the apparent novelty of “restorative justice” should not count too much against it. In fact the first argument in favor of it is simply that it is an alternative to a system that does not work. It is important to keep in mind, though, that the destination of the two paths is not the same. We have to consider goals as well as means, then. Let me state again the goals or central values that I think a system of response to crime should support. They include: accountability for the crime and the harm that has resulted from it; respectful treatment of victims, but also of offenders; restoring the damage to the community that crime causes; protecting public safety; making crime less likely to occur in the future.

Zehr, using the metaphor of contrasting “lenses,” describes the alternative approaches in the following way:

Retributive Justice says that crime is a violation of the state, defined by lawbreaking and and the state directed by systematic rules. (181) Restorative Justice, on the other hand, says crime is a violation of people and relationships. It creates obligations to make things right. Justice involves the victim, the offender, and the community in a search for solutions which promote repair, reconciliation, and reassurance. (181) This model of justice "holds to the regulative ideal that all stakeholders affected by a breach of the law have an opportunity to participate in deciding what to do about it."[xix]

Whereas the present system discourages offender accountability (through "not guilty" pleas, for example), and silences the victim, restorative justice offers promise for: a fair assignment of responsibility, taking into account the offender's mental capacity and life circumstances; public acknowledgment of this responsibility; and moral vindication of the victim, who is heard fully and has a voice in the outcome.

Moreover, although crime victims have a primary role, restorative approaches avoid the trap of imagining the two parties as isolated individuals. Instead, they are engaged as members of families and larger networks of support. Crime weakens or damages social bonds, and to the extent possible these must be repaired. A mediated agreement among all the parties concerning what service the offender will perform, what restitution he will make, and perhaps what additional sanctions he will undergo can begin the process of repair. It also has the potential of bringing about real change in the offender (making re-offending less likely) and of permitting a victim to forgive. The shame of acknowledgment of wrongdoing is what John Braithwaite called "reintegrative": in this context, it provides the offender a way back when all the requirements have been fulfilled.

How does this work, in the concrete? {Let me say at the outset that the pioneering work in applying restorative justice has taken place in countries in which the customs of native peoples have had an impact on national policy: Australia, New Zealand, and Canada. You will also hear it discussed in other parts of the United Kingdom. However, the term ‘restorative justice’ and some of the practices connected with it are becoming familiar to many of the students I teach in our Masters program in criminal justice. }In the United States many of the applications have been in the juvenile system.

Example 1: the Family Group Conference, often used (in Canada, for instance) for dealing with youthful offenders. Participants in the conference include members of the youth's family, leaders of his church (if he has one), leaders of other groups he may belong to, victims, families and friends of victims. The focus is the behavior and its effects on all participants. The aim is that the offender experience the effects of his actions, come to genuine remorse for these actions, express his sorrow to the victims and all others present directly, and agree to an appropriate resolution. The process of accomplishing the steps agreed to as resolution constitute a way back to the community.

A more extended version of this practice is “circle sentencing,” which includes all members of the community who wish to participate, not just those connected directly with the offender and the victim. Those who attend are encouraged to speak and are expected to participate in decision-making.{ Kay Pranis, Restorative Justice Coordinator for the state of Minnesota, describes the process, }“Because decisions in the circle processes are based on consensus, everyone in the process has an equal voice -- including the judge, the offender, the victim, the prosecutor, the defense attorney, family members of key participants, and any community member who attends.”[xx]

Example 2: Victim - offender mediation. Here the circle of participants is smaller, and may include only perpetrator, victim and immediate families of each, and a trained mediator. Once again, this allows for face-to-face contact, for victims having the chance to express their feelings of anger and fear, the full extent of damage they experience from the crime. They can also learn more about the offender, and this may mitigate their desire for harsh revenge. (This happens more often than you might think.) The offender can truly take responsibility, rather than pleading "not guilty" and having a lawyer try to get him the best deal possible.

One advantage of this approach is that the conflict between victim and offender, expressed in the crime, remains their property and their responsibility. The victim has an opportunity (denied by our system now) to participate in his own case. The crime victim is not constrained by the rules of relevance of the present criminal courtroom, but can speak of the impact of the crime on his life; he would be the judge of what is relevant. The participants who represent society at large participate in clarifying society's norms which have been violated, to the benefit of all. Even the offender gains: he has the chance to try to explain his actions to the victim, to discuss what he could do to repair the damage, to receive appropriate blame (even to accept it), possibly to be forgiven.[xxi]

Other examples of restorative practices include community reparation boards, restitution programs, and victim impact panels. Think back to the two cases I mentioned in the beginning: Brian Njau and Richard Herrin. We can imagine how our present system will deal with Njau, and we know how it dealt with Herrin. What would the alternative look like?

Njau is the easier case, because his crime was less serious. As he was described in the Philadelphia Inquirer articles I have read, he was ready to take responsibility and accept consequences. What if those consequences were decided by a family group conference? Rather than learning how the abstract legal system of the Commonwealth of Pennsylvania defines his actions, and what that system has laid down as penalties for such actions, he would have to hear about the terror and sense of violation his victim experienced. To her, the gun was loaded and she was threatened with death. She, on the other hand, would learn that his parents are living separately in the United States for economic reasons, that his mother had to leave Kenya because of threats on her life, for her efforts to prevent female circumcision, and that she is trying to support the family on a job that pays $6 an hour. Brian – or his mother – could speak of his problems fitting into his new social context, and of why taking a date to the prom was so important to him. Brian could tell her how sorry he is for what he did to her. In fact he was quoted in the press as saying, “I really do feel sorry. I just wish there was a way I could tell her.” All of them could participate in deciding how Brian might make reparation for what he did, and Brian could make a binding pledge to follow through. To control for excessive severity – or for taking this offense too lightly – the agreement could be presented to a judge for ratification, much as plea bargain agreements are.

"Restorative justice" has fairly uncontroversial applications to juvenile justice and minor property crimes. Applying it to Brian Njau is not much of a stretch. The real question, it seems to me, is whether RJ can be used in dealing with major crimes, especially with crimes of violence. In other words, can RJ become the paradigm of criminal justice, or must we have two paradigms for two types of crime or criminal? The "hard case" here would certainly be the crime of murder. How can a murdered be dealt with restoratively? Let’s take Richard Herrin as an example.

Richard Herrin was remorseful at first, too. In some sense he remained so, but by the time Gaylin interviewed him after two years in prison, he had decided that he had been punished enough. No doubt he was influenced by some of his advocates, including campus ministers from Yale, who encouraged him to ask God’s forgiveness and to forgive himself. What was omitted was any opportunity to face the parents of Bonnie Garland and ask their forgiveness. Richard had an extremely competent defense attorney, Jack Litmann, who persuaded the jury that he was also a victim and that Bonnie’s rejection of him coupled with his disadvantaged background and feelings of inadequacy constituted “extreme emotional duress.” Richard began to believe it himself. The prosecutor, on the other hand, failed to do the one thing that Gaylin thinks was required in the case: make Bonnie Garland a vibrant presence to the jury. [xxii]

One thing I think this case shows is how the present system short circuits the offender’s being accountable. Face to face with the Garlands, Richard would not have been able to maintain the posture of “well, it’s too bad, but it’s a shame to waste two lives.” Perhaps you will think a direct confrontation between offender and family members of the victim is impossible or inappropriate in a murder case. However, the program 48 Hours several years ago[xxiii] featured a woman who wanted to confront the killer of her daughter, on death row in Texas. Texas may be the only state that has had a Victim-Offender Mediation Program that extends even to death row. Her original motivation was her own peace; she wanted him to "see what he took" and confront her anger and grief. In the several visits she had with him she did that, but she also changed her attitude toward him. She saw him as a human being, tormented by what he had done. She forgave him...though she still wanted the death sentence carried out (and it was). So it could be done, provided of course the family member agreed to it and provided it was handled by a skilled mediator. An alternative, used in some programs for sex offenders, is for offenders to be confronted by victims of similar crimes, but not the actual victims of their own crimes.

The Gaylins, particularly Paul Gaylin, would have wanted an extremely harsh penalty for Richard. Whether Paul Gaylin’s bitterness was a product of the sympathy lavished on Richard, or whether it was part of his personality, is hard to say. If an agreement cannot be reached in a mediation process, then the resolution would have to be left to a judge in the end. Oversight is necessary in general so that radical disproportion does not occur among essentially similar cases. (However, given the great disparities in sentences at present in different jurisdictions, we should not be too demanding on a replacement system.)

Advocates of replacing the present punitive model with a restorative one acknowledge that some offenders will refuse to cooperate in a restorative process, and that some offenders -- even if they do cooperate -- are a danger to others. Detention is necessary in these cases, though the requirement of respectful treatment remains. It is probably also necessary for very severe harms, though the warehousing we are doing now would always be out of place. Richard Herrin needs to come to a point of accountability, or the next woman who rejects him may become another victim of his violence. In short, a restorative approach does not have to preclude spending time in prison; work remains to be done on the conditions for confinement.

Some evaluative comments

Clearly, I find a restorative approach promising. A system in which both offender and victim can be agents, active participants, is more respectful of them as persons than one in which state bureaucracies take over and treat them merely as things. Despite what I believe to be the enormous weight of social and economic inequalities, I believe we must respond to others as accountable doers of their past deeds, and correlatively as capable of new beginnings in the present.

At the same time, the anger of many in the "victims' rights movement" is justified. The movement is fueled partly by anger over the contrast between the care with which the rights of the accused seem to be protected by the "system," and its perceived indifference to any rights of the victim. While I have argued that accused persons are not treated with the respect due them as human beings, either, I do believe crime victims' voices must be heard. Rather than play victims' rights off against accused persons' rights, it is much healthier to search for a way of proceeding that can respect both.

For all who agree about the need for a new model of response to crime, and about the promise of a restorative justice approach, there is a demanding agenda for further work. I will comment on three items on that agenda; there are certainly others, but these are fundamental.

1. The process of restoration will be demanding and difficult -- even painful -- for an offender. However, the suffering involved is a byproduct rather than an aim. However unavoidable, and however clearly foreseen, pain is not the currency by which justice is measured in this model. Can we do without the assumption that a just response to wrongdoing requires the intentional infliction of pain?

2. Another major tenet of our present system that restorative justice challenges is the definition of crime as an offense against the state. The Law Commission of Canada states as a fundamental principle of restorative justice that "crime is a violation of a relationship among victims, offenders, and the community."[xxiv] We take for granted the replacement of community justice by state justice. However, this is a phenomenon of the past couple of centuries[xxv]; it is not inevitable.

3. If restorative responses to crime are negotiated among the stakeholders most affected, we have a consensus approach to justice. An outcome on which the parties agree would, seemingly, be acceptable. To mitigate the obvious problems this could create, many restorative justice advocates build in a judicial review of the agreement. If it is too lenient or too harsh, a judge can modify it. The question that remains is whether any "truth of the matter" about what would be substantively just undergirds the process. To some extent I think the answer is yes: actual, specifiable harms have been done to direct victims and to the community. We can know what counts as repairing those harms, and whose responsibility it is to do the repair. This is at least a tangible step -- more tangible than "paying one's debt to society" by years spent in prison.

Related to this point are two other difficulties with implementing a consistent restorative approach:

First, Some offenders are in such socially marginal positions that it is difficult (or impossible) to find a community to participate in the process. Family dysfunction, the loss of neighborhoods, urban decay all contribute to this.

Second, critics express the fear that a loss of due process safeguards will occur, with the consequence of a new kind of arbitrary and discriminatory treatment of some offenders. This is an important worry and must be addressed as RJ processes are developed. In particular, these processes can be used only when the offender has admitted guilt.

4. {Another danger is expressed by Charles Tracy in an editorial in the International Journal of Offender Therapy and Comparative Criminology. Writing of restorative justice, he says, }“We may become so encouraged by its promises that we overlook the continued social injustices administered by the current retributive system, and restorative justice may become just another way of maintaining existing power inequalities. Adding new programs to the only way of thinking is not enough.”[xxvi] This is why I think the language of “paradigm shift” is important to the discussion.

The assumptions underlying our present system seem so obvious to most of us, that it is tempting to dismiss the restorative alternative as idealistic, but ultimately not practical. We assume, for example, that our procedures lead to substantively just outcomes (guilty found guilty, innocent found not guilty, proportional penalties) most of the time. There is significant reason to question this. That is the subject for another paper. I really believe we are at a point of paradigm shift in criminal justice, and that restorative justice is a promising alternative paradigm. As Martin Luther King once remarked, about an undertaking as complex and risky as this one: “You don’t have to see the whole stairway to take the first step.”[xxvii]


[i] Laura Barnhardt, "Loaves Give Rise to Good Behavior," p. 1A.

[ii] Quoted in Howard Zehr, Changing Lenses (Scottdale, PA: Herald Press, 1995), p. 75. See also Christie's Limits to Pain (Oslo, Norway: Universitetsforlaget, 1981).

[iii] The analogy is with Thomas Kuhn's famous analysis of the role of anomaly in the progress of science. At some point the old theory is discarded in favor of an entirely new paradigm. Thomas S. Kuhn, The Structure of Scientific Revolutions (University of Chicago Press, 1970).

[iv] Philadelphia Inquirer, "No Money for a Prom Limo, He Decided to Steal a Car" (May 20, 2002); "Teen's Ride to Prom Ends with Him in Prison" (May 21, 2002).

[v] This example is the subject of an interesting and provocative book by Willard Gaylin, The Killing of Bonnie Garland (New York: Penguin Books, 1983).

[vi] "At Home Abroad," New York Times Op Ed (December 21, 1999).

[vii] Nils Christie, Crime Control as Industry, 3d Edition (New York: Routledge, 2000), p. 31.

[viii] Peter Finn, "Virginia Gets Even Tougher on Its Convicts," Washington Post News Service (June, 1997).

[ix] David Zucchino, "A System Haunted by Child Murder Suspect," Philadelphia Inquirer (October 1, 2000).

[x] U.S. Supreme Court, Thompson v. Oklahoma, 487 U.S. 815 (1988).

[xi] "Insanity and Law," Editorial, Washington Post (March 11, 2001), p. B6. .

[xii] Jean Hampton and Jeffrey Murphy, Forgiveness and Mercy (Cambridge U. Press, 1988).

[xiii] Changing Lenses: a New Focus for Crime and Justice (Scottdale, PA.: Herald Press, 1995).

[xiv] "Crime and Punishment," in Jules Coleman and Jeffrey Murphy, Philosophy of Law: an Introduction to Jurisprudence (Totowa, N.J.: Rowman and Allanheld, 1984), p. 148.

[xv] In practice, race of victim and poverty of accused person weigh more heavily than the heinousness of the crime itself in distributing death sentences

[xvi] Crime, Shame, and Reintegration (New York: Cambridge University Press, 1989).

[xvii] "Conflicts as Property," in Burt Galaway and Joe Hudson, eds., Perspectives on Crime Victims (St. Louis: C.V. Mosby Co., 1981), pp. 234 - 244

[xviii] "Conflicts as Property."

[xix] John Braithwaite and Philip Pettit, "Republicanism and Restorative Justice: An Explanatory and Normative Connection," in Braithwaite and Strang, Eds., Restorative Justice: Philosophy to Practice (Ashgate, 2000), p. 158.

[xx] “Restorative Justice, Social Justice, and the Empowerment of Marginalized Populations,” in Braswell, McCarthy and McCarthy, Eds., Justice, Crime and Ethics (Anderson Publishing Co., 2002), p. 240.

[xxi] Christie, "Conflicts as Property": 239 - 241.

[xxii] The Killing of Bonnie Garland, pp. 238-9.

[xxiii] The program aired on February 4, 1999.

[xxiv] Cited by Kent Roach, "Changing Punishment at the Turn of the Century: Restorative Justice on the Rise," Canadian Journal of Criminology 42:13 (July, 2000).

[xxv] Howard Zehr, "Retributive Justice, Restorative Justice," New Perspectives on Crime and Justice 4 (Mennonite Central Committee:September, 1985), pp. 10 - 11.

[xxvi] Associate Editor’s Editorial: The promises and perils of restorative justice, Vol. 42, No. 4 (December, 1998): 275-277.

[xxvii] Quoted by Marian Wright Edelman in an interview with Patricia E. Dempsey, Washington Post Magazine (May 12, 2002), p. 6.


Elizabeth Linehan is Associate Professor of Philosophy at Saint Joseph’s University, Philadelphia, PA. She earned her Ph.D. from Fordham University. Dr. Linehan taught at Spring Hill College from 1973 – 76, has taught at Saint Joseph’s since 1976, and has been chair of the Philosophy Department there for fourteen years. Her teaching and research interests are strongly connected with ethical issues raised by the use of violence. She regularly teaches Criminal Justice Ethics in the Masters program in criminal justice; she has also taught a course on Violence and Reconciliation in Northern Ireland, and an interdisciplinary Honors course, Violence and Nonviolence. Recent publications include "Executing the Innocent" (Proceedings of the 20th World Congress of Philosophy, Human Rights Volume) and "La peine de mort aux Etats-Unis," ["The Death Penalty in the United States"] (Etudes). Dr. Linehan is a member of the Religious Sisters of Mercy, regional community of Baltimore.



Copyright © 2004 Victor Claveau. All Rights Reserved