Retributive vs. Restorative Justice
Updated: Mar 13, 2022
I want to preface my comments by recognizing the inherent limitations and imperfections of both restorative and retributive systems of justice.
Those acquainted with the United States justice system likely recognize that it is not a binary system in which justice is disposed of in an “either/or” convention. Our system is actually a hybrid system of both retributive and restorative justice models and outcomes. The quality disposition of either of those postures is a matter of debate and research, but even under retributive justice theory, the US justice system is not perfectly retributive. By definition, retributive justice carries with it Code of Hammurabi-esque tenets. Indeed, Hammurabi stated “an eye for an eye”. However, we understand this as not being compatible with a first-world democracy like that which we have in the US.
When an individual is tried by his or her respective state, the fundamental goal is both retributive and restorative. The goal of the latter is to make society whole and that is partially accomplished through retributive sentencing. If, for example, an individual steals a car, a felony in most states, sentencing guidelines, stipulated by the state legislature that represents the people, will determine that individual’s length of stay in prison. The length of time for which they are incarcerated represents the people’s demands for making them, the people, whole. If, in addition to stealing said car, the accused caused property damage or worse, bodily harm to another individual, the state attempts to restore the victims, albeit imperfectly in many cases, especially those in which loss of life has occurred. It does seem, unfortunately, that our system, while attempting to be both retributive and restorative, is unduly focused on the former.
Restorative justice, like that exemplified through victims of crime compensation funds, which are typically funded at the state level, are historically underfunded and will almost always fail at making victims whole (Evans, 2014). How does the state, except by incarcerating a perpetrator for many years, restore a victim of rape? This is where both systems seem to fail, but it is indeed the best we have for now.
I recall a time when I was a prison officer at the Utah State Prison. I was assigned to the Board of Pardons security detail, responsible for transporting inmates to parole hearings. One individual I recall, was what many would classify as a cold-blooded killer. Surprisingly, he was articulate, kind, and respectful to us. But during his hearing, his victim’s family was in attendance and it was made clear there was nothing the state could do, except deny him parole, that would give them back their 16-year-old daughter. There was no amount of money and no amount of pain that could be inflicted on him that would make them whole. Indeed, this is how capital punishment falls short in a retributive-restorative hybrid system. It both fails to retribute, as the offender is dead and unable to realize the consequences, and the family is unsatisfactorily made whole. That is a topic for another day, I suppose.
And unfortunately, the failures of this model of justice seem lost on many. It often appears as though many members of the public believe lifelong incarceration or death is the only effective model of crime deterrence. I frequently see this play out in the Utah State Legislature, especially this legislative session, where legislators introduce bills that increase penalties for various offenses. It is well understood at this point that enhanced penalties do little to deter crime. A future post will touch on deterrence theory.
My question is: given the outright failure to deter and make victims whole, why do many so passionately and ardently embrace a justice model that is ineffective?
Restorative Justice Efficacy
However, there is a movement to embrace restorative practices in both prison systems and at the community level. Restorative justice is a movement and, more broadly speaking, a paradigm through which victims and their perpetrators are restored through mediation and arbitrative meetings. According to the Centre for Justice & Reconciliation, restoration occurs through community and committee-based facilitated meetings (2020).
It is difficult to pin down how widespread these types of programs are in the US, but based on my own anecdotal and experiential exposure, they are occurring to some degree in prisons systems across the country. As an aside, they are also frequently used in school systems, although the focus still remains on austere punitive measures (Payne and Welch, 2013).
With regard to the former, the California Department of Corrections and Rehabilitation (CDCR) recently awarded $1.3 million in grants for restorative justice programs across California (2020). In addition to CDCR granting seven-figure annual grants to these types of programs, they also have the highest victims of crime compensation resource offering of up to $63,000 per victim (Evans, 2014). Through funding of community-based restorative justice programs, CDCR has found that these programs can reduce recidivism by 82% (Salanga, 2020). By robustly funding restorative justice programs and ensuring that victims of crime are adequately compensated, California is a model for initiatives that satisfy the spirit and letter of restorative justice.
Finally, restorative justice has potential to reduce the symptoms of PTSD in victims of crime. A meta-analysis conducted by Lloyd and Borrill found that victims had fewer cognitions of anger toward their perpetrator and fewer cognitions of self-blame following contact with the perpetrator (2019).
California Department of Corrections and Rehabilitation. (2020, January 27). CDCR awards $1.3 million in grants for restorative justice [Press release]. https://www.cdcr.ca.gov/insidecdcr/2020/01/27/cdcr-awards-1-3-million-in-grants-for-restorative-justice/
Centre for Justice & Reconciliation. (2020). RJ in the Criminal Justice System. http://restorativejustice.org/restorative-justice/rj-in-the-criminal-justice-system/#sthash.9fzT5M8a.dpbs
Evans, D. (2014). Compensating Victims of Crime. Research & Evaluation Center - John Jay College of Criminal Justice. https://www.njjn.org/uploads/digital-library/jf_johnjay3.pdf
Lloyd, A. & Borrill, J. (2019, December 9). Examining the Effectiveness of Restorative Justice in Reducing Victims’ Post-Traumatic Stress. Psychological Injury and Law (13) 77-89. https://doi.org/10.1007/s12207-019-09363-9
Payne, A. & Welch, K. (2015). Restorative Justice in Schools: The Influence of Race on Restorative Discipline. Youth and Society 47(4) 539-564. https://doi.org/10.1177/0044118X12473125
Salanga, J. (2020, July). “It would have changed my life:” Restorative justice offers Californians way to avoid prison. CalMatters. https://calmatters.org/justice/2020/07/california-restorative-justice-neighborhood-courts/