Punishment and restorative justice: an ethical comparison

 BELTING SON ‘ACCEPTABLE’ This was the headline in an English

provincial newspaper, reporting a court case. The father was accused of

hitting his three-year-old son with a leather belt after the boy damaged

a television set and tried to blame it on his baby sister, although the

father had repeatedly asked the boy to tell the truth. The boy had red

marks and bruises on his arm, back and ribs. The judge indicated that he

intended to pass a custodial sentence, but the accused failed to appear

at court. His wife, a schoolteacher, said that her husband was ‘a good

dad’, and had been brought up to believe that physical chastisement is

an acceptable way of disciplining children. Although she had originally

contacted the police, she said that she regretted doing so and tried to

retract her statement, because she never expected that her husband

would be arrested.1

This case illustrates several points: that once punishment is legitimated there

is a danger that it will be overdone; that fear of punishment is liable to make

people tell lies and deny what they did, like the little boy, or try to run away,

like the father, instead of taking responsibility for their actions; and that the

fear of overreaction by the state can make people, like the wife, think twice

about reporting wrongdoing.

This was clearly an example of the wrong sort of punishment. There

are many more throughout history, and still to-day: amputations, solitary

confinement, ‘supermaximum’ security prisons … . Humankind has been

horribly inventive in thinking up ways of inflicting pain. But is there a right

sort of punishment?

In comparing punishment and restorative justice, this chapter will

consider definitions, and two kinds of justifications: instrumental and

symbolic. It will show that punishment and restorative justice are based

on different psychological principles, and different axioms. The question is

Punishment and restorative justice: ethics 169

asked how a ‘pure’ restorative system would respond to certain problems,

such as enforcement, and protection of the public; the concepts of ‘natural

consequences’ and ‘protective use of force’ are proposed, but questions

remain: how long should they last? Do restorative responses have to

be ‘burdensome’, and if so do they cross the line separating them from

punishment? An attempt is made to weigh the two philosophies in an ethical

balance.

1. Definitions

Punishment is essentially the infliction of a painful or at least inconvenient

measure on a person (including a ‘legal person’ or organisation: Restorative

Justice Consortium, 2005) who has broken a rule. The intention is to show

that the action was unacceptable, and to discourage or deter the offender,

and others, from repeating it2. Some writers extend the definition to include

coercive measures which are not intended to be painful, such as rehabilitation

or reparation. They justify this on the grounds that the measure restricts a

person’s liberty, and may be painful even when not intended to be, as with

unreasonably long detention in a supposedly rehabilitative institution, or

unreasonably heavy reparation. There is no objection to this definition so

long as it is made clear that the word is being used in this way.

But even if these measures are called ‘punishment’, they are clearly

different kinds of punishment, intended to operate in different ways

and should therefore be labelled differently, for example ‘rehabilitative

punishment’, ‘reparative punishment’, and the somewhat tautologous

punitive punishment’. It seems simpler to call them rehabilitative or

reparative ‘measures’, while recognising that their coercive aspects may

unintentionally cause pain or inconvenience. We might use ‘interventions’

for those that require the offender’s consent (but see discussion of consent,

below). ‘Punishment’ is then reserved for the deliberately punitive ones.

Most definitions of restorative justice include the idea of reparation

or healing of the harm done; dialogue between the victim and the offender

in deciding how reparation can be made – sometimes called ‘deliberative’

justice (for example by Walgrave 2005, 6); or both. Others add involvement

of members of the community: as mediators, as organisers of NGOs

providing a mediation or conferencing service, and/or as participants in

the process itself: relatives and supporters of the victim and offender, and

sometimes other people affected by the offence.

In its purest form restorative justice replaces a court appearance, or

takes place after completion of the criminal justice process, so that no one

can feel under pressure to try to influence the decision to prosecute, the

170 Martin Wright

sentence, or the date of release from prison. Punitive sanctions are normally

imposed by a judge; so are rehabilitative ones, although some may require

the offender’s consent, for example probation and community service orders

when they were first introduced in England and Wales (but no longer, now

that they have been re-named ‘community orders’ with various ‘requirements’

including ‘unpaid work’ (Criminal Justice Act 2003 sec. 177)).

Ideally, “Mediation in penal matters should only take place if the parties

freely consent” (Council of Europe, 1999, Appendix, Article 1). This consent

is however limited if mediation takes place before the final decision of the

criminal justice process: offenders inevitably hope for a lighter sentence or

earlier release if they take part, even if they are told that this will not happen.

Offenders may indeed accept the restorative justice process willingly, but

this could only be entirely voluntary if they were told ‘You can take part in

restorative justice, but if you do not, nothing will happen’; this would not

be acceptable except for the most minor offences. Despite this, the fact that

restorative justice offers offenders the choice whether to take part, and the

opportunity to discuss reparation with the victim, does distinguish it from

punishment imposed by a court.

2. Justifications

Punishment and restorative justice may be justified either by their effects

or, as we shall see later, because they are believed to be a symbolically

right response to wrongdoing. It is hard to justify ethically a society based

on fear and the threat of harm, if another way of preserving social order

is available. In addition, deterrence does not work when people think they

can ‘get away with it’. What keeps most people from wrongdoing most of

the time is primarily the desire to have self-respect and to be valued by

those whose respect is important to them. They may also be influenced by

the desire to keep the material possessions which often accompany their

status. Thus, especially for acquisitive crimes, an appropriate strategy for

prevention would be to ensure that, as far as possible, everyone can gain a

reasonable amount of respect, status and possessions. Otherwise the only

way to penalise those whose life conditions are already poor is to make them

worse still. There is however a problem when the social status is regarded as

arising from the material possessions, because this may tempt people to try

to acquire more at other people’s expense. This applies at all levels, from the

teenage robber who wants the latest mobile phone to the business executive

who wants a bigger yacht and is willing to exploit people, or even commit

white-collar crimes’, in order to get it.

Punishment and restorative justice: ethics 171

2.1 Instrumental

Since punishment (on the definition used here) causes pain and often harm,

it would seem that it can only be justified if it is more effective than any less

harmful method of promoting the common good. In other words, only if it

works, and certainly not if it makes matters worse: primum non nocere, the

first thing is to do no harm.

The wrongdoing of the powerful should not be (but too often is)

overlooked. Regulatory or ‘white-collar’ offences can result in financial

hardship, injury and death. Methods for dealing with them could with

advantage be applied to other crimes (see below, ‘natural consequences’)

However, since ‘street crimes’ generate most public debate, we will focus

on them. A high proportion of convicted offenders come from a background

deprived of basic needs for education,3 affection and even safety; what they

need is to be included, valued and respected for what they are, despite what

they have done. Often they need help and support, ideally of course before

they have done wrong; if it is not provided until afterwards, it may look as if

they are being rewarded for bad behaviour. But if they are punished, they are

further excluded, stigmatised and devalued: the opposite of what is likely to

persuade them to behave more acceptably.

Antony Duff argues for punishment as a way of communicating censure

(Duff, 2005), although he concedes that present forms of punishment do

not comply with the ideal of the communicative theory. But in practice its

message is that the use of force is the way to control people. It communicates

lack of respect and tells people what they should not do, not what they should

do.

Can punishment claim to be effective? A review of the psychological

literature (Wright 1999, Ch. 2) shows that it inhibits unwanted behaviour

only temporarily, and only if it is immediate, certain and not excessive – rare

qualities in the criminal justice system. Also, an alternative form of behaviour

must be available to the subject. Punishment can be counter-productive, by

eliciting aggressive behaviour. People try to avoid it, but not necessarily by

behaving well: offenders not only tell lies, try to blame others, or attack the

police, but have even killed their victims in the hope of avoiding detection

(ibid. pp. 41-2) – and the more severe the threatened punishment for one

crime, the greater the incentive to try to escape it by committing another. It

can produce what Braithwaite (2002, 106-7) calls ‘reactance’: people react

to attempts to control them by acting in a contrary way, including aggressive

behaviour4. It can inflict disastrous ‘collateral damage’ on the offender’s

family. The most severe punishment (in civilised countries with no death

penalty) is imprisonment, which is in a class by itself for producing unwanted

side-effects: it separates people from potential good influences and prevents

172 Martin Wright

them from taking responsibility, besides being proverbially a ‘university of

crime’. It is also commonly accepted that the younger people are when sent

to prison, and the more often they have been imprisoned, the more likely

they are to re-offend (Prison Reform Trust, 2006, 5).

In her study of social and psychological influences, Fellegi (this

volume) argues that retributive justice makes people more likely to stay

at a ‘rule obeying’ level, ‘neutralising’ (excusing) their behaviour to avoid

punishment, rather than progress to moral values that take account of the

needs of other people and society. It also stigmatises them and makes it

harder to form or preserve constructive social bonds.

To compare restorative justice with punishment ethically, we must

ask whether it achieves at least as much. The commonest question is:

does it deter offenders from re-offending? It has long been accepted that

it is not the severity of punishment but the certainty of being caught that

really deters (Wright, 1982, 172-82). So a highly punishing system with

ineffective authorities or with very low level reporting will not be effective

in deterrence. As Cornwell (2006, 83) concludes, “The best that can be

assumed about the operation of deterrence is that it might be a desirable

by-product of punishment, but it remains one that we cannot reasonably

rely on”. Advocates of restorative justice would say that in any case this is

not its primary aim: so long as re-offending is not increased, it is justified

by its other advantages, especially for victims. In any case, if it reduces

re-offending, this is not the result of deterrence, fear of the consequences,

but of persuasion, through empathy, showing what the offender can do,

earned redemption’. Moreover, restorative justice recognises – or ought

to recognise – that although the quality of the process affects the outcome,

offending or re-offending behaviour is mainly influenced by the person’s

circumstances in early life before the restorative process, and the support

they receive afterwards (Maxwell and Morris, 2001). To over-simplify,

whereas punishment says that offenders have done wrong, and rehabilitation

says that they are disadvantaged or maladjusted and should receive help not

blame, restorative justice recognises both individual free will and the effect

of social and psychological pressures.

There is, nonetheless, a growing amount of research indicating that

when restorative principles are followed, re-offending can be reduced.

The Restorative Justice Consortium (2006) has found that 34 of 46 studies

showed positive results, 9 had mixed or neutral results, and only three,

negative ones. Even allowing for methodological factors (most of them had

comparison groups rather than random allocation), this is a favourable result.

Sherman and Strang, in an extensive review of the evidence, conclude that

in many tests, offenders who receive restorative justice commit fewer repeat

crimes than offenders who do not”, especially in cases of violent crime, and

Punishment and restorative justice: ethics 173

that “diversion from prosecution to RJ substantially increases the odds of an

offender being brought to justice” (Sherman and Strang, 2007, 88).

In a culture conditioned to expect ‘toughness’, is restorative justice

soft’? The question implies that if it is, it is inferior to punishment. However,

firstly, for many people, facing the person you have harmed is not a soft

option (and for many, punishment is not a particularly tough one). Secondly,

even if it is less tough, is that not justified as an encouragement to take part in

a process which can benefit victims? Thirdly, as we have seen, it is doubtful

whether the harm caused by tough punishment is outweighed, and therefore

justified, by any beneficial results.

Punishment has harmful side-effects; but could restorative justice also

make matters worse? It can happen. Heather Strang found that 18 per cent of

victims whose cases had been to conference said that the process made them

angry; this is not a negligible figure, although when offenders had been to

court, and hence mostly punished, nearly twice as many victims felt that way.

Describing some of these cases, she concludes that most of the problems were

due to poor practice, but in some cases it may be because the programme

is set up in an offender-centred way (Strang 2002, 137-154). Some of the

disappointment was due to the research design, in which some victims who

wanted a conference did not get one because they were randomly assigned

to the control group (ibid. p. 199). Kathleen Daly (2005) has also studied

the victims’ perspective. In one study substantial numbers of victims were

distressed, especially when the conference was not done well, but there was

no comparison group to assess court experiences. Another study, of cases of

sexual assault, did make the comparison: conferences were arranged more

quickly than court hearings and led to more apologies, community service,

and “measures that matter to victims” such as acknowledgement of the

wrong. She adds however that she would hesitate to support conferencing

for sex offenders unless a programme was available to help offenders to stop

sexual abuse and harassment (ibid. p. 171-2, note 25). This is an example

of how an offender’s co-operation with rehabilitative measures can be

incorporated into the concept of reparation.

There are also objections to restorative justice on the basis of its theory,

not merely its implementation. Matthews (2006) is critical of the theory

of reintegrative shaming, and of police-led conferencing; however, many,

probably most, restorative justice programmes are not based on it, and are not

run by police. Matthews does not make comparisons with the courts, which

certainly impose non-reintegrative shaming; his thesis is mainly limited to

recommending a ‘divorce’ of restorative justice from reintegrative shaming,

a conclusion with which many restorativists would not disagree. Other

criticisms of restorative justice theory are dealt with by Morris (2002).

As for rehabilitative measures, there is no space here for a detailed

174 Martin Wright

comparison but there is evidence that they can ‘work’ (Bottoms et al., 2004).

Thus, as there is no convincing evidence that punitive sanctions are more

effective than restorative interventions, punishment cannot claim ethical

legitimacy on the grounds of being a more effective way of maintaining

social order.

2.2 Symbolism: a choice of axioms

The basic axiom on which punishment is based is either simple retribution,

just deserts’, or the slightly more nuanced notion that if you gain some

advantage over another person by unacceptable means, some harm should be

inflicted on you to restore the status quo. The implication is that although this

does no good, or even makes matters worse, it is still the right thing to do:

the guilty deserve to suffer” (Duff, 2003, 48). The theory of deserts does

not focus primarily on prevention and deterrence, but bases its argument on

proportionate punishment for the act.

Restorative justice is based on a different axiom: if you have caused

harm, you should put it right as far as possible. It maintains that this has

greater ethical validity than the criminal justice one. It also proposes a

different procedure: the victim and the offender should have an opportunity

to meet so that the incident can be seen as harm caused to another person, not

just a breach of the law. Where there is no individual victim, the community

may be regarded as the victim.5 In fully restorative justice, the community

is involved in the process, and community participation, it can be argued, is

likely in the course of time to lead to community acceptance.

One basic difference is that punishment is imposed, whereas reparation,

in a restorative system, is agreed – or rather, there is an opportunity to agree

on a measure, and only if that fails is it imposed. This is less than total

voluntariness, but it can be argued that it is much less than total coercion, or

at least it is coercion with an element of choice.

2.3 Psychological principles

The psychological basis for attempting to deter wrongdoing by punitive

responses is a behavioural one: it is assumed that, like rats in a psychological

laboratory, people who suffer pain after a certain action will stop doing it. If

it ‘worked’, it could be considered justifiable, but the foregoing discussion

does not support this.

Restorative justice is based on a different psychological mechanism. In

place of fear (of pain, rejection, being regarded as worthless) it puts hope (of

Punishment and restorative justice: ethics 175

actively earning reacceptance, and help towards it); instead of using victims,

if at all, as a tool for securing a conviction, it offers them the opportunity to

take part in the process of finding a constructive outcome. There is however

a danger that it too can use victims as “a tool to prevent re-offending”, as

Teresa Reynolds of Victim Support has pointed out (quoted by Johnstone,

2002, 82).

2.4 Punishment: the problem of quantum

One problem with punishment, whether instrumental or symbolic, is that there

is no logically defensible way of determining how much to inflict. (These

questions are explored in more detail elsewhere: Wright, 1999, Ch. 5, 6;

Wright, 2003.) If instrumental, how long is necessary to deter any individual?

The more we have to lose in other ways, the less additional punishment is

necessary to deter us. But then people who were already fortunate when they

committed their crimes would be punished least, whereas a woman who was

desperate to feed her family would risk even a severe punishment for doing

what she believed to be right.

If it is intended to be symbolic, how much punishment is needed to

reflect our condemnation of, say, a burglar or an employer who ignores health

and safety regulations? There is no way of quantifying the ‘wrongness’ of

an action, nor the amount of punishment that it should attract, except in

relation to other punishments. Which is worse: a minor sexual assault or a

major burglary? A short prison sentence, several years on probation, a fine,

or some other measure? It is just as impossible to quantify these on symbolic

grounds as on instrumental ones. Thus it appears that even if punishment

were defensible, the amount of punishment has no logical basis. However,

restorative justice has comparable problems, as will be seen below.

2.5 Does restorative justice have benefits that punishment does not have?

In several ways restorative justice claims to outdo criminal justice, and

hence to be ethically superior. Courts and punishments will be considered

together, since one normally leads to the other. It is important to compare

like with like: restorative justice only takes cases where the accused has at

least admitted involvement, so where the accused denies this, the victim’s

experience of being cross-examined in the witness box has to be excluded

from the comparison. However, if the restorative justice process accepts an

admission of involvement, without insisting on a full admission of guilt,

the accused can hope to avoid or mitigate punishment and is therefore more

176 Martin Wright

likely to make an admission and spare the victim her ordeal. Some victims

of sexual offences may prefer to obtain such an admission, and possibly

tell the offender the effects of his action, rather than use the criminal justice

process with its notoriously high acquittal rate. As Daly (2005, 165-6) has

pointed out, “The potential of restorative justice is that it opens up a window

of opportunity for those who have offended to admit what they have done,

without the potential risks associated with a court-imposed sentence”,

whereas if a case went to court the chance of any sexual offence being

proved may be as low as 51 per cent.

Victims have complained that the criminal justice process does not

allow them to be heard. In some jurisdictions they are allowed to make victim

impact statements, or even to speak to a court or parole board. But if this

affects the punishment there are problems of fairness, because punishments

would be even more inconsistent than they are already; and if it does not, they

may wonder what is the purpose of it. Restorative justice, on the other hand,

is concerned only with reparation, not punishment, and it seems appropriate

that the victim should have a say. It also allows them to ask the offender

questions, which the criminal justice process would exclude.

In many cases, especially of violence, the victim and offender are

known to each other, and the offence is the outcome of a dispute, often with

faults on both sides. If one is responsible for having the other punished,

their relationship is likely to be damaged or destroyed, leaving the offender

unwilling or unable to make reparation; mediation, in contrast, offers the

possibility of resolving the dispute.

2.6 Potential for crime reduction

The atmosphere of a mediation or conference session is intended not to be

punitive, but is based on problem-solving; this encourages the offender to

explain, and the victim to take part in the same spirit. It has also been claimed

that a successful conference could then be compared to a small ‘truth and

reconciliation commission’, where the background can be explored.

Restorative justice does not (or should not) aim only at persuading

individual offenders not to re-offend but at a more nuanced strategy

of reducing social pressures towards crime. This means that the

mediation service can build up a picture of factors which tend to lead

to crime: not merely security factors such as easy-to-steal goods in

supermarkets, but high unemployment, inadequate schools, lack of

adequate recreational facilities for young people, members of ethnic

minorities denied opportunities because of discrimination, and many

more (Wright, 2002, 6).

Punishment and restorative justice: ethics 177

Unlike the conventional system it encourages discussion of the offence

and its background in a non-adversarial atmosphere, and can therefore

point to types of situation where offending behaviour is more likely, so that

preventive action can be taken – if there is the political will. “We should

cease to look to severity of punishment to control crime …[but] should

look primarily to measures of crime prevention outside the criminal justice

system” (Cavadino et al., 1999, 51). One example comes from Zwelethemba

and other townships in South Africa (Froestad and Shearing, 2006 and this

volume; Roche 2003, 264-6). This is another feature that punishment does

not offer.

3. Issues

It comes down to this. There are two competing axioms: that lawbreakers

should be punished, or that those who cause harm should repair it or make

amends6. For some, the ethical choice is clear: a method which tends towards

healing is preferable to one which inflicts further harm. For pragmatists, the

decision between them should rest on their results. Here it is argued that the

prevention of re-offending is by no means the only criterion for assessing the

results, and restorative justice offers several advantages over criminal justice.

There are however problematic areas which need to be considered when

comparing restorative justice with punitive justice. One is proportionality:

while judges do at least try to be consistent in applying a ‘tariff’, there

would inevitably be wide discrepancies in the amounts of reparation asked

by different victims. Restorativists reply that if one offender and his victim

agree one form and amount of reparation, and a quite different settlement

is reached in another similar case, each is right for the people concerned.

Other questions include: what happens when the victim or the offender will

not take part? How can reparation be enforced, and how would the public

be protected? Should restorative justice make ‘burdensome’ demands on

the offender? In each case, does the restorative measure then become a

punishment?

It can be argued that in the case of serious offending the option of

attempting to heal the conflict could intensify it and inflict more harm. Van

Stokkom (this volume) appears to accept the possibility that punishment can

increase the risk of re-offending, but suggests that failure to punish serious

offenders can stir up emotions, societal animosity and punitive mentalities,

and thus can perhaps do even more harm to society. For those individuals

who demand punishment regardless of its effects this may be true;

restorativists accept that actions must have consequences, but believe that

those consequences should be constructive. They should benefit the victim

178 Martin Wright

and/or the community, and try to lead offenders to regret their actions if

they do not already do so. Many restorativists would accept that if offenders

do not make amends voluntarily, they could be compelled, and that if there

is a serious risk of a further serious offence, they should be restrained or

detained. But this, they would argue, is different from punishment, or at least

a different kind of punishment.

3.1 How would a ‘pure’ restorative justice system respond?

There are situations in which a fully restorative process cannot take place.

Must we then resort to punishment? The victim may be unwilling to meet

the offender or even to conduct an indirect dialogue, or the facilitator may

decide, after speaking to them, that such a dialogue could be damaging or

even dangerous to one or other. In these cases an offender who was willing

to make amends to the community instead would be enabled to do so.

To answer the following questions, two concepts distinct from

punishment are proposed. The first is ‘natural consequences’. If someone is

caught in an act of dishonesty, he will for a time not so readily be trusted;

for a more serious offence, other people will naturally try to ensure that

he will not be able to commit it again for some time, for example by

disqualification from holding certain positions. Some traditional societies

have no way of translating the word ‘guilty’; instead, people are asked

if they take responsibility for what has occurred, and Aboriginal people

emphasise not what has been done wrong, but on what needs to be done to

put it right (Rudin, 2005, 92) – which is also a central feature of restorative

justice. The Navajo also speak of natural consequences rather than ‘right’

and ‘wrong’: for example, if you do not tell the truth your fellows will not

trust you and you will shame your relatives (Ross, 1996, 107). If you have

committed burglary or fraud, people will not readily employ you to paint

their houses or handle money. In place of adversarial trials they aim at the

restoration of harmony through co-operative problem-solving, and punitive

prison sentences have been replaced by community healing programmes;

deterrence cannot be permitted to get in the way of healing” (ibid., 217,

216). Some natural consequences of wrongdoing are that others will want

to change the behaviour of the wrongdoer, to eliminate any financial benefit,

to put right any harm caused, and to encourage more considerate behaviour

in future. These principles have been proposed for regulatory offences

(Macrory, 2006) but could be no less applicable to ‘street crimes’. This is

admittedly a difficult concept, and will need further work.

If there is a serious risk of repeating a serious offence, the second

concept may have to be applied: ‘protective use of force’. It is familiar to

Punishment and restorative justice: ethics 179

police officers: when a person cannot be controlled by other means, he can

be restrained, but no more force than necessary must be used. It may result

in restriction or deprivation of liberty (Wright, 1982, 255-8, 262-3).

What if offenders fail to perform reparation, or are totally uncooperative?

For business regulation, which can also involve criminality,

Braithwaite (2002, 31) proposes a ‘regulatory pyramid’ in which, after

persuasion and a warning letter, the next stages would be a civil penalty and

a criminal penalty, followed by suspension and then revocation of licence.

The civil penalty might be regarded as a ‘natural consequence’, but the

criminal one seems out of place: if we use restorative measures because they

are believed to be better than punitive ones, it seems illogical, when they

don’t work, to use the punitive ones after all.

If offenders refused to fulfil the agreement, first they would be warned

and given an opportunity to re-negotiate it; after that it seems to be a natural

consequence that their freedom could be restricted until they had done so.

It can be argued that this is not punishment, because it stops as soon as they

comply. But if they never do so, the problem arises: for how long should

their freedom be curtailed? This will be considered below.

Although these measures would be for enforcement, not punishment,

it has to be admitted that in this case the dividing line is very thin. It would

also be a salutary reminder of the limits of state power: although the state

can always inflict punishment, it cannot compel anyone to make reparation

if they are determined not to.

The offender may be assessed as so likely to commit a further serious

offence that her liberty must be restricted. In that case, she might be

disqualified from being a company director, placed under curfew, house

arrest, or even detention, but without punitive intent. She could still make

reparation – as some prisoners already do. Although these measures would

have features in common with punishment, that would, once again, not be

the intention; houses of detention would still take away freedom, but their

ethos would be restorative rather than deliberately spartan7.

3.2 Restriction: another problem of quantum

In all these cases where restriction of liberty is imposed, and especially

where this is on grounds of public protection, the question arises: how long

for? When we were looking at punishment, we argued that no logical basis

for determining the amount of punishment can be justified, except in relation

to other punishments. Is restorative justice open to the same criticism? Even

in a mainly reparative system, the problem cannot be avoided. There are

essentially only two ways of deciding. One is at the outset, on the basis of a

180 Martin Wright

tariff’ or a prediction of how long the person will remain a risk; but that can

be affected by conditions in the institution and. especially after release. There

is a risk that some individuals will have to be released despite being assessed

as still being a danger to the public. Or the period can be indeterminate, and

the individual can be assessed at intervals. There are strong objections to the

latter option. There is no way of predicting ‘dangerousness’ that is not wrong

as often as it is right (Floud and Young, 1981). It was a feature of many

totalitarian regimes which abused the criminal law, and could be oppressive

even when ostensibly used with rehabilitative intentions. Indeterminate

sentences ‘for public protection’ have however recently been introduced in

England and Wales (Criminal Justice Act 2003, sec. 225). Their wide use has

helped to increase the prison population to crisis levels, and they are being

challenged by prisoners who allege that there are not enough rehabilitative

programmes to enable them to qualify for release (The Guardian, 23.6.2007,

13).

It is hard to square this circle; one possible approximation is a semiindeterminate

sentence, with upper and lower limits, the exact release date

being determined at regular assessments.

Should there be lower or upper limits to the amount of reparation? A

lower limit might be thought necessary because, even if a victim were so

understanding and forgiving that they asked for little or no reparation, others

in the community might want the offender to make substantial amends,

possibly for non-restorative reasons such as retribution or deterrence. An

upper limit might be needed because, although restorative justice does not

attempt strict proportionality, it would be possible for an offender who was

very contrite – or intimidated – to agree to a totally disproportionate amount

of reparation. This raises the question, at what point does reparation become

excessive, and who should decide?

The final question is whether, as Duff (2005, 121) has suggested,

although a restorative response should not be painful in the way that many

prisons are, it should at least be ‘burdensome’ to the offender. There are

times when the boundary between restorative justice and punishment is not

entirely clear. Walgrave (2002) argues that the intention of the punisher does

make a difference. To take an analogy made by the late Dr Peter Scott, a

prison psychologist, conditions on a small warship in a storm in the North

Sea were almost unendurable; if they had been inflicted as punishment they

would have been cruel, inhuman and degrading, but the men, even though

they were conscripts, believed that they were serving their king and country

and accepted the discomfort as part of their duty.

Many people will have sympathy with the idea that restoration should

entail at least some effort, if not pain, a $10 000 payment “weighed in favour

of restorative objectives” (Roach, 2006, 185). But there is no mention of

Punishment and restorative justice: ethics 181

whether the victim was offered mediation or a conference, where he would

have to face her and hear her feelings. If she did not want that, was making

a payment enough? The restorative argument would be that when someone

shows himself so insensitive to other people’s feelings and rights, they will

naturally demand that he make a substantial effort to understand what he

has done wrong, and make up for it, for example by attending a suitable

course of gender awareness and performing community service. Does the

fact of being ordered to make reparation turn it into punishment? It is only

if we demand this because it is ‘burdensome’ and writing a cheque is not

burdensome enough, that it would be classified as punishment.

This is comparable to the religious notion of repentance: In order to

show that you feel sorrow for your action, you undertake a penance by

confessing what you have done, promising to amend your life and to make

restitution. It is recognised in the Austrian penal code as tätige Reue, active

repentance, which can be a ground for reducing the sentence (Dünkel and

Rössner, 1989, 157). Although the word penitence has the same root as

penal’, this definition does not include the infliction of pain for its own

sake; but merely an appropriate act symbolising contrition (Macquarrie and

Childress, 1986, 462).

4. Conclusion

If we take punishment to be the infliction of pain on a person who has

behaved in an unacceptable way – a definition which, it is argued, does not

include restorative justice – there could be two types of justification. One

is instrumental: deterring that individual, and others, from similar acts. It

is suggested that this could only be justified if it were more effective than

measures which do not cause harm; but it is not – on the contrary, punishment

often makes matters worse. The second type of justification is symbolic. It

has traditionally assumed as an axiom that punishment is what ought to

happen to wrongdoers. A different axiom is proposed: that people who

cause harm ought to do as much as possible to put it right. It is argued that

restorative justice achieves the main aims of punishment more effectively

and with fewer side-effects, and other aims which criminal justice does not

attempt. Since on this view punishment has no clear practical advantage, the

ethical choice depends on the symbolic, declaratory functions; of the two,

the one based on repairing the harm to the victim and enabling the offender

to earn reacceptance seems preferable.

182 Martin Wright

Notes:

1 (The Star (Sheffield), 11.5.2006 and e-mail from The Star, 30.5.2006).

2 van Stokkom (this volume) argues that state punishment has other intentions, such

as deflecting demands for mob punishment; but community-based restorative justice

programmes (e.g. Zwelethemba, described by Froestad and Shearing, this volume)

have shown that structured community responses are not necessarily punitive.

3 Presumably something must also have been lacking in the education of white-collar

criminals.

4 Restorative justice also attempts to influence behaviour, but by persuasion rather

than coercion.

5 The issue of what ‘the community’ is has of course generated much debate: see

Vanfraechem, this volume; Faget, 2000.

6 In either case, those considered to present a serious risk of committing further serious

offences may have to be restrained by restriction or deprivation of liberty, but this is

a different type of intervention which may or may not be combined with punishment

or reparation.

7 There is always a danger that people with power over others in a closed institution

will abuse it (Haney et al., 1973), and proper safeguards would be necessary.

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(Also published in Russian: Kyiv, Ukrainian Centre for Common Ground (1/2 2005