Within modern criminal justice, there has been an intense effort over the past decade or so for justice systems in civilized nations across the globe to deviate from the typical model whereby offenders are punished and victims are somewhat left out of the entire justice process. Rather, the ancient concept of restorative justice has regained popularity of late, both in an effort to give victims more of an active role in the process and to attempt to return qualified offenders to society once they have paid their debt to society and the victims themselves (Turpin, 1999).
However, restorative justice programs have their share of flaws that must be discussed; therefore, this research will present some of the major criticisms of restorative justice programs in order to gain a better understanding not only of the implications of restorative justice, but the larger criminal justice system as well. Restorative Justice in Historical Context
In order to understand how restorative justice works, as well as grasp an understanding of its relative flaws, it is necessary to first place restorative justice within its historical context. The concept of restorative justice is seen in the Babylonian culture and the Code of Hammurabi in 1700 B. C. ; later, restorative justice was contained in Roman law, and the concept itself is seen in the books of the Bible when one reads about “an eye for an eye” and related concepts (Viano, 2000).
The major move away from restorative justice first came with the introduction of Common Law in England, which provided for separate criminal and civil courts, which split the ideas of prosecution of offenders and restoration of victims; it is this system which formed the backbone of the American legal system, and as such, set the pace for the future of modern law (Braithwaite, 2002).
True restorative justice in the modern courts of law came back into play with the increasing level of civil litigation in modern courts; in other words, as people became more heavily involved in the presentation of liability suits for non-criminal matters, so too did the idea that criminal victims are somehow entitled to some sort of compensation for their pain and suffering, and society as a whole deserved the total rehabilitation of offenders before they are released back into the mainstream.
While this sounds like a pleasant and even reasonable concept, as we will now see, in regard to restorative justice, it is akin to being easier said than done. Criticism 1- Identifying the Real Victims From the outset, there is a glaring criticism to be leveled at restorative justice programs in that victims of course first must be identified before they can once again be made whole. While this would seem to be an easy task in the case of a robbery or assault victim who clearly is the individual to whom restoration should be focused, the identification of victims beyond such obvious boundaries becomes murky at best (Bradt, et al, 2007).
Take, for example, a murder. It soon becomes clear that it is impossible to attempt to render any aid to the murder victim aside from the traditional situation whereby justice is served via the successful prosecution and punishment of the killer or killers. In the next step, one finds it difficult to limit who the victims are in this case- should it be limited to the spouse and/or children of the victim, or should it be extended to other family members, close friends, professional colleagues who suffer due to the murder of someone?
In this case, the problem is easy to see- the boundaries are hard to establish in regard to victims, which makes successful restorative justice all but impossible. Criticism 2- What Process Should be Used? In order for a restorative justice program to be administered uniformly and fairly, there of course must be a standardized process by which the restoration is delivered. This in and of itself is quite a problem, considering not only the diverse nature of criminal offenses, but also other areas where restorative justice should be applied but in fact is not.
It is impossible, of course, to have a standard template for restorative justice whereby certain crimes entitle victims to certain compensations and remedies, just as it is impossible to have the same in the case of the offender, for in both cases, both parties would in fact be grossly underserved by an attempt to make everything fit into a pattern such as this (Turpin, 1999). Standardization of process like this would very rarely hit the right target, and would either be excessive or deficient, generating much more grief, controversy, and potential abuse of the justice system than if restorative justice were used sparingly, or not at all.
Another important point needs to be made at this time- restorative justice is typically associated strictly with criminal situations or civil situations. Perhaps one of the answers to the criticisms of restorative justice is to in fact remove it from the realm of the courts and place it in the civilian realm. For example, there may be some overriding interest to be served by making restorative justice a separate branch, aside from organized courts of law.
This may unburden court systems and put much of the controversy to rest. Criticism 3- Which Outcomes Should be Pursued? Just as the process of administering restorative justice and where it should be administered is valid to consider, another problem with restorative justice is that the outcomes to be pursued are hard to define (Dignan, 2005). In many respects, victims can never be made whole again- once psychological damage is done, it is often irreversible. So too is the irreversible nature of certain physical injuries.
Within this point, it is important to realize that based only on these two points, the validity of restorative justice as a means of returning situations to normal after a violation of a person has occurred is erased. Criticism 4- At What Price Restoration? Earlier, the point was made that the definition of victims often complicates restorative justice programs. This problem is compounded by yet another obstacle that lends itself to another valid criticism of restorative justice- how much is enough to make victims whole once again?
Once again, there are some victims who cannot be made whole again, no matter how intense the effort to do so and the limit in terms of who should be compensated in place of those victims are almost impossible to accurately define. Therefore, the next logical step past this issue is the issue of the type and limit of compensation. Restorative justice can include, but does not have to include, monetary compensation to victims and their families; it can also include victim access and input into the punishment of the offender, face to face confrontation of the offender, etc.
Whatever the chosen compensation, however, there comes a point where compensation becomes excessive, basically to the point of becoming insulting. Two classic examples of this come to mind. A perennial restorative justice issue in the United States is revealed in the issue of slavery, an issue which affected generations of African-Americans. While it was not technically illegal for slaves to be owned prior to the outlawing of slavery in the 1860s, it was certainly morally wrong.
Fast forwarding to the present day, there are those African-American groups and individuals who still cry out for monetary compensation for the evils of slavery that their families faced. The clear problem in this case is that neither the victims nor the perpetrators are alive, making restoration of victims an impossibility. Another modern example of the problems with compensation as restorative justice came on September 11, 2001 when thousands of Americans were killed by terrorist attacks in New York, Pennsylvania and Washington, DC.
For their families, the issue of restorative justice came full circle, as elaborate systems of compensation to the tune of millions of dollars for each victim’s family were unveiled in the midst of complaints on the part of some beneficiaries that this amount of money was not enough. Both the slavery and 9/11 situations show that no level of compensation is totally restorative, and in many cases, only leads to more discontent among victims. Therefore, this can be seen as yet another valid criticism of excessive compensation, no matter how good the intention.
Criticism 5- Cultural Differences Can Cloud Restorative Justice Efforts Perhaps restorative justice could work in a world where everyone shared the same religious beliefs, moral standards and cultural customs, but the reality of the modern world is that it is more diverse than ever, given the massive amount of migration of different ethnic groups from their native lands to others, such as the United States, where thousands of diverse groups converge in one nation and attempt to achieve uniformity in justice and the restoration of victims of crimes (Dignan, 2005).
For example, there are some groups for whom restorative justice would represent the amputation of the hand of a thief, or the death of a murderer. For others, restoration takes a more reserved position, whereby the goal is to make both the victim and offender feel restored at the end of the process. In either case, the dilemma is clear, as is the criticism of restorative justice.
In a free and equal society like that of the United States of America, there seems to be no happy middle of the proverbial road, whereby all victims and offenders can all receive what they seek from restorative justice, and somewhere along the way, someone will be short changed or over compensated. This in fact goes against everything upon which the United States was in fact founded; therefore, in the delivery of what some call justice, the entire system of American democracy can in fact be undermined. Naturally, this is not limited to the United States, either.
Theoretically, any nation that embraces freedom and equality as ideals would suffer at the hands of an unbalanced restorative justice system. Criticism 6- Some Offenders Cannot be Rehabilitated A key element of many restorative justice programs is the rehabilitation of offenders so that they can be productive, non-harmful citizens once released from incarceration (Roach, 2000). Once again, while this sounds like a major benefit for society, the stark reality to be confronted is the fact that some offenders cannot be rehabilitated, and their premature release into society is not a solution, but the creation of another problem.
When offenders who are not ready to be released into society are prematurely released because of pressure on the part of restorative justice advocates to realize social progress, the worst of all possible worlds becomes reality because of the fact that within the prison system, many offenders do in fact become more dangerous because of the exposure within prison to high levels of violence, substance abuse, and other crimes such as rape, assault and even murder (Viano, 2000). Thus, the question begs as to why such individuals would be placed back into society for the sake of some sort of objectives in a program.
Criticism 7- An Escape from Accountability Lastly, there is evidence to suggest that restorative justice can in fact remove accountability from offenders. As an example, in a case where restoration is boiled down to a monetary reimbursement rather than some sort of therapeutic course of action, the money that is given to victims, especially when it comes from government coffers rather than the pockets of offenders, essentially gives offenders the opportunity to walk away from their offenses without any level of responsibility or accountability (Viano, 2000).
This scenario would apply most appropriately, among others, to the previously discussed scenario of American slavery. In that case, for many reasons, perpetrators effectively have escaped justice. The same could very well apply in a situation where material compensation replaces true justice. Conclusion As has been shown in this research, for all of the good intentions of restorative justice, it is flawed from many points of view, and there is also every indication that it does not belong in the realm of the court system at all.
Victims, perpetrators and the public alike can likely suffer in the aftermath of attempts to deliver restorative justice. Therefore, in conclusion, perhaps an exploration of alternatives to restorative justice is in order. Exactly what those alternatives are is beyond the scope of this research but, in conclusion, suffice it to say that modern society owes it to the people of those societies to focus not on giving everything to everyone, but to strike a fair and equitable balance.
- Bradt, L. , Vettenburg, N. , & Roose, R. (2007). Relevant Others in Restorative Practices for Minors: For What Purposes? Australian and New Zealand Journal of Criminology, 40(3), 291+.
- Braithwaite, J. (2002). Restorative Justice and Responsive Regulation. New York: Oxford University Press.
- Dignan, J. (2005). Understanding Victims and Restorative Justice. Maidenhead, England: Open University Press.
- Roach, K. (2000). Changing Punishment at the Turn of the Century: Restorative Justice on the Rise. Canadian Journal of Criminology, 42(3), 249.
- Turpin, J. (1999, October). Restorative Justice Challenges Corrections. Corrections Today, 61, 60.
- Viano, E. C. (2000, July). Restorative Justice for Victims Offenders: A RETURN TO AMERICAN TRADITIONS. Corrections Today, 62, 132.