Retribution and Restorative Justice: Declan Roche
, in Retribution and Restorative Justice, examines the origins of a dichotomy he observes between the proponents and theorists of retributive and restorative justice models, and critically examines their rationales and effects paying particular attention to tensions and issues. Roche identifies Howard Zehr’s Changing Lenses as one of the seminal texts that has shaped the current thinking on restorative justice of practitioners and academics. In this landmark 1990 publication, Zehr observes modern criminal justice systems – and the historical and biblical approaches influencing them – leaving ” . . . victims, offenders and communities injured and unsatisfied” (75). Roche reproduces a comparative table from Zehr’s publication setting out the differences between the modes of retributive and restorative justice in table form (76). In doing so, Roche argues, Zehr models an “oppositional concept” (77) which continues to inform the current dichotomy between retributive and restorative approaches to criminal justice. This simple explanatory device, Roche suggests, has oversimplified and distorted the ” . . . real meaning of retributive justice, our understanding of what modern criminal justice systems do, and also the meaning of restorative justice” (77).
This false dichotomy, Roche argues, has resulted in a simplistic understanding of both retributive and restorative justice in which one is faced with a false choice between ” . . . humane restorative justice on the one hand, and barbaric retaliation on the other” (78). Roche offers the South African government’s approach in its TRC as an example of his hypothesis. Mandela’s government, Roche argues, convinced South Africans of only two possible outcomes affecting the future of their post-apartheid country — restorative justice in the form of the TRC, or vengeance, He sees this dichotomy reflected in the Promotion of National unity and Reconciliation Act of 1995: “There is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimization” (78 – emphasis mine). The possibility of pursuing retributive justice through formal prosecution, Roche observes, ” . . . disappeared from the equation altogether” (78).
Roche identifies the restorative/retributive dichotomy as unfair to the diversity inherent in mainstream international criminal justice practices: ” [I]t is plainly absurd to suggest that they can all be characterized as pursuing a retributive justice approach” (79). As an example, Roche points to the influence of the rehabilitative model on modern criminal justice systems which he feels has been largely ignored by restorative justice accounts; restorative justice stands to learn a great deal from the ” . . . older rehabilitation movement about how benevolent ideals can quickly become corrupted” (80). The tendency for the over simplification of an “either/or” dichotomy, with its general characterizations, is further evidenced, Roche argues, in the absence in restorative justice discourse of the existence of the Victim’s Movement predating the emergence of restorative justice. Roche infers that the restorative justice movement would do well to tune in to critical discourse as it enters what he calls a “new phase” in its scholarship (88): “. . . the restorative/retributive justice dichotomy only encourages a dangerous type of binary thinking – restorative justice, good; everything else, bad” (81).
Roche devotes substantial attention to the work of legal theorist Antony Duff who argues that the restorative/retributive dichotomy confuses conceptions of punishment for the concept of punishment itself: “A critic may reject highly punitive punishment, but this does not mean that he or she need reject the concept of retributive justice, or even the broader concept of punishment” (83). Retribution, Roche offers, may provide a form of restoration to victims who feel better once their offenders are seen to have suffered in some tangible way (82). Duff argues that restoration requires retribution, that is only in retributive punishment (in Duff’s sense of a communicative act) that restoration can begin. Restorative justice, Duff argues, is not an alternative to punishment, but an alternate form of punishment (83).
Duff sees the need for appropriate suffering, ” . . . intended to be painful or burdensome . . .” as a necessary result of crime (84). Roche observes Duff’s work as a springboard for a theoretical model that could potentially satisfy critics and supporters of restorative justice. Zehr recently conceded, Roche notes, that the dichotomy between retributive and restorative justice can be a distraction from the commonalities between the two; he specifically acknowledges the basic moral intuition of an imbalance; victims deserve something and offenders owe something (85).
Roche suggests that restorative justice advocates should disentangle the criminal justice practices they tend to lump together and dismiss as retributive justice in an effort to determine which practices promote the values of restorative justice advocates (88). There should also be greater discussion around what role punishment should play in restorative justice as restorative justice matures as a global social movement. Roche notes the “evangelical fervour” of early restorative justice scholarship that appeared blind to its potential shortcomings. He observes the beginnings of a new phase evidenced in the current debate over punishment as an element in restorative justice, and in the emergence of a different understanding as a result of the natural increase in awareness of the realities and shortcomings of restorative justice efforts around the globe. These trends, Roche suggests, may help to counteract the tendency to see restorative justice in fixed terms and to begin to imagine its compatibility with mainstream institutions of criminal justice (88).
1. Roche observes restorative justice scholarship entering a new phase in the theoretical debate over punishment and whether or not it should play a role in restorative justice (88). What is your preliminary view on the role of punishment in restorative justice?
2. Roche notes an emerging understanding of restorative justice that is built on observing actual processes, rather than on ” . . . ideal or biblical or historical images” (88). What do you think the future holds for restorative justice theorists who consider the practical evidence and outcomes when conducting post mortems on observable, measurable worldwide restorative justice events?
3. Could current restorative justice theory, as Roche suggests, benefit from a re-examination of both retributive and rehabilitative models with a view to establishing commonality and concession?