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Outlining the Shadow of the Axe—On Restorative Justice and the Use of Trial and Punishment

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Abstract

Most proponents of restorative justice admit to the need to find a well defined place for the use of traditional trial and punishment alongside restorative justice processes. Concrete answers have, however, been wanting more often than not. John Braithwaite is arguably the one who has come the closest, and here I systematically reconstruct and critically discuss the rules or principles suggested by him for referring cases back and forth between restorative justice and traditional trial and punishment. I show that we should be sceptical about at least some of the answers provided by Braithwaite, and, thus, that the necessary use of traditional punishment continues to pose a serious challenge to restorative justice, even at its current theoretical best.

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Notes

  1. See Ashworth (2002, p. 592).

  2. See Acorn (2004, p. 49).

  3. See Marshall (2003, p. 28).

  4. See e.g. Braithwaite (2002a, b), Dignan (2002, 2003), Van Ness (2002) and Walgrave (2002). One concrete manifestation of these efforts was the development and adoption by United Nations of a set of “Basic principles on the use of restorative justice programmes in criminal matters” (United Nations 2002).

  5. Cf. Boyes-Watson (2000) and McCold (2000).

  6. Cf. e.g. Dignan (2002) and Walgrave (2002).

  7. If nothing else is clear from the context, I use the word “punishment” to describe state imposed sanctions on offenders following legal proceedings in court. Some restorative justice advocates, notably Walgrave (2002), have expressed reservations about retributivist connotations of this wording. They should feel free to substitute throughout for “restorative sanction” or any alternative to the same effect. Hopefully all agree that the choice of words has no bearing on the need to clarify when criminal cases should be handled through stakeholder deliberation and when they should be handled in court.

  8. Admittedly, thus widening the definition increasingly complicates the theoretical landscape. Once the necessary connection between restorative justice and voluntary consensual processes is abandoned it arguably opens the door to new theoretical alliances, e.g. between restorative justice and retributivism. This possibility has been interestingly explored e.g. by Duff (2003) and Daly (1999).

    Though I acknowledge the importance of this development, I will not go further into it here. First, because this move remains highly controversial within the restorative movement, see, e.g. Braithwaite (2003b). Secondly, because the questions treated in this article remain, even if the use of restorative justice processes in the criminal justice system is justified on retributivistic grounds. In fact, this article can in many ways be seen as providing an answer to some of the questions raised by Duff (2003, pp. 56–58) in relation to his attempt to reconcile retributivism and restorative justice.

  9. Strictly speaking, this makes all available processes in the criminal justice system restorative justice processes. In accordance with traditional usage, however, I shall continue to restrict this term to the informal consensual deliberative processes among stakeholders.

  10. See Braithwaite (2002b, p. 36).

  11. C.f., e.g. Christie (1981, p. 21) and Zehr (2005, p. 183). C.f., also Pavlich (2005) who argues that in spite of rhetoric to the opposite, restorative justice has not managed to break free from traditional legal categories.

  12. See, for instance, Braithwaite (2002b, p. 11): ‘One answer to the “What is to be restored?” question is whatever dimensions of restoration matter to the victims, offenders, and communities affected by the crime. Stakeholder deliberation determines what restoration means in a specific context.’

  13. See Braithwaite (2002b, p. 167).

  14. See Braithwaite (2002a, p. 163).

  15. In the words of T. Marshall: ‘Restorative Justice, let no one doubt it, is well and truly on the map. I am both amazed and gratified that this idea, after struggling to see the light for over a decade, has finally emerged as a serious issue for all parts of the criminal justice system.’ Marshall quoted from Johnstone (2002, p. 16).

  16. A moratorium which Braithwaite comes dangerously close to imposing in several places, see for instance:

    It is of course far too early to articulate a jurisprudence of restorative justice. Innovation in restorative practices continues apace. The best programmes today are very different from best practice a decade ago. As usual, practice is ahead of theory. The newer the ideas, the less research and development (R&D) there has been around. (Braithwaite 2002a, p. 150)

    and:

    At this early stage of debate around restorative jurisprudence we must be wary against being prematurely prescriptive about the precise values we wish to maximise. (Braithwaite 2002a, p. 163—values here mainly refer to fundamental procedural safeguards)

  17. See Braithwaite (2002b, p. 167). Parallel passages are found, for instance, in Dignan (2002, p. 170) and Walgrave (2002, p. 210).

  18. Cf. also Van Ness (2002, p. 147). Admittedly, some advocates downplay the general importance of procedural safeguards in restorative justice arguing that the need for safeguards disappears once we make the transition from criminal justice to restorative justice. However, most advocates of restorative justice find this line of thinking highly problematic. Thus, e.g. Johnstone writes:

    [T]he restorative justice process, no matter how benevolent the intentions behind it and no matter how different it is in its objectives from a punitive process, is still a criminal justice process. Hence, arguably those subject to it should be entitled to much the same level of procedural protection as defendants who are prosecuted and tried in the courts. (2002, pp. 30–31)

  19. Somewhat ironically, I find myself in agreement with Braithwaite on this point. Thus Braithwaite approvingly quotes Robert Gooding:

    [R]ules and principles define opposite ends of a continuum: “Principle” is to “rule” as “plan” is to “blueprint”, the latter being merely a more detailed form of the former in each case. (2002c, pp. 52–53)

  20. See Braithwaite (2002b, p. 42).

  21. See Braithwaite (2002b, p. 34).

  22. See Braithwaite (2002b, p. 37).

  23. A word on terminology: In fact, in this context Braithwaite uses the term restorative justice narrowly to describe what I referred to above as restorative justice processes and he can thus be claimed to deviate from my wide definition above. However, in contrast to most proponents who adopt the narrow definition, Braithwaite develops a comprehensive theory of criminal justice that also covers criminal cases where deliberative processes are unavailable and, on occasion, he describes this comprehensive theory as a theory of restorative justice too, cf. Braithwaite (2002a). Therefore, as long as the two meanings of the term are clearly distinguished in usage it has no bearing on the substantial discussion.

  24. See Braithwaite (2002b, p. ix).

  25. See Braithwaite (2002b, p. 34).

  26. See Braithwaite (2002b, p. 34, my emphasis).

  27. See Braithwaite (2002b, p. 34).

  28. See Braithwaite (1994, p. 205).

  29. See Christie (1977).

  30. See Braithwaite (2002a, p. 158).

  31. See above, footnote 11. See also Braithwaite (2002a, p. 158) though his argument is more complex. For a discussion, see Holtermann (2009).

  32. See Braithwaite (2003a, p. 396).

  33. See Braithwaite (2002b, p. 164).

  34. See Braithwaite (2002b, pp. 164–165).

  35. Or assume responsibility to make things right or any alternative to the same effect.

  36. This is usually considered valuable for the defendant because trials are constructed in such a way as to err systematically at the side of caution. This bias is canonically expressed in the so-called Blackstone’s formulation: ‘[I]t is better that ten guilty persons escape than that one innocent suffer.’ (Blackstone et al. 1860, Book 4, *358)

    The ideal ratio between guilty persons escaping and innocents who suffer has been the subject of much controversy over the years. For an interesting survey, see Volokh (1997).

  37. Of course this still leaves offenders who honestly believe themselves innocent in spite of a guilty verdict, an incentive to lie and play along with the restorative justice process, thus, potentially rendering the process worthless. This, however, should be of no great concern to the restorativist who has already decided to value the credibility of the courts in this regard over that of the offender.

  38. See Braithwaite (2002a, p. 158).

  39. To be sure, the numbers may not be enormous but we are not discussing some highly theoretical problem like when philosophers are debating whether there can ever be a real-life situation where we can save a million lives by punishing one innocent person. Thus, according to Braithwaite’s source on this point more than one agreement in every 25 is overturned by the courts because they are judged to exceed upper limits on punishment. See Bonta et al. (1998, p. 16).

  40. See Braithwaite (2002a, p. 150). See also Braithwaite (2002d, p. 567).

  41. See Braithwaite (2002a, p. 158).

  42. See Braithwaite (2003a, p. 395).

  43. See Dworkin (1977, p. 31).

  44. Cf. Henriksen (2003, p. 48).

  45. And as one anonymous reviewer noted, it has become more and more prevalent in recent years that even courts move beyond the classical punitive parameters and grant e.g. injunctive relief that has some resemblance to the Danish case.

  46. Whether this assumption is tenable in itself is a question that I leave untouched in this article. For an interesting critique of the general notion of proportionality between crime and punishment, see Ryberg (2004).

  47. See Braithwaite (2003a, p. 391). To be sure, Braithwaite rejects any idea of strong proportionality in the traditional retributivist sense of upper and lower limits on punishment. Thus he writes immediately afterwards: ‘But lower limits are a roadblock to victims being able to get the grace of mercy when this is what they see as important to their own healing.’ (Braithwaite 2003a, p. 391)

  48. However, it does seem to leave restorative justice at odds with the principle of legality. Handing the power to punish over to the state is usually considered acceptable only if citizens gain in return security from being arbitrarily subjected to this power. This is part of what makes the rule of law preferable to the state of nature. In the words of Locke and Laslett (1988, § 136): ‘To this end it is that Men give up all their Natural Power to the Society which they enter into, and the Community put the Legislative Power into such hands as they think fit, with this trust, that they shall be govern’d by declared Laws, or else their Peace, Quiet, and Property will still be at the same uncertainty, as it was in the state of Nature.’ Braithwaite disputes the unconditional value of such predictability, arguing that we should only protect citizens from being adversely affected by any lack of predictability: ‘Who wants the reliance of knowing that you are prevented from getting less than this, or much less?’. Braithwaite (2003a, pp. 394–395) I shall not get further into this discussion here. Suffice to say that it obviously has a bearing on the general evaluation of restorative justice.

  49. Or, more to the point: this will be the job of the courts once cases of possible punitive excess end up on their desk. How Braithwaite intends to make sure that they actually do that remains, however, unclear. Thus he writes: ‘When appropriate funding is available for legal advocacy, advocates can monitor lists of conference outcomes and use other means to find cases where they should tap offenders or victims on the shoulder to advise them to appeal the conference agreement because they could get a better outcome in the courts.’ (Braithwaite 2002b, p. 166)

    This would seem, however, to leave the entire decision of going to court in cases of punitive excess to those same case parties who have already showed themselves collectively unwise by signing the excess agreement in the first place. Thus, instead of courts actively controlling things when consensus has gone haywire, they only decide cases where consensus eventually did not show because one party regained her senses. And if this is the case, it is unclear how Braithwaite’s assuring remarks of absolute restorative justice consensus on the jurisprudential issue of upper limits translates into criminal justice practice.

  50. See Braithwaite (2002a, p. 163, my emphasis).

  51. Holtermann (2009).

  52. Cf. Braithwaite (2003a, p. 391).

  53. See Braithwaite (2002a).

  54. See Braithwaite (2003a, p. 395). In addition he writes: ‘The challenge is to have the Sword of Damocles always threatening in the background but never threatened in the foreground.’ (2002b, p. 119) If in fact the procedural rules confer dictatorial powers to the victim restorative justice would seem to have failed to meet this challenge.

  55. See Braithwaite (2002b, p. 34).

  56. And we remember that according to most restorativists rights and rules on these issues should become common knowledge for the offender. See United Nations (2002).

  57. See Braithwaite (2002a, p. 158).

  58. See Bentham (1995 (orig. 1787)).

  59. See Foucault (1977).

  60. Other theorists have noticed (without paying quite the same attention to details) much the same discrepancy between restorative rhetoric and the widespread dependency of most current restorative programs on the traditional criminal justice system. The thrust of this critique tend, however, to take the opposite direction. Thus, e.g. Pavlich (2005) argue that restorative justice should try harder to honour the revolutionary promise of its anti-legal rhetoric. For a critique which aims directly at such radical rejections of traditional legal categories of the criminal justice system, see Holtermann (2009).

  61. Woolford and Ratner (2008) have warned against the related danger of restorative justice inadvertently participating in a second and perhaps even more effective round of “stealing conflicts from the people”. This possibility occurs when the ideal of informal justice gets co-opted by the criminal justice system into an informal-formal justice complex through increased professionalization, institutionalisation, etc.: “Police officers, lawyers and judges have become necessary players in most restorative programmes, acting as gatekeepers, administrators and facilitators of their operations. With them, they bring the dominant rationalities of criminal justice.” (2008, pp. 118–119)

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Acknowledgements

I would like to thank members of the Danish Research Group for Criminal Justice Ethics, Roskilde University and two anonymous reviewers at Criminal Law and Philosophy for extensive and insightful comments resulting in substantial improvements to this paper.

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von Holderstein Holtermann, J. Outlining the Shadow of the Axe—On Restorative Justice and the Use of Trial and Punishment. Criminal Law, Philosophy 3, 187–207 (2009). https://doi.org/10.1007/s11572-008-9069-y

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