Mark breaks into a home and takes several items. One of them is an old violin that belongs to Meg, the owner of the home. It wasn't in perfect condition, but her mother, grandmother, and great-grandmother all learned on this violin. Mark sells the violin to a pawn shop and gets $40 to buy drugs. Police eventually arrest him, and his fingerprints match those in Meg's home. Meg is now terrified and has to have people stay with her so she can live in her home. Considering the harm that Meg has endured, what is the best punishment for Max? What is the best result for Meg?
Before we can determine which punishment is best for either the offender or the victim, we must look at current theories of punishment.
 |
Historically, punishment consisted of forms of corporal punishment like flogging, maiming, and death for crimes other than murder. It also included forms of public shaming like stocks and public flogging. But today, we look at those ways as barbaric and ultimately harmful to society. Over time, the jails that once held people until their punishment was meted out became themselves the primary means of punishment. Along with that change came multiple theories on what will work to reduce recidivism (the re-offending of released offenders) and thus help lower crime.
Today we have many theories about what to do with convicted criminals. In essence, most (but not all) can fit into two camps, utilitarian and retributive. Utilitarian theories focus on the greater good of society, and any punishment should benefit the society as a whole. Further, the punishment used should produce more good to society than the harm of the crime. Utilitarian theories are forward looking in that they look to what's best for society as a whole to keep crime down and people happy.
The flip side to the utilitarian approach is retributive punishment. Unlike utilitarian ideas, the retributive theory is backward looking in that it looks only at the crime and the surrounding circumstances before it deals out a punishment that fits the crime. The criminal should get his or her just deserts, meaning that the act itself carries a certain level of moral blameworthiness, and the punishment should be commensurate with that moral deficit. The criminal now owes a debt to society, and the punishment will pay for that debt.
Restorative Justice doesn't fit neatly into either camp but like the utilitarian approach, its goal is also to benefit society by its approach. The theory focuses on the harm done to the victim by healing the wounds and restoring the offender to the community that has been affected by the crime. This is done by implementing the four tenets of restorative justice.
| The Four Tenets of the Restorative Justice Process |
|---|
| Process | Application |
|---|---|
| Inclusion | Seek participation of all those involved: victim(s), friends of victim, police, first responders, lawyers, correction personnel, and anyone in the community who felt affected by the harm. |
| Encounter | Meet with those willing to participate. |
| Amends | Offender seeks forgiveness and issues apologies, agrees to pay for damages or works to restore with the community |
| Reintegration | The entire process will hopefully allow the victim to return to pre-harm condition, and the offender will seek out ways to re-enter the community through participation with tolerant groups in the community. |
So how does this work in real life? Remember Max and Meg? Max harmed Mag by violating her sense of security and taking her prized violin. With retributive justice, the court would look at what Max did, how much damage and harm he inflicted on Meg, and his past criminal record. Then Max would get a prison sentence the court feels matches his crime.
With the restoration method, Max, Meg, the court officials, police, and even Meg's friends and neighbors who feel personally affected by the crime would gather and discuss ways Max can make amends to Meg and even ask her for forgiveness. Meg would be able to ask Max questions to try and understand why Max did what he did. After all have had their input, the community would make a commitment to help Meg heal and to be open for Max to reintegrate into the community.
While most U.S. prison systems have replaced monikers like 'penal institution' to more forward sounding names like 'correctional institutions', the focus is still primarily retributive. Restoration policies today are limited to trials and experiments with few, if any, institutions attempting to fully implement all of its tenets. To date, while many communities in the U.S. have some aspects of restorative justice models implemented as policy, most of these are limited to low-level criminal acts and first-time offenders.
The reason for this is in the nature of the restorative process. First, it's an ambitious endeavor to replace the incarceration-minded systems we have in place today. Secondly, critics point out that the process of restorative justice may have a difficult time working with hardened criminals who have committed violent offenses like murder, rape, and aggravated assault. The prospect of the victim sitting in a round table meeting with the person who raped them or murdered their child seems daunting and possibly ill-advised. With all of these criticisms, it seems unlikely that restorative justice will supplant traditional methods anytime soon.
Retributive justice is a theory that the goal of punishment for criminal violations is for the offender to pay his or her debt to society. The focus is on matching the punishment to the crime and addressing the moral blameworthiness of the offender. This is a backward-looking concept, unlike restorative justice that looks to the future of both the offender and the victim. Restorative justice seeks to gather all those concerned with the offense and institute a process that aims to bring about forgiveness, healing, and reintegration.
To unlock this lesson you must be a Study.com Member.
Create your account
Already a member? Log In
BackAlready registered? Log in here for access
Did you know… We have over 200 college courses that prepare you to earn credit by exam that is accepted by over 1,500 colleges and universities. You can test out of the first two years of college and save thousands off your degree. Anyone can earn credit-by-exam regardless of age or education level.
To learn more, visit our Earning Credit Page
Not sure what college you want to attend yet? Study.com has thousands of articles about every imaginable degree, area of study and career path that can help you find the school that's right for you.
Back To Course
Business Law: Help and Review30 chapters | 363 lessons
{{courseNav.course.topics.length}} chapters | {{courseNav.course.mDynamicIntFields.lessonCount}} lessons | {{course.flashcardSetCount}} flashcard set{{course.flashcardSetCoun > 1 ? 's' : ''}}
Watch 5 minute video clips, get step by step explanations, take practice quizzes and tests to master any topic.
Study.com has a library of 750,000 questions and answers for covering your toughest textbook problems
I love the way expert tutors clearly explains the answers to my homework questions. Keep up the good work!
- Maritess, College StudentStudy.com video lessons have helped over 30 million students.
"I learned more in 10 minutes than 1 month of chemistry classes"
- Ashlee P.
"I learned more in 10 minutes than 1 month of chemistry classes"
- Ashlee P.
"I aced the CLEP exam and earned 3 college credits!"
- Clair S.
Over 65 million users have prepared for {{displayNameByProductKey[registrationData.product || testPrepCocoon]}} and other exams on Study.com
"The videos have changed the way I teach! The videos on Study.com accomplish in 5 minutes what would take me an entire class."
- Chris F.
Over 65 million users have prepared for {{displayNameByProductKey[registrationData.product || testPrepCocoon]}} and other exams on Study.com
