Retributive Justice vs. Restorative Justice

Instructor: Kenneth Poortvliet
Retributive justice is a perspective that focuses on punishment for offenders, while restorative justice focuses on the relationship between the offender and the victim. In this lesson, we will explore their differences and how both play a part in our judicial system.

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.

Modern Theories of Punishment

The U.S. imprisons a full one percent of its total population, and many are in prisons like this one.
prison incarceration punishment supermax

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.

So Where Does Restorative Justice Fit?

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.

Retribution v. Restoration

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.

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