Goodbye to Hammurabi: analyzing the atavistic appeal of restorative justice.

AuthorDelgado, Richard

INTRODUCTION

The relationship among race, crime, and community is complex and multiform. Although every crime is a violation of community,(1) community concerns acquire special significance with interracial and interclass crimes where offenses can easily be seen as injuries one of you inflicted against one of us.(2) Enforcement of crime may also take on an interclass or intergenerational dimension, such as when police enforce anticruising ordinances against teenage drivers or antigraffiti laws against inner-city youth.(3) Nonenforcement can also raise class and community concerns as well, such as when the black community charges the police with lax enforcement of street crime because of subconscious racism and devaluation of black life.(4)

The prosecution and defense of crime may take on an implicit or explicit community dimension as well. Consider, for example, a defense attorney who advances a cultural defense that, if successful, will mitigate his or her client's punishment but only at the cost of stigmatizing the defendant's group as subcultural, violent, or bizarre.(5) In these cases, the community issue is what one of us (the defendant) is doing to the rest of us (the community).(6) Finally, sexual violence cases demonstrate how the manner of prosecuting a case may affect the community. When a victim of sexual assault is forced to recount her sexual history on the stand, all women receive a warning not to complain of mistreatment at the hands of men.(7)

This essay addresses a recent dynamic movement that seeks to address the effects of crime on community. Restorative justice, which began in the mid-1970s as a reaction to perceived excesses of incarceration, as well as inattention to the concerns of victims, offers a new paradigm for structuring the relationship among crime, offenders, and communities.(8) Featuring new ways of conceptualizing crime, along with innovative mechanisms for dealing with it, restorative justice constitutes a radically new approach to criminal justice.

Part I reviews the origins and ideology of restorative justice, including what it hopes to accomplish and its purported advantages over the current system. Parts II and III then critique the movement, first offering an internal assessment that evaluates the new approach on its own terms, followed by an external critique that examines it in light of broader values. Part IV reviews some of the deficiencies in our current system, particularly for disadvantaged, minority, and young offenders. Part V offers suggestions for strengthening community bonds while dealing fairly and consistently with those who have breached them.

  1. THE RESTORATIVE JUSTICE MOVEMENT AND VICTIM-OFFENDER MEDIATION

    In ancient times, crime was dealt with on an interpersonal level, with restitution or even private resources, rather than official punishment, the main remedy.(9) The state played little part. For example, the Code of Hammurabi provided that individuals who had injured or taken from others must make amends, in service or in kind.(10) Other early systems, such as the Torah and Sumerian Code,(11) required that offenders make their victims whole, as did Roman law.(12) Then, in the eleventh century, William the Conqueror expanded the king's authority by declaring certain offenses crimes or "breaches of the king's peace," redressed only by action of the king's courts.(13) Accordingly, private vengeance was forbidden, fines were paid directly to the state, rather than to the victim, and punishment, rather than restitution or making amends, became the main sanction for antisocial behavior.(14) This approach, with the state wielding monopoly power over the prosecution and punishment of crime, has reigned unchallenged until recently.

    1. Restorative Justice

      Many proponents of restorative justice believe that our current approach to criminal justice should be reexamined and that we should try to recapture many of the values of the earlier, pre-Norman approach. Specifically, restorative justice advocates argue that incarceration offers little in the way of rehabilitative opportunities for offenders. Many emerge from prison more hardened and angry than when they entered, setting up a cycle of recidivism that serves neither them nor society.(15) Moreover, although the victims' rights movement has begun to clamor for restitution as a part of court-ordered sentencing,(16) relatively few victims receive compensation for their injuries, and fewer still receive anything resembling an apology from the perpetrator.(17)

      The movement's proponents argue that the traditional criminal justice system does a second disservice to victims, by forcing them to relive their ordeal at trial.(18) Because the American criminal justice system conceptualizes crime as a wrong against the state, it uses the victim for her testimony, while offering little, if anything, in the way of counseling services or support.(19) For the same reason, district attorneys rarely consult with the victim at key times during the course of the trial, so that he experiences a lack of control as key events take place without his input.(20)

      In response to these perceived shortcomings, proponents of the Restorative Justice Movement believe that those affected most by crime should play an active role in its resolution. The movement intends to redefine crime as an offense against an individual, providing a forum for the victim to participate in the resolution and restitution of that crime.(21) This is achieved through programs in which the victim, offender, and community play an active role.

    2. Victim-Offender Mediation: Restorative Justice in Action

      Of the numerous programs bearing restorative justice roots, Victim-Offender Mediation (VOM) is the most well established.(22) Although VOM takes slightly varying forms,(23) all share the same basic structure. Most receive referrals from the traditional justice system, are predicated on an admission of guilt, and, if successful, are conducted in lieu of a conventional trial.(24) The VOM process generally consists of four phases: Intake, Preparation for Mediation, Mediation, and Follow-up.(25) During intake, a pre-screening occurs. Here, the mediator, who is either a trained community volunteer or a staff person,(26) accepts the victim and offender into the VOM process if both parties express a readiness to negotiate and show no overt hostility toward each other.(27) In the Preparation for Mediation stage, the mediator talks with the victim and the offender individually and schedules the first meeting. If the mediator does not feel she has effectively established trust and rapport with each of the parties, the case is remanded to court.(28) In the Mediation stage itself, the parties are expected to tell their versions of the story, talk things over, come to understand each other's position, and agree upon an appropriate solution, usually a restitution agreement or work order.(29) If they cannot do so, the case is remanded to court. A final Follow-up stage monitors the offender's performance and cooperation with the work or restitution agreement, with the goal of assuring compliance.(30)

      1. VOM success: far-reaching and still growing.

        While the majority of VOM programs concentrate on first- and second-time juvenile offenders,(31) some include adult felons, including alleged killers, armed robbers, and rapists.(32) In a recent year, VOM dealt with 16,500 cases in the United States alone, while the number of programs in the United States and Canada approached 125.(33) Endorsed by the ABA,(34) the movement shows no sign of slowing.(35)

      2. VOM's departure from today's criminal justice system.

        Like other programs born of the Restorative Justice Movement, VOM seeks to cure perceived problems with the traditional criminal justice process. While an adversarial dynamic may create the appearance of greater justice, it also provides minimal emotional closure for the victim and little direct accountability by the offender to the victim.(36) On the other hand, VOM deals more openly with the direct human consequences of crime. Through a face-to-face meeting and discussion, the victim is able to receive information about the crime, express to the offender the impact his actions have had on her, and, it is hoped, gain a sense of material and emotional restoration.(37) Similarly, the offender is forced to face the consequences of his actions and accept responsibility for them, while also playing a role in fashioning the remedies.(38) The offender's restitution should also lead to increased public confidence in the fairness of the system.(39) A further advantage for the offender is that VOM offers an alternative to the ravages of incarceration: Because successful mediation serves in lieu of a trial, a defendant who cooperates and performs the agreed service will escape confinement entirely.

        In summary, proponents of VOM maintain that the program will empower the victim while reducing recidivism among offenders.(40) It offers the hope that victims and offenders may come to recognize each other's common humanity and that offenders will be able to take their place in the wider community as valued citizens. Through restitution, the victim will gain back what was lost. Accordingly, VOM proponents advocate the program as "a challenging new vision of how communities can respond to crime and victimization.... deeply rooted in ... the collective western heritage ... of remorse, forgiveness, and reconciliation."(41)

  2. CAN RESTORATIVE JUSTICE DELIVER ON ITS PROMISES? AN INTERNAL CRITIQUE

    Critics of the Restorative Justice Movement and VOM voice two concerns: (1) they charge that restorative justice does not deliver what we expect from a system of criminal justice, and (2) they contend that the movement may render a disservice to victims, offenders, or society at large. The following two sections discuss these two sets of criticisms in turn.(42)

    1. Can Restorative Justice Deliver What We...

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