Is restorative justice punishment?

• Published date: 01 March 2021
• Author: Christian B. N. Gade
• Date: 01 March 2021
• DOI: http://doi.org/10.1002/crq.21293

RESEARCH ARTICLE

Is restorative justice punishment?

Christian B. N. Gade

Human Security, Aarhus University,

Højbjerg, Denmark

Correspondence

Christian B. N. Gade, Human Security,

Aarhus University, Moesgård Allé

20, 8270 Højbjerg, Denmark.

Email: gade@cas.au.dk

Abstract

This article has two objectives, both of which are new.

First, it presents a new framework of punishment in nine

dimensions, which makes it possible to distinguish sys-

tematically between different conceptualizations of the

nature of punishment. Second, using the framework, it

discusses the relationship between restorative justice and

punishment, showing that some cases of restorative jus-

tice constitute punishment from the perspectives of some

of the punishment positions in the framework but not for

others. Thus, according to some positions, restorative jus-

tice (mediation, conferences, circles, etc.) is punishment.

1|INTRODUCTION

The present article aims to contribute to the understanding of the relationship between restorative

justice and punishment by introducing a new framework of punishment in nine dimensions. This

is presented in detail in Section 3. The dimensional framework presented here distinguishes

between minimalist and maximalist positions within nine dimensions of punishment—adistinc-

tion that, in turn, allows us to distinguish between a large number of different positions, in fact

512 different positions, on what punishment is. A person may be a minimalist or a maximalist on

punishment in all of these dimensions or a minimalist in some dimensions and a maximalist in

others (in the lattercase, the person holds what I will call a “mixed”position).

I begin by positioning the present article in the literature on restorative justice and punish-

ment in Section 2. In Section 3, the dimensional approach to punishment is demonstrated in

detail. This approach provides the methodological foundation for my analysis and discussion of

the relationship between restorative justice and punishment. The analysis and discussion take

their point of departure in Marshall's definition of “restorative justice”as follows:

Received: 30 July 2020 Revised: 9 November 2020 Accepted: 13 November 2020

DOI: 10.1002/crq.21293

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and

reproduction in any medium, provided the original work is properly cited.

© 2020 The Authors. Conflict Resolution Quarterly published by Wiley Periodicals LLC.

Conflict Resolution Quarterly. 2021;38:127–155. wileyonlinelibrary.com/journal/crq 127

a process whereby all the parties with a stake in a particular offence come together

to resolve collectively how to deal with the aftermath of the offence and its implica-

tions for the future (Marshall, 1996, p. 37, 1999, p. 5).

1

In addition to drawing on the existing literature on mediation, conferences, and circles—

commonly highlighted as primary examples of restorative justice (see Hansen & Umbreit, 2018;

McCold, 2006; Morris& Maxwell, 2001; Sherman et al., 2015; Stuart& Pranis, 2006; Umbreit, Vos,

Coates, & Lightfoot, 2005; UNODC, 2020; Zinsstag & Vanfraechem, 2012)—the analysis and dis-

cussion will alsodraw on qualitative data produced in my own work on restorative justice in Den-

mark. I have practiced as a mediator in the victim–offender mediation program (“Konfliktråd”)of

the Danish national police since 2014. Since 2015, I have been one of two persons responsible for

training the program's new mediators (for the Danish program, see Asmussen, 2014, 2015;

Hansen, 2012; Henriksen, 2003; Kyvsgaard, 2016; Kyvsgaard & Ribe, 2018; Kyvsgaard, van

Mastrigt, & Gade, 2018; Ministry of Justice's Committee on Victim–Offender Mediation, 2008;

Rambøll, 2006; Rasmussen, 2020; Sherman, Mastrigt, Gade, Ammann, & Strang, 2020). I am also

fortunate enough to have been partof a research team that has observed more than a 100meetings

in the Danish program.

2

Although we have collected quantitative data in the Danish program, I

want to make it clear at the outset that the aim of this article is not to present any quantitative

results. Rather , it aims to offer new theoretical reflections on the relationship between restorative

justice and punishment. It is to reach that aim that the article draws on qualitative data from

observations ofrestorative justice meetingsand from conversations with meeting participants.

2|RESEARCH POSITIONS

When the term “restorative justice”first began to be used in the field of criminal justice, several

scholars argued that there is a radical difference between restorative justice and punishment.

Subsequently, other scholars challenged this idea, highlighting similarities between the two. In

this section, I characterize the earlier body of scholarly work as a “difference trajectory,”as dis-

tinct from the second of these two groups, which I present as a “similarity trajectory”(although

I make no claim to have covered everything that has been written within these two fields). At

the end of this section, I will elaborate on how the current article represents a midway position

between these two trajectories.

2.1 |The difference trajectory

The term “restorative justice”can be traced back to the 19th century (Gade, 2018), but it was

not until the 1970s that it started to emerge in the field of criminal justice. The first time this

happened was probably in Eglash's (1977) article, “Beyond Restitution: Creative Restitution,”

which is also the first text in the trajectory of difference that I trace. In that article, Eglash

suggested that retributive justice is different from restorative justice. More specifically, he wrote

that, while retributive justice has “its technique of punishment for crime [emphasis added],”

restorative justice has “its technique of restitution”(Eglash, 1977, p. 91). Eglash did not go into

any detail on what was meant by restorative justice. The term was used only once in the article.

Drawing on two earlier articles by Eglash (1957, 1958), as well as Kuhn's (1962) work on

paradigm shifts, Barnett (1977) then proposed that restitution should become a new paradigm

128 GADE