Stanford Law Professor Herbert Packer has argued that two opposing justice orientations dominate U.S. policy debates: crime control vs. due process. Could a restorative justice orientation provide a “third way?” that transcends these poles? The following identifies some assumptions of each.
Crime control orientation: emphasis on order and security
- Order is essential in society so repressing crime is the most important function of justice. This is best done by the certainty of punishment and prison (incapacitation).
- Police powers should be broad so that crime can be aggressively addressed.
- Due process safeguards impede justice and should be minimal; protecting defendants’ rights should not be the priority.
- Constitutional rights are often technicalities that interfere with justice.
- Victims’ needs are best addressed by convicting and punishing offenders.
- The system is basically reliable. If someone is charged and brought to trial, one can assume that they are probably guilty.
- The focus of justice us on creating order by convicting and punishing and/or incapacitating the guilty.
Due process orientation: emphasis on preventing misuse of the punishment system.
- Personal freedoms and rights are more important than order.
- Because the state is so powerful, mistakes and inequities so likely, and the consequences for defendants so dire, the most important function of the justice system is to safeguard rights though due process.
- Because of the above, and because the Bill of Rights specifically provides for it, emphasis should be on defendants’ rather than victims’ rights.
- Whether guilty or not, defendants should “put the state to the proof” – i.e. make the state prove guilt.
- Police powers should be carefully limited and monitored to prevent misuse.
- Constitutional rights are not mere technicalities but rather a way to hold authorities accountable and to provide for fairness and equity.
- The focus of justice is on safeguarding defendants’ and citizen’s rights.
These two orientations have in common:
Although in some ways these represent polar opposites, the two orientations above share some common assumptions.
- “Crimes” are categorically different than other harms and conflicts and thus are subject to different processes (criminal law) than other harms (civil law, conflict resolution processes, etc.).
- Offenses are defined by lawbreaking more than actual harm.
- The state is the victim and justice is primarily the state’s business.
- Offenders are the central focus of justice; victims are often sidelined.
- The process is adversarial; outcomes are win/lose and victim and offender interests are diametrically opposed to one another.
- Justice focuses on the act and the intent but not the contributing causes.
- Justice is done by professionals who represent defendant, state and society at large (but not the victim).
- The focus of justice is on establishing guilt, meting out the punishment offenders deserve, and on the rights and processes involved.
(Aaron Lyons, on reviewing this, commented: “…it’s not just that crime control and due process orientations have common elements – it’s that each seems to require the other for its own existence. They are in fact two sides of the same coin of a justice system which pits the supposed interests of the state against that of the offender.”)
A “third way” –
Restorative justice orientation – emphasis on repair and responsibility
- Crime is one of many forms of harm that occur in communities. Appropriate responses to harm have common elements whether or not they are considered crimes.
- The essence of wrongdoing is the harm it does to individuals, relationships, communities and to trust.
- Justice should seek to repair harm and hold offenders accountable for the harm by taking responsibility for it.
- Offenders can be encouraged to take responsibility and to be accountable for their actions. Real accountability as defined by Anne Coehlo is “…the ability to respond to relationships and obligations when mistakes and failures cause harm.”
- Such accountability is often a better deterrent than punishment.
- To the extent possible, those who have a stake in the harm and wrongdoing should be invited to participate in the resolution through collaborative processes.
- Victim and offender needs and issues should be equally addressed in the justice process.
- Victim and offender needs and perspectives are not necessarily in direct conflict with each other. Win/win outcomes are possible.
- Ideally justice addresses not only the act and its consequences but also the causes of wrongdoing.
- Both rights and security are important. Needs as well as rights of both victims and offenders must be considered, however. Rights should be defined relationally, not just individually. Security issues should be balanced against other concerns.
- The focus of justice is on reducing and repairing harm and encouraging responsibility for harm.
That is very useful, it provides a nice framework for dialogue about justice. Thank you for sharing Dr Zehr.
In 1970, John Griffiths wrote a response to Packer in which he said that the two models of crime control and due process were really a single model, which he called the battle model. To demonstrate that operating within the battle model limits our ability to see alternatives, he presented what he called the family model as an alternative. He does not appear to be seriously proposing this as an approach to criminal justice. His is an intellectual exercise.
However, the family model has a number of restorative dimensions. I’ll just quote from Restoring Justice by Karen Strong and myself (pp 173-74):
“Whereas Packer’s adversarial models assumed disharmony and fundamentally irreconcilable interests amounting to a state of war, Griffiths proposed assuming ‘reconcilable — even mutually supportive — interests, a state of love.’ This would, he argued, significantly change our concepts of crime and the criminal. We would see crime as only one of a variety of relationships between the state and the accused, just as disobedience by children is only one dimension of their relationship with their parents. Furthermore, we would treat crime as normal behavior, expected even if not condoned. We would view criminals as people like us, not members of a special and deviant class of people. Furthermore, we would emphasize self-control rather than the imposition of external controls, and would assign the criminal process an educational function, teaching those who observe it by what it does and how it does it.”
The contribution you have made, Howard, is to place restorative justice inside the battle model, which we need to do in order to communicate. The contribution Griffiths made is to suggest that we might find new ideas by stepping outside the battle model entirely.
Both are important contributions. Thanks for yours, Howard.
Hello Howard and All,
Thank you Howard for your blog. It keeps the conversation about RJ very present and dynamic.
I believe your comments will be very helpful when I am trying to talk about RJ with people steeped in the crime control and due process orientations. What I have noticed is the disregard for the evidence that the fist two orientations have not worked and what we have is crime increasing, communities dismantling and a general sense that one cannot expect to experience justice for victims, offender accountability and community power. I think that RJ still has to figure out how to work out a system that will work to ensure the larger question of security for the masses, yet it has worked on the individual level that does contribute to the larger societal safety. It definitely pushes the button on taking the time when our culture is racing everyday. And RJ clearly demonstrates that taking the time does insure safety in the long run. We may have to consider shifting our perspective on how soon we expect to see results and adopt a longer term vision when we are in the midst of reducing crime an increasing safety.
Thanks, Dan, for that reminder. I had read the Griffiths argument years ago but had forgotten about it (though his characterization of the adversarial model as a battle model has stuck with me). And thanks, Rita, for your comments and challenge.
This is incredibly interesting to me but I am really struggling some with what is being said here… statements like: “Such accountability is often a better deterrent than punishment.” and “Victim and offender needs and perspectives are not necessarily in direct conflict with each other. Win/win outcomes are possible.” I really need to read more because these seem like fringe cases (win/win) to me.
This is a critical response. It is intended to be constructive and I’m posting it because I think Howard’s posting (And Dan’s response) raises a question of fundamental importance which needs to be thought through and clarified.
I’m afraid I think that this way of presenting restorative justice is dangerous and counterproductive.
What is the restorative justice orientation an orientation towards? In the description Howard has provided, it is at least in part an orientation towards “an offender” who through “wrongdoing” has caused harm (even though there may be other causes behind their action), for which they should be encouraged to take responsibility and to be accountable. Moreover, security issues are important, so presumably there must be some assessment of whether the offender is likely to cause further harm and whether some incapacitative measures need to be put in place.
I think we need to build into this some answer to the question of what we do in circumstances whereby somebody accused of wrongdoing or identified as an offender denies the charges against them. They say ‘it wasn’t me’ or ‘you’re saying I deliberately did that, but I swear it was an accident’ or ‘I was justified in what I did’ (e.g. ‘when I shot and maimed the burglar I was acting in self-defence’), or ‘I have an excuse which diminishes my responsibility for the harm (I was hungry and stole out of necessity), etc.
Unless we think that such denials are never without substance, we need some process for resolving such issues, before any action designed to restore justice (whether this is punitive or ‘restorative’) can come into play. We need therefore to think about the principles which should inform the design of this process. As I understand it, the idea of due process is that the process should be governed by features such as: what constitutes wrongdoing should be clearly defined in advance; charges should be clearly defined (the accused needs to know precisely what it is that they are accused of); ‘a presumption of innocence’ (it is those making the charge that need to prove it; you cannot simply accuse somebody and say it is now for you to prove you are innocent); the determination to be made by a neutral, disinterested party (i.e. somebody should not be a judge in their own cause); etc.
Restorative justice cannot, therefore, be an alternative to due process – (rather, it comes into play at a different stage of a complex process of responding to harmful actions). We can be fervently committed to due process, and also adhere to the view that restorative justice provides an ethically superior and often more effective way of responding to somebody who has been determined to have committed an offence than subjecting them to state-administered penalties. If, on the other hand, restorative justice is presented as an alternative to a due process model, many people who regard due process as fundamentally important and hard won, will in turn oppose restorative justice.
Gerry – Thanks for this corrective. I realize that by only listing the “orientations” without further discussion I have left the wrong impression. I have developed this further for some lectures in New Zealand next month and in these I make my position clearer than I did here.
I do think we need to be clear about the assumptions and nature of the existing justice process, and I think we need to find ways to make the process as restorative as possible. But I agree completely that restorative justice cannot disregard due process protections.
We do need a system for sorting things out when people are denying responsibility, when the actions have significant implications beyond the individuals involved, and when issues are especially complex. And we need careful protection of due process throughout. I’ve come to have great appreciation for a lawful society and for the orderly development of law.
Although it certainly has its faults, what New Zealand has in effect attempted with its youth justice system seems to suggest a model worth consideration. Instead of making the adversarial system the norm, use a variety of restorative processes as the “default” but with due process protections built in. (For example, by having appropriately trained attorneys part of the process, as in New Zealand, and by having the courts safeguard the system overall.)
When those identified as offending deny responsibility, when issues are especially complex or have great societal implications, use the courts – but then use restorative processes as much as possible for determining final outcomes.
In other words, let’s draw upon the strengths of the legal system but find ways to make its goals and processes more restorative.
Gerry, thank you for pointing out the danger of pitting RJ against due process.
Rather than a third way, I see RJ as a second way, with both crime control and due process being actually only one way; i.e., adversarial justice.
But Gerry, in my mind, your point raises a new danger – the danger of failing to view RJ as an alternative, albeit non-exclusive one, to the dominant assumptions about justice. The second alternative doesn’t cancel out the first. (RJ is appropriate only for those offenders who accept responsibility, and if they aren’t responsible (or don’t take responsibility), the criminal justice system is appropriate.)
If we don’t name it as an alternative, we send confusing messages about what RJ is, adding to already pervasive confusion out there on the subject. We fail to clearly convey the power and essence of RJ: Not just another program, but a new (yet old) theory of justice that is paradigmatically distinct from the prevailing theory. I don’t think people can fully grasp what RJ is without recognizing it as a historic shift in the way we think about and do justice. Murkiness or soft-pedaling on this can also ultimately undermine the integrity of RJ practice it seems to me.
Howard, let us know how your New Zealand lecture goes.
Fania,
I’m glad you have continued this discussion, as I think Howard’s posting on this raises an issue of great importance. One thing that does interest me is the question of what aspects – if any – of the operations of the conventional criminal justice system would be retained in a response to criminal wrongdoing organised around the principles of restorative justice? It strikes me that, for all its problems, there are important principles (such as a commitment to due process) within criminal justice that are already in danger and should not be undermined.
It woudl be good to see this discussion continued!
Thanks Howard Very insightful!
This topic is fairly new to me but I was intrigued by this well written article and plan to do some more research on the issues. Thanks for sharing this timely information. We need more like this.
Bob M
LCC S Corp
That was a great read. After reading it I have a new outlook on the whole three justice thing.