SPECIAL TOPIC ARTICLE
Punitive Restoration and Restorative Justice
THOM BROOKS∗
Criminaljusticepolicyfacesthetwinchallengesofimprovingourcrimereductioneffortswhile increasing public confidence. These challenges are exacerbated by the fact that at least some measures popular with the public are counterproductive to greater crime reduction. How to achieve greater crime reduction without sacrificing public confidence? While restorative justice approaches offer a promising alternative to traditional sentencing with the potential to achieve these goals, they suffer from several serious obstacles, not least their relatively limited applicability, flexibility, and public support. Punitive restoration is a new and distinctive idea about restorative justice modeled on an important principle of stakeholding, which states that those who have a stake in penal outcomes should have a say about them. Punitive restoration is restorative insofar as it aims to achieve the restoration of rights infringed or threatened by criminal offences. Punitive restoration is punitive insofar as the available options for this agreement are more punitive than found in most restorative justice approaches, such as the option of some form of hard treatment. Punitive restoration sheds new light on how we may meet the twin challenges of improving our efforts to reduce reoffending without sacrificing public confidence, demonstrating how restorative practices can be embedded deeper within the criminal justice system.
Keywords: crime reduction, public confidence, punishment, punitive restoration, restorative justice, stakeholding
Introduction
How can we create less reoffending with greater public confidence? These twin goals have proven elusive for
criminal justice policymakers. While crime rates remain relatively low historically in Britain, sentencing decisions are increasingly criticized by the public for being overly lenient and providing insufficient deterrence. Policymakers face two challenges. First, measures that reduce reoffend- ing do not always satisfy public
∗Thom Brooks is Dean of Durham Law School and Professor of Law and Government at Durham University, Durham, United Kingdom. Email: [email protected]
Criminal Justice Ethics, 2017 Vol. 36, No. 2, 122–140, https://doi.org/10.1080/0731129X.2017.1358930
© 2017 John Jay College of Criminal Justice of The City University of New York
demands for tougher sentencing. Sec- ondly, more onerous punishments can make reoffending more likely and so prove counterproductive.
Restorative justice approaches are a promising alternative to traditional sentencing practices. Studies have found that restorative justice can produce up to 25% less reoffending with much higher participant satisfac- tion—all at much reduced costs. These approaches have the potential to achieve the elusive twin goals. It is hardly surprising that restorative justice is increasingly popular across the political divide in Britain.
Nonetheless, there are several obstacles that threaten to limit their wider use. The diversity of restora- tive approaches, ranging from in- school rehabilitative programs to victim–offender mediation, can make it difficult to identify any one model for implementation. Restora- tive justice is usually restricted to less serious offences that may con- strain its application to more types
of offending. This constraint is a product of limited confidence in the use of restoration for more serious crimes because imprisonment is always ruled out. Finally, there is dis- agreement about what is restored through any specific restorative approach.
I will argue that the twin goals of achieving less reoffending with greater public confidence can be achieved through a distinctive restorative approach that I will call punitive restoration, which can over- come the many obstacles facing most other restorative approaches. The next section begins by explaining the appeal of restorative justice. The fol- lowing section discusses the obstacles restorative justice approaches face and the problems that arise. I then turn to explaining how my alternative approach of punitive restoration can improve on other restorative approaches. This final section con- cludes by specifying what punitive restoration might entail in practice.