Restorative justice facilitators today are taught to cringe at the word “retributive”. We learn that retributive justice is the antithesis to restorative principles, and is a necessary evil at best. However, the logic behind this assumption is flawed, and hence not conducive to the optimum restoration that restorative justice ideally hopes to achieve. In this paper, I will endeavour to show that retribution, especially a specific sub-category of retribution: institutionalized revenge, is not antithetical to, but rather, compatible with current restorative justice principles and practices.
In order to present a sound argument for the compatibility of restorative justice and institutionalized revenge, we must first have a clear understanding of the term institutionalized revenge. I will begin the paper by discussing what is meant by retribution, revenge, and institutionalized revenge. Second, I will briefly clarify what are commonly held to be the principles and practices of restorative justice. Finally, I will describe in what ways institutionalized revenge can be compatible with, and facilitating, restorative justice principles and practices.
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Let’s begin with a discussion of what is meant by the terms retribution, revenge, and institutionalized revenge. In the arena of punishment, there are several motives on which punishment can be based. These include consequentialist motives such as rehabilitation or deterrence; however, the motive with which we are concerned is retribution. Retribution is a de-ontologically based motive, based in the idea that punishment should be imposed upon wrongdoers because receipt of punishment for wrong is their just desert.
The next key term that we must address is that of revenge. In Getting Even, Barton defines revenge as a sort of sub-species in the greater genus of retribution. More specifically, he defines revenge as personal retribution. Unlike the doling out of just deserts by an anonymous or detached party such as the court system, revenge is personal in that the enactor of revenge has a closer relationship or tie to the victim than she does to the recipient of the revenge.
We move on now to the concept of institutionalized revenge. Because our culture connotatively associates revenge with wild, unfettered barbarism, the idea of revenge within an institution may seem alien. However, if we are to accept Barton’s definition of revenge as nothing more than a personal giving of just deserts, the idea of revenge within an institutional framework becomes much more comprehensible.
Institutionalized revenge would simply be a case in which the victim of wrong is actively involved in the process of paying the offender his due. This covers the personal involvement, the victim, and the retributive element, just deserts. It is hardly incongruous to imagine this being feasible within the regulatory framework of an institution. Getting Even gives examples of this, such as Victim Impact Statements, which give victims much more power over the outcome of a court case. Another institutional framework in which personal retribution can come into play is Alternative Dispute Resolution, commonly called “restorative justice”.
Here I will briefly discuss the principles behind restorative justice, so as to create a clear framework in which to discuss the place of institutionalized revenge within restorative justice. A list of restorative justice principles developed by Thom Allena, Mark Seidler, and Beverly Title describes the restorative justice viewpoint on crime: “Crime is understood primarily as an offence against the human relationship and community safety and well-being, and secondarily as an offence against the law or state.” The restorative justice catchphrase is “repair the harm”. What that means is that restorative justice is primarily concerned with reparation of the harm caused by an offender to a person and community, and the restoration of that person and community to a state as close as possible to the one they had before it was violated by the offence.
Restorative justice is practiced in many different styles. The article “Conferences, Circles, Boards, & Mediations: Scouting the ‘New Wave’ of Community Justice Decisionmaking Approaches” describes four different types, namely victim-offender mediation, family group conferencing, circle sentencing, and reparative boards. What all these different types have in common is that they all focus on relevant restoration and reparation to the community that was harmed by the offence, and, with the possible exception of reparative boards, give the victim or victims of the crime the chance to be actively involved in and served by that process.
That said, where does personal retribution fit into restorative justice? The basic philosophies of restorative justice are essentially consequentialist. Restorative justice has little interest in seeing justice done for its own sake. In fact, facilitators often try to steer suggestions of consequences away from those that resemble punishment for punishment’s sake. The goal of restorative justice is to achieve an end of repaired harm and rebuilt feelings of safety, well-being, and harmony for the victim and community. At first glance, it seems like retribution of any sort is out of place in a system that holds these goals and principles.
However, in his article “Empowerment and Retribution in Criminal Justice”, Barton makes a very strong case for the argument that the great flaw in today’s criminal justice system is not its retributive nature, but rather its tendency to disempower both victim and offender, as well as any other primary stakeholders in the case. He argues convincingly that restorative justice, with its personal focus, is not antithetical to retribution, but rather to disempowerment. (This is not to say that restorative justice practices are never disempowering, but that the principles of restorative justice are conducive to empowerment when properly applied.)
If we are to accept this view, then there is no reason revenge should be barred from the restorative process. Retribution is not congruent with the overall purpose of the process itself, but personal retribution, as a tool for victim-empowerment, can be conducive to achieving restorative justice’s consequentialist end. One of the most important questions we ask the victim in a community group conference is “What do you need?” If a victim needs revenge in order to achieve personal restoration, then he should be empowered to seek that revenge. The option of institutionalized revenge is not simply compatible with restorative justice. Providing that option enhances the ability of the process to empower, and in so doing, enhances restorative justice itself.
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