WK3 Assignment: Providing Accountability to the Community

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.

The Diversity of Restorative Justice

The term restorative justice refers to a range of approaches and not any single practice.1 It is more an orien- tation than a practice favoring the informal over the formal, aiming at providing victims and offenders alike with a voice. Furthermore, “there is no agreement on the actual nature of the transformation sought by the restorative justice movement.”2

Different views abound about what is restored and even the desired goals of restorative justice.

This lack of clear definition can make it difficult to discuss the topic because of the wide diversity of restorative approaches.3 Restorative

justice approaches are applied in schools, prison interventions, and South Africa’s Truth and Reconcilia- tion Commission.4 Restorative justice approaches are also found in appli- cations that are the focus of this article: restorative justice as an alterna- tive to traditional sentencing, includ- ing victim–offender mediation and restorative conferencing as practiced in England and Wales.5

The golden thread—or “conceptual umbrella”—uniting all of these diverse approaches to restorative justice is their focus on bringing closure to a conflict through informal, but not unstruc- tured, deliberation with the aim of

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enabling both understanding and healing.6 Perhaps the best-known working definition of restorative justice approaches is offered by T. F. Marshall: “Restorative justice is a process whereby all parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future.”7

Marshall’s focus on the process of restorative justice approaches illumi- nates one distinctive difference from models of traditional sentencing. Judges and magistrates determine the sentencing outcomes for con- victed offenders from their courtroom benches following a set of formal pro- cedures. A growing concern in recent years is that these procedures exacer- bate victim displacement, a position stated eloquently by John Gardner:

we seem to have lost sight of the origins of the criminal law as a response to the activities of victims, together with their families, associates and supporters. The blood feud, the vendetta, the duel, the revenge, the lynching: for the elimination of these modes of retaliation, more than anything else, the criminal law as we know it today came into existence.8

The challenge is to discover some process whereby the victim can play a more substantive role in criminal justice without returning to the many problems that led to victim displacement.

Restorative justice approaches, such a victim–offender mediation and restorative conferencing, suggest such a process—and they provide us with an alternative to the traditional, formal procedures for sentencing. Restorative approaches endorse a more informal means to secure out- comes located away from courtrooms led by a trained facilitator instead of a judge or magistrate. Facilitators

conduct meetings that require the offender to admit guilt beforehand. Offenders are permitted a legal repre- sentative although they are not nor- mally present and offenders are expected to engage directly with others present.

Both mediation and conferences begin by the facilitator clarifying the parameters and purposes of the meeting with guidance available from the Restorative Justice Council. The victim is then provided an oppor- tunity to speak next and to address the offender to explain the impact of the offender’s crime on her. Restorative conferences next permit any members of the victim’s support network, such as their friends and family, as well as select members of the local community, to discuss how the offender’s crime impacted them. The offender speaks last and is expected to account for his crimes, typically including an apology to the victim. These meetings conclude by participants confirming a contract that the offender is asked to agree. If the offender does not do so, or if he fails to honor its terms in full, then the next step can include a transfer to a consideration of the alleged offence in the courtroom, where potential out- comes can be more punitive.9

Restorative approaches are more than a process, and aim to provide real benefits. The first is that mediation and conferences lead to “restorative contracts” agreed to by all parties, including offenders, in about every restorative meeting: studies have found contracts agreed to in up to 98% of cases.10 The second benefit is that the contracts agreed upon improve the reduction of reoffending by offenders. These contracts can better target the specific needs of offenders because of the

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greater flexibility of the more informal process of restorative meetings. Stan- dard outcomes include requirements that offenders attend treatment to overcome their substance abuse or problems with anger management, training is provided to improve employability and general life skills, some compensation to the victim is agreed on, and some element of com- munity sentencing is often included. This improved targeting of offender needs has been found to contribute to up to 25% less reoffending than alternatives.11

Restorative approaches are found to improve our ability to address pro- blems associated with victim displa- cement. Nils Christie argues:

The victim is a particularly heavy loser in this situation. Not only has he suffered, lost materially or become hurt, physically or otherwise. And not only does the state take the compensation. But above all he has lost participation in his own case. It is the [state] that comes into the spotlight, not the victim. It is the [state] that describes the losses, not the victim.12

Restorative justice approaches address these problems in a poten- tially fruitful way. Victims report high satisfaction with restorative approaches, especially participation in restorative conferencing—and this is true for all participants, including offenders.13 While victims regularly report feelings of alienation for cases heard in courtrooms, restorative meetings outside the courts provide a more informal and less intimidating context where victims are encouraged

to vocalize their experience of crime and its personal effects in an attempt to find closure in a safe and construc- tive environment.

This higher satisfaction for all par- ticipants is a product of the dialogue brought about through restorative meetings whereby each participant has opportunities to engage with others to better understand the wider context of a particular crime and its effects on others, aimed at bringing closure. Victims gain some insight into crimes committed against them and offenders benefit from greater knowledge about the consequences of their actions. Finally, restorative approaches are much less expensive than traditional sentencing. One study found restorative approaches saved £9 for every £1 spent.14

Restorative justice is not one prac- tice, but a broad tent encompassing a wide diversity of practices. This article focuses on restorative justice approaches that are an alterna- tive to sentencing. These approaches demonstrate significant promise as restorative meetings might achieve the benefits of improved victim satis- faction through greater participation opportunities, less reoffending through better targeting of offender needs, and promotion of constructive engagement at much reduced costs. Restorative justice may be an impor- tant first step towards meeting the twin challenges of improving public confidence while reducing reoffending.

The Problems with Restorative Approaches

Restorative justice approaches suffer from several problems. This section identifies the more significant

problems, and the first—the fact of the diversity of restorative practices —has already been stated above.

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Perhaps commonality of most restora- tive approaches lies in what they are not: they are not held in a courtroom, they do not follow formal procedures of traditional courtroom practices, they do not exclude victims from par- ticipation, and so on.15

The fact of restorative justice’s diversity of practices leads to the problem that to speak of “restorative justice” is to discuss not any one single approach. This plurality of practices extends to the forms they can take from mediation to conferen- cing, but also to differences in dynamics in how these practices are delivered. The informality of restora- tive meetings is a key to their strength—they make it easier to target offender needs—but also con- stitutes a weakness, as some part of their success depends on the specific dynamics between the particular par- ticipants involved. While facilitators are trained to minimize such differ- ences, they can and do exist.16

A second problem is the limited application of restorative justice approaches. Generally, they are restricted to less serious crimes by young offenders and only rarely used for adults.17 Restorative justice approaches are limited to a relatively modest set of offenders and crimes and so may be considered to provide an incomplete view of punishment that does not cover all or even most types of offenders or crimes.18

Perhaps the reason for this limited applicability is a third, related problem of limited confidence which may prevent restorative justice approaches from being considered for more serious crimes. There is a concern the public may view these approaches as a “soft” option for more serious offences. So even if restorative approaches were proved

to be more effective at reducing reof- fending, they would still have the problem that they might be politically unpalatable.

There are many recent examples of criminal justice policies receiving popular support even though they undermined crime reduction efforts. The most prominent illustration is probably California’s so-called “Three Strikes and You’re Out” law requiring that offenders convicted of a third eligible criminal offence face a minimum of 25 years imprison- ment.19 Studies confirm this law led to an explosion in the prison popu- lation and the associated cuts in ser- vices for inmates, with only a negligible deterrent effect of no more than 2%.20 Populist proposals like “Three Strikes and You’re Out” indi- cate the public’s willingness to support more punitive penal policies in the mistaken belief that they will lead to improved crime reduction at lower cost—incorrect assumptions, neither of which came true.21

Restorative justice’s problems of limited application and limited accep- tance are connected to a fourth problem, namely, that restorative alternatives to traditional sentencing are constrained by their limited avail- able options. Restorative justice approaches considered here do not include so-called “hard treatment” options like imprisonment, nor sus- pended sentences as a part of their available options for a restorative con- tract. Indeed, some claim restorative justice approaches do not offer us a view about punishment because hard treatment is not an option for contracts agreed to at restorative meetings.22

The reason for excluding hard treatment as an option is that its use is thought to be counterproductive

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to reducing reoffending. Imprison- ment is too often not the start of a person’s long-standing social-econ- omic and legal problems, but their confirmation—where bad situations can become much worse. Common risk factors for reoffending include economic insecurity, employment insecurity, financial insecurity, and housing insecurity, to name only a few.23 These problems can often become exacerbated through even brief time spent in prison. Some research suggests that prison may even be “criminogenic” because it may contribute to a greater likelihood that an imprisoned offender reoffends on release.24

While imprisonment can often make crime reduction more difficult, imprisonment is not always counter- productive to this purpose. The problem here is not that the prison is used, but how it is used—and how it can and should be improved. Restorative justice highlights the many attractions of an alternative criminal justice process where prison is not an available option. These approaches show that another model is possible—sometimes even prefer- able. For most proponents of restora- tive justice, its opposition to imprisonment is viewed as a strength of its “abolitionist” position.25 Restora- tive approaches provide a promising process that might help us curtail the use of prison to ensure it is a last resort.

The reason for limiting options for restorative approaches to exclude the use of prison is connected to a final problem: the lack of clarity these approaches offer about what is restored through a specific restorative approach. Strictly speaking, restora- tive justice approaches reject the use of prison because imprisonment is seen as a barrier to restoration.26

This is a contestable empirical claim that mistakes how we find many prisons with how prisons should be found while raising new questions about what is meant by restoration.

Restorative justice approaches claim they enable a restoration of the damaged relationship between an offender and the wider community. But which community and who are the relevant members? Many argue this claim “remains shrouded in mystery.”27 For example, Andrew Ashworth says:

If the broad aim is to restore the “communities affected by the crime,” as well as the victim and the victim’s family, this will usually mean a geographical community; but where an offence targets a victim because of race, religion, sexual orientation, etc., that will point to a different community that needs to be restored.28

There are two concerns here. The first is the problem of identifying the appropriate community to be restored, and the second is the problem of selecting persons from that community to participate in a restorative meeting. The first problem of identifying the appropri- ate community affected by a crime is significant. Restorative justice requires a restoration of the members within that community, but we each identify with multiple and sometimes overlapping communities, and so it is unclear how we should choose between them. These commu- nities are rarely static and our identi- ties are not created in a vacuum, suggesting that even if we could identify “the community” this may be of limited practical benefit for the purposes of achieving restorative justice.29

A further problem concerns the idea of restoration itself. Restorative justice aims at a restoration of an

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offender with the wider community. This goal is built on a view that there is a wrong to be made right and an injustice between affected persons requiring closure. If this is the case, then it is unclear why restorative justice requires a criminal offence where there may be injustices requiring repair. For example, restor- ation may bring benefits to individ- uals and communities, even though no crime has taken place. There may be a need for providing support to overcome addictions or enable greater financial independence—yet this support might only be available to restore those affected should there have been a crime. Short of offending, individuals may lack access to support they need, benefiting them- selves and their community. Another example is the case of restorative approaches used in schools for chil- dren to resolve conflicts and to promote healing. If this is our goal, then crimes can be incidental to whether restoration is required.

Restorative justice approaches bring several potential benefits that include higher victim satisfaction, more effective crime reduction, and at lower costs. These benefits are not without their own costs. Restorative justice approaches are difficult to pin- point and provide anything but broad comparisons, given their diversity. They have limited applicability, limited public confidence, operate with limited options by excluding prison, and are subject to a serious problem concerning what is restored and by which community.30

Restorative justice approaches may be worth defending, but we require a new approach to yield the potential benefits while avoiding these obstacles. Otherwise, restorative justice approaches might remain an underutilized resource at the margins of mainstream criminal justice policy. This situation might change if there is a new formulation of restorative justice that could address these challenges.

The Punitive Restoration Alternative

This section presents and defends a particular approach to achieving restorative justice in a novel way: the idea of punitive restoration.31 Punitive restoration offers a distinctive view about restorative justice. It is a single practice taking the form of a confer- ence setting, where the victim, the offender, their support networks, and some local community members are represented. Punitive restoration is restorative insofar as it aims to achieve the restoration of rights infringed, or threatened, by criminal offences.32 This aim is accomplished through recognition of the crime as a public wrong leading to a contractual

arrangement agreed upon by stake- holders. Punitive restoration is puni- tive because it extends the available options for a restorative contract to achieve restoration and this may include forms of hard treatment, such as drug and alcohol treatment in custody, suspended sentences, or brief imprisonment. These claims will now be defended.

Restorative justice approaches lack clarity about what is to be restored and how that restoration should be achieved. Andrew von Hirsch and Andrew Ashworth argue that restora- tive justice “suffers from unduly sweeping definition of aims and

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insufficient specifications of limits” with a conceptually incoherent model.33 In fact, its claim to bring res- toration to a community may be criti- cized because restorative approaches do not insist on community involve- ment and the overwhelming majority of restorative meetings are victim– offender mediations where the com- munity is excluded.

Punitive restoration operates with a more specific understanding about restoration.34 The model of punitive restoration is a conference meeting, not unlike restorative conferencing. This model is justified on grounds of an important principle of stakehold- ing: that those who have a stake in penal outcomes should have a say in decisions about them.35 Stakeholding has direct relevance for sentencing policy. Stakeholders are those individ- uals with a stake in penal outcomes. These persons include victims, if any, their support networks, and the local community. Each marks himself or herself out as a potential stakeholder in virtue of his or her relative stake.

This view of restoration endorses the primary working definition from Marshall that is used by most proponents of restorative justice con- sidered above and restated here: “Restorative justice is a process whereby all parties with a stake in a par- ticular offence come together to resolve collectively how to deal with the after- math of the offence and its impli- cations for the future.”36 Restorative justice has often been understood as a process that brings stakeholders together.37 Its distinctive form as puni- tive restoration better guarantees this understanding by promoting the con- ference meeting and not victim–offen- der mediation.

Relevant stakeholders become more easily identifiable as persons

immediately involved or connected with a criminal offence. This does not require all such persons to partici- pate, but rather that opportunities exist for persons beyond the victim and offender to take part. Similarly, there must be opportunities for members of the general public to take part. This working idea of a conference setting is without any specific recommendation on capping the number of persons included, although groups of 10 or more may prove impractical.

The key idea is that if restoration is worth achieving, then it should not be a private affair between only the victim and offender: crimes are public wrongs that affect all members of the community, including the support networks of victims and offenders whose voices are regularly left out.38 These individuals have a stake in the outcome that should not be silenced. Restorative conferencing demonstrates this model is achievable and successful: participant satisfac- tion is higher in this setting than in mediation.39 We should take the idea of stakeholding central to restorative justice approaches more seriously and ensure that any restoration of offenders with their community is enabled through including the com- munity—as this is too often not the case.

So one benefit of punitive restor- ation is its specifying of the restorative process. Restoration is aimed at stake- holders through a conference setting. Furthermore, we should recall that our focus is on alternatives to senten- cing: punitive restoration is conceived as an alternative to the formal procedures of the criminal trial and sentencing guidelines. Punitive res- toration can then overcome an impor- tant obstacle—the diversity of

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restorative approaches. It can do this because our speaking of “punitive restoration” is linked with a particu- lar, informal use of restorative justice. We can then better compare the dynamics and outcomes of puni- tive restoration given the more speci- fied content. When referring to “punitive restoration,” we know which restorative practice we are talking about.

Another benefit is that punitive restoration can better address the issue of community than alternative restorative approaches, because puni- tive restoration endorses the principle of stakeholding, which holds that those who have a stake should have a say.40 There is no need to consider the more difficult task of discerning which type of community is most rel- evant for restoration, and one can focus on identifying the primary sta- keholders and engaging them instead.

It should be noted that orthodox restorative justice approaches typi- cally require both victims and offen- ders to participate. An additional benefit of punitive restoration over these approaches is that only punitive restoration can address situations of so-called “victimless” crimes, or cases where a victim is either unable or unwilling to participate. Those offences most often considered “vic- timless,” such as possession of illegal drugs, might normally be unavailable to a restorative approach and the potential benefits it can offer. While there may be no specific victim, crimes are public wrongs, and the public has a stake in how criminal offences are managed, no matter their degree of seriousness. Punitive restoration’s principle of stakeholding better helps us identify persons to participate in conference meetings and expand their applicability to a

wider range of offences than alterna- tive restorative approaches.

The public’s having a say on penal outcomes is subject to several safe- guards as found in current restorative justice practices that punitive restor- ation builds upon.41 Offenders have a right to legal representation throughout. Participation by every- one from offender to victim and com- munity members is voluntary. The public can contribute already to penal outcomes through serving on a jury or submitting a victim impact statement, so having a voice on sen- tencing is not unknown.42 Flexibility is constrained by national guidelines providing necessary discretion, but all outcomes must be overseen by a trained facilitator and agreed to by the offender to be confirmed.43

Further problems for restorative justice approaches concern their limited applicability to less serious offences, the limited confidence the public may have in restorative approaches because they may be viewed as too soft an option, and their limited available options due to the exclusion of any use of hard treat- ment. Punitive restoration takes these obstacles together. It enables wider applicability by increasing the kind and range of available options. Punitive restoration does not assume that restoration must never require the use of hard treatment. While incarceration may often make suc- cessful crime reduction efforts more difficult, it is also clear that prisons can, and should, be transformed to improve incarceration’s disappointing results.44

For example, restorative contracts regularly include an obligation for offenders to undertake treatment for any drug or alcohol abuse and to par- ticipate in programs designed to

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develop their employability and life skills.45 There is no reason to accept that these activities could never be delivered successfully within a prison or some other secure facility for particular offenders. Perhaps hard treatment should be used spar- ingly because its use can be counter- productive: this is still not grounds for avoiding custodial sentences altogether. It is a realistic possibility that prisons may prove the best environment for some offenders in specific cases.46 Prisons might also be reorganized so that prison officers could become personal support offi- cers if provided with suitable training. Such a reform would make better use of prison resources: these officers have most frequent contact with imprisoned offenders and this relationship could be harnessed to produce an improved system of pas- toral support.47

Prisons can and should be trans- formed so incarceration does not undermine offender rehabilitation. Short-term imprisonment is associ- ated with high rates of reoffending. This is a significant problem because, as the Ministry of Justice notes on its website as of June 2017, most offen- ders receive short-term sentences of less than 12 months and about 60% will reoffend within weeks of their release. Most offenders receiving short-term imprisonment do not receive any rehabilitative treatment. This is a major contributing factor to the likelihood these offenders will reoffend when released from prison.

This problem may be overcome through providing effective treat- ment. Brief intensive interventions have been employed to address pro- blems associated with drugs, and offenders were found to benefit from “significant gains in

knowledge, attitudes and psychoso- cial functioning.”48 These sessions were corrections-based treatment of moderate (30 outpatient group ses- sions 3 days per week) or high inten- sity (6-month residential treatment) and they have been found to yield cost savings of 1.8 to 5.7 times the cost of their implementation.49

These policies suggest prisons can be reformed to better support offen- der rehabilitation and improve post- release crime reduction efforts without sacrificing cost-effectiveness.

Reforms like these have important relevance for punitive restoration, because offenders who have com- mitted more serious, even violent, crimes may require more punitive outcomes than are currently available to restorative justice approaches. For example, in England and Wales, the currently available restorative prac- tices reject all uses of hard treatment, including the imposition or its threat in contracts agreed on at restorative meetings. If these contracts are not agreed to or satisfied in full, the offen- der’s case may be transferred for con- sideration by a magistrate where hard treatment can become a possible outcome. Despite having admitted guilt in a restorative setting and having apologized to the victim, the offender is permitted to plead not guilty, while his or her failure to honor a restorative contract cannot be raised at trial. This current practice fails to fully respect the integrity of the restorative process, as neither apologies nor promises are supported by any available sanction.

Punitive restoration might permit the inclusion of a suspended sentence for non-compliance within the con- tractual agreement—this would be made clear to offenders up front.50

This option would extend the

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flexibility of punitive restoration to more varieties of offence types and offenders, bypassing the need for a trial in cases of non-compliance and further reducing potential sentencing costs. Nor should this flexibility be problematic: offenders receiving a suspended sentence in a punitive res- toration conference meeting would retain access to legal representation throughout, must confirm any guilt without coercion, and agree to all terms presented to them at the con- clusion of this meeting for committing offences where the alternative— through the traditional formal pro- cedures of the courtroom—would include options that are at least as punitive. Note that one major differ- ence is that only with punitive restor- ation would the possibility of hard treatment be an issue that must be agreed to by the offender prior to its use.

Let us consider two further instances where punitive restoration might justify some form of hard treat- ment. One is the idea of prison as a form of cooling off. Recall that imprisonment is often not the begin- ning of an offender’s socio-economic and legal difficulties, but rather their confirmation after an extended escala- tion. Imprisonment is characteristi- cally disruptive. A consequence is that it can end already fragile support networks and render an indi- vidual’s road to sustainable prosper- ity tenuous. This is a significant problem for most offenders—but not for all. Perhaps for only a small, yet important, minority the disruption of strongly negative support networks or difficult personal circumstances can provide an opportunity for offen- ders to take a break where they might become open to personal transform- ation possible only in a prison-like

environment. And this possibility could be readily knowable, as offen- ders are assessed by probation offi- cers prior to any sentencing decision, anyway, to ensure any allocated prison place is suitable for any offen- der to be considered for hard treatment.51

A second form of hard treatment that punitive restoration might incor- porate is the idea of less time in prison with more intensity. This addresses the fact that most offenders serve short-term sentences without receiving any rehabilitative treatment. These treatments are costly and so prison wardens normally reserve expensive rehabilitative programs for offenders serving more than one year in prison: this permits sufficient time for these programs to be effective.

However, these programs are rarely intensive and—as already noted above—such high-intensity programs have been found to be effec- tive at reducing drug and alcohol abuse, for example.52 More such pro- grams would increase costs, but these might be accounted for by redu- cing the overall time spent in prison made possible by intensive rehabilita- tion programs: the savings from the reduced time spent in prison overall could contribute to the increased costs of ensuring that all inmates have access to the appropriate inten- sive rehabilitative programs. Further savings might accrue through less reoffending on release if the programs are successful.

Punitive restoration might be objected to on the grounds that hard treatment, even for a few days, is a major curtailment of individual liberty that requires special safe- guards only the formal procedures of the courtroom could satisfy. The

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problem with this objection is that only a relatively few cases are brought to trial.53 Thus, the vast majority of cases are never heard in court and so victims and others affected by a crime are not given opportunities to gain a better under- standing of why crimes occurred or to receive an apology from their offen- ders. It is hardly surprising to recall the widespread dissatisfaction many victims have with the traditional sen- tencing model. Punitive restoration is a concrete approach that can over- come this problem by providing greater opportunities for restorative meetings where victims express much higher satisfaction.54

Restoration might not be for everybody. Restorative justice—as an alternative to traditional sentencing —is typically only available to offen- ders with little to no past criminal record. Punitive restoration attempts to create a space whereby more offen- ders can be brought into a restorative approach. While more punitive options can enable restoration and expand potential applicability, it is not argued here that punitive restor- ation is appropriate for all crimes, including the most serious violent offences. If it were used, it might undermine its goal of winning over public confidence. Social reality matters, and punitive restoration must restore—strong public opposi- tion to its use could damage its ability to provide some form of restoration.

Moreover, punitive restoration requires a time commitment. Not all victims or offenders will want to take part. Community members may not wish to participate. If punitive res- toration is to work, then its conference format requires stakeholders to come together. It is my contention that

since restorative conferences have been shown to create more strongly positive experiences for victims and offenders than alternatives, their wider use could extend these experi- ences for more people. Over time, punitive restoration might become more regularly practiced as the public becomes more supportive through both positive experiences and results.55

Punitive restoration might also be objected to for a lack of any stated purpose beyond its endorsing the principle of stakeholding: the latter may help identify relevant partici- pants, but which penal purpose should inform the sentencing out- comes? Punitive restoration is more than an improvement over alternative approaches to restorative justice, but a concrete realization of a compelling perspective on penal purposes in practice. Punishment is often justified in reference to an aim or purpose, such as retribution, deterrence, or rehabilitation. Philosophers disagree about which among these is prefer- able, despite general agreement that hybrid combinations of two or more purposes often suffer from inconsis- tency.56 This is illustrated well in Britain by section 142 of the Criminal Justice Act of 2003, which states that punishment must satisfy at least one of five penal purposes. This claim is restated in more recent sentencing guidelines.57 However, there has been no attempt to claim how two or more such purposes can be brought together in a coherent, unified account. This “penal pluralism” may be legally possible, but its practicality remains questionable.58

Punitive restoration is one form that a unified theory of punishment might take, because it is able to bring together multiple penal

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purposes within a coherent, unified framework.59 For example, desert is satisfied because offenders must admit guilt without coercion prior to participation in a conference meeting. The penal goals of crime reduction, including the protection of the public, and enabling offender rehabilitation are achieved through targeting stakeholder needs arising from the meeting. The achievement of these goals is confirmed through the high satisfaction all participants report which suggests a general

unanimity that the appropriate set of contractual stipulations have been agreed to by all, and the improve- ments in reducing reoffending suggest success in crime reduction and treatment consistent with deter- rence and rehabilitation.60 The argu- ment here is not that any such unified theory is best or preferable to alternative theories. Instead, it is claimed punitive restoration is an example of how multiple penal prin- ciples might be addressed within a coherent, unified account.61

Conclusion

Criminal justice policy faces the twin challenges of improving our crime reduction efforts while increasing public confidence. These challenges are exacerbated by the fact that at least some measures popular with the public, such as California’s “Three Strikes and You’re Out” law, are counterproductive to improving crime reduction. How to achieve more crime reduction without sacrifi- cing public confidence?

Restorative justice approaches offer a promising alternative to tra- ditional sentencing with the potential to achieve these goals. Studies have found these approaches to yield sig- nificant improvements in combating recidivism and greater satisfaction by participating victims at much reduced costs. Yet restorative justice approaches suffer from several serious obstacles. These problems include the diversity of restorative approaches, which makes it difficult to speak of any single approach and leads to difficulties in making com- parisons. Other problems include the limited applicability of restorative approaches to primarily youth

offenders for less serious crimes, the limited flexibility of outcomes to exclude the possibility of imprison- ment, the limited public confidence stemming from concerns that restora- tive approaches are a soft option, and a larger question about what is restored through restorative justice.

Punitive restoration is a new and distinctive idea about restorative justice. It is 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 brings relevant stakeholders together, including victims, offenders, and members from the local community, to consider together the appropriate penal outcomes. Punitive restoration is restorative insofar as it aims to achieve the restoration of rights infringed or threatened by criminal offences. This goal is accomplished through recognition of the crime as a public wrong, leading to a contractual arrangement agreed to by stake- holders. Punitive restoration is puni- tive insofar as the available options for this agreement are more punitive

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than found in most restorative justice approaches, such as the option of some form of hard treatment. This expansion of options within a restora- tive framework overcomes the many obstacles that limit the application, flexibility, and public confidence of restorative alternatives.62

Punitive restoration sheds new light on how we may meet the twin challenges of improving our efforts

to reduce reoffending without sacrificing public confidence. This approach further demonstrates how restorative practices can be embedded deeper within the criminal justice system: by making restorative practices potentially more punitive we also may render the system less punitive overall.63 Punitive restor- ation is an idea whose time has now come.

Notes

[Disclosure Statement: No potential conflict of interest was reported by the authors.]

[Earlier versions of this article were presented to the annual Howard League for Penal Reform conference at Keble College, Oxford; the Political Theory Workshop at Sciences Po, Paris; the Political Theory Colloquium at Harvard University’s JFK School of Govern- ment; the School of Social Sciences, Law and Business at Teesside University; the School of Public Policy at University College, London; a Punishment and Prisons conference at Bowling Green State University, and the City University of Hong Kong. I have benefited from comments from an anonymous referee for this journal and from Jacob Abolafia, Hilary Benn, Chris Bennett, Nick Bowes, Frances Crook, Albert Dzur, Douglas Husak, Sadiq Khan, Rick Lippke, Matt Matravers, Martha Nussbaum, Nicky Padfield, Bhikhu Parekh, Avia Pasternack, Andrei Poama, Harvey Redgrave, Julian Roberts, Paul Robinson, Michael Rosen, Avital Simhony, Astrid von Busekist and Albert Weale.]

1 See Braithwaite, Restorative Justice; and Brooks, Punishment, 64–85.

2 Johnstone and Van Ness, “Meaning of Restorative Justice,” 5.

3 See Shapland, Robinson, and Sorsby, Restorative Justice in Practice. “The restora- tive justice agenda … ,” Shapland, Robin- son, and Sorsby write, “encompasses a very broad range of practices and approaches, such that a definitive definition has proven elusive” (4). See also Cunneen and Hoyle, Debating Restorative Justice.

4 See Morrison, “Schools and Restorative Justice”; Van Ness, “Prisons and Restorative Justice”; and Llewellyn and Howse, “Insti- tutions for Restorative Justice” respectively.

5 This focus and the specification it pro- vides is important. There is a need to provide a more definitive and less contested model of restorative practices. The focus on one—admittedly significant—part of restorative practices is intended to help identify this new model, in part, by its

distinctive form of application for England and Wales. This new model, punitive restor- ation, is discussed in this context, but it is not suggested that it cannot have a wider applicability to other jurisdictions.

6 See Shapland, Robinson, and Sorsby, Restorative Justice in Practice, 4.

7 Marshall, Restorative Justice, 5.

8 Gardner, “Crime,” 31.

9 Offenders admitting guilt to a criminal offence for the purposes of engaging in victim–offender mediation or restorative conferencing, and who either do not agree to a restorative contract or fail to honor its terms in full, need not admit guilt for this offence if the case is transferred to either a magistrates’ court or the Crown Court. This would appear to undermine the sincer- ity of the earlier admittance and it might be preferable to end this anomaly, given that any admittance of guilt remains free of coer- cion and legal representation for offenders continues to be available, although this

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policy suggestion is not considered further here.

10 See Shapland et al., Restorative Justice in Practice: Second Report, 1; and Shapland et al., Restorative Justice: The Views of Victims, 27.

11 See Shapland et al., Does Restorative Justice Affect Reconviction?; and Restorative Justice Council, What Does Ministry of Justice Research Tell Us?

12 Christie, “Conflicts as Property,” 314.

13 See Shapland, et al., Does Restorative Justice Affect Reconviction?, 25–6.

14 See Shapland et al., Restorative Justice in Practice: Second Report; and Restorative Justice Council, What Does Ministry of Justice Research Tell Us?

15 I use restorative approaches and restorative practices interchangeably.

16 See Roche, Accountability in Restorative Justice.

17 See Brooks, Punishment, 173–88; and Dignan, “Juvenile Justice.”

18 See Brooks, Punishment, 67–8.

19 See Cullen, Fischer, and Applegate, “Public Opinion about Punishment”; and Zemring, Hawkins, and Kamin, Punishment and Democracy.

20 See Durlauf and Nagin, “Imprison- ment and Crime,” 28; and Brown v. Plata, 563 U.S. (2011).

21 See Williams, “Beyond the Retributive Public.”

22 See Ashworth, “Sentencing,” 822.

23 See Brooks, Punishment, 179–87.

24 See Durlauf and Nagin, “Imprison- ment and Crime,” 14, 21–3. See also Lippke, Rethinking Imprisonment; and Tonry, “Less Imprisonment,” 138, 140–1.

25 See Braithwaite, Restorative Justice.

26 See ibid.

27 Ashworth, Sentencing and Criminal Justice, 94. See also Braithwaite, “Setting Standards.”

28 Ashworth, “Responsibilities, Rights and Restorative Justice,” 583.

29 See Parekh, New Politics of Identity, 1, 21–6.

30 There is a further concern about a gap between the rhetoric of restorative justice approaches and their practical achievements that will not be considered here. See Kath- leen Daly, “Mind the Gap.”

31 See Brooks, Punishment, 123, 132, 136, 142–3, 147–8; and Brooks, “Stakeholder Sentencing.”

32 Criminal offences infringe, or threaten the infringement of, rights. For example, theft is a violation of an individual’s right to property. Attempted offences are instances where the violation of rights is threatened. An attempted robbery is an instance where my rights to property and self are in jeopardy. Punishment as a restor- ation of rights recognizes offences, including attempts, as the infringements, or threa- tened infringements, of rights that they are and it seeks to render their maintenance and future protection more secure by acknowledging just deserts and addressing underlying causes to rehabilitate if necess- ary and deter where possible. See Brooks, “Criminal Harms.”

33 See von Hirsch and Ashworth, Propor- tionate Sentencing, 110–11.

34 See Brooks, “Punitive Restoration”

35 See Brooks, “Justice as Stakeholding.”

36 Marshall, Restorative Justice, 5 (empha- sis added).

37 See Braithwaite, Restorative Justice, 11, 50, 55.

38 One study found that restorative con- ferences often include friends and family of the victim and of the offender respect- ively in 73% and 78% of cases examined. Parents were far more likely to attend restorative conferences (50% of offenders and 23% of victims) than partners (3% of offenders and 5% of victims). Shapland et al., Restorative Justice in Practice: Second Report, 20.

39 See ibid.

40 See Brooks, “Punitive Restoration: Giving the Public a Say.”

41 See Restorative Justice Council, “Stan- dards and Quality.”

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42 An objection to this argument might be that the people rarely express their voices in the criminal justice system. With over 90% of cases in the U.S. and U.K. never going to trial, victims rarely get much opportunity to speak. It might be objected that making people’s voices heard more regularly is pro- blematic because they should be heard no more than they are already. However, it should be countered that the minority of cases where their voices are heard—in both the jury box or witness stand—are the most serious cases. If the public’s voice matters for the most serious criminal cases, then it could be argued their voice should be heard in less serious cases as well. See Brooks, “Right to Trial by Jury.”

43 See Restorative Justice Council, “Stan- dards and Quality.”

44 See Liebling, Prisons and Their Moral Performance.

45 See Brooks, Punishment, 66–7, 73–5. On prison-based programs designed to improve tackling drug and alcohol abuse, see Towl, “Drug-Misuse Intervention Work.”

46 See Perez and Jennings, “Treatment Behind Bars.”

47 See Chapman and Smith, “Cutting Crime,” 215, 228.

48 See Joe et al., “Evaluation.”

49 See Marilyn Daly et al., “Cost- Effectiveness.”

50 The fact that a restorative contract might include hard treatment for any breach of contract need not mean offenders would be very unlikely to agree to such a contract. This is especially true for cases where failure to agree to a contract would entail hard treatment, anyway.

51 It is not suggested that probation offi- cers always make the right decision, and no one has a crystal ball providing perfect predictions of the future. Yet officers may be able to ascertain where offenders are sub- jected to a strongly negative support network that could warrant a disruption as offered by punitive restoration, such as a cooling-off period.

52 See Joe et al., “Evaluation,”; and Marilyn Daly et al., “Cost-Effectiveness.”

53 See Ashworth and Redmayne, Crim- inal Process, 6–7.

54 It might be objected that some victims may see the opportunity to confront offen- ders as a chance to lavish anger and hostility on them. This is not what happens most often in practice. Yet even if it were so, the conference setting gives victims a voice but not the only say—and any contract (puni- tive or otherwise) must be acceptable by the offender to have any effect. Furthermore, contracts are not constructed in some “any- thing goes” fashion. There are guidelines to ensure that flexibility is restrained to ensure some consistency.

55 Hence the claim that if we want to find an approach that reduces crime more and increases public confidence then punitive res- toration is a possibility we should consider because of its likely results and the positive experiences of participants. Yet this is not about grafting punitive restoration onto an already criminogenic criminal justice system —it is the aim to help launch a shift towards more, not less, restorative justice within the criminal justice system, thereby reducing the system’s criminogenic features.

56 See Brooks, Punishment, 89–100.

57 For example, see Sentencing Council, “Definitive Guidelines.”

58 On penal pluralism, see Brooks, “On F. H. Bradley’s” and Brooks, “In Defence of Punishment.”

59 A unified theory of punishment may be constructed in different ways. The construc- tion favored here is to view crime as a harm to individual rights and punishment as a response to crime with the purpose of protecting and maintaining individual rights. This model rejects the view that penal- ties and hard treatment have different justifi- catory foundations, but asserts rather that they share a common justificatory source: the protection and maintenance of rights. The model of a unified theory can then better address the fact that penal outcomes are often multidimensional and include both financial and punitive elements. See Brooks, Punishment, 123–48 for a defence of the unified theory of punishment.

60 If satisfied, these conditions may be consistent with the idea of empirical desert.

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61 See Brooks, “Punishment: Political, Not Moral”; and Brooks, “Hegel and Unified Theory.” It is not argued here that other approaches could not also be consist- ent with a unified theory of punishment— only that punitive restoration is one illus- tration of such a theory.

62 While it is suggested that expanding penal options would extend the applica- bility of punitive restoration, I am silent on how far this expansion might extend. Yet whatever limits there might be, and regardless of the crimes that cannot be incorporated into a restorative framework for whatever reason, the claim is that more

would be incorporated and not that all would or must be incorporated.

63 It has been suggested to me that this argument for punitive restoration is akin to a Trojan Horse strategy: restorative justice is dressed up in something more punitive, but if let through the thick impenetrable walls of the criminal justice system it will bring about a swift appearance of less puni- tiveness overall. This characterization aptly captures a part of my strategy, except that my aim in making criminal justice less puni- tive is not intended to be a surprise, but an achievement. I am grateful to Albert Dzur for this view.

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