Wright's theory

Pelo interesse que revela, e após autorização do seu autor nesta publicação, passo a citar Martin Wright, Senior Research Fellow - University of Sussex:

"R J and C J

(...)

It seems to me that we have to face the fact that restorative justice and conventional criminal justice use different logics, just as some computers use different operating systems, and it is hard to see how they can be made compatible. Can PCs talk to Apple Macs?

Criminal justice says, for example, that everyone should be treated equally. But it says this in the context of the state inflicting punishment on citizens. Firstly, this has an inherent problem: it is impossible! Courts can never be consistent, because judges are human. Culpability cannot be measured, and different people who have committed similar acts will (i) have different culpability according to their circumstances and (ii) cause different amounts of harm according to the victim’s circumstances. The psychological harm is also not measurable, and there is no logical way of saying that it is ‘equivalent’ to any particular amount of punishment. I have explored this in more detail in Restoring respect for justice.

Secondly, R J has a different way of looking at equality. If the crimes committed by A against B, and by C against D, look similar, but they agree on very different forms of reparation, but all are satisfied with the outcome, the result is equal’[1].

Another argument brings in the community (however that is defined!). In C J, the court is presumed to be acting on behalf of the community (the community elects the government, which imposes measures on behalf of the community; even a benevolent despot is presumed to act in the interests of his [or her, but usually his!] subjects). With R J the presumption is that the two parties can agree on whatever they like, provided that one is not allowed to dominate the other. The community’s role is to help them to do it, for example by offering support to the victim, and by making sure that the offender has the capacity to make the agreed reparation[2]. Does this leave the state with no role? Most people, including R J advocates, would presumably agree that if there is a serious risk of serious re-offending, the offender’s liberty should at least be restricted (curfew, disqualification from certain activities, etc.) or removed (detention)[3]. This is an issue of public protection, not punishment; although the offender suffers enforced restriction of liberty, I would argue (with Lode Walgrave) that the suffering is not the intention, and therefore it is not punishment.

Others argue that in addition to the needs of the victim and offender, the community has needs, and that therefore if the victim and an offender reach an agreement that is considered inadequate (an apology and a bunch of flowers as reparation for rape, for example), the state should impose something further on behalf of the community. R J advocates would say that any such imposition should be a restorative one, such as community service; if it were combined with restriction or deprivation of liberty, that must be for protective reasons, not punitive ones.

But what is the purpose of this extra reparation? If it is really ‘on behalf of ’ the community, it must have a clear restorative or protective function and there must be some evidence that it is likely to achieve this. Otherwise, even a constructive activity becomes a punishment, because the intention is transformed into a retributive one.

Moreover, if the victim and offender agree, and the court overrules their agreement, R J is no longer as empowering as it claims to be. The only acceptable interventions, according to this view are (i) protecting the public, as discussed above; (ii) protecting the offender from unreasonable demands; or (iii) protecting the victim from unwillingly accepting too little reparation from his or her own point of view (as distinct from the community’s). Here again there is scope for discussion about what is ‘unreasonable’ or ‘too little’.


The psychology of control
Another distinction between the conventional and the restorative philosophies lies in their view of human nature. Judges (in England at least) habitually speak of a ‘deterrent’ sentence; continental theorists speak of ‘Generalprävention’. Both of them are referring to punitive sentences, usually imprisonment, and are assuming that punishment does in fact deter crime. This is based on a behaviouristic view of control: that the way to make humans behave well is by threatening unpleasant consequences if they don’t. The evidence supports this only to a very limited extent.

Here too, R J works on a different logic. It says that there are other ways. Primarily it relies on the individual’s need to be respected by those whom he respects. If there is a deterrent it is the loss of their respect; which means that the main crime prevention effort should go into making sure, as far as possible, that everyone has such respect in the first place. It could be argued that the noblest form of control is self-control; after that comes informal social control (provided that it is exercised benignly, of course – it can also be exploitative or vicious), and formal compulsion by agents of the state should be the last resort. R J would also rely on persuasion before resorting to compulsion; so it would give an offender the opportunity to make amends voluntarily, before using coercion.

This leads us into the debate about ‘voluntariness’: it can’t be truly voluntary if we say ‘Do it voluntarily, or else we will coerce you!’ I think the only way round this one is to avoid the word ‘voluntary’ and speak instead of ‘willingness’ of ‘informed consent.

Martin Wright 23.10.2004

Notes:
[1] Those familiar with the New Testament of the Bible may recall the parable of the labourers in the vineyard: those who were hired in the morning received the same as those who were hired late in the day, but all received the same wage, to which all had agreed when they were hired. The implication is that this was not unfair to the former, but generous to the latter – and generosity is an important feature of justice. Dostoevsky said ‘You have no mercy, only justice – therefore you are unjust.’
[2] This is one of the reasons in favour of conferencing, with members of the community present, rather than one-to-one mediation; but here too there are arguments on both sides.
[3] It is then necessary to decide how long the restriction or deprivation of liberty should last, but that is a separate issue. Should it be determined by an assessment of likelihood of re-offending, or by a ‘tariff’ related to the seriousness of the crime?"

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