A Consequentialist, Democratic, and Evidence-Based Approach to Crime Management

In the October 2022 edition of the EFRJ Newsletter, I argued for a reconceptualisation of restorative justice as a constructive form of punishment (Gade, 2022a). The aim was to promote the use of restorative justice to benefit victims, offenders, and society at large. My article was accompanied by a response from Tim Chapman (2022). In February 2024, the EFRJ published a special issue of its Newsletter, where Kim Magiera, Bas van Stokkom, Jacques Claessen, Ivo Aertsen, and Vincent Geeraets provided reflections in relation to my argument. The current article is a response to the special issue. Here, I defend an approach to crime management that is consequentialist, democratic, and evidence-based, and I provide further reflections on why I support a broad definition of ‘punishment’ that goes beyond the narrow understanding of punishment as intended pain. Ultimately, how restorative justice ought to be used and conceptualised depends on the consequences of different utilisations and conceptualisations.

When I heard that my article ‘A paradigm shift within the restorative justice movement? Restorative justice as punishment’ (Gade, 2022a) had sparked a special edition of the EFRJ Newsletter, I became a bit concerned: Was it now time for me to be publicly ‘burned’ at the stake for questioning the common belief that restorative justice is radically different from punishment? However, reading through the different contributions, I was pleased to see that everybody was engaging in a dialogue and offered valuable perspectives.

In response to the various contributions in the special edition, and in the spirit of ongoing dialogue, I would like to offer a few additional reflections on my own position, particularly regarding the type of consequentialism I advocate and why I argue for a broad definition of ‘punishment’ that permits a reconceptualisation of restorative justice as a form of punishment. As elaborated later, the crime management approach I endorse is characterised by being consequentialist (but not in the classical hedonist or utilitarian sense), democratic, and evidence-based.

The problem I aim to tackle through the reconceptualisation of restorative justice as a constructive form of punishment is underscored by Ivo Aertsen:

A general insight is now — internationally speaking — that the potential of restorative justice is ‘underused’ considerably, even in countries that have a more or less generalised practice such as Belgium

(Aertsen, 2024, p. 19).

My overall suggestion is that we may address the problem of underuse by abandoning the ‘polarising scene setting’ (van Stokkom, 2024, p. 4) that has been central to the field of restorative justice since its inception, for example, expressed through the idea of restorative justice as a new paradigm (Zehr, 1985). Though there are risks of institutionalisation (Aertsen, 2024), I believe that the best way forward from a consequentialist point of view — to achieve better outcomes in the area of crime management — would be to promote restorative justice as something that can be integrated into current justice systems to a greater extent.

This could be achieved by reconceptualising and utilising restorative justice as a constructive form of punishment (for a concrete suggestion, see Gade, 2022b, p. 50) and by integrating methods of restorative justice, for example mediation, to a greater extent into current penal institutions. Fortunately, some countries are already moving in that direction. In Denmark, for example, the Prison and Probation Service has just employed a team of mediators to work in the Danish prison system.

This might not lead to entirely ‘pure’ forms of restorative justice (whatever that may be). However, isn’t it preferable to move towards positive change rather than maintaining the status quo simply because we may not achieve the exact system we desire? As a consequentialist — and to some extent, a pragmatist — I believe we should strive to promote restorative justice within the bounds of what is feasible. Furthermore, in my experience, there are many visionary individuals within the current penal systems who recognise the value of restorative justice and are eager to promote it. For such individuals, the polarising scene setting is not beneficial.

I have been somewhat surprised to encounter significant resistance to a consequentialist approach to restorative justice (Chapman, 2022; Geeraets, 2024; van Stokkom, 2024). After all, as Vincent Geeraets explains, numerous scholars, including John Braithwaite and Lode Walgrave, have advocated for restorative justice from a consequentialist perspective (Geeraets, 2024, p. 24) — that is, they have argued that restorative justice ought to be utilised because it yields positive outcomes. My research represents a continuation of this tradition, and below, I would like to further elaborate on the specific consequentialist approach that I defend.

First, however, I invite readers to engage with a thought experiment where we imagine that restorative justice only has negative consequences compared to other crime management practices (needless to say, this contradicts reality). Let us, for example, imagine that restorative justice, when compared with other crime management practices, results in negative outcomes concerning decency, reconciliation, restoration of harm, recidivism, victim satisfaction, economic cost and everything else. If that were the case, most of us would probably agree that we should not pursue restorative justice  for why should we implement restorative justice if it only brings about negative consequences? The appropriate response for anyone concerned about society is, in my view, that we should not engage in restorative justice if it only leads to negative consequences. I think that everyone not living in a philosophical ‘ivory tower’ must admit that consequences do matter in relation to how crimes ought to be managed. In fact, I hold the position that consequences are the only thing that matter in this regard, meaning that I advocate for a consequentialist approach to crime management (see Sinnott-Armstrong, 2023).

However, I would like to emphasise that n advocating for a consequentialist approach to crime management, I am not a supporter of classical utilitarianism, which considers pleasure as the sole good consequence (see Geeraets, 2024, p. 25). Instead I am developing a new form of consequentialism, where the good consequences, (which may be multiple) may potentially involve the realisation of any kind of preferences. In the area of crime management, one may, for example, have a preference for low recidivism, high victim satisfaction, and low economic cost — or a preference for decency, reconciliation, restoration of harm: the kind of preferences that Jacques Claessen and Vincent Geeraets associate with restorative justice (Claessen, 2024; Geeraets, 2024). Similarly, one may have a preference for specific principles being met to a high degree, like the lex talionis (‘eye for an eye’) principle, normally associated with deontology (see Geeraets, 2024, p. 26).

In short, in my consequentialist thinking, the good consequences may potentially be the realisation of any kind of preferences, including those typically associated with consequentialism (such as the achievement of pleasure), and also those associated with other ethical traditions like deontology (such as compliance with the lex talionis). Importantly, the preferences may also encompass those commonly related to restorative justice, such as the restoration of harm. Thus, someone may argue that Practice A ought to be implemented rather than Practice B because this better realises their preference for restoration of harm. Another may argue that it is rather Practice B that ought to be implemented because this has the consequence that their preference for compliance with the lex talionis is realised to a higher extent.

There is a multitude of different preferences in the normative area of crime management, and the question is, of course, which preferences should be prioritised. Here, my position is that this is not something that should be dictated by any single individual. To me, the prioritisation of preferences is a democratic issue, which should be decided by the whole population through the country’s democratic institutions (as we can democratically decide on other things like laws, we can, in principle, also democratically decide on preferences). Furthermore, in cases where different democratically determined preferences conflict, how they are weighted against each other should also be a democratic decision.

For example, restorative justice might perform better than a fine in terms of the restoration of harm in some cases, while a fine might outperform restorative justice in relation to compliance with the lex talionis principle in those same cases. If that is the case, and if the population’s preferences (understood as preferences decided through the country’s democratic institutions) include both restoration of harm and compliance with the lex talionis principle, then it should be a democratic decision how the two preferences are weighted against each other — and thus ultimately a democratic decision whether restorative justice is chosen over a fine in the concrete cases.

I do not believe there are any objectively valid preferences, even though people may sometimes claim that their own preferences have objective validity. When a statement about what ought to be done is derived from a statement about what is the case, the ‘ought’ is not found within the ‘is’ but within the subject who does the deriving. Believing that the ‘ought’ is found within the ‘is’ itself is a naturalistic fallacy (Moore, 1903). It depends on who we are — which is partly a matter of where, when, and how we have been brought up — what our preferences are and what we believe ought to be done in specific situations. If there is no objective standard (no ‘ought’ within the ‘is’ itself) that our preferences can be measured against, then my preferences are not objectively more valid than yours. It is against this background, and based on my belief in democratic equality, that I argue that it should be democratically decided preferences that guide crime management.

However, merely deciding which preferences should guide crime management is not enough to determine which practices should be implemented. In order to ascertain whether restorative justice or other crime management mechanisms should be utilised, we ought to have comparative evidence about their consequences/effects. This comparative evidence could arise from randomised controlled trials, or it could consist of other types of comparative evidence that are trusted by the population (see Gade, 2023). Thus, in short, I argue for an approach to crime management that is consequentialist, democratic, and evidence-based.

Reflecting on the contributions of the EFRJ special edition, Kim Magiera writes:

1. I was reminded of Nils Christie’s ‘Five dangers ahead’ in which he warned us not to narrowly assess restorative justice with the criteria usually applied to criminal justice processes (Christie, 2009).
2. I had to think of Hannah Arendt. … She cautions that in politics one should never adopt a means-to-an-end way of thinking, because that would all too easily lead to the conclusion that all means are acceptable for as long as they’re effective in reaching the one good aim.

(Magiera, 2024, p. 2).

In response to this quote, my position is that we ought to assess restorative justice with criteria that are democratically decided and not dictated by any single individual. Furthermore, the measurement is not necessarily to reach one good aim. It may be democratically decided that there are multiple aims, also those typically associated with restorative justice, such as the restoration of harm.

Having now presented the kind of consequentialism I support, I would like to explain further why I advocate in favour of a broad definition of ‘punishment.’ However, my starting point is to emphasise that restorative justice is not a ‘soft option,’ a point recognised by many restorative justice scholars and practitioners. For example, Lode Walgrave writes that:

Being confronted directly with the suffering and harm one has caused and with the disapproval of loved ones is a severely affecting burden. Apologising in front of others may be hard and humiliating. Experiencing pressure to make up for the harm is difficult to cope with. The process makes the offender feel a mixture of intense unpleasant emotions, such as shame, guilt, remorse, embarrassment, and humiliation, which may have an enduring impact on his future life’.

(Walgrave, 2008, p. 47)

Walgrave recognises that restorative justice involves offenders experiencing pain, but he argues that restorative justice is not punishment because the imposition of pain in restorative justice is not intentional (Walgrave, 2008, p. 48). Is this assertion accurate? Restorative justice participants do, in fact, sometimes intend the restorative justice process to be painful for the offender. This is highlighted by John McDonald in a description of a restorative justice conference:

His father [the father of Michael, who died in a traffic accident] in particular had expressed a strong desire to punish Peter [the offender] and was eager to see that he said everything he could to make Peter feel the pain that Michael felt and to ensure that Peter felt guilty and carried that guilt with him for the rest of his life.

(McDonald, 2012, p. 156)

Furthermore, as a restorative justice practitioner, I sometimes facilitate a shaming phase (which I know is often painful for the offender) prior to a reintegration phase in a process of reintegrative shaming (Daly, 2000, p. 43). When I, as a facilitator, intentionally make the offender go through a painful shaming process, it is not because pain is my ultimate goal, but because the shaming may be important for the reintegration. Thus, pain may be inflicted intentionally without being the ultimate goal.

As highlighted by Gerry Johnstone, it requires an absurdly narrow definition of what it means to intentionally or deliberately do something to convincingly argue that there is no intention to inflict pain on offenders in restorative justice:

If pain is an inevitable, or even highly probable, consequence of restorative interventions, then (unless one adopts a perversely narrow interpretation of the term “deliberately”’) someone who purposely puts an offender through restorative justice, thereby causing them pain, deliberately inflicts pain on them.

(Johnstone, 2011, p. 91)

Kathleen Daly writes that

We should stop comparing “retributive justice” and “restorative justice” in oppositional terms. Such a strong, oppositional contrast cannot be sustained empirically.

(Daly, 2000, p. 34 [emphasis added])

I agree with Kathleen Daly in this regard — and I believe that her claim is even true if punishment is understood in the narrow sense of intentional infliction of pain, which, historically, has been a common way to understand punishment. In fact, as highlighted by Jacques Claessen, this narrow definition of ‘punishment,’ represented by scholars such as Herbert Hart, has been endorsed by most criminal justice thinkers (see Claessen, 2024, p. 9).

Despite the narrow definition being the dominant one, I personally find it more compelling to adopt a broader definition of ‘punishment.’ In this regard, I align myself with the definitional tradition presented by Kathleen Daly and Antony Duff:

Another way to define punishment practices is anything that is unpleasant, a burden, or an imposition of some sort on an offender. Thus, compensation is a punishment, as is having to attend a counselling program, paying a fine, or having to report to a probation officer on a regular basis.

(see, more generally, Davis, 1992; Duff, 1992; Duff, 1996) (Daly, 2000, p. 39)

To me, this is a better way to define ‘punishment’ because it does not restrict punishment to intentionally inflicted pain.

Punishment can also be unintentional, as demonstrated in Adam Kolber’s thought experiment involving Purp and Fore, two offenders who receive exactly the same treatment but with differing intentions. Kolber writes:

Despite the different intentions that surround their treatment, we tend to think that Purp and Fore are punished by the same amount. The mental states of their punishers (be they judges, prison personnel, legislators, voters, or some combination of all of these) do not affect the severity of the sentences. So long as the duration of their sentences and the conditions of the confinement are the same, we think that they receive the same amount of punishment. Thus, when assessing amounts of punishment, we consider not only intentional hardships but also certain unintentional hardships as well.

(Kolber, 2012, p. 3)

Not perceiving intentionality as decisive for whether something constitutes punishment, and following the broader approach to punishment represented by Kathleen Daly and Antony Duff, I agree with Thomas McPherson that

Punishment can turn up in any human relationship. Lovers punish each other; parents punish their children; the State punishes criminals.

(McPherson, 1967, p. 26)

Based on this broader approach to punishment, concrete examples of restorative justice do often constitute a de facto form of punishment (Gade, 2021). I agree with Daly when she writes that:

Using Duff’s (1992) terms, restorative justice processes and sanctions should be seen as “alternative punishments” rather than “alternatives to punishment”.

(Daly, 2000, p. 34)

Indeed, there are multiple ways to understand punishment (Gade, 2021), and new definitions are continuously emerging. For example, in the special edition of the EFRJ newsletter, Bas van Stokkom suggests a new definition based on restorative justice principles, namely:

Punishment is censuring and calling to account an offender (who has committed a criminal offence), and is accompanied by the imposition of an effort obligation that encourages a sense of responsibility.

(van Stokkom, 2024, p. 6)

While I find this definition sympathetic (I personally agree that ideally, punishment should encourage a sense of responsibility), I also believe this definition is too narrow. At least, many concrete examples of current legal punishments may not meet the criteria outlined in this definition, as they may not encourage a sense of responsibility (see Claessen, 2024, p. 13.

I find it rather straightforward that based on the broader approach to the definition of punishment represented by Kathleen Daly and Antony Duff, which I support, restorative justice is a de facto form of punishment. The trickier question is whether restorative justice should also be used as a de jure (legal) form of punishment, as I have previously suggested (Gade, 2022b), and whether the methods of restorative justice should be more widely integrated into current penal institutions, for example by employing restorative justice methods to address conflicts in prisons.

Based on my consequentialist position, the answer depends on the consequences — more specifically on whether this development would contribute positively to the realisation of whatever preferences the population may decide on via the country’s democratic institutions. I don’t know what these preferences would be. This, however, is an issue that deserves much more attention. Identifying what these preferences are is arguably an important task if we want to manage crime in a democratic way. What preferences would the Danes, for example, democratically decide on in the area of crime management? Would it be to reduce future crime? To restore harm? To punish offenders? A combination?

I assume that in most countries, there will be a preference for crime management mechanisms to reduce future crime, to restore harm, etc. The reason why I argue that restorative justice ought to be promoted is that it has been demonstrated to have positive effects in relation to such preferences (United Nations Office on Drugs and Crime, 2020, pp. 8--10). However, it will probably also be a preference of most populations that offenders are punished. Nevertheless, as I have argued in this article, restorative justice can also deliver on that preference by providing an alternative form of punishment. This should be made clear by reconceptualising restorative justice as punishment, rather than continuing the earlier mentioned polarising scene setting.

But what if restorative justice does worse in realising the population’s preferences than some other crime management mechanism? Then my approach would be straightforward: the other crime management mechanism should then be implemented instead of restorative justice. And what if my suggestion to reconceptualise restorative justice as a form of punishment and integrate it more into current penal systems leads to so much ‘corruption’ of restorative justice that it actually does worse in realising the population’s preferences (see the concerns about institutionalisation in Aertsen, 2024)? Then my suggestion was wrong and it should not be implemented. According to my approach to crime management, the decisive question is what the consequences would be.

Finally, I would like to emphasise that I do not suggest that the approach to crime management advocated in this article is objectively valid. It is based on my personal preference for democratic equality. Taking a look at today’s world and its many authoritarian regimes, it is evident that not everybody shares this preference. Many people will probably believe that their own personal preferences — whether they concern low economic cost, compliance with lex talionis, restoration of harm, or something else — should guide crime management rather than preferences decided upon via a country’s democratic institutions

Christian Gade is an Associate Professor at School of Culture and Society in Aarhus University

Contact: gade@cas.au.dk

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