Is Restorative Justice Another Form of Punishment?

Introduction by the editors

Quite a few of you experienced a vibrant conference in Sassari in June. Many topics were presented and resulted in interesting discussions afterwards. Not all of them were easy and not all of them ended with the conference.

Conflict, controversy and dialectic are important mechanisms for the further development of any discipline. Here we present an exchange of positions that was sparked by Christian’s presentation in Sassari and that continues here with a reply from Tim.

Christian claims that it might be time to move away from defining restorative justice in opposition to retribution and from contrasting it as something radically different from punishment. He argues that the restorative movement could benefit from ‘marketing’ its ideas as a specific, more constructive form of punishment.

Tim draws a different idea of restorative justice as a value-based dialogical process. Since personal experiences by those affected are in the centre, outcomes emerge based on their needs and interests. His reply includes a number of questions to start a dialogue with Christian — but he also invites all readers to engage in the exchange.

UPDATE: After publishing this exchange, Christian has responded to Tim's remarks. You can read his answer here. 

Restorative justice as punishment
by Christian Gade

On 24 June 2022 I gave a presentation at the European Forum for Restorative Justice’s conference in Sassari, where I suggested that it is time for a paradigm shift within the restorative justice movement: instead of perceiving restorative justice as something radically different from punishment, we should change lenses and promote restorative justice as a different, and potentially more constructive, form of legal (de jure) punishment. This makes sense not only from a promotional but also from a theoretical point of view, as restorative justice constitutes de facto punishment according to many positions on what punishment is. This is an edited transcript of my oral presentation.

First of all, it is really nice to meet all of you. My name is Christian Gade, and I am an associate professor at Aarhus University. My research is primarily focusing on victim-offender mediation and restorative justice conferencing in Denmark. Furthermore, I have also been responsible for conducting an impact assessment of the Access to Justice project by the International Criminal Court in Northern Uganda, which is a project that includes restorative justice elements. In addition to being an academic, I am also a practitioner. I am a mediator in the Danish victim-offender mediation program (Konfliktråd), and I have been involved in the training of the Danish victim-offender mediators.

As a starting point of this presentation, I would like to say that I consider myself to be part of the restorative justice movement in the sense that I support restorative justice from a consequentialist point of view. This means that I support restorative justice to the extent, and only to the extent, that it has better consequences than other crime management mechanisms. And whether it has better consequences may, of course, be a multi-dimensional issue in many ways. Better consequences may be about recidivism, victim satisfaction, economic cost, and so on, depending on one’s values.

This is my starting point. However, my presentation focuses on the relationship between restorative justice and punishment. I hope that we can reflect on this relationship together. I want to pose the following questions. First, could some cases of restorative justice constitute de facto punishment from the perspective of some positions on what punishment is? Second, could it make sense to adopt and promote restorative justice as a legal (de jure) form of punishment? Could that have good consequences for victim satisfaction, for recidivism, for economic cost, and so forth?

I know that these questions may be quite strange for many restorative justice scholars and practitioners because restorative justice was born in opposition to the established criminal justice system. It was born in opposition to retributive justice and its practices of punishment. For instance, if you take Howard Zehr’s article ‘Retributive justice, restorative justice’ from 1985, which to my knowledge is the first article that focusses specifically on restorative justice, then you will see that Zehr argued that restorative justice should replace retributive justice as a new criminal justice paradigm. According to Zehr, this change would be as radical as the change from the old Ptolemaic worldview, in which the earth is at the centre of the universe, to the Copernican worldview, in which the sun is the centre.

Some years back, I had an email correspondence with Zehr where we discussed the term ‘restorative justice.’ He wrote to me that the reason why he chose this term to denote his new justice paradigm was that it ‘contrasted nicely with the term “retributive”.’ He added that ‘I was looking for terminology that would communicate and would be easy to remember’ (see Gade, 2018, p. 30). Thus, the idea of a dichotomy was already formulated at the birth of the restorative justice movement. As Kathleen Daly (2002) writes in one of her articles, one of the first things you learn when you begin to delve into the restorative justice literature is that restorative justice is something that is radically different from retributive justice and its practices of punishment. That was also one of the first things that I learned when I started to work within the field of restorative justice. However, after a while I began to wonder: To what extent is this dichotomy actually true? And if our aim is to promote restorative justice, to what extent is it constructive?

My old PhD supervisor, Professor Steen Wackerhausen, once told his students an interesting story about a cow called Maren who lived in a field. She always followed the same paths, and the more she walked in these paths, the deeper they became, and the more natural it became for Maren to follow them. I am wondering: Have we become a little bit like Maren, walking the same paths of thought in relation to how we conceptualise what we are doing as scholars and practitioners in the field of restorative justice? We clearly constitute a specific epistemic community at this conference, and I think we have some established ‘truths’ within the community (for instance about restorative justice being a new paradigm), just as we find established ‘truths’ in other epistemic communities. But, of course, that does not mean that these ‘truths’ are real truths. So perhaps we should try to challenge them. However, as Zehr also emphasises in his article from 1985, it can be really dangerous to challenge established ‘truths.’ He referred to examples in which people who questioned the old Ptolemaic worldview were burned at the stake. I sincerely hope that you will not burn me at the stake because I question the dichotomy between restorative justice and punishment.

Zehr called for a paradigm shift. I would like to ask: Is it time for a new paradigm shift within the restorative justice movement? Are we ready for that? Should we maybe begin to perceive restorative justice as an alternative and potentially more constructive form of punishment (more constructive in the sense that it may have better effects than current forms of legal punishment), rather than as an alternative to punishment? And could that have positive effects for the promotion of restorative justice? I think that one of the problems in the field of restorative justice is that many restorative justice scholars and practitioners have an enemy image of what punishment is. For instance, within the restorative justice movement reference is often made to Nils Christie’s conceptualisation of punishment as the infliction of pain, intended as pain (Christie, 1981, p. 5). However, in the literature on punishment, there are many different ideas about what punishment is and should be. In one of my articles (Gade, 2021a), I created a punishment framework distinguishing between more than 500 different positions on the nature of punishment. And some ideas about punishment are certainly more in harmony with the ideas of restorative justice than Nils Christie’s conceptualisation. For instance, Anthony Duff argues that punishment is something that should have restoration as its main purpose (Duff, 2002). Maybe we should also consider such (arguably more positive) conceptions of punishment when we discuss the relationship between restorative justice and punishment. Would this be a good idea?

I also think that we ought to consider our own practice. As a restorative justice practitioner, I help the parties involved in crime cases to communicate, I promote dialogue and I try to help them to see beyond enemy images. We promote dialogue and openness as practitioners, but how does that fit with the way we relate to the established criminal justice system? Why don’t we seek dialogue with the system? Why don’t we try to engage more openly with the system instead of ‘oppositioning’ (Gade, 2022, p. 38) ourselves? Why do we not engage in a more open-minded dialogue with the system, when dialogue is essential to the practice that we advocate? I really think this is something we should ask ourselves.

Of course, there are problems with current forms of punishment. That is evident. If you look at prison, for instance, then we have solid evidence showing that imprisonment does not really decrease recidivism, it does not do much to help the victims to move on, and it is also very expensive. Yes, there are problems with current forms of punishment. But that does not necessarily imply that we could not punish in a more constructive way. I think we potentially could do that by promoting restorative justice as a different form of punishment.

If we look at the factual level first, then it is evident that many concrete cases of restorative justice constitute de facto punishment from the perspectives of several positions on what punishment is (for details, see Gade 2021a and Gade 2022). When I mediate a case, and when I confront the offender with the victim and the consequences of what he or she has done, then it can definitely be seen as a form of punishment. As it was said at the first day here at the conference by Patrizia Patrizi, we should perhaps move away from the idea that restorative justice is a soft option. In my experience, it can be extremely tough for offenders to meet their victims and other people whom they have hurt. And it can also be a burdensome process to make amends, for instance, through restitution. There is no reason why we could not conceptualise the restorative justice meeting and the following process as a potentially more constructive form of punishment.

As I indicated in the beginning of this presentation, I am a consequentialist. Therefore, I am of the view that we should do whatever has the best effects (and, as already indicated, the achievements of the best effects may be a multidimensional issue. From my perspective, positive effects include high victim satisfaction, low recidivism rates, low financial cost and respect for the human rights of those who participate in crime management). And I think we should test whatever we do. If we want to go in the direction that I suggest, then we need to test the effects, and we should only go in this direction if these effects are preferable to those resulting from other options. In the Danish context one could, for example, test a model where restorative justice is used as a legal form of punishment for offenders who have received a sentence of six months or below. That could be a test case.

We could try a model involving partial voluntariness, the same kind of voluntariness as we have now in the Danish system with electronic tacking. Here, an offender who has received a prison sentence for up to six months can apply to serve the sentence at home with an electronic anklet. It is not that the offender can decide that he or she does not receive any punishment, but he or she can apply to serve the sentence at home instead. Thus, serving the sentence with an electronic anklet represents a kind of partial voluntariness. We could try something similar with restorative justice and say: Okay, these people can apply to receive their punishment as restorative justice. And then, of course, there is the challenge that some victims might not want to participate. In such cases, we could potentially use quasi restorative justice processes, like community panels (United Nations Office on Drugs and Crime, 2020, p. 37), to ensure a more equal access to restorative justice for offenders. The model could also include that a written agreement must be made and the demand for monitoring. However, this is just what I have in mind in the Danish context. You might have other ideas in other contexts.

It is, of course, very easy to produce caricatures when you call for a radical change of perception. Zehr did it in his early scholarship, where he painted an excessively sharp dichotomy between restorative justice and retributive justice. Caricatures can help you to communicate a specific message, and they can also be very effective. But they also oversimplify the situation. I have also been caricaturing today. I am guilty of this to the extent that I might have given the impression that all scholars and practitioners within the field of restorative justice believe that there is a dichotomy between restorative justice and punishment. If you read the writings of Kathleen Daly (2000; 2002; 2013; 2016), Anthony Duff (2002), Gerry Johnstone (2001), Thom Brooks (2017), and others, you will see that they also try to challenge this perceived dichotomy in different ways. And even Howard Zehr himself started to question the dichotomy in his later research. Take a look at The Little Book of Restorative Justice (2002), for instance. In that book, he questions his own dichotomy.

I think that it made a lot of sense to picture a dichotomy between restorative justice and punishment when the restorative justice movement first appeared. It enabled us to rally around a new paradigm, and it created traction. But at this point in the movement’s history, I do not believe it is constructive to continue to insist on the dichotomy if we want to take the practice of restorative justice to the next level. Despite the positive effects of restorative justice demonstrated by several studies (see United Nations Office on Drugs and Crime, 2020, pp. 8—10), we have not seen a revolutionary growth in the use of restorative justice (in many countries, Denmark for instance, we have in fact seen a stagnation). Perhaps I am just too impatient? Perhaps we should just wait for the predicted revolution? Or perhaps we should change strategy?

In my view, it is high time to try a new strategy. Our situation resembles that of new political parties. At first they contrast themselves to the established system; but if they want to have real influence later, they have to become part of the system. I think we need to become part of the system as well if we really want to promote the use of restorative justice in the future. Of course, there is the risk that becoming part of the system could potentially corrupt the practice of restorative justice. However, it may well be possible to construct models where that does not happen. In any case, I believe we should do whatever turns out to have the best effects (and again, as stated above, the achievement of the best effects may be a multidimensional issue).

Before I end, I want to urge the restorative justice movement to acknowledge the fact that there is a widespread call for punishment after crimes, also among some victims (see, for example, Gade, 2021b). We should be careful not to turn into a club which is out of sync with the general population when we try to promote restorative justice. Many people want punishment, and we can—in good faith—reassure them that restorative justice constitutes an alternative, and potentially more constructive, form of punishment according to many positions on what punishment is. That is all I want to say for now. However, if you want to read more about my thoughts on restorative justice and punishment, then I have a publication in The International Journal of Restorative Justice, which has just been published (Gade, 2022). Finally, I just want to say that I hope you will go for the (restorative) reaction of dialogue when you react to my presentation, instead of burning me at the stake like the people who questioned the established ‘truths’ of the old Ptolemaic worldview.

by Tim Chapman

Christian, I have to admit that I had a strong reaction to your provocative views. Most of my working life as a probation officer and then as a restorative practitioner, researcher, teacher and trainer has been focused on the search for effective and humane alternatives to the humiliation, the exclusion, the stigmatisation and the unfair and discriminatory inconsistencies caused by punishment. So, responding to your invitation I wish to enter into a dialogue with you and other readers on the issues that you raise through sharing my questions.

I would add for the benefit of readers that I would recommend reading your articles which you reference at the end of your blog. These articles develop a much more nuanced argument than a short piece could be expected to achieve.

You say that you are a consequentialist judging the value of restorative justice by its outcomes, which include the scale and cost of its use, reducing recidivism and victim satisfaction. My difficulty with this is that these are outcomes that are valued by the criminal justice system but not necessarily by victims and perpetrators. So, you start by situating restorative justice firmly within the system and responsive to its strategic priorities.

I will argue later that restorative justice is not a programme that seeks strategically to deliver planned outcomes but an approach that enables outcomes to emerge from a dialogical process between those most affected by the harm caused by crime and other behaviours. As such, it is led by values that are meaningful to ordinary citizens rather than to experts.

Punishment is designed primarily to demonstrate the legitimacy of the state’s authority to coerce citizens who commit crimes and to inflict restrictions on their liberty. The fact that the individual has been found guilty of a crime justifies this (usually) temporary exemption from observing a citizen’s rights. In modern society, punishment has taken on various, often contradictory, utilitarian purposes — retribution, individual or general deterrence, protection of the public from the threat that the criminals pose, rehabilitation, and restitution or reparation.

It is true, as you write, that there are traces of each of these purposes in restorative justice if you look hard enough. But there are significant differences. In punishment the focus of these purposes and the methods to achieve them all have one thing in common — the offender and what to do to, for or with the offender. This leads to experts deciding how to inflict sufficient restrictions and deprivations to signal society’s disapproval and to deter the individual and others who may be considering similar behaviour, or how to manage the risks that the individual poses through various means of incapacitation, how to change the attitudes, cognitive and interpersonal skills and social circumstances of the individual to prevent reoffending, and how to assess what level of payment would compensate the victim for the harm that they have experienced.

These are all outcomes determined by the system rather than by those affected by the harmful effects of the crime. In each of these, the victim is absent or plays a minor role. The community is also absent. Restorative justice is primarily concerned with the harm that human beings inflict on each other and how to either prevent it by activating just relations or to respond to it by a process of dialogue between those affected by the harm.

This is a new paradigm, not intended to replace the old punishment paradigm, but enhancing people’s personal experience of justice. If there is a painful impact on any person, if shame is felt or relieved, if the perpetrator of the harm promises to not harm the victim again or agrees to take action to address whatever is stimulating harmful behaviour, or to make a direct or symbolic act of reparation, it is because these effects have emerged from the dialogue and have been freely and voluntarily agreed. They have not been the result of a process strategically designed to achieve these outcomes.

It is true that the restorative process is often very difficult for perpetrators who are asked to account for their harmful actions and to listen to the victim’s account of their suffering. They may experience distressing emotions such as shame, anxiety, fear and anger with themselves. This may seem like punishment to them. But what if they do not feel bad? Has punishment failed? Does the process, then, try to make them feel bad, for example through shaming them in a stigmatising way?

It is also quite common that the victim may experience distress when telling their story or hearing the perpetrator’s story or, perhaps, lack of remorse. Does this mean that restorative justice also punishes the victim?

For me, these are normal human emotions to be expected when people come together to talk about an important event in their lives. There is no intention to contrive them in order to punish the perpetrator.

Christian, I wonder if your arguments are very much based upon your experience of practice and research on victim-offender mediation and restorative justice conferencing in Denmark. My own research leads me to the conclusion that mediation relies more on the mediator’s direction than the more non-directive form of facilitation in conferences. Mediation also lends itself more easily to a shuttle process rather than face to face dialogue. Your quotation: ‘When I mediate a case, and when I confront the offender with the victim and the consequences of what he or she has done, then it can definitely be seen as a form of punishment’ would be unusual in a conference in which it is the victim who confronts the perpetrator rather than the facilitator.

You believe that we could ‘sell’ restorative justice more effectively if we embraced the punishment paradigm. The European Forum for Restorative Justice exists, in part, to promote restorative justice and increase access to high quality restorative processes throughout Europe.

But I do not believe that we are attempting to sell a commodity. We want greater access to restorative justice because of its benefits to victims, to perpetrators of harm and to society.

The other problem for me is that, if we sell restorative justice as a more constructive form of punishment, are we still selling restorative justice or selling punishment with a more attractive packaging? You envisage offenders entering into a transactional arrangement with the criminal justice system to negotiate a restorative punishment rather than a retributive punishment. You accept that this will exclude many victims. My experience of that approach is that victims and their narratives disappear completely. In any event, in the eyes of the general public and the criminal justice system nothing can compete with prisons in the punitive market. I fear that your argument will also result in the disappearance of restorative justice.

I agree that restorative justice, in its eagerness to promote itself, has adopted binary arguments (we good, you bad). We are now sufficiently confident of our own value to enter into dialogue with the criminal justice system but not with a view to be assimilated into its way of thinking and acting. Rather we can offer something different which will enhance justice as experienced by individuals. Dialogue is rarely needed between individuals or institutions who agree with each other. Dialogue depends upon and enriches difference.

Christian, you have posed important and challenging questions which the restorative justice movement need to answer.

Is restorative justice a utilitarian service at the disposal of the criminal justice system or is it a value-led approach to offering a satisfying experience of justice to those affected by harm and injustice?

More fundamentally, do we wish people to reduce their propensity to harm others due to fear of punishment by the state or because they have learnt to respect the dignity of others and to value the obligations that we owe to each other in order to live in a safe, just and peaceful society?

Christian Gade is an Associate Professor of Human Security and Anthropology at the Århus University. 
Contact: gade@cas.au.dk

Tim Chapman is a Board member of the European Forum for Restorative Justice. He was the Chair of the Board between 2016 - 2022. 
Contact: info@timchapman.eu

Header photo by Oscar Nord: Denmark Street in London (from Unsplash)

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Published on 29 September 2022.