Vous êtes sur la page 1sur 49

Retribution & deterrence

Tom Ellis 2011/2012


Punishing suitably and
appropriately
Retribution vs Restorative Justice:
You Choose!

Statement A :
The key aim of the justice system is
to apply punishment on behalf of
society

Statement B:
The key aim of the justice system is
to repair the harm caused to
victims and communities
RETRIBUTION: Principles

part01_full.wmv
http://www.youtube.com/watch?v=p1ZNjgvzLNo
Offenders should forfeit what the victim has lost
(Victims satisfaction)
Blame for wrongdoing
Protecting the public
Equivalence/lex talionis
Life for a life
Just deserts/Proportionality/commensurate
seriousness (Doing Justice 1976, 1991 CJA)
Tariffs (based on past action, not future risk)
Presumptive sentence range
Based on Typical offences
The urge for revenge is natural
and functional for evolution
Michael McCullough in Beyond Revenge:
The Evolution of the Forgiveness Instinct

Individuals in small groups contain
members who will stand up and be
counted to punish:
cheaters
liars
those that do not do their share of the work
RETRIBUTION: Fairness
Offenders prefer it
Attica riots in 70s about unfairness
because sentence not linked to offence
Sentencing the crime instead of
offender is fairer and avoids bias
Women
minorities

James Q Wilson paradigm
Non-custodial penalties are soft
Get tough
Deters more offenders
Incapacitates those who arent deterred
Avoids inequality of judicial discretion/discrimination
Mens rea/culpability increases with repetition
3 strikes good & sensible
Round up of video evidence 1:
Retribution works!
3 Strikes WAS victim-centred, started by father of
murdered young woman
Violent offenders and recidivists deserve heavy
penalty
Fathers want retribution and incapacitation
They dont want restorative justice, they want their
daughters back
It works crime is down, criminals are leaving
It is cost effective
Prisoners views show retribution/deterrence work
Retribution works!
Limestone Prisons, Alabama, Chain gang
part04_full.wmv
http://www.youtube.com/watch?v=kmTO5K8gMDw
Prison should be FOR extra punishment
Harsh conditions for recidivist parasites
Deterrence, retribution and incapacitation all in
one
Rehabilitation effect = reconvictions went down
and offenders inside prison went down
part06_full.wmv
http://www.youtube.com/watch?v=6eSqfFDdL3M

A common sense approach!
THERE IS A WAY TO BEAT CRIME-FEWER HUMAN RIGHTS,TOUGHER PRISONS AND ADMITTING THAT NOTHING
DETERS KILLERS LIKE THE DEATH PENALTY | Mail Online
There is an amazingly easy way to restore peace and
order to this country.
It would also be popular and not specially expensive-
And it would be a first step towards the restoration of
morals, manners, self-restraint and national pride that
we so badly need.
So why will nobody do what is necessary?
Very simply, we have to rediscover the basic idea that
crime is wrong and must be prevented.
Where it cannot be prevented, it must be punished.

We must stop being ashamed to punish people. It is
good for them, because it forces them to reconsider
lives gone wrong.

It is good for their victims (nowadays almost all of us).

It makes us less likely to want to take personal
revenge on those who have wronged us and it makes
us feel as if justice has been done.

And it is good for potential lawbreakers who, seeing
what happens to those who are caught, think hard
before embarking on crime.

The restoration of hanging would deter armed crime, reduce
violence and protect the police from danger.
Then we have to bring back the idea that prisons are for
punishment.At the moment they are warehouses-where the loss
of liberty is seen as punishment enough, and the authorities have
little control over the prisoners' lives.
These simple changes, implemented firmly, would be popular
and effective.
Within a few months, they would change the atmosphere of our
country and greatly strengthen the forces of good against the
forces of wickedness and disorder. They would not threaten any
innocent person.
They would prevent many young people from falling into the
fumbling hands of the criminal justice system because they would
not risk getting into trouble in the first place.

Restorative justice going
forwards not backwards
Steve Savage 2011/2012
Restorative Justice
The problem with retribution

Restorative justice principles

Restorative justice how it works in practice

Conclusion a constructive approach to the
business of justice
The problem with retribution
NEGATIVE, not positive, perspective on human
nature
Focuses on discouraging BAD behaviour rather than
encouraging GOOD behaviour
PUNISHMENT the motivator not REWARDS
It produces EMBITTERED OFFENDERS who see the
authority as the enemy

BACKWARD not FORWARD looking
PAST behaviour more important than FUTURE behaviour

About inflicting MORE PAIN/damage rather than CURING pain
REPAIRING damage

The problem with retribution
Only small percentage of offenders CAUGHT those that
get their just deserts are the UNLUCKY ones

Difficulties of measuring PROPORTIONALITY an eye for
an eye?

Assumes blame can only be attached to INDIVIDUAL
OFFENDER not to SOCIAL CIRCUMSTANCES

Leaves VICTIM on outside of justice

COST Retribution typically associated with custodial
regimes

Overall treats offenders as little more than animals to be
taught a lesson
part07_full.wmv
http://www.youtube.com/watch?v=9uSeYeNxijQ

Restorative Justice: Principles
Definition:
A problem-solving approach to crime which involves the parties
themselves, and the community, in an active relationship with state
agencies (Marshall)
part08_full.wmv
http://www.youtube.com/watch?v=ywrQ9ker0pY
BUT about more than crime RJ can be used in range of
areas:
RJ can be used to tackle bullying in schools
RJ can be used in dealing with complaints (mediation) eg student
complaints system
RJ can be used to tackle social damage in transitional societies
(South African Truth and Reconciliation hearings)
RJ a means of resolving conflicts where grievances exist but in a
POSITIVE and constructive way why?
Restorative Justice: Principles
Puts VICTIMS at centre stage:
RJ holds the promise of restoring victims
material and emotional loss, safety, damaged
relationships, dignity and self-respect
(Hoyle)
RJ more attuned to victims preferences needs
and concerns breaks assumption that
speaking up for victims = retribution
Evidence is that actual victims value repair of
harm over punishment of offender for their
offence part09_full.wmv
http://www.youtube.com/watch?v=VYYqNfug6oc

Case study: victims of miscarriages of justice

Victims of miscarriages of
justice what victims want
ICJS research on campaigns against miscarriages
of justice 37 campaigners interviewed, including
victims of MoJ
Research showed that what victims wanted was not
revenge but:
An explanation: Justice is not revenge. I would hold no
grudge and I dont want those people [who killed her son]
punished as this means another mother loses her son. I
just want someone to tell me why they did this..why he was
killed
An apology: It came out that [a senior police officer] had
lied to us and one of the things we wanted was an apology
from himself
Victims of miscarriages of
justice
Guildford Four miscarriage of justice Blair
apologises in 2005
Gerry Conlon: This hasnt ended for us. But
today is the start of the endIf you damage people
and you can repair them, it is your duty to do
that..The good thing is that he has acknowledged it,
and he accepts we are in pain..
Restorative justice - principles
RJ also about lay involvement/participation in justice
(victims and communities)
Value of informal means of tackling problems rather
than formal/professional processes
Ownership of justice by victims and communities
Means that decisions on justice informed by feelings
and emotions not just technical considerations - rich
decisions
RJ concerned with causes of crime the why?
of crime not just the how or what? as in
retribution
RJ future oriented repairing harm,
reintegration of offender into the community

Restorative Justice: How Does it
Work?

Main dimensions of RJ:
A MEETING of parties
COMMUNICATION between parties dialogue, mutual
understanding its good to talk
MEDIATION between victim and offender
RESTITUTION to victim and/or community
Material restitution (eg repairing damaged property)
Emotional restitution (eg allowing victim to talk through
the harm caused by the offender) A HEALING PROCESS
APOLOGY usually part of the solution
RJ also about CHANGE in offenders behaviour -
CURING OFFENDING (forward-looking not backward-
looking)

Restorative Justice Examples
in practice
Reparation orders (Crime and Disorder Act
1998)
The reparation might involve writing a letter of apology, apologising
to the victim in person, cleaning graffiti or repairing criminal
damage. (White Paper No More Excuses - 1998)
Family group conferencing
Sentencing circles



Sherman and Strang (2007):
Victims who were assigned to and completed RJ reported
greater ability to return to work, to resume normal daily
activities, to sleep better at night
Such strong and consistent positive findings about victim
benefits in the great majority of cases lead us to conclude that
victims will generally benefit from participation whenever they
have the opportunity to do so
[after RJ conferences] victims reported large differences in:
fear of the offender (especially for violence victims]
perceived likelihood of revictimisation
sense of security
anger towards the offender
sympathy for the offender
feelings of trust in others
feelings of self-confidence

Case: Carol for seven months after
Natalie had robbed her, Carol had been
unable to return to her job, carry a handbag
and rarely left her home[after RJ
conference] Carol went out the next day to
buy a handbag. Then she went back to work.
The RJ conference had restored and
transformed Carols life
Conclusion: RJ a constructive
approach to justice
RJ:
A CONSTRUCTIVE approach to justice
(FUTURE more important than the PAST)
Seeks to tackle causes in a way that
retribution does not
About repairing harm and damage rather than
inflicting MORE PAIN
About inclusion of offender rather than
exclusion
Its just more CIVILISED
Restorative Justice: doesnt work!
Tom Ellis 2011/2012
THINK ABOUT THE VIDEO CLIPS!
Sentencing circles are discredited in Canada women often
left within community where male abusers are key part of
the healing process and request formal justice/retribution
IRA offers to shoot McCartney killers
Community is collusive (coerced)
www.guardian.co.uk/Northern_Ireland/Story/0,2763,1433478,00.html
She was gang-raped on the orders of village elders
Community is divided
www.guardian.co.uk/international/story/0,,1430203,00.html

Rwandan Gacaca system crticised: apologies not genuine just
convenient
http://www1.voanews.com/english/news/a-13-2009-04-09-voa32-
68733712.html?moddate=2009-04-09
Gacaca is not justice
The Rwandan court system was overwhelmed
As a result, from 2001 some cases tried through a traditional
justice system: gacaca
(RESTORATIVE JUSTICE OR BUREAUCRATIC
EFFICIENCY?)
But many have criticized gacaca, saying genocide is too big a
crime to go before the village courts
Georgette Gagnon, Africa director for Human Rights Watch:
we've been concerned about whether the person facing gacaca
is receiving a fair trial. [ and there is no] legal representation.
Under international fair trial standards, the proceeding is not fair.
It's not following...... due process...

Witnesses receive no protection from anybody,
certainly not from the state

They are often intimidated or prosecuted by
police, by security agents, by government
officials. (Human Rights Watch documented)

Witnesses accused of genocide ideology.
"The person comes forward to perhaps say this
person did not participate in this way in the genocide
and that person often finds themselves ending upas
an accused person before the gacaca proceeding"

Restorative Justice: doesnt work! VIDEO


part12_full.wmv
http://www.youtube.com/watch?v=wK1foFsY-OY
Sociologist/ex-prisoner says it is only because
there was a year in prison first. That is key deterrent,
not tea with the vicar afterwards!
part13_full.wmv
http://www.youtube.com/watch?v=OScXxzx4zkA
Secondary victimisation: State has to enforce
outcome and done poorly needs retributive threat
Victim @ centre? I dont know what she did about it
RJ: Completely miscued liberal nonsense
part14_full.wmv
http://www.youtube.com/watch?v=Pq0iZa8_rec

Writing a letter of apology was so
impressive, he was allowed to murder
afterwards.

A few issues to resolve???

Someones life!

What a comfort to victims family!

Restorative Justice: doesnt work!
Provision is uneven
Practice often far removed from underlying theory
Evidence base is rudimentary
Power relations ignored, especially police led
conferencing, by narrow offence resolution focus:
economic, personal and social context?
Problems with defining the boundaries to
communities and clashing of lifestyles
Focus on participants perspectives, not reducing
re-offending

Restorative Justice needs to answer
following
What are they trying to achieve?
Who should be targeted and @ which CJ process
points?
Culturally appropriate?
Victims, offender, community interests balanced and
with what safeguards?
How formalised and/or integrated with traditional CJ ,
inc. agreement enforcement?
If offender reintegration fails, how to prevent
secondary victimisation?
Resources maximised effectively?
Needs more effectiveness evaluation

Zehrs contrast you decide!
RETRIBUTION
Violation of state
Based on guilt/blame for past
Adversarial & process normative
Pain to punish, deter, prevent
Right rules, justice by intent
Interpersonal obscured by state
vs offender
Social injury matched by another
State = abstract sidelined
community
Encourages competitive
individual values
Victim ignored, offender passive
Offender accountability = suffer
retribution
Legal NOT moral, social,
political, economic
Abstract debt to state
Focus on past behaviour
Stigma permanent
No repentance/forgiveness
required
Depends on proxy professionals
RESTORATIVE JUSTICE
Violation of victim by offender
Problem solving for future
obligations/liabilities
Dialogue & negotiation normative
Reconciliation of victim/offender
Justice = right relationship = outcome
Value of interpersonal conflict
recognised
Repair of social injury
Community facilitates restoration
Encourages mutuality
Victim rights recognised, offender
responsibility
Understanding impact and helping to
put right
Context IS moral, social, political,
economic
Concrete debt to victim & community
Focus on harm caused by offender
Stigma removable
Facilitates repentance/forgiveness
Direct involvement of participants
Retribution vs Restorative Justice:
You Choose!
Statement A :
The key aim of the justice
system is to apply punishment
on behalf of society


Statement B:
The key aim of the justice
system is to repair the harm
caused to victims and
communities
Thinking about your
assessments, esp. the exam
Tom Ellis 2011/2012
Can you have a pure retributive system?
Horses for courses are RJ and Retribution intended to
compete for all cases?
Assessments for appropriateness, Pre-sentence
reports, victim willingness, etc.
Does it have to be one or the other what about
combinations (including sequential), including with
other sorts of justice? ( Eg:Sycamore Tree project)
Remember models of CJ and how they fit with
philosophies of punishment
Is RJ a challenge to traditional CJ practice, or simply an
additional resource for case disposal? (Goodey
2005:183).
The urge to forgive is also natural to evolution
McCullough also argues (and the title of
the book is a clue)

There is a strong countervailing
psychological force the instinct to
forgive and cooperate
Punishments are balanced by peace
offerings a ratio can be calculated
Urge for personal revenge erodes sharply
in first weeks, but slowly thereafter
PHILOSOPHIES OF PUNISHIMENT
Future-orientated
(prevention)
Reductivist
(Reduces crime)
Utilitarian
Rational choice
Consequentialist
Future consequences
Deterrence through fear, shame, pain, restriction of
liberty, rehabilitation/COMMUNITY PENALTIES
(Death penalty), torture, (prison), tracking

(Relational)
AIM OF PUNISHMENT IS TO ADDRESS HARM TO VICTIM &
RESTORE BALANCE OF RELATIONS BETWEEN OFFENDER,
VICTIM & SOCIETY (A TRIANGLE) (Schulter, M. 1995)

Past-orientated
Retributivist
Moral blame
Proportionate (just
deserts)
Least necessary
pain should be
inflicted on offender
by the state
Denunciation & degradation
(Death Penalty), (prison)
Chain gangs


Principles of Punishment/CJ
Justifying principle
(Future-orientated)

Reductivism
Reduce crime

RELATIONAL
JUSTICE (RJ)?

Principles of
distribution
(Past-orientated)

Retribution
What types of punishment?
How much for types of
offending?
(see Hudson 1996;1-74)
Victims views on sentencing

See Mattinson and Mirrlees-Black (2000) Attitudes to Crime and Criminal
Justice: Findings from the 1998 British Crime Survey. Home Office
Research Study 200. London: Home Office: 35-44.

http://rds.homeoffice.gov.uk/rds/pdfs/hors200.pdf





Victims are no more punitive (retributive) than
the general public
1984 BCS shows about 1/3
rd
of victims willing
to consider RJ ONLY disposal
1998 BCS shows 2/3rds would consider
EITHER mediation OR reparative
compensation
But 47% of these also wanted prosecution and
punishment
Crimmigration a case where RJ voice is
not heard?
Blackburn death crash driver will not be deported

An asylum-seeker who left a girl dying under the wheels of his
car when he fled the scene in 2003 can stay in the UK, two
immigration judges have ruled.
http://www.bbc.co.uk/news/uk-england-lancashire-12007100
A fight between defence & prosecution with focus on
immigration and crime only
Any chance in process to discuss apology, compensation,
restoration ?
Aso Mohammed Ibrahim vs Amy Houston
Pro-RJ but also critical, and
opposes the simplistic
retributive/RJ opposition.
M. Zernova, Restorative Justice: Ideals and
Realities (2007, Ashgate).

Key sources used here
McIvor, G. (2004) Reparative and restorative approaches. In A. Bottoms, S. Rex, and G.
Robinson (Eds) Alternatives to Prison: Options for an insecure society.
Cullompton:Willan: 162-194

Goodey, J. (2005) Victims and Victimology: Research, Policy and Practice. Harlow:
Longman Criminology Series/Pearson: 152-217

Hudson, B. A. (1996) Understanding Justice: An introduction to ideas, perspectives
and controversies in modern penal theory. Buckingham: Open University Press: 38-75

Marshall, T. (1984) Reparation, Conciliation and Mediation: Current Projects in
England and Wales. Home Office Research and Planning
Unit Paper 27. London: HMSO

Mayhew, P. and van Kesteren, J. (2002) Cross-national attitudes to punishment. In J.V.
Roberts and M. Hough (Eds) Changing Attitudes to Punishment. Cullompton: Willan

Savage, S. (2007) Restoring justice: Campaigns against miscarriages of justice and
the restorative justice process European J ournal of Criminology Vol 4 No 2 195-216

Zehr, H (2003) Retributive justice, restorative justice. In G. Johnstone (Ed) A
Restorative Justice Reader: Texts, sources, context. Cullompton:Willan: 69-82


Restorative justice useful materials
with some case studies
Sherman & Strang (2007) Restorative Justice: The Evidence

http://www.esmeefairbairn.org.uk/docs/RJ_exec_summary.pdf

http://www.sfu.ca/cfrj/fulltext/rugge.pdf

http://www.unodc.org/pdf/criminal_justice/06-56290_Ebook.pdf






Use these learning materials !
http://userweb.port.ac.uk/~langstot/TomEllis/