Restorative Justice and Responsive Regulation

Restorative Justice and Responsive Regulation

Restorative Justice and Responsive Regulation

Restorative Justice and Responsive Regulation

Synopsis

Braithwaite's argument against punitive justice systems and for restorative justice systems establishes that there are good theoretical and empirical grounds for anticipating that well designed restorative justice processes will restore victims, offenders, and communities better thanexisting criminal justice practices. Counterintuitively, he also shows that a restorative justice system may deter, incapacitate, and rehabilitate more effectively than a punitive system. This is particularly true when the restorative justice system is embedded in a responsive regulatoryframework that opts for deterrence only after restoration repeatedly fails, and incapacitation only after escalated deterrence fails. Braithwaite's empirical research demonstrates that active deterrence under the dynamic regulatory pyramid that is a hallmark of the restorative justice system hesupports, is far more effective than the passive deterrence that is notable in the stricter "sentencing grid" of current criminal justice systems.

Excerpt

For informal justice to be restorative justice, it has to be about restoring victims, restoring offenders, and restoring communities as a result of participation of a plurality of stakeholders. This means that victim-offender mediation, healing circles, family group conferences, restorative probation, reparation boards on the Vermont model, whole-school antibullying programs, Chinese bang jiao programs, and exit conferences following Western business regulatory inspections can at times all be restorative justice. So long as there is a process that gives the stakeholders affected by an injustice an opportunity to tell their stories about its consequences and what needs to be done to put things right, and so long as this is done within a framework of restorative values that include the need to heal the hurts that have been felt, we can think of the process as restorative justice. This book seeks to ground a set of optimistic propositions (chapters 3 and 4) and of pessimistic claims (chapter 5) about restorative justice by contemplating the global diversity of its practice. The literature is organized to contend that both the optimistic and the pessimistic propositions may capture part of the truth. Regulatory theory (a responsive regulatory pyramid) is advanced as more useful for preventing crime in a normatively acceptable way than extant criminal law jurisprudence and explanatory theory. The responsive regulatory approach is the framework for locating restorative justice in institutional spaces where it can best complement institutions of crime prevention, human and economic development, deterrence, incapacitation, and care and love for the land. An evidence-based approach will be advanced for understanding how the weaknesses of restorative justice might be complemented by the strengths of these other institutions and vice versa. Evidence-based reform will also be advocated toward a more productive checking of restorative justice by liberal legalism, and vice versa.

The book should be read as an attempt to position responsive regulation (chapter 2) as a framework for checking the abuses and limitations of restorative justice diagnosed here. What the book seeks to do, then, is bring together the author's longstanding work on both restorative justice and responsive regulation. My responsive regulation work has tended to focus on areas of business regulation such as . . .

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