Academic journal article Stanford Law Review

Goodbye to Hammurabi: Analyzing the Atavistic Appeal of Restorative Justice

Academic journal article Stanford Law Review

Goodbye to Hammurabi: Analyzing the Atavistic Appeal of Restorative Justice

Article excerpt


The relationship among race, crime, and community is complex and multiform. Although every crime is a violation of community,(1) community concerns acquire special significance with interracial and interclass crimes where offenses can easily be seen as injuries one of you inflicted against one of us.(2) Enforcement of crime may also take on an interclass or intergenerational dimension, such as when police enforce anticruising ordinances against teenage drivers or antigraffiti laws against inner-city youth.(3) Nonenforcement can also raise class and community concerns as well, such as when the black community charges the police with lax enforcement of street crime because of subconscious racism and devaluation of black life.(4)

The prosecution and defense of crime may take on an implicit or explicit community dimension as well. Consider, for example, a defense attorney who advances a cultural defense that, if successful, will mitigate his or her client's punishment but only at the cost of stigmatizing the defendant's group as subcultural, violent, or bizarre.(5) In these cases, the community issue is what one of us (the defendant) is doing to the rest of us (the community).(6) Finally, sexual violence cases demonstrate how the manner of prosecuting a case may affect the community. When a victim of sexual assault is forced to recount her sexual history on the stand, all women receive a warning not to complain of mistreatment at the hands of men.(7)

This essay addresses a recent dynamic movement that seeks to address the effects of crime on community. Restorative justice, which began in the mid-1970s as a reaction to perceived excesses of incarceration, as well as inattention to the concerns of victims, offers a new paradigm for structuring the relationship among crime, offenders, and communities.(8) Featuring new ways of conceptualizing crime, along with innovative mechanisms for dealing with it, restorative justice constitutes a radically new approach to criminal justice.

Part I reviews the origins and ideology of restorative justice, including what it hopes to accomplish and its purported advantages over the current system. Parts II and III then critique the movement, first offering an internal assessment that evaluates the new approach on its own terms, followed by an external critique that examines it in light of broader values. Part IV reviews some of the deficiencies in our current system, particularly for disadvantaged, minority, and young offenders. Part V offers suggestions for strengthening community bonds while dealing fairly and consistently with those who have breached them.


In ancient times, crime was dealt with on an interpersonal level, with restitution or even private resources, rather than official punishment, the main remedy.(9) The state played little part. For example, the Code of Hammurabi provided that individuals who had injured or taken from others must make amends, in service or in kind.(10) Other early systems, such as the Torah and Sumerian Code,(11) required that offenders make their victims whole, as did Roman law.(12) Then, in the eleventh century, William the Conqueror expanded the king's authority by declaring certain offenses crimes or "breaches of the king's peace," redressed only by action of the king's courts.(13) Accordingly, private vengeance was forbidden, fines were paid directly to the state, rather than to the victim, and punishment, rather than restitution or making amends, became the main sanction for antisocial behavior.(14) This approach, with the state wielding monopoly power over the prosecution and punishment of crime, has reigned unchallenged until recently.

A. Restorative Justice

Many proponents of restorative justice believe that our current approach to criminal justice should be reexamined and that we should try to recapture many of the values of the earlier, pre-Norman approach. …

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