Restorative or Retributive Justice: Which is better?

by Madeleine Kando

One of the most entertaining ways of getting a grip on the difference between ‘retributive justice’ and ‘restorative justice’, is by watching the TV series ‘Lilyhammer’, starring Steven Van Zandt, Bruce Springsteen’s lead guitarist. It is about a former New York gangster named Frank "The Fixer" Tagliano, who is placed in the Federal Witness Protection Program and sent to Norway to start a new life.

Frank becomes a respected (read ‘feared’) local citizen, mostly due to bribes and intimidation. His ‘American’ method of doling out justice soon finds fertile ground in this over-civilized, rules-bound society. Norwegians ‘talk’ to work through conflict, but Giovanni’s Maffia style methods often get faster and more effective results. Lilyhammer makes fun of Norway’s soft approach to crime and oddly enough the show is incredibly popular in Norway. It must give Norwegians an opportunity to satisfy their thwarted sense of ‘retributive justice’. We all seem to have a desire to take revenge on the ones that have wronged us, whether we live in Norway or somewhere else.

What is Justice?

One of the earliest versions of justice can be found in the Egyptian goddess named Maat. She has an ostrich feather in her hair and a lioness by her side. Cosmic harmony was achieved by correct public and ritual life. Maat weighed the heart of a dead person on a scale against her ostrich feather. If the heart was lighter than the feather, it passed the test and was granted eternal life. If If it was heavy with the weight of wrongdoings, the lioness by her side devoured it and the soul was set adrift into chaos.

But since Plato and Aristotle, there has been a constant battle amongst philosophers on what justice really is: is it God’s Devine Command? Is it something that has been agreed upon between members of society? Or is it a Natural Law, like the law of gravity? If justice is what is commanded by God, is it morally good because God commands it, or does God command it because it is morally good? In other words, does justice exist on a higher order than God, who just follows the rules of justice, or did God create justice, like pulling a rabbit out of magician’s hat?

If justice is what people have agreed upon to make their society stable, free of crime and fair, then who decides what is fair and just? And if it is based on a natural law of what is right and wrong, why is it that we are not all subject to that law? Rocks don’t suddenly fly into the sky, they all obey the law of gravity, but humans of course have free will and that makes the concept of justice a complicated affair.

The closer we get to the present, justice starts to morph into the concept of ‘human rights’. Plato did not include slaves or women in his concept of justice. They were ‘inferior’ and did not fall under the same laws of justice as other citizens. Only much later is the focus placed on ‘justice for all’, meaning all citizens. Later still, the United Nations adopted the Declaration of Human Rights, which are universal, to be enjoyed by all people, no matter who they are or where they live.

Retributive versus Restorative Justice

The Norwegian penal system is a Restorative Justice system, an alternative way of dealing with crime. The maximum sentence is 21 years, even for mass murderers like Andres Breivik who massacred 77 children. Capital punishment was abolished over a century ago and some crimes are not even considered crimes. The ultimate goal of Restorative Justice is societal. It is to reduce crime in general, by rehabilitating the criminal to being once again a law-abiding and productive citizen. Punishment if not the goal.

The American penal system is ‘Retributive’, meaning that Americans feel that the threat of revenge is necessary to maintain a just society. We lock people up at a higher rate than any other country. Of every 100.000 adults, 707 will be incarcerated. We also have one of the highest recidivism rates, with 76.6% of prisoners being re-arrested within five years. In Norway, the incarceration rate is 75 adults per every 100.000. That country also has the lowest recidivism rate in the world, with 20% of prisoners being re-arrested.

If we compare the two systems, the most salient differences are their outcome. A restorative justice system focuses less on punishment for the criminal, than on trying to diminish crime in society. In that sense, it seems to work better, with less crime and less incarceration.

Is Revenge a form of Justice?

Revenge and the act of vengeance are a very old practice in the history of mankind. Every primitive society practices the art of revenge, and the older the society, the better it is at it. From the Scottish clans to the Japanese Samurai class, revenge was the way people doled out justice.

But in our modern legal system, society is ultimately deemed the victim of a criminal's actions, not the individual, although the notion of vengeance is still an important part of the concept of justice. The criminal has to pay his debt to society, usually by losing his freedom and in the United States at least, sometimes his life.

But what is the origin of vengeance? The 6th century philosopher Anaximander, who used a metaphor of the seasons to explain ‘justice’, wrote the oldest text that talks about vengeance. He described 'encroachment' of winter upon summer as 'pleonexia' (the insatiable desire to have what rightfully belongs to others), also known as 'greed'. For justice (diké) to be restored, retribution (tisis) must take place. The elements that encroached must 'pay justice and retribution'. Summer is the due retribution for the imbalance of winter.

The philosopher Martha Nussbaum, in her book 'Sex and Social Justice', explains why, in the case of human justice, retribution is necessary to achieve balance: 'A human life is a vulnerable thing, a thing that can be invaded, wounded, violated by another's act in many ways. For this penetration, the only remedy that seems appropriate is a counter invasion, equally deliberate, equally grave. And to right the balance truly, the retribution must be exactly, strictly proportional to the original encroachment. It differs from the original act only in the sequence of time and in the fact that it is response rather than original act - a fact frequently obscured if there is a long sequence of acts and counteracts.'

In the analogy of the seasons, it might be important to realize that it is the same snow and rain that evaporated in the summer, which in turn, will seek retribution when winter comes. In other words, the retribution that someone seeks in taking revenge will eventually return upon him or her in the endless cycle of retribution.

One of the main goals of retributive justice is ‘deterrence’. Although many criminologists still agree that “behavior modification” (negative reinforcement) is still the most effective treatment to achieve rehabilitation, restorative justice is now turning to ‘positive behavior modification’ rather than ‘negative reinforcement’.

The Criminal Mind

Neuroscientist Daniel Reisel describes his research exploring the brains of criminal psychopaths. It turns out that their amygdala, the part of our brain with which we experience empathy is smaller. According to Reisel, acquiring moral behavior is like learning to speak. There is a window of opportunity that closes after a certain period. But it is possible to learn empathy at a later age, just like learning a foreign language as an adult.

Keeping prisoners in isolation has the opposite effect of rehabilitating a criminal. He suggests the interactions between victims and offenders that take place in restorative processes are one way of developing new skills. The advantages of such an approach is that the offender feels guilt and regret and the victim gets to understand the offender and so feelings of anger are replaced by ‘understanding’.

Conclusion

Restorative Justice seems to work for ‘society’. But isn’t there a hint of sacrifice in this approach to justice? Are we not taking away an individual’s right for retribution in the name of the ‘social good’? Is it worth the victim’s time and emotional investment to try to ‘understand’ the criminal that raped or hurt her? Or is there something to be said for recreating that sacred balance by inflicting equal harm to the one that harmed you?

The Chinese philosopher Confucius, says that "Before you embark on a journey of revenge, dig two graves." The implication here is that a desire for revenge may ultimately hurt the avenger as much as the victim. Our rational self may advice us to choose restorative justice, but our emotions may overrule that advice. leave comment here