by Ari Armstrong
The following article originally appeared at Boulder Weekly on March 10, 2005.
At first glance, their ideas about justice couldn't be more different. One talks about a social narrative that echoes Navajo rituals. The other describes justice as a natural extension of Ayn Rand's egoistic ethics. Yet restorative justice can adapt to competing and seemingly incompatible views of how to deal with crime and other offenses.
Last month, I met with William Bledsoe and Ralph Shnelvar for lunch. Shnelvar, who ran for governor in 2002 as a Libertarian, had heard of Bledsoe's work with restorative justice and arranged the meeting. Bledsoe is pursuing his doctorate in communications and is the director of University of Colorado at Boulder's restorative-justice program. A few days later, I attended talks by Tara Smith, a professor from the University of Texas who is working on a book called The Virtuous Egoist and who spoke at CU and in Arvada.
I first heard of restorative justice in 2001 from Bill Groom, a lawyer from Colorado Springs, and from Charles Barton, a philosophy professor from Australia who was visiting CU. Yet I had heard the basic tenets of restorative justice much earlier. Restitution, restoring the victim as fully as possible, is favored by free-market writings with which I've long been familiar.
The basic idea is that all affected parties are able to meet, explain themselves and their grievances, and reach an agreement by which the offender sets things right. Bledsoe described restorative justice as "a radical accountability on the part of misconduct," a type of justice that "returns the response... back to the hands of the people who are directly impacted" by a criminal offense.
Both the victim and the offender must agree to the program for it to work. "The fundamental requirement is that the offender has to accept some responsibility for what they do," Bledsoe said. While the primary goal is "restoration of the victim," restorative justice can also help the offender because it can "spark a recognition of the other person's pain." This can have a "transformative effect" on the offender.
Bledsoe said restorative justice can be especially useful for adolescents. "It is the perfect mechanism for interrupting antisocial behavior, but at the same time not excluding that person from the community."
What about people who try to manipulate the system to get softer treatment? Bledsoe responded, "Circles in response to that kind of behavior can be pretty tough." If the restorative circle doesn't work out, the case can be returned to the regular criminal courts.
Restorative justice "regards misconduct as a violation of the relationship, not as a violation of the law," Bledsoe said. "The way things are don't work," he added, arguing that prisons are a "higher education in crime" from which people "come out really pissed off." Bledsoe lamented the high recidivism rates of the standard criminal-justice approach.
Bledsoe's touchy-feely communitarianism is miles apart from Smith's tough-as-nails Randian approach to justice, right? Not so fast. True, Smith's treatment of justice is individualistic, in which justice is primarily a means of judging the character and behavior of others so that one can pursue beneficial relationships and avoid painful or dangerous ones. Yet here are the conditions Smith gave for forgiveness: The offender must understand the breech, offer assurances that he or she won't repeat the offense and offer restitution to the victim. While she didn't use the term "restorative justice," her approach is basically consistent with it.
Bledsoe and Smith share an antipathy toward the view that some social behavior is inherently bad, regardless of any victim, just because the law or the state says so. Traditional criminal justice in America often ignores the victim and seeks to punish the offender, even if the victim is never restored and the offender never recognizes the harm of the crime. Restorative justice fundamentally recognizes the rights of people not to be harmed and sees justice as a way of encouraging harmonious social relations.
Yet Bledsoe comes close to making another error. If it is wrong to see an offense as intrinsically wrong, apart from the damage done to some victim, it is equally wrong to count an action as offensive just because some segment of society says so. Bledsoe's approach risks subverting true justice to the whims of society.
For example, CU's restorative justice program accepts cases of minors in possession of alcohol and providing alcohol to minors. The problem is that people become lawful adults at age 18, yet they are legally forbidden from buying alcohol until they're 21. While the sale of certain dangerous items may properly be forbidden to children, it is unjust to prohibit lawful adults from purchasing the beverages of their choice.
Generally, it isn't enough that some busybody, or even a majority, proclaim that something is illegal. The strength of restorative justice is that it implies the existence of an actual victim. You can't legitimately claim to be a "victim" of a 19-year-old drinking a beer in his or her apartment, nor can you rightly try to outlaw somebody else's speech (unless it directly incites violence or it is conducted in such a way that violates property rights).
However, within the context of individual rights and the recognition of harm to specific individuals, restorative justice holds the promise of largely replacing the current model of retribution with a system that honors the victim as it seeks to improve the offender.
[January 22, 2008, update: I fear that I wrongly applied Smith's theory of forgiveness to criminal law. After mulling over the issue, I believe that "restorative justice" could reasonably work only for relatively minor sorts of offenses, such as slight property damage and assaults without serious injuries. For serious offenses, not only would the victim be unlikely to want to discuss the case directly with the perpetrator, but the perpetrator would tend to be less open to rehabilitation. Moreover, while "restorative justice" seeks to replace punishment with restitution, I now see a large and legitimate role for punishment for serious criminal offenses.]