Reintegrative Shaming and Restorative Justice

Reintegrative Shaming: The Essence of Restorative Justice.
By Michael E. Marotta E00715351 CRIM 610: Theories of Criminal Behavior
Dr. Gregg Barak Eastern Michigan University Winter 2009

Table of Contents Abstract:....................................................................................................................................1 The Theory of Reintegrative Shaming ....................................................................................1 Acceptance of the Theory........................................................................................................5 Development and Integration of the Theory.........................................................................13 Practical Applications and Critical Dialectics.......................................................................22 Appendix A: Convenience Sample of College Textbooks....................................................34 Appendix B: Search of Academic Journal Articles...............................................................36 Appendix C: Reviews of Books by John Braithwaite...........................................................40 References..............................................................................................................................46

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Reintegrative Shaming: The Essence of Restorative Justice Michael E. Marotta1 Abstract: Over the past 20 years, John Braithwaite’s theory of reintegrative shaming has garnered sufficient attention to be included in many college textbooks. Nonetheless, some compilers still consider it novel and untested. Perhaps the most compelling aspect of the theory is that while it can draw on deep traditionalism across a wide range of cultures, Braithwaite and his colleagues came to the theory by investigating the modern pharmaceutical industry. Therefore, reintegrative shaming has attraction both for the community practitioner – from police officer to family counselor – as well as for corporate security managers and government regulators in the global marketplace.

The Theory of Reintegrative Shaming

“Reintegrative shaming means that expressions of community disapproval, which may range from mild rebuke to degradation ceremonies, are followed by gestures of reintegration into the community of law-abiding citizens.” (Braithwaite 1989: 55) That statement is dense with meaning. First, the key concept is “reintegration.” It is easy for a community, whether a family or a nation-state, to hold an offender up to rebuke. Parents may yell or the FBI can convince a federal prosecutor to bring an indictment. The salient feature of Braithwaite’s theory is that the offender must be brought back into the community by means of some ceremony whether the mere nods of a family or the published finding by a court. In most
1

Eastern Michigan University. This paper is presented as a requirement of CRIM 610: Theories of Criminal Behavior, taught by Dr. Gregg Barak, Winter 2009.

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times and places, most middle-range problems will be solved with middle-range techniques. Second, the expressions of disapproval must be on terms that the offender understands and agrees with. The community must be the offender’s own. In cases where the offender is truly a distant stranger, a process of empathetic understanding may be required. It is not always successful; and yet the failure points underscore the basic truth. Third, the offender’s sense of shame is integral to the offender’s sense of guilt. The essential characteristic of shame is the offender’s understanding, admitting and agreeing with the rebuke. Braithwaite acknowledges the ambiguity between shame and guilt. (Braithwaite 1989: 57). While they are differentiable, they are not always empirically testable by different means. In other words, developmental psychologists explain that a personal sense of shame comes from assimilating the perceived expressions of guilt offered by others. We learn this as children. “You did this bad thing and you should feel bad inside,” comes the message. Indeed, the empathetic child understands internally the hurt caused to others and feels shame. This much we all know from self-experience. However, positivism must accept less fine-grained empirical results. When an offender uses the words guilt, shame and remorse, the distinctions might only be analogous to words like blue, teal and green. We do not confuse guilt and shame with pride and honor just as we do not confuse blue and green with red and orange. Beyond that, Braithwaite asserts that it is unnecessary to seek statistical quantifications. “The distinction is rather too fine for our theoretical purposes because ‘guilt-induction’ always implies shaming to the person(s) inducing the guilt and because, as we will argue later, in broader societal terms guilt is only made possible by cultural processes of shaming.” (Braithwaite, 1989: 57) This is

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supported by empirical evidence. Harris and Maruna (2006) found that feelings of shame and guilt were not differentiated by participants in a study of community justice programs. That the intent of reintegrative shaming is the opposite of the goal of retributive punishment is clear from the semantics of the terms. Another of Braithwaite’s works (with co-author Philip Petit) is titled, Not Just Deserts.2 That debate bears directly on the efficacy of shaming. That the punishment should fit the crime was an element of Cesare Beccaria’s enlightened theory,3 separating the modern era from the medieval. Whether that was a discrete invention (like the light bulb) or acknowledgement of a general opinion (like the Declaration of Independence), is a moot point. Moreover, Max Weber found the trend toward rational law over traditional in the medieval city4. Rational law became national law when we became nations of bourgeoisie. It may seem intuitively obvious that lesser crimes require milder punishments and greater crimes call for harsher consequences. However, Braithwaite strings out 16 citations pointing to studies by Cohen, Jensen, Paternoster and others showing “but little support for the association between crime and the severity of punishment.” (Braithwaite, 1989: 69) On the same page, Braithwaite does acknowledge “reasonable support for an association between the certainty of criminal punishment and offending.” In short, the degree of pain is not as important as the fear of getting caught. More to the point, increasingly painful retributions do not minimize recidivism. Finally, reintegrating the offender with the community requires reconciling the offender with the victim. This can be difficult. Teenage vandalism is one thing. Assault,
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Not Just Deserts: A Republican Theory of Justice by John Braithwaite and Philip Petit, Oxford: Clarendon Press, 1990. 3 An Essay on Crimes and Punishments of Cæsar Bonasana, Marquis of Beccaria, 1764, translated from the French by Edward D. Ingraham, second American edition,Philadelphia, Philip H. Nicklin, 1819. 4 The City by Max Weber, translated and edited by Dan Martindale and Gertrud Neuwirth, Collier Books, New York, 1958, pp 183-184 within Chapter 4, “The Plebian City.”

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rape and homicide call into question our fundamental beliefs about the righting of wrongs. Basic as those beliefs are, they remain cultural constructs. We are not born knowing what to do when an armed robber stabs out your eye (Zehr, 1990: 19 ff.) . Intense emotions hallmark every encounter between the victim and the offender. No formula exists. We have no codex to tell us when enough time – or too much time – has passed. Yet, until and unless this happens, restoration is incomplete and even unbegun.
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 … whole school antibullying programs, Chinese Bang Jiao programs, and exit conferences following Western business regulatory inspections can at times all be restorative justice. Sets of both optimistic propositions and pessimistic claims can be made about restorative justice by contemplating the global diversity of its practice. Examination of both the optimistic and the pessimistic propositions sheds light on prospects for restorative justice. Regulatory theory (a responsive regulatory pyramid) may be more useful for preventing crime in a normatively acceptable way than existing criminal law jurisprudence and explanatory theory. Evidence-based reform must move toward a more productive checking of restorative justice by liberal legalism, and vice versa. (Braithwaite 1999: 1)

In what may be more than a minor point of semantics, John Braithwaite (writing with Valerie Braithwaite and Eliza Ahmed), suggested that “shaming” itself is a problematic label. “Responsibility” and “healing” are more productive. (Henry and Lanier 2007: 289) The first barrier is always with the offender. If he remains intransigent, reintegration is impossible. Calling the process a “healing meeting” rather than a “shaming session” seems more likely to facilitate the desired outcome. Stigmatizing shaming clearly cannot reintegrate an offender into the community. Stigmatizing shaming is just another label that assigns as the “master status” or primary

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identity of the person the label of “homosexual” or “thief” or “wife beater.” Every person is more than such a label. (Braithwaite 1989: 55) On this basis, Braithwaite cogently seeks to avoid the oppressive shaming known to religious communities (evident under Islamist sharia law) and the “show trials” of totalitarian dictatorships. Just as restorative justice is the goal of reintegrative shaming, so, too, does Braithwaite sets dominion as the goal of restorative justice. Braithwaite defines dominion as the absence of arbitrary power over the individual. “Our idea is that if the criminal justice system is designed to promote dominion, then it will also promote values such as people's physical integrity, freedom of movement, secure property rights, procedural rights, a suitable concern for equity, and so on.” (Braithwaite 1994: 765-766). In other words, in a society where dominion is the standard of republican justice, an offender’s irresponsible act has clear consequences that do not involve dropping him into a criminal justice system whose sine qua non is arbitrary power. Acceptance of the Theory “The momentum of restorative justice in the past 20 years has been breathtaking: from a few small experiments in the mid-1970s, restorative justice has today become ‘the flavour of the month’ in many justice circles, and is clearly gaining respectability.” (Mika and Zehr in McEvoy and Newburn 2003: 135). A convenience sample of 14 contemporary textbooks for criminology and criminal justice in the library of Eastern Michigan University (Appendix A) reveals that all but two of them acknowledge the existence of the theory. Depth of presentation depends on the theoretical expectations of the authors, including apparent advocacy or demurrage (if any) on this or other issues. These books include those targeted to 100-level and 200-level

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occupational training for police officers as well as upper-level university textbooks for potential supervisors. Liqun Cao (2004) considered reintegrative shaming only a reformulation of labeling theory (140) and wrote that there are “relatively few” tests (183). Lilly, Cullen, and Ball (2007) acknowledged the many qualitative and quantitative studies behind the theory, but declared, finally: “Studies that employ surveys to measure reintegrative shaming and then assess its impact on self-reported delinquency – the methodological approach most used to test criminological theories – are still in short supply.” (140). Nevertheless, neither of those actually passed judgment on the theory. That lack of declaration may be an artifact of our relativistic, subjectivist age of cultural context. Also, absolute statements run the risk of disproof and therefore stigmatizing shaming.5 On the other hand, Lanier and Henry (1998) take a more integrating view. They also place reintegrative shaming within the field of labeling theory (1997: 173). However, they do take a broader view and cite others who join them in seeing this as an integrating theory that draws on differential association, learning, and control (173), as well as Milovanovic’s “recovering subject” and place the theory within the field of restorative justice (178). Whereas Cao, Lilly, et al., leave reintegrative shaming as a subset of labeling theory, Lanier and Henry also recognize, at least implicitly, that this is a rational choice theory (173). Their summary view, then, is more inclusive and nuanced. A sample derived from the JSTOR database of journals is presented in Appendix B. This list of 49 significant publications indicates that the concept of “reintegrative shaming” has achieved visibility and general acceptance. Appendix C lists 62 reviews of the books
5

Perhaps the iconic example is that William Thompson, Baron Kelvin, for whom absolute temperature is named, declared heavier-than-air flight impossible in 1895. Kelvin also said that radio had no future. In 1943, Thomas Watson, Sr., of IBM predicted a worldwide need for five computers, and 30 years later Digital Equipment’s Ken Olsen saw no need for anyone to have a computer in their home. Etc., etc.

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of John Braithwaite and his colleagues. While constructive criticism and fault finding (and even veiled ad hominem attacks) are accepted and expected in an objective review, especially of a new idea, the overwhelming response was (and remains) positive and accepting. Braithwaite did have a heated exchange with Ernest van den Haag. That The Journal of Criminal Law and Criminology would host this debate, and that van den Haag would deign to engage, underscores the esteem that Braithwaite earned. Despite the titles of the articles and replies, the significant fact is that both scholars abandoned the concept of just deserts. For van den Haag the primary purpose of punishment was general deterrence. Fear of punishment clearly does not deter the present practitioner, but must, in his view, deter some future criminals. For Braithwaite, the problem was that just deserts offers only internal contradictions rather than standards of action when attempting to decide whether and to what extent a corporation or an individual should be punished for white collar crimes. The debate covered a lot of ground that need not be plowed here. The salient perspective is that Braithwaite’s views on corporate crime and white collar crime are in accord with his theory of reintegrative shaming. Rather than seeking to punish – though that may be an outcome – his goal is to bring the errant company or harmful individual back into the fold. In The Impact of Publicity on Corporate Offenders (1983), Fisse and Braithwaite assert that shaming works not on the company per se – though that can happen vicariously – but primarily on its employees, especially its senior staff and corporate officers who feel a sense of lost social status when bad publicity plagues their enterprise. In Responsive Regulation: Transcending the Deregulation Debate (1992) Ayres and Braithwaite argue for a close relationship between regulators and

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businesses, so that neither is the adversary of the other. Informal discussions lead to compliance more often and more cheaply than going to court. While it would be easy to spark a debate with the Cato Institute, no criminologist or sociologist has come forward to dispute the main points of those books: businesses are entities within communities. Therefore, the engagements and modalities that bring individuals together after a divisive conflict are available for the commercial sector as well. An insightful and friendly criticism comes from Nathan Harris and Shadd Maruna, writing in Sullivan and Tifft (2006): “Surprisingly, the original formulation of the theory (Braithwaite, 1989) includes only a cursory discussion of what the emotion of shame even is.” Perhaps, like art and obscenity, we all know it when we see it, even if we cannot define it. Nonetheless, a bit of introspection suggests the nuanced distinctions between shame, guilt, remorse, sorrow, humility, humbleness, and disgrace. The words “bashful” and “abashed” literally strike at the distinction Braithwaite makes. Being “bashful” means being full of bashes – beaten into submission. That is not the goal of republican justice which assures dominion through reintegration of the offender with the community. That, too, was offered as a counterpoint by Harris and Maruna who said that “shame and shaming do not belong in restorative justice work.” It is important to bear in mind that, like Braithwaite, they reject only the counter-productive label, not the reintegrative purpose. Andrew von Hirsch specializes in punishments and penal theory.6 Von Hirsh objected to the pursuit of justice without “just deserts.” Braithwaite, of course, seeks to do more than merely visit proportionate pain upon the criminal. More subtly, it might said
6

“Professor of Penal Theory and Penal Law at Cambridge University. He is also the Honorary Fellow at Wolfson College, Cambridge. Andrew von Hirsch has also been Adjunct Professor of Penology in the Law Faculty of the University of Uppsala, Sweden.” Andrew von Hirsch -- From Wikipedia, the free encyclopedia. http://en.wikipedia.org/wiki/Andrew_von_Hirsch

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that reintegration is, indeed, the most just of consequences. Be that as it may, Von Hirsch asserted that
… desert theory … is a key concept-that of blaming; it directs policymakers to judge specifics in terms of whether, and how much, blame is due. … The goal for white- collar cases would then be to administer proportionate, deserved punishment to the maximum extent feasible, taking into account problems of successfully prosecuting such crimes. Thus, priority would be given to imprisoning those offenders whose crimes were the most reprehensible. The thalidomide executives, and not some smaller- fry who might make useful examples to their industry, would become the prime targets for the tougher sanctions. Would this mean that all such malefactors will receive their full, merited penalty? In a system having limited resources, of course not. Serious offenders would, however, be at higher risk of receiving substantial punishment: it is they who would be more likely than other white-collar criminals to go to prison and to receive terms approaching (even if not always equalling) those received by violent street criminals. The more one disregards desert, as Dr. Braithwaite proposes, the less likely such a state of affairs becomes. … There is no alchemy by which one can become more “just” through ignoring considerations of justice. .Braithwaite has, in my judgment, failed to make his case. (Von Hirsh 1982: 1164-1165; 1174-1175)

Yet, all is not lost. Von Hirsch closes that passage with a bon mot, as how could he not? A criminologist whose goal is to see the guilty go free would not be a professor, but would, instead, hang out a shingle as a defense attorney, soliciting the wealthiest and guiltiest of clients. Apparently not in that camp, Von Hirsch doffs his hat. “[Braithwaite] has, however, performed an important service by raising the question of desert and white-collar criminality.” (1175) If the most egregious of white collar crimes challenges the assumptions of reintegrative shaming, how then, do we view crimes against humanity? The Holocaust has

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a name. The suffering in Bosnia and Rwanda do not. We say that we cannot live with such evil. Yet, we do. After the Holocaust, the slogan touted was “Never again!” But genocides played out again and again. Therefore, criminologist Charles Villa-Vicencio (1999) wrote: “The sheer weight of such evil, that no atonement, compensation or any other form of human balm can appease, lends credence and understanding to our ingrained human desire for revenge. … By institutionalizing feelings of anger, resentment and even hatred, the state exercises procedural controls over individual and group anarchy. … These arguments on behalf of revenge bring into sharp relief two seemingly contradictory models for responding to radical evil. … I will argue that models of restorative and retributive justice, properly conceived, belong together.” (165-166). The extent to which community-based restorative justice operated differently than retributive international law is nowhere more evident than in South Aftica. Nonetheless, the experience was not easy or unambiguous. In Villa-Vicencio’s opinion: “The response of President Thabo Mbeki in questioning the appropriateness of individual reparations recommended by the TRC [Truth and Reconciliation Commission] in its Report has further complicated the discussion.” Villa-Vicencio’s theory is that “righteous anger” of the victim can “immediately transform the perpetrator.”(183) Villa-Vicencio is eloquent in support of righteous anger, but at one point closes his thought on a problematic note.
It affirms the dignity of the victim and sometimes survivors. It requires the perpetrator to take responsibility as a moral agent. At the same time, it creates space for the possibility of mercy and forgiveness-recognising that its telos is restoration, not punishment per se. This movement toward a reconciliation of retributive and restorative justice engenders three final observations: First, the angry spirit that justifies the demand for radical repentance, a willingness to pay back all that has been unfairly acquired and a commitment to live a radically transformed life, does make good moral sense. Sometimes, however, it takes time

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for the perpetrator to be brought to this point-not least in ideologically laden situations where the most hideous deeds are done in the name of all that is said to be decent and worth dying for. (185)

Whether anything is “worth dying for” is another discussion entirely. I point out that in the archaic and ancient world, the Greeks of Samos, Miletus, Agrigentum, and other towns slipped into their ships and rowed away in the night, rather than to face overwhelming odds. The Romans stood their ground as the loins of Italy produced sons by the tens of thousands to die what the Senate apparently found “decent.” Villa-Vicencio’s point, however, still remains: ideology provides the words that allow the offenders to remain unshamed. The matter is complicated. As will be shown, the overwhelming assumption, even in restorative and reintegrative conclaves, is that the accused is guilty. In most cases, the offender has been so labeled by a court of law. The theoretical point may be fundamentally unsolvable; and it may be that the initiative for restoration and reintegration always resides with the accused. For others the moral high ground is always the property of the accuser. “Restorative justice seeks to recover dimensions of justice often lost within the institutional retributive justice process. It does not necessarily reject all punitive measures associated with retributive justice.” (Villa-Vicencio in “Transitional justice, restoration, and prosecutition,” in The Handbooks of Restorative Justice: A Global Perspective by Dennis Sullivan, Larry Tifft, Routledge, 2006.) Ideas take on a life of their own. Richard Dawkins called them “memes” analogous to genes in that they find carriers to reproduce their message. Therefore, it is interesting to read ideas very similar to Braithwaite’s in works that do not cite him in the bibliography or

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index. Merry and Milner’s The Possibility of Popular Justice: A Case Study of Community Mediation in the United States (1993) is replete with examples.
Although each of the contemporary programs addresses the emotional dimensions of conflict resolution in slightly different ways, all believe the expression of emotions is appropriate in mediation. In HNJC [Honolulu Neighborhood Justice Center] the expression of feelings is understood as a necessary prelude to the main objective – negotiating agreements. Whereas some expression of emotions is expected and encouraged, exploration of this dimension is seen as inappropriate for mediation and is labeled as a “counseling issue.” … The MCS [Mennonite Conciliation Service] training manual is not very explicit about the role of emotion in the mediation process, but in a recent issue of their newsletter devoted to “reconciliation,” emotional expression was related to forgiveness, emotional healing, and restoring relationships. (255)

As will be shown their reference to the Mennonite Conciliation Service is cogent. While restorative justice has a long and deep tradition across many cultures, that inheritance is often discontinuous – as is the habit of authoritative retribution. We call harsh laws “draconian” after Drakon of Athens (c. 500 BCE), the tyrant who made murder a capital offense. Previously, such disputes were family matters. While Roman law was state law7, once the Roman Empire receded in the West, Germanic tribal customs became the norm for centuries and Roman law had to be rediscovered. Similarly, European colonists in the Americas had Native customs in front of their eyes for 250 years before the present generation discovered the power and utility of community justice and restorative justice. Once Braithwaite’s theory was publicized, it was easy to find antecedent support. COPS, the Community Oriented Policing Services program of the U.S. Department of Justice (www.usdoj.gov/cops/), supports restorative justice programs (Umbreit and
7

The Romans knew the difference between private law and civil law. In the sixth century CE, the Code of Justinian recognized private international law, even though commercial law as we understand it was still 500 years in the future.

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Coates 2000a; Umbreit and Coates 2000b; Nicholl 2000). The program does acknowledge that it is important to separate the offense from the offender in order not to separate the perpetrator from those who can help him avoid further trouble. The offender must be given the opportunity to develop empathy. “Addressing the offender’s needs and obligations– with support from the community–is likely to enable the offender to see that he is someone who is connected to people who care about him.” (Nicholl 2000: 13). In all, there are at least 500 such programs in Europe and 300 in the United States (Umbreit and Coates 2000b, 5). Development and Integration of the Theory Braithwaite came to the theory of reintegrative shaming during his study of the pharmaceutrical industry in Australia and the United States. He said:
Brent Fisse and I had been doing some writing together for years on The Impact of Adverse Publicity on Corporate Offenders. That’s where the interest in shame started. In the business regulation work, we could see counterproductive effects of stigmatizing forms of shaming. But also we could see that the big problem was that so many business people did not see corporate crime as anything to be very ashamed about. So for years we puzzled over how might productive forms of shame be managed and harnessed. So it was very much from thinking about the corporate crime literature. And then moving to an attempt at more general theory that encompassed street offenders. (Braithwaite 2009)

That businesses were amenable to reintegrative and restorative processes should not be surprising. Business at a distance, where valuables are delivered and paid for by agents, depends on deeply embedded habits of trust and responsibility. (Greif 2006). As Deirdre McCloskey has shown in her long series of essays (and now a book) on “Bourgeois Virtues”8 reputational gossip the true currency of commerce. As will be shown, the value
8

Among many: McCloskey, Donald N. “Bourgeois Virtue” (The American Scholar 63 (2, Spring 1994): 177-191.

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in the forms and formats of restorative justice can be measured to two decimal places in dollars and cents. In a sophisticated and literate expression recognizable to us, this goes back at least to the great fairs of the High Middle Ages, but has roots as deep as the first caravans of the Neolithic era. When problems arise in commerce, traders seek only restoration, not retribution; and the offender must find reintegration or else suffer isolation – and trade is as metaphysically impossible in social isolation as is breathing in a vacuum. In seeking rebalance through the lawe marchaunt (lex mercator), traders of the Middle Ages were, in fact, attempting to hang on to traditions.
“Restorative justice has been the dominant model of criminal justice throughout most of human history for all the world's peoples. A decisive move away from it came with the Norman Conquest of much of Europe at the end of the Dark Ages … Transforming crime into a matter of fealty to and felony against the king, instead of a wrong done to another person, was a central part of the monarch's program of domination of his people.” (Braithwaite 1999, page 2)

The commercial paradigm indicates that every dollar misspent is two dollars lost. This lesson from Benjamin Franklin’s Poor Richard is cited in Max Weber’s The Protestant Ethic and the Rise of Capitalism. It is more than a trick of bookkeeping: entropy exists. Therefore, it is not surprising that advocates of restorative justice are able to find inevitable monetary loss and fundamental injustice in the prison system.
Imprisonment is enormously expensive. This means that a double burden is placed on the innocent who must suffer the crime and, in addition, pay through taxation for the support of the offender and his family if they are forced onto welfare. Also, any benefit of imprisonment is temporary; eventually, most
“Bourgeois Virtues?” by Deirdre McCloskey, May 18, 2006, Cato Institute Online http://www.cato.org/research/articles/cpr28n3-1.html McCloskey, Deirdre N., The bourgeois virtues : ethics for an age of commerce University of Chicago Press, 2006.

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offenders will be released. If their outlook has not improved-and especially if it has worsened-the benefits of incarceration are obviously limited. Finally, when disablement is permanent, as with capital punishment or psychosurgery, it is this very permanence, in light of the possibility of error, which is frightening. (Barnett 1977: 281)

Barnett is not alone in cataloging the failure of punishments, either to reform the offender or to dissuade others, or to restore the victim. (281-283) Yet, restoration in particular and the process of reintegration in general may be explained as a better form of punishment. That, at least, is the assertion of philosophy professor Richard K. Dagger in “Restitution, Punishment, and Debts to Society.”
What Barnett is urging, in short, is a radical departure from the theory of restitution as well as a radical transformation of our system of criminal justice. Neither of these moved is warranted. In what follows, I shall argue that restitution is quite properly regarded as a form of punishment and that criminals do indeed incur debts to society when they commit their crimes… (Dagger in Hudson and Galaway 1980: 3)

In that same volume, Sveinn Thorvaldon’s contribution, “Toward the Definition of the Reparative Aim” (15-27) devotes but a single paragraph to “Reparation as a Rehabilitative Technique.” Reparation can be viewed as punishment and rehabilitation. Braithwaite brought both sides of the equation together. The goal of reintegrative shaming – which can include restitution to whatever extent possible – is to heal the victim and the offender, specifically and consciously, not accidentally or tangentially. The historical development of the modern restorative justice regimen bears this out. Success has many fathers, but the present tradition of bringing restoration to criminal proceedings is accepted as beginning with Mark Yantzi and Dave Worth of the Mennonite

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Central Committee in Kitchener, Ontario. Their subject perpetrator was a troubled youth named Russell Kelly.
Russell Kelly is now a restorative justice practitioner in Kitchener, Ontario. In 1974 he was a teenager who, with a friend, both under the influence of alcohol, committed a number of acts of vandalism one night in Elmira, Ontario. After being apprehended, they were turned over to Mark Yantzi, a probation officer and volunteer with the Mennonite Central Committee in Kitchener, and to Dave Worth, another volunteer. Yantzi and Worth, in coordination with the courts, arranged for the teenagers to meet with their victims to apologize, to hear their victims’ statements, to ask forgiveness of their victims, and to determine restitution. Thus arose the Victim-Offender Reconciliation Program in Kitchener and an oft-repeated story of the emergence of modern day victim-offender mediation. http://www.restorativejustice.org/

Years after the encounter, Kelly went to work as an industrial laborer. Following an accident and (physical) rehabilitation, he chose criminal justice as a new career, bringing with him his highly personalized insight.
Meeting our victims was one of the hardest things I had ever done in my entire life. Accompanied by Mark Yantzi (our probation officer) and Dave Worth (a volunteer), we walked up to the victims front door to apologize, hear what the victims had to say, determine the amount of restitution, ask for forgiveness and assure the victims that they were not targeted. It was a random act of vandalism. Some victims offered forgiveness while others wanted to give us a good whipping. Nonetheless, we survived meeting the victims of our crime spree and returned a couple of months later with certified cheques to restore the amount of out-of-pocket expenses not covered by insurance. The total damage was around $2,200; my accomplice and myself each had to pay $550 restitution and each paid a $200 fine. As well, we were placed on 18 months probation. I thought that was the end of that shameful part of my life. Little did I know what would become of this judicial experiment. Unknowingly to me the Victim Offender Reconciliation Program was born. (Kelly http://www.sfu.ca/crj/kelly.html)

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The involvement of the Mennonite community proved at once to derive from their own values, as well to deliver a value to the wider world, perhaps the best proof of the efficacy of faith-based restoration. That tradition is not isolated. It is known across the globe, among the Eskimos, Cheyenne, Trobriand Islanders, and Ifugao of Luzon. (Hoebel 1967) Studying the Cheyenne in particular was somewhat easier as they are still among us. Delving into their experiences by listening to their oral traditions opened the door to asking the basic questions of criminology: What is law? What is an offense? It is easy to identify with the instinctive family-based community rules of the tribe. The man known as Pawnee was an old and respected member of the tribe who counseled young boys and looked out closely after their moral behavior. He tells his own story. When he lived among the southern Cheyenne, he was a wild and hurtful youth, stealing other people’s horses and other people’s meat. If he stole a horse, he would not even return it, but would just let it loose. The Bowstring Soldiers caught up with him, beat him senseless, broke his goods and took his horse. They left him where he lay. When he recovered sufficiently, he started back. After three days, he was in a bad way. But he was found by High Backed Wolf, later a great chief, but then a young man. High Backed Wolf broke into tears when he saw Pawnee, the latter’s condition, bruised, naked, hungry, was so pitiful. High Backed Wolf gave him food, clothes and tobacco, and restored him. He also called the Bowstring chiefs to witness. Pawnee confessed his wrongfulness. On the word of High Backed Wolf, Pawnee was accepted back into the tribe, but his shame was such that he did not remain. He went instead to the Fox Soldiers of the northern Cheyenne. So, he tells the young boys now to be good, lest they suffer his fate. “You may run away, but

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your people will always remember. You just obey the rules of the camp and you’ll be all right.” (Llewellyn and Hoebel 1941: 6-9) The story is nice. We find in it the simple, effective restorative and reintegrative justice that we seek. We must not gloss over the fact that the Bowstring Soldiers caught up with this young hooligan, beat him senseless, destroyed the tools he would need for survival and then left him naked on the plains. In short, the community had its fill, and was content to be rid of the offender – forever. Period. It may be helpful to place this story in its anthropological context. The Cheyenne live with a relatively complex constitutional law. Forty-four appointed chiefs serve for ten years. Only half of them are replaced at one time. Sons rarely succeed fathers. In addition, as separate councils, each warrior society9 has its own leaders. Their word counted for much within the tribal councils because these men bore the brunt of action not only in war but simply in policing the move of a tribe from one place to another across great distances. (99-101) Yet, all of this served for a people numbering perhaps never more than 7,000. Therefore, justice, guidance, rule and responsibility were always personal and close.10 According to their own legends, this “traditional” arrangement was given to them by a captive girl from the Assinboine tribe. Anthropologists figure that this dates to about 1750 (68). Therefore, as the case of Pawnee demonstrates, it is important not to romanticize them simply for being “the other.” These institutions were recent developments to the Cheyenne, only slightly older than the Federal Constitution of the Whites when the two groups met.
9

Accepted as five in number (Fox Soldiers, Bowstring Soldiers, Elk Soldiers, Dog Men and Northern Crazy Dogs), their names changed over time for reasons not clearly understood by ethnographers. 10 The Cheyenne split into many small groups for the autumn, winter and spring, coming together in the summer. The great camp would have a ceremonial open space in the center about a mile across.

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So, too, does it lie with the ancient Visigoths and Vikings. Among the Visigoths – who readily adopted and adapted to Roman Christian ways – remediation, restoration and reparation were woven into the fabric of social life. So were amputation, flogging, blinding and enslavement. (King 1972: 90-91) Citing Njal’s Saga, Miller (1984: 114) writes:
Despite the shortcomings of arbitrated settlements, they were perceived by a substantial segment of the community to be more likely than either self-help or legal judgments to lead to peace, even if that peace were only temporary. Indeed, so pervasive was the feeling that cases were better concluded in agreement than judgment or dismissal that we see litigants refusing to put forward absolute defenses, using them instead as leverage to induce the other side to enter into some kind of arbitrated settlement. Njal, again acting on Gunnar's behalf, obtains a favorable clearing verdict from the panel of neighbors and “he said he would submit the verdict unless the plaintiffs agreed to put the case to arbitration.”

By “self-help” Miller means vengeance. Whether and to what extent blood feuds were more or less common than other outcomes may be not quantifiable. Qualitatively, there is no doubt. Miller (1983) even finds echoes of the Viking blood feud in Shakespeare’s Hamlet. It might be argued that our highly abstracted legal system is only vengeance in another form, a social structure to meet same sociologic function. (Tarifa 2008: 99-102) While reintegrative shaming can be found in a wide range of cultural traditions, so can other modes of conflict resolution. Also, it is important to guard against the self-satisfying opinion that these peoples held a higher moral ground merely because they are not us. Marginalized people create societies that meet the needs of their physical environment first. Failing that, they do not

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survive to have a society. Among the Yup’ik Eskimo of Alaska, community justice was an import, brought by Americans.11
One of the more promising fields of thought for alternatives to retributivism, spearheaded by people like John Braithwaite and Howard Zehr, involves community based systems of justice. … The introduction of village councils, organized with the support of government and church officials, did however, grant Yup'iks an outlet for traditional legal practices. Although Eskimo groups like Yup'iks found it difficult to take individual roles as judges and bosses, the councils nevertheless espoused non-coercive problem solving. Council records indicate their function was to remind wrongdoers that although mitigating circumstances were understood, actions had reached an intolerable level. The council would oftentimes offer the offender the option to renew his social contract with his society. The council, for many years, was the dominant form of Yup'ik social control. On rare occasions, the council had to rely on the outside world to reinforce its authority. (Ptacin, et al. 2005: 133; 140)

The central problem was that their society previously had no need for the centralist authority that a court requires. Hoebel (1967) tells of how some Eskimos dealt with one murderer. Three homicides in your vicinity is bad news for everyone else. So, the men nearest the events got together on their own and decided that it would be all right just to shoot the perpetrator in the back at the next opportunity. Less stressful to the offender is the Navajo court. When two people have a problem, their relatives get together. Even in modern times, court is “the place where they talk about you.” That echoes the Yup’ik view that court is “where you are made to speak.” (Hoebel 1967: passim.) Humans are social creatures. It is to be expected that widely separated societies will develop some similar customs, folkways and institutions to meet similar needs. Not
11

As shown above in the example from the Cheyenne, native cultures overwhelmingly had modes that were recognizable against, cognate to, or congruent with European forms. The human species being what it is, this was required. For more detail see “U.S. Colonization of Indian Justice Systems: A Brief History,” by Carol Chiago Lujan and Gordon Adams in Wicazo Sa Review, Vol. 19, No. 2, Colonization/Decolonization, I (Autumn, 2004), pp. 9-23

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speaking about oneself is common to many peoples, modern as well as traditional. Conversely, other people accept and ignore passing and ritualized displays of anger. All of this can make restorative justice programs difficult, even – or especially – in a modern industrial urban society where African Americans, Native Americans, Hispanics, Asians and Causcasians come together. Shaming can be deeply consequential. Japanese parents are known to have committed suicide when their children’s actions shamed them. The theory of reintegrative shaming serves the broader goal of restorative justice. The purpose of shaming is not to punish in the perpetrator by humiliating him – though some criminal court judges use it that way. Following expressions of contrition and sorrow (which may include other consequences such as reparations to the victim), the offender is welcomed back into the community. This, too, works within a broader context that Braithwaite calls “dominion,” a central concept to his call for “republican justice.”
[Dominion is not ] the absence of interference- however broadly interference is understood-which is hailed in classical 19th-century liberal thought; it is not negative liberty in the established sense of that term… But neither does dominion involve the presence of self-mastery, the presence of power over self-however that power is articulated-[as] positive liberty. Dominion is something in between. … Dominion is negative to the extent that it requires the absence of an evil perpetrated by others-the absence of an arbitrary power of interference. Dominion is positive to the extent that it requires not just that others not actually interfere but that they do not have-and be seen not to have-the arbitrary power of interfering… One important feature of this comprehensiveness is that the theory requires us always to think not just about the effects of crime in diminishing the dominion that people enjoy but also about the effects on people's dominion of investing authorities like the police, the courts, and the prison officers with high levels of power. (Braithwaite and Petit 1994: 765-767)

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Practical Applications and Critical Dialectics Like all justice systems, this one operates on the past. It seeks to redress grievances, to restore losses, to reintegrate offenders. Except as it prevents re-offending and recividism, it does nothing for the causes of crime (Lin 2007a; Lin 2007b). This is an essential distinguishing characteristic differentiating modes of power from modes of market. Governments exist to change the past, at the very least by correcting injustices and repelling invaders. Even new laws are made in response to a perceived inequity of some kind that has already occurred at least once. Businesses, on the other hand, survive and thrive by predicting and planning for the future: tomorrow’s sales; next quarter’s inventory; next year’s research and development. Moreover, government traditionally assumes that everyone is equal – even a class-based society accords rights and privileges on the theory that all member of the same class are interchangeable. Despite the illusion of “mass marketing” businesses, on the other hand, assume and accept the validity of subjective values. No court has carved over its doors: “The customer is always right.” For all of those reasons, as an action of government, any viable theory of criminal behavior is predictive only on a statistical basis. No sociological theory predicts individual choices. Accepting this premise, the situation is far from hopeless. It is certainly better to fix a problem than not. Reintegrative shaming and restorative justice remain socially powerful modes of community cohesion. That said, not all progressive or critical theorists are pre-sold. While evidence does come from a wide range of initiatives across the landscape of cultures and peoples of our own times and places, from the Eskimo to the Germans, the fact is that in America today,

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much of this effort is directed at middle class suburbs and minor offenses in any community.
Restorative justice is based on values that promote repairing harm, healing, and rebuilding relations among victims, the offenders, and the communities. Community justice views crime as a social problem that affects life in communities and suggests that prevention is an essential part of all criminal justice agencies' work. … Without a systemwide shift, restorative programs will probably continue to handle mostly minor offenses. … Experience with community policing has shown that benefits tend to go to white and middle-class communities. Community policing in Houston favored the interests of whites and homeowners, while African Americans, Hispanics, and renters were excluded. … In Chicago, neighborhood groups that represented white and middle- class constituencies were much more likely to use opportunities for involvement than groups representing lower-class minorities ... ((Kurki 2000: 235; 288-290)

Just as reintegration and restoration have been perceived as barriers against, rather than paths to, justice in human rights tribunals, so, too, do they seem wan to some advocates for the victims of sexual violence and racial violence. Given that we have a harshly penalized society, “to forego penalization in a punitive society would look like tolerance of intolerable behaviour.” (Hudson 1998: 254)
Whilst it is correct to argue that racial and sexual violence will only be diminished by reducing the economic, racial, and sexual inequalities in power that exist in present societies, we cannot ask women, children, and victims of racial violence and abuse to wait for protection and compensation until the achievement of wholesale social transformation. We cannot, furthermore, reasonably expect them to give up such protection, remedy, and condemnation of violence as is afforded by criminal law, in present society with its systems of criminal rather than restorative justice. (254)

As Lisa Rieger points out in “Applying Urban Models to Rural Alaska” in McEvoy and Newburn (2003), the only way to know whether and to what extent these outcomes have

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validity in a positivist sense is to create control groups and experimental groups. The experimental groups would get the best-known treatment and the controls would get “just deserts” or whatever it is that the courts mete out. Clearly, this creates ethical dilemmas. It is one thing to pay people $10 to take a placebo that might not curb their appetite. It is quite another to randomly select one person for perdition and another for salvation. Widely applicable and widely founded as Braithwaites’s theory may be, the fact remains that he and his colleagues came to it by considering government regulation of complex corporations. If the advantages of reintegrative shaming and restorative justice are clear in the case of the juvenile delinquent, do they make sense for a multinational corporation? Indications are that they do. Independent of Braithwaite’s own arguments, indications of clear economic incentives exist. It is far cheaper to set out ahead of problems, to engage forums for settling disputes without going to court. In particular, Shavell (1995) offers the (hypothetical) case of a neighborhood concerned that the increased traffic from a factory will increase traffic accidents. The model has several problems. How wide is the community? How responsible is the plant for the actions of its visitors? Nonetheless, Shavell argues on strictly economic terms – via arithmetic and algebra – that the monetary advantage for the corporation is to be found in establishing procedures for alternative dispute resolution ahead of any problem, rather than going to court later, as the outcomes of trials are uncertain and not predicted by prior arbitration. (Shavell 1995: 1-28) Rosenberg and Folberg (1994) found strong statistical evidence of satisfaction among attorneys and their clients with “early neutral evaluator” (ENE) alternative dispute resolution in federal courts for the Northern District of California.

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During the 4-year period studied, the district used an ADR process called early neutral evaluation (ENE), to which half of the cases in certain types of suits were assigned. Two- thirds of those assigned to ENE were satisfied with the process and believed it was worth the resources devoted to it; half of those assigned to ENE saved money, with average savings exceeding ten times the cost of an ENE session… (1487) [The] vast majority of all participants (90 percent of attorneys and 80 percent of parties) reported that the evaluator listened carefully to them. This willing- ness to listen bore a strong relationship to attorney satisfaction (r=.44, p=.01). Fortunately, nearly all of those who thought the evaluator listened carefully also thought she understood their perspectives, such that 80 percent of the attorneys and 73 percent of the parties reported that the evaluator understood their perspectives. Not surprisingly, the correlation between attorneys' impressions that the evaluator understood their perspectives and their satisfaction with the process was also relatively high (r=.47, p=.01). Another important attribute for an evaluator is her ability to facilitate communication between the sides (75 percent of the attorneys and 78 percent of the parties found this skill important). The evaluator's ability to facilitate bore a stronger relationship to attorney satisfaction than did any other measurable factor (r=.55, p=.01).97 Even evaluators who sought primarily to ensure a shared understanding of the parties' perspectives also often offered their opinions on both the substance of the case and procedure, and most ENE participants believed that the evaluator's judgment was reliable. Eighty percent of the attorneys and 79 percent of the parties said the evaluator accurately analyzed the legal issues, and this skill was an important factor in ensuring attorney satisfaction (r=.55, p=.01). In addition, 71 percent of the attorneys and 77 percent of the parties believed the evaluator was an expert in the subject matter of their case, and this perceived expertise also corresponded to attorney satisfaction (r=.41, p=.01). Although the judges and the ENE program. (1532)

It is radically important to understand that nothing about that necessarily involved “reintegrative shaming.” As Hudson’s criticism underscores, these litigants were relatively privileged. They were engaged in property squabbles far less consequential than domestic battering and marital rape or even burglary. Furthermore, their feelings of “satisfaction”

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are easy to explain via Festinger’s theory cognitive dissonance. Perhaps all that can be said is that we know to two decimal places that almost anything is preferable to going to court – even for those who nominally own the courts. A more optimistic appraisal comes from considering alternative dispute resolution, including restorative justice programs, to be a voluntary engagement. As such, it validates Braithwaite’s expectations for “republican justice” that grants “dominion” to all parties rather than leaving them as isolated objects in the mechanized production of legalistic routines. In a 27-page monograph that can do little more than describe the tip of the iceberg, Umbreit and Coates (2000) caution the mediator on the “pitfalls and dangers” working with individuals from diverse cultural groups. African-Americans, Asians, Native Americans, … The gross descriptions do not even differentiate the suburbanite from the city-dweller. In a society that is accustomed to mechanisms, the highly personalized atmosphere of reintegration and restoration can only be admittedly unpredictable. As Olson (2004) argues, the need for professionals is real and important.
Restorative justice theory largely ignores the role of professionals in the criminal justice process, and yet professionals have played a dominant part in initiating many restorative justice programs. Several theoretical traditions recognize professionals as being important intermediaries between citizens and the state. The theory of democratic professionalism argues that professionals can play crucial roles in increasing. (Olson 2004:139) A restorative justice “true believer” may agree that such involvement is needed at the outset of restorative justice programs, but once that stage has passed, the community will take back what is deservedly theirs. We see it differently. Generating sufficient citizen involvement in most communities is something that may involve considerable long-term social change to accomplish, even with the concerted efforts of democratic professionals. At a time when it is

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hard for even the most devoted local party activist to get 50% of a neighborhood to turn out to vote in a presidential election year-even given a stable party system, with established political networks at the national, state, and local levelswe wonder whether "giving back" the criminal justice system is as easy as it sounds. Another questionable assumption is that all the tasks to be done can be done by volunteers. Even beyond a possible transition stage to restorative justice, we see evidence that restorative justice programs usher in new tasks and new burdens for some particular group to master. Because tasks such as mediation and facilitation of community involvement are different but no less complex and burdensome than traditional criminal justice tasks, it seems sociologically sound to suppose that some professional involvement will likely be a long-term and not temporary phenomenon. The role of facilitator also includes finding political support for community involvement in hitherto professionally dominated institutions. (170)

As noted, the case of South Africa is a paradigmatic challenge to notions of restoration and reintegration. “The danger is that gestures toward healing will be confused with moral consensus, or that history will be told mainly in a way that reflects and legitimates political compromises.” (Leebaw 2003: 51) South Africa is not alone. Admission of guilt is more than an essential component of reintegrative shaming. One can be said to be identical to the other. This can be impossible in a context where the perpetrator has strong beliefs. The case of Israel and Palestine is an easy example. This brings us back to the highly personalized reintegrative shaming and restorative justice meetings of families and neighbors. These sessions assume that the offender has accepted the status given to him. As cited above, Harris and Maruna (2006) accept the premise of restorative justice, but question its mode of application. The distinctions between grossly humiliating shaming – wearing a sign, for example – and reintgrative shaming in a family structure may be clear to us. They may be lost on the offender.

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Forcing offenders to publicly humiliate themselves by means such as holding placards which announce their crimes is directly opposite to what RST [Reintegrative Shaming Theory] advocates. While completely rejecting the use of this type of shaming, RST suggests that disapproval which is reintegrative is constructive in reducing re-offending. While it is easy to see the difference between these overtly stigmatizing forms of shaming and what Braithwaite proposes … direct expressions of disapproval are not a common feature of family group conferences, which focus more clearly on emphasizing the consequences that an offence had on its victims. [E]ven if direct disapproval is intended to reintegrate it may not be interpreted as such by the offender. The degree to which disapproval can be expressed directly and yet also be perceived as reintegrative (or nonstigmatizing) is an empirical question that is yet to be fully explored. … Braithwaite argues that shaming includes all social processes which express disapproval. Simply convening a family group conference expresses the communities concern or disapproval of an offence, as does discussion of the consequences of an offence. Indeed Braithwaite and Braithwaite (2002, 33) argue that it is these indirect forms of shaming that are most likely to be reintegrative. … Braithwaite and Braithwaite (2001) acknowledge that additional shaming in contexts that are already highly shaming is unnecessary and may even be interpreted as stigmatizing. http://demgov.anu.edu.au/papers/HarrisMaruna2006rjhandbook.pdf

On that broad reservation, it is important to note that Braithwaite himself (1989: 60) cites the instances of pubs in Queensland forced to display signs that they were guilty of selling watered beer. How that is not stigmatizing, especially as such businesses are family-owned and neighborhood-based, is hard to understand. “Reintegration into what?” ask Sullivan and Tifft (2001: 85-87) “Dave: a Case Study” tells of a boy who is reintegrated into “physically and structurally violent circumstances.” Dave says, “Nothing’s going to change when I go home except me.” Sullivan and Tifft ask: “Can we expect a meeting of perhaps an hour’s duration to

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counteract or neutralize in any long-lasting way the harmful structural conditions and moral values that young people have been exposed to, perhaps since birth?” (88) The nicest thing about the ivory tower of academe is that you can stay far away from the hurt and pain even while you study it. This paper has not bathed in the sorrow of loss. We call them “perpetrators” and “offenders.” Even if you call them rapists or killers, no word is strong enough. We refer to “victims.” Legalism and criminalistics have no specific words for the robbed, the raped, the beaten … cheated, deprived, looted, denied, stripped. Howard Zehr is Professor of Restorative Justice and Co-Director of the Center for Justice and Peacebuilding, Eastern Mennonite University, Harrisonburg, Virginia. He is also a photographer. Transcending: Reflections of Crime Victims provides verbal and visual images of loss. You can read the book, and see their faces, and experience some fraction of their actual loss. But you can never get inside and you can never take it away. Zehr offers these cases of people who found at least partial (sometimes nearly complete; I will claim never truly complete) peace and restoration, in many cases through religion. Some did not. One cold case (Mary Baratta-Lorton) remains open, the putative killer, her husband, still profiting from their join work and her four life insurance policies. In some cases, the perpetrators, the killers, the rapists express the deep sorrow that was born in their own victimization. In other cases, that is not true: no remorse … no perpetrator… What we want from justice is a mechanistic response, like starting a car, every time. And if the car does not start, you replace the coil or the battery or the car. Often, that does not happen. These cases were selected by the author. Other criteria could have produced a

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book of unsolved crimes, senseless acts of random violence. It might not make much difference. As it is impossible to undo the past, every harm remains a harm. Forever. David R. Karp and Todd R. Clear (2002) find happier outcomes in six community justice programs serving Ventura County, Maricopa County, Bend, Oregon, Tallahassee, Boston, and the state of Vermont. The cases sited involve reparable harms to property and surprisingly little attention is given to the victims. Central to their thesis is the position of “the community” as one of three “parties” to a mediation, along with the victim and the offender. One of the Vermont cases involved a simple DWI. After being stopped, and during the initial interview, the offender let his car roll into a utility pole. The authors make no mention of reparation to the power company, though the offender pays reparation to “the community.” Basically, it is just another kind of fine, court costs to cover the expense of holding court. Braithwaite points out that often when the government becomes involved in restorative justice, the outcome is different than that intended by the theorists. “The suspending of the two- year custodial sentence was quashed in favor of a sentence of four years and a $5,000 compensation order (which had already been lodged with the court); the community service and payment of the remaining compensation were also quashed. The victim got neither his act of grace nor the money for the cosmetic surgery.” (Braithwaite 1999: 88) If nothing else, authoritative shaming is less effective than community shaming (Braithwaite 1989: 84 and 96). Braitwaite acknowledges early on (1989: 12) that done wrongly, shaming can lead to thought-control. Yet, Ayres and Braithwaite (1992: 158-162) propose private guardians to monitor businesses. Obviously, the cost of government regulation is high. You can’t

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have a cop on every corner and when it comes to complex corporations, the problem assumes manifold complexity. As private “watchdog” groups exist, Ayres and Braithwaite suggest empowering them to monitor businesses. The problem with that is known from the McCarthy Era. Red Channels, published by American Business Consultants and Counterattack published by Aware, Inc. were blacklisting newsletters answerable to no one. The American Security Council12 and the Church League of America, both from Chicago, began as information clearinghouses for the security departments of businesses seeking to avoid unionization by their employees. The open exchange of information for whatever motive is one price of an open society. However, when such groups receive a mandate from the state without a concomitant constitutional responsibility, the very dangers that Braithwaite fears become very real. The underlying problem is that communitarian apologies slide past the limitations of the common mind. In the Muslim Middle East women are flogged for talking to strangers – and for being raped. Homosexuals are hanged in Iran. In China, the People’s Courts of the Cultural Revolution ultimately served no objective purpose whatsoever as the Culture Revolution spun out of control and consumed itself, leaving behind the shards of person, personhood and personal life. Is government regulation always to be accepted as the social standard? How do we not see the government as the violator? What is the distinction between government regulation and a shakedown? Who sets the community standards? And who defines the community? Braithwaite has company when he thinks that it is wrong for businesses to resist regulation. Here in America, many others are in good company for resisting
12

Now known as the American Security Council Foundation. http://www.ascfusa.org/

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government intrusion. The theory of reintegrative shaming and restorative justice assumes that those questions have been answered – and that their own answer is the correct one. Braithwaite’s theory of reintegrative shaming is powerful. The vagaries of social history being as they may, the fact remains that for many peoples – including ourselves – this was the way that offenders were handled, certainly at best. That still leaves the rambling litany of rhetorical questions in the paragraph above. In The Impact of Publicity on Corporate Offenders Fisse and Braithwaite offer a chapter on “Antitrust at IBM.” IBM’s competitors complained to the Federal Trade Commission and the Justice Department that the giant was engaged in predatory pricing and other unfair tactics. I can personally attest that this was common knowledge. I learned to program computers in 1976 and 1977 on IBM 360 and 370 mainframes. I also gained experience on the first Hewlett Packard 8-bit desktop computers. At this time, the computer industry was called “IBM and the Seven Dwarves.” All of that was about to change. Tracy Kidder’s book, The Soul of a New Machine tells of how Data General created the first 32-bit supermini computer to compete against IBM’s mainframes. When the anti-trust agitations began, Data General did not even exist. DG’s real competitor was never IBM, but DEC: the Digital Equipment Corporation of Ken Olsen from which DG chief Edson de Castro had come to found his own company. Meanwhile, a little mail order electronics firm in Albuquerque, MITS, was selling kits to build a home computer, the Altair. Steven Levy’s Hackers: Heroes of the Computer Revolution provides many of the details for that side of the story. Two decades after IBM fended off anti-trust charges, Microsoft survived similar attempts. In both cases, innovation made the matter moot.

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Reintegrative shaming and restorative justice are means for redressing wrongs. Wrongs are the result of violated rights. A right is something for which you do not need to ask permission. Those are axiomatic. As we move farther from them, we need to exercise greater care and restraint, lest hubris bring unintended consequences.

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Appendix A: Convenience Sample of College Textbooks This list was compiled by taking in alphabetical order by author the general survey textbooks suitable for an introductory class in criminology, published after 1990. The purpose was to establish the extent to which John Braithwaite’s theory of reintegrative shaming has been incorporated into the body of knowledge that the average collegeeductated police patrol officer (public or private) would be expected to know. The process began with an examination of the index for the keyword “reintegrative shaming.” Failing that, “shaming” was sought, then “Braithwaite” in both the general index and name index. Producing the Index is not necessarily the job of the author. Those who do this work may not know the subject matter from the viewpoint of a practitioner. Outcomes: RS= “Reintegrative Shaming” listed in the Index.
Author Publisher Edition/Year Outcome

1 2 3 4

Beirne, Piers. Messerschmidt, James Brown, Stephen Eugene Esbensen, Finn-Aage. Geis, Gilbert. Conklin, John E. DeKeseredy, Walter S., Schwartz, Martin D.

Boulder, Colo. Westview Press Cincinnati, OH Anderson Pub. Co Boston, MA : Allyn and Bacon . Belmont, Calif. : Wadsworth Pub.,

3rd ed. 2000 1st. 1998 8th ed. 2004 1st 1996

RS No listings. No mention. RS “Shaming” in index. Proper discussion in text. RS No listings in topic index. No discussions. Braithwaite listed in Bibliography

5 6

Ellis, Lee Walsh, Anthony Hirschi, Travis. Laub, John H.

Boston : Allyn and Bacon, New Brunswick, U.S.A. : Transaction Publishers,

1st 2000 1st 2003

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7 8

Maguire, Brendan, Radosh, Polly F. Reid, Sue Titus.

Belmont, CA : West/Wadsworth Madison, WI Brown & Benchmark

Instructor's ed. 1999 8th ed. 1997

RS Braithwaite mentioned under Labeling Theory. Braithwaite cited in six end of chapter notes. No listings RS Braithwaite listed in Index, but not key concepts. RS RS RS No index listings for key words. 12 citations to Braithwaite in the Name Index

9 10

Schmalleger, Frank. Shelley, Louise I.

Upper Saddle River, N.J. : Prentice Hall Carbondale : Southern Illinois University Press

2nd ed 1999. 1st 1981

11 12 13 14

Siegel, Larry J. (“The Core”) Siegel, Larry J. (“Theories, Patterns, and Types”) Siegel, Larry J. Williams, Katherine S.

Australia ; Belmont, CA : Wadsworth/Thomson Learning, Australia ; Belmont, CA : Wadsworth/Thomson Learning, Australia ; Belmont, CA : Wadsworth/Thomson Learning, Oxford ; New York : Oxford University Press

1st 2002 7th 2001 7th 2000 5th ed.

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Appendix B: Search of Academic Journal Articles • • • • • 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. Full articles – not reviews or letters, but including exchanges Full text citations of the full phrase “Reintegrative shaming” but not “restorative justice” (a related but different term not specifically identified with John Braithwaite; unless appearing with the previous) Eliminating John Braithwaite and his primary co-researchers, Valerie Braithwaite, Eliza Ahmed , Ian Ayres, Brent Fisse, and Philip Petit. In journals of Economics, Finance, Health Policy, Law, Political Science and Sociology Sorted by date (Oldest to Newest) Shame, Culture, and American Criminal Law Shame, Culture, and American Criminal Law Toni M. Massaro Michigan Law Review, Vol. 89, No. 7 (Jun., 1991), pp. 1880-1944 Legal Cultures and Punishment Repertoires in Japan, Russia, and the United States, Joseph Sanders, V. Lee Hamilton Law & Society Review, Vol. 26, No. 1 (1992), pp. 117-138 The Benevolent Paternalism of Japanese Criminal Justice, Daniel H. Foote California Law Review, Vol. 80, No. 2 (Mar., 1992), pp. 317-390 Criminality, Social Control, and the Early Modern State: Evidence and Interpretations in Scandinavian Historiography, Eva Österberg Social Science History, Vol. 16, No. 1 (Spring, 1992), pp. 67-98 Beyond Calvin and Hobbes: Rationality and Exchange in a Theory of Moralizing Shaming: [Rejoinder] Christopher Uggen Law & Social Inquiry, Vol. 18, No. 3 (Summer, 1993), pp. 513-516 Sexual Violence, Victim Advocacy, and Republican Criminology: Washington State's Community Protection Act, Stuart A. Scheingold, Toska Olson, Jana Pershing Law & Society Review, Vol. 28, No. 4 (1994), pp. 729-763 Urban Poverty and the Family Context of Delinquency: A New Look at Structure and Process in a Classic Study, Robert J. Sampson, John H. Laub Child Development, Vol. 65, No. 2, Children and Poverty (Apr., 1994), pp. 523-540 The Labeling Perspective Is Far from Abandoned in Modern Criminology: Comment on Wright, Hugh D. Barlow Teaching Sociology, Vol. 23, No. 1 (Jan., 1995), pp. 55-57 State Crimes of Previous Regimes: Knowledge, Accountability, and the Policing of the Past, Stanley Cohen Law & Social Inquiry, Vol. 20, No. 1 (Winter, 1995), pp. 7-50 One Story, Two Readings: A Response to Harold Tanner: [Response], Michael Dutton Law & Social Inquiry, Vol. 20, No. 1 (Winter, 1995), pp. 305-316 The Empirical Limitation of Theoretical Insight: [Rejoinder], Harold Tanner Law & Social Inquiry, Vol. 20, No. 1 (Winter, 1995), pp. 317-324 Interdependence and Reintegrative Social Control: Labeling and Reforming "Inappropriate" Parents in Neonatal Intensive Care Units, Carol A. Heimer, Lisa R. Staffen American Sociological Review, Vol. 60, No. 5 (Oct., 1995), pp. 635-654

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13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31.

Penal Communications: Recent Work in the Philosophy of Punishment, R. A. Duff Crime and Justice, Vol. 20, (1996), pp. 1-97 Theoretical Integration in Criminology, Thomas J. Bernard, Jeffrey B. Snipes Crime and Justice, Vol. 20, (1996), pp. 301-348 What Do Alternative Sanctions Mean? Dan M. Kahan The University of Chicago Law Review, Vol. 63, No. 2 (Spring, 1996), pp. 591-653 Risk Preferences and Patriarchy: Extending Power-Control Theory, Harold G. Grasmick, John Hagan, Brenda Sims Blackwell, Bruce J. Arneklev Social Forces, Vol. 75, No. 1 (Sep., 1996), pp. 177-199 Labeling Mental Illness: The Effects of Received Services and Perceived Stigma on Life Satisfaction, Sarah Rosenfield American Sociological Review, Vol. 62, No. 4 (Aug., 1997), pp. 660-672 Developments in the Law: Alternatives to Incarceration, Harvard Law Review, Vol. 111, No. 7 (May, 1998), pp. 1863-1990 Restorative Justice: The Challenge of Sexual and Racial Violence, Barbara Hudson Journal of Law and Society, Vol. 25, No. 2 (Jun., 1998), pp. 237-256 Rush to Closure: Lessons of the Tadić Judgment, Jose E. Alvarez Michigan Law Review, Vol. 96, No. 7 (Jun., 1998), pp. 2031-2112 Can Shaming Punishments Educate? Stephen P. Garvey The University of Chicago Law Review, Vol. 65, No. 3 (Summer, 1998), pp. 733-794 Informal Social Control and Crime Management in Belfast, John D. Brewer, Bill Lockhart, Paula Rodgers The British Journal of Sociology, Vol. 49, No. 4 (Dec., 1998), pp. 570-585 Collateral Consequences of Imprisonment for Children, Communities, and Prisoners, John Hagan, Ronit Dinovitzer Crime and Justice, Vol. 26, Prisons (1999), pp. 121-162 Institutions for Restorative Justice: The South African Truth and Reconciliation Commission, Jennifer J. Llewellyn, Robert Howse The University of Toronto Law Journal, Vol. 49, No. 3 (Summer, 1999), pp. 355-388 Volunteerism and Arrest in the Transition to Adulthood, Christopher Uggen, Jennifer Janikula Social Forces, Vol. 78, No. 1 (Sep., 1999), pp. 331-362 Employee Discharge and Reinstatement: Moral Hazards and the Mixed Consequences of Last Chance Agreements, Peter A. Bamberger, Linda H. Donahue Industrial and Labor Relations Review, Vol. 53, No. 1 (Oct., 1999), pp. 3-20 Public Opinion about Punishment and Corrections, Francis T. Cullen, Bonnie S. Fisher, Brandon K. Applegate Crime and Justice, Vol. 27, (2000), pp. 1-79 Juvenile Offenders in the Adult Criminal Justice System, Donna M. Bishop Crime and Justice, Vol. 27, (2000), pp. 81-167 Restorative and Community Justice in the United States, Leena Kurki Crime and Justice, Vol. 27, (2000), pp. 235-303 Organizational Approaches to Shame: Avowal, Management, and Contestationm Daniel D. Martin The Sociological Quarterly, Vol. 41, No. 1 (Winter, 2000), pp. 125-150 The Conditional Effect of Peer Groups on the Relationship between Parental Labeling and Youth Delinquency, Xiaoru Liu Sociological Perspectives, Vol. 43, No. 3 (Autumn, 2000), pp. 499-514

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32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45.

46.

47. 48.

Do Good Laws Make Good Citizens? An Economic Analysis of Internalized Norms Robert Cooter Virginia Law Review, Vol. 86, No. 8, Symposium: The Legal Construction of Norms (Nov., 2000), pp. 1577-1601 Does the Diplomacy of Shame Promote Human Rights in China? Alan M. Wachman Third World Quarterly, Vol. 22, No. 2 (Apr., 2001), pp. 257-281 Shaming in Corporate Law David A. Skeel, Jr. University of Pennsylvania Law Review, Vol. 149, No. 6 (Jun., 2001), pp. 1811-1868 States Monitoring States: The United States, Australia, and China's Human Rights, 1990-2001 Ann Kent Human Rights Quarterly, Vol. 23, No. 3 (Aug., 2001), pp. 583-624 Reducing School Violence: Strengthening Student Programs and Addressing the Role of School Organizations R. Matthew Gladden Review of Research in Education, Vol. 26, (2002), pp. 263-299 Community Prosecutors Anthony V. Alfieri California Law Review, Vol. 90, No. 5 (Oct., 2002), pp. 1465-1511 Shame, Stigma, and Crime: Evaluating the Efficacy of Shaming Sanctions in Criminal Law Harvard Law Review, Vol. 116, No. 7 (May, 2003), pp. 2186-2207 The Role of Procedural Justice and Legitimacy in Shaping Public Support for Policing Jason Sunshine, Tom R. Tyler Law & Society Review, Vol. 37, No. 3 (Sep., 2003), pp. 513-548 Confessions and Criminal Case Disposition in China Hong Lu, Terance D. Miethe Law & Society Review, Vol. 37, No. 3 (Sep., 2003), pp. 549-578 Double Jeopardy: The Modern Dilemma for Juvenile Justice Christina L. Anderson University of Pennsylvania Law Review, Vol. 152, No. 3 (Jan., 2004), pp. 11811219 Revisiting Informal Justice: Restorative Justice and Democratic Professionalism Susan M. Olson, Albert W. Dzur Law & Society Review, Vol. 38, No. 1 (Mar., 2004), pp. 139-176 Enhancing Police Legitimacy Tom R. Tyler Annals of the American Academy of Political and Social Science, Vol. 593, To Better Serve and Protect: Improving Police Practices (May, 2004), pp. 84-99 Integrating Remorse and Apology into Criminal Procedure Stephanos Bibas, Richard A. Bierschbach The Yale Law Journal, Vol. 114, No. 1 (Oct., 2004), pp. 85-148 Criminal Law. Federal Sentencing Guidelines. Ninth Circuit Holds That Shaming Punishment Does Not Violate the Sentencing Reform Act. United States v. Gementera, 379 F.3d 596 (9th Cir. 2004) Harvard Law Review, Vol. 118, No. 2 (Dec., 2004), pp. 825-832 The Bethel Therapeutic Court: A Study of How Therapeutic Courts Align with Yup'ik and Community Based Notions of Justice John M. Ptacin, Jeremy Worley, Keith Richotte American Indian Law Review , Vol. 30, No. 1 (2005/2006), pp. 133-150 Applying the Death Penalty to Crimes of Genocide Jens David Ohlin The American Journal of International Law, Vol. 99, No. 4 (Oct., 2005), pp. 747-777 The Banality of Good: Aligning Incentives against Mass Atrocity Mark Osiel Columbia Law Review, Vol. 105, No. 6 (Oct., 2005), pp. 1751-1862

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49.

Structural Influences on Activism and Crime: Identifying the Social Structure of Discontent Rory McVeigh The American Journal of Sociology, Vol. 112, No. 2 (Sep., 2006), pp. 510-566

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Appendix C: Reviews of Books by John Braithwaite 1. Review: Playing the Opposites Game: On Mirjan Damaška's "The Faces of Justice and State Authority" Review: Playing the Opposites Game: On Mirjan Damaška's "The Faces of Justice and State Authority" Inga Markovits Reviewed work(s): The Faces of Justice and State Authority: A Comparative Approach to the Legal Process by Mirjan R. Damaška Stanford Law Review, Vol. 41, No. 5 (May, 1989), pp. 1313-1341 Review: [untitled] Joel Best Reviewed work(s): Crime, Shame and Reintegration. by John Braithwaite Social Forces, Vol. 69, No. 1 (Sep., 1990), pp. 318-319 Review: Reintegrative Shaming: A New General Theory of Crime? Review: Reintegrative Shaming: A New General Theory of Crime? Ronald L. Akers Reviewed work(s): Crime, Shame, and Reintegration. by John Braithwaite Contemporary Sociology, Vol. 19, No. 5 (Sep., 1990), pp. 722-723 Review: A New Durkheim Review: A New Durkheim Thomas J. Scheff Reviewed work(s): Crime, Shame, and Reintegration. by John Braithwaite The American Journal of Sociology, Vol. 96, No. 3 (Nov., 1990), pp. 741-746 Review: [untitled] Wojciech Sadurski Reviewed work(s): Not Just Deserts: A Republican Theory of Criminal Justice by John Braithwaite; Philip Pettit Law and Philosophy, Vol. 10, No. 2 (May, 1991), pp. 221-234 Review: [untitled] Robert J. Bursik, Jr. Reviewed work(s): Advances in Criminological Theory: Vol. 2. by William S. Laufer; Freda Adler Contemporary Sociology, Vol. 20, No. 4 (Jul., 1991), pp. 594-596 Review: Not Not Just Deserts: A Response to Braithwaite and Pettit Review: Not Not Just Deserts: A Response to Braithwaite and Pettit Andrew Von Hirsch, Andrew Ashworth Reviewed work(s): Not Just Deserts: A Republican Theory of Criminal Justice by John Braithwaite; Phillip Pettit Oxford Journal of Legal Studies, Vol. 12, No. 1 (Spring, 1992), pp. 83-98 Review: [untitled] Suzanne Retzinger Reviewed work(s): Mea Culpa: A Sociology of Apology and Reconciliation. by Nicholas Tavuchis The American Journal of Sociology, Vol. 97, No. 6 (May, 1992), pp. 1754-1756 Review: White Collar Crime and the Poverty of the Criminal Law Review: White Collar Crime and the Poverty of the Criminal Law Kenneth Mann Reviewed work(s): Regulating Fraud: White-Collar Crime and the Criminal Process by Michael Levi Just Deserts for Corporate Criminals by Kip Schlegel Law & Social Inquiry, Vol. 17, No. 3 (Summer, 1992), pp. 561-571 Review: The Yale White-Collar Crime Project: A Review and Critique Review: The Yale White-Collar Crime Project: A Review and Critique David T. Johnson, Richard A. Leo Reviewed work(s): Wayward Capitalists: Target of the Securities and Exchange Commission by Susan Shapiro Defending White-Collar Crime: A Portrait of Attorneys at Work by Kenneth Mann Sitting in Judgment: The Sentencing of White-Collar Criminals by Stanton Wheeler; Kenneth Mann; Austin Sarat Crimes of the Middle Classes: White-Collar Offenders in the Federal Courts by David Weisburd; Stanton Wheeler; Elin Waring; Nancy Bode Law & Social Inquiry, Vol. 18, No. 1 (Winter, 1993), pp. 63-99

2. 3.

4. 5. 6. 7.

8. 9.

10.

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11.

12. 13. 14. 15.

16.

17.

18. 19.

20. 21.

22.

Review: Crime and the Average American Review: Crime and the Average American John Braithwaite Reviewed work(s): Crimes of the Middle Classes: White-Collar Offenders in the Federal Courts by David Weisburd; Stanton Wheeler; Elin Waring; Nancy Bode Law & Society Review, Vol. 27, No. 1 (1993), pp. 215-231 Review: [untitled] Anne M. Khademian Reviewed work(s): Responsive Regulation: Transcending the Deregulation Debate. by Ian Ayres; John Braithwaite The American Journal of Sociology, Vol. 98, No. 5 (Mar., 1993), pp. 1187-1189 Review: [untitled] Joel Rogers Reviewed work(s): Responsive Regulation: Transcending the Deregulation Debate. by Ian Ayres; John Braithwaite Contemporary Sociology, Vol. 22, No. 3 (May, 1993), pp. 338-339 Review: The Bureaucrats of Rules and Standards Review: The Bureaucrats of Rules and Standards Reviewed work(s): Responsive Regulation by Ian Ayres; John Braithwaite Harvard Law Review, Vol. 106, No. 7 (May, 1993), pp. 1685-1690 Review: Reintegrating Braithwaite: Shame and Consensus in Criminological Theory Review: Reintegrating Braithwaite: Shame and Consensus in Criminological Theory Christopher Uggen Reviewed work(s): Crime, Shame and Reintegration by John Braithwaite Law & Social Inquiry, Vol. 18, No. 3 (Summer, 1993), pp. 481-499 Review: [untitled] Frank Gallo Reviewed work(s): Self Employment: A Labor Market Perspective by Robert L. Aronson The Japanese Labor Market in a Comparative Labor Market Perspective with the United States by Masanori Hashimoto Annals of the American Academy of Political and Social Science, Vol. 528, Citizens, Protest, and Democracy (Jul., 1993), pp. 202-203 Review: [untitled] Floyd B. McFarland Reviewed work(s): Responsive Regulation: Transcending the Deregulation Debate by Ian Ayres; John Braithwaite Annals of the American Academy of Political and Social Science, Vol. 528, Citizens, Protest, and Democracy (Jul., 1993), pp. 203-204 Review: [untitled] Kenneth Nowotny Reviewed work(s): Responsive Regulation: Transcending the Deregulation Debate by Ian Ayres; John Braithwaite Journal of Economic Issues, Vol. 27, No. 3 (Sep., 1993), pp. 974-976 Review: [untitled] Lyle A. Downing Reviewed work(s): What's the Matter with Liberalism? by Ronald Beiner True Tolerance: Liberalism and the Necessity of Judgment by J. Budziszewski The American Political Science Review, Vol. 87, No. 3 (Sep., 1993), pp. 753-760 Review: [untitled] John T. Scholz Reviewed work(s): Responsive Regulation: Transcending the Deregulation Debate by Ian Ayres; John Braithwaite The American Political Science Review, Vol. 87, No. 3 (Sep., 1993), pp. 782-783 Review: Overcoming Barriers to Better Regulation Review: Overcoming Barriers to Better Regulation John Mendeloff Reviewed work(s): Responsive Regulation: Transcending the Deregulation Debate by Ian Ayres; John Braithwaite Law & Social Inquiry, Vol. 18, No. 4 (Autumn, 1993), pp. 711-729 Review: Two Faces of Justice: A Milestone in Quantitative Cross-Cultural Research Review: Two Faces of Justice: A Milestone in Quantitative CrossCultural Research David T. Johnson, Setsuo Miyazawa Reviewed work(s): Everyday Justice: Responsibility and the Individual in Japan and the United States

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23. 24.

25. 26.

27. 28.

29. 30. 31.

32.

33.

34.

by V. Lee Hamilton; Joseph Sanders Law & Social Inquiry, Vol. 19, No. 3 (Summer, 1994), pp. 667-685 Review: [untitled] Robert Eli Rosen Reviewed work(s): Corporations, Crime and Accountability. by Brent Fisse; John Braithwaite Contemporary Sociology, Vol. 24, No. 1 (Jan., 1995), pp. 93-94 Review: Putting Women First Review: Putting Women First Mary Coombs Reviewed work(s): Gender, Crime, and Punishment by Kathleen Daly Michigan Law Review, Vol. 93, No. 6, 1995 Survey of Books Relating to the Law (May, 1995), pp. 1686-1712 Review: [untitled] Katherine M. Jamieson Reviewed work(s): Beyond the Law: Crime in Complex Organizations. by Michael Tonry; Albert J. Reiss, Jr. Contemporary Sociology, Vol. 24, No. 3 (May, 1995), pp. 377-378 Review: Donald Black's Positivism in Law and Social Control Review: Donald Black's Positivism in Law and Social Control David Sciulli Reviewed work(s): The Social Structure of Right and Wrong by Donald Black Law & Social Inquiry, Vol. 20, No. 3 (Summer, 1995), pp. 805-828 Review: The Future of Criminologies Review: The Future of Criminologies David Downes Reviewed work(s): The Futures of Criminology by David Nelken The British Journal of Sociology, Vol. 47, No. 2 (Jun., 1996), pp. 360-365 Review: What's Criminology Got to Do with It? Review: What's Criminology Got to Do with It? David Cole Reviewed work(s): Malign Neglect: Race, Crime and Punishment in America by Michael Tonry Crime and Inequality by John Hagan; Ruth D. Peterson Stanford Law Review, Vol. 48, No. 6 (Jul., 1996), pp. 1605-1624 Review: [untitled] Darnell F. Hawkins Reviewed work(s): Crime and Inequality. by John Hagan; Ruth Peterson Contemporary Sociology, Vol. 25, No. 4 (Jul., 1996), pp. 537-538 Review: [untitled] Daniel Krislov Reviewed work(s): Crime and Public Policy: Putting Theory to Work. by Hugh D. Barlow Contemporary Sociology, Vol. 26, No. 1 (Jan., 1997), pp. 89-90 Review: [untitled] Frank Henry Reviewed work(s): Corporate Crime: Contemporary Debates by Frank Pearce; Laureen Snider Canadian Journal of Sociology / Cahiers canadiens de sociologie, Vol. 22, No. 2 (Spring, 1997), pp. 274-277 Review: Why Do Nations Obey International Law? Review: Why Do Nations Obey International Law? Harold Hongju Koh Reviewed work(s): The New Sovereignty: Compliance with International Regulatory Agreements by Abram Chayes; Antonia Handler Chayes Fairness in International Law and Institutions by Thomas M. Franck The Yale Law Journal, Vol. 106, No. 8, Symposium: Group Conflict and the Constitution: Race, Sexuality, and Religion (Jun., 1997), pp. 2599-2659 Review: Discrediting the Free Market Review: Discrediting the Free Market Ian Ayres Reviewed work(s): The Progressive Assault on Laissez Faire: Robert Hale and the First Law and Economics Movement by Barbara Fried The University of Chicago Law Review, Vol. 66, No. 1 (Winter, 1999), pp. 273-296 Review: Putting the Regulated Back into Regulation Review: Putting the Regulated Back into Regulation Richard Johnstone Reviewed work(s): Corporate Regulation:

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35. 36. 37. 38. 39.

40. 41. 42.

43. 44.

45.

46.

Beyond 'Punish or Persuade' by Fiona Haines Journal of Law and Society, Vol. 26, No. 3 (Sep., 1999), pp. 378-390 Review: [untitled] Samantha Luks Reviewed work(s): Trust and Governance by Valerie Braithwaite; Margaret Levi The Journal of Politics, Vol. 61, No. 4 (Nov., 1999), pp. 1207-1208 Review: [untitled] Christopher T. Marsden Reviewed work(s): Code and Other Laws of Cyberspace by Lawrence Lessig The Modern Law Review, Vol. 63, No. 4 (Jul., 2000), pp. 624-628 Review: [untitled] Ronald Weitzer Reviewed work(s): The Handbook of Crime and Punishment by Michael Tonry Contemporary Sociology, Vol. 29, No. 4 (Jul., 2000), pp. 665-666 Review: [untitled] Lance Davis Reviewed work(s): The London Stock Exchange: A History by Ranald C. Michie The Journal of Economic History, Vol. 60, No. 4 (Dec., 2000), pp. 1141-1142 Review: [untitled] Ngaire Naffine Reviewed work(s): Criminology at the Crossroads: Feminist Readings in Crime and Justice by Kathleen Daly; Lisa Maher Crime Control and Women: Feminist Implications of Criminal Justice Policy by Susan L. Miller Nothing Bad Happens to Good Girls: Fear of Crime in Women's Lives by Esther Madriz Policing Women: The Sexual Politics of Law Enforcement and the LAPD by Janis Appier Signs, Vol. 26, No. 2 (Winter, 2001), pp. 572-577 Review: [untitled] Kathryn J. Fox Reviewed work(s): Doing Time: An Introduction to the Sociology of Imprisonment by Roger Matthews Contemporary Sociology, Vol. 30, No. 3 (May, 2001), pp. 292-294 Review: [untitled] John F. Camobreco Reviewed work(s): American Business and Political Power: Public Opinion, Elections, and Democracy by Mark A. Smith The American Political Science Review, Vol. 95, No. 3 (Sep., 2001), pp. 740-741 Review: [untitled] Thomas W. Church Reviewed work(s): The Regulatory Craft: Controlling Risks, Solving Problems, and Managing Compliance by Malcolm K. Sparrow The American Political Science Review, Vol. 95, No. 3 (Sep., 2001), pp. 741-742 Review: [untitled] Michael Woolcock Reviewed work(s): Global Business Regulation by John Braithwaite; Peter Drahos Contemporary Sociology, Vol. 30, No. 6 (Nov., 2001), pp. 626-627 Review: [untitled] Sidney A. Shapiro Reviewed work(s): Regulatory Encounters: Multinational Corporations and American Legal Adversarialism by Robert A. Kagan; Lee Axelrad The American Journal of Comparative Law, Vol. 50, No. 1 (Winter, 2002), pp. 229-240 Review: Casting New Light on an Old Subject: Death Penalty Abolitionism for a New Millennium Review: Casting New Light on an Old Subject: Death Penalty Abolitionism for a New Millennium Wayne A. Logan Reviewed work(s): When the State Kills: Capital Punishment and the American Condition by Austin Sarat Michigan Law Review, Vol. 100, No. 6, 2002 Survey of Books Relating to the Law (May, 2002), pp. 1336-1379 Review: Is Republican Regulatory Law the Answer to Globalization? Review: Is Republican Regulatory Law the Answer to Globalization? William E. Scheuerman Reviewed work(s): Global Business Regulation by John Braithwaite; Peter Drahos

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47.

48. 49. 50. 51. 52. 53.

54. 55. 56. 57.

58.

The University of Toronto Law Journal, Vol. 52, No. 3 (Summer, 2002), pp. 301311 Review: Dangers of Dystopias in Penal Theory Review: Dangers of Dystopias in Penal Theory Lucia Zedner Reviewed work(s): The Culture of Control: Crime and Social Order in Contemporary Society by D. Garland Oxford Journal of Legal Studies, Vol. 22, No. 2 (Summer, 2002), pp. 341-366 Review: [untitled] Roger Brownsword Reviewed work(s): Genetic Privacy: A Challenge to Medico-Legal Norms by Graeme Laurie The Modern Law Review, Vol. 66, No. 1 (Jan., 2003), pp. 156-160 Review: [untitled] Andrew Sanders Reviewed work(s): Restorative Justice and Responsive Regulation by John Braithwaite Regulation, Crime, Freedom by John Braithwaite The Modern Law Review, Vol. 66, No. 1 (Jan., 2003), pp. 160-167 Review: [untitled] Kathleen E. Hull Reviewed work(s): Regulating Intimacy: A New Legal Paradigm by Jean L. Cohen Contemporary Sociology, Vol. 32, No. 5 (Sep., 2003), pp. 637-638 Review: [untitled] Mary C. Ingram Reviewed work(s): Information Feudalism: Who Owns the Knowledge Economy? by Peter Drahos; John Braithwaite Contemporary Sociology, Vol. 32, No. 5 (Sep., 2003), pp. 638-639 Review: [untitled] Anne M. Nurse Reviewed work(s): Convicted Survivors: The Imprisonment of Battered Women Who Kill by Elizabeth Dermody Leonard Contemporary Sociology, Vol. 32, No. 6 (Nov., 2003), pp. 762-763 Review: [untitled] M. R. Bodapati, Paul Knepper Reviewed work(s): Shame Management through Reintegration by Eliza Ahmed; Nathan Harris; John Braithwaite; Valerie Braithwaite Contemporary Sociology, Vol. 32, No. 6 (Nov., 2003), pp. 763-765 Review: [untitled] Jerry Van Hoy Reviewed work(s): Studies in Law, Politics, and Society, Vol. 26 by Austin Sarat; Patricia Ewick Contemporary Sociology, Vol. 33, No. 1 (Jan., 2004), pp. 95-96 Review: [untitled] Michael P. Johnson Reviewed work(s): Restorative Justice and Family Violence by Heather Strang; John Braithwaite Contemporary Sociology, Vol. 33, No. 1 (Jan., 2004), pp. 96-98 Review: [untitled] Giuseppe Eusepi Reviewed work(s): Australia Reshaped. 200 Years of Institutional Transformation by Geoffrey Brennan; Francis G. Castles Public Choice, Vol. 121, No. 3/4 (Oct., 2004), pp. 517-520 Review: The Rise of the British Regulatory State: Transcending the Privatization Debate Review: The Rise of the British Regulatory State: Transcending the Privatization Debate David Levi-Faur, Sharon Gilad Reviewed work(s): Regulation inside Government: Waste-Watchers, Quality Police and Sleaze-Busters by Christopher Hood; Colin Scott; Oliver James; George Jones; Tony Travers. The Audit Society: Rituals of Verification by Michael Power The British Regulatory State: High Modernism and Hyper-Innovation by Michael Moran Comparative Politics, Vol. 37, No. 1 (Oct., 2004), pp. 105-124 Review: Globalizing Regulatory Capitalism Review: Globalizing Regulatory Capitalism Jacint Jordana Reviewed work(s): A New World Order by Anne-Marie Slaughter Learning from Foreign Models in Latin American Policy Reform by Kurt Weyland Annals of the American Academy of Political and Social Science, Vol.

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59.

60.

61. 62.

598, The Rise of Regulatory Capitalism: The Global Diffusion of a New Order (Mar., 2005), pp. 184-190 Review: Is There a Future for Leniency in the U.S. Criminal Justice System? Review: Is There a Future for Leniency in the U.S. Criminal Justice System? Nora V. Demleitner Reviewed work(s): Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe by James Q. Whitman Michigan Law Review, Vol. 103, No. 6, 2005 Survey of Books Relating to the Law (May, 2005), pp. 1231-1272 Review: Making Happy Punishers Review: Making Happy Punishers James Q. Whitman Reviewed work(s): Hiding from Humanity: Disgust, Shame, and the Law by Martha C. Nussbaum Harvard Law Review, Vol. 118, No. 8 (Jun., 2005), pp. 2698-2724 Review: [untitled] Bill Martin Reviewed work(s): Markets in Vice, Markets in Virtue by John Braithwaite Contemporary Sociology, Vol. 35, No. 6 (Nov., 2006), pp. 614-615 Review: [untitled] Michacl E. Bucrger Reviewed work(s): Third Party Policing by Lorraine Mazerolle; Janet Ransley The American Journal of Sociology, Vol. 113, No. 2 (Sep., 2007), pp. 593-595

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References Ayres, Ian and John Braithwaite. 1992. Responsive Regulation: Transcending the Deregulation Debate. New York; Oxford: Oxford University Press. Barnett, Randy. 1977. “Restitution: A New Paradigm of Criminal Justice,” Ethics, Vol. 87, No. 4 (Jul., 1977), pp. 279-301 Beale, Joseph H., “Social Justice and Business Costs: A Study in the Legal History of Today,” Harvard Law Review, Vol. 49, No. 4 (Feb., 1936), pp. 593-609. Braithwaite, John. 1982. “Challenging Just Deserts: Punishing White-Collar Criminals,” The Journal of Criminal Law and Criminology (1973), Vol. 73, No. 2 (Summer, 1982), pp. 723-763. Braithwaite, John. 1982. “Comment on "The Criminal Law as a Threat System,” The Journal of Criminal Law and Criminology (1973), Vol. 73, No. 2 (Summer, 1982),pp. 786-789. Braithwaite, John. 1982. “Reply to Dr. Ernest van den Haag,” The Journal of Criminal Law and Criminology (1973-), Vol. 73, No. 2 (Summer, 1982),pp. 790-793 Braithwaite, John. 1984. Corporate Crime in the Pharmaceutical Industry. London, Boston, Melbourne, and Henly: Routledge & Kegan Paul. Braithwaite, John. 1989. Crime, Shame and Reintegration. Cambridge: Cambridge University Press. Braithwaite, John. 1999. “Restorative Justice: Assessing Optimistic and Pessimistic Accounts,” Crime and Justice, Vol. 25 (1999), pp. 1-127. Braithwaite, John. 2001. “Crime in a Convict Republic,” The Modern Law Review, Vol. 64, No. 1 (Jan., 2001), pp. 11-50. Braitwaite, John. 2009. Private communication to the author. Subject: Re: Genesis of Reintegrative Shaming? Sent By: john <[email protected]> On: March 31, 2009 1:29 AM To: [email protected] Braitwaite, John and Philip Petit. 1990. Not Just Deserts: A Republican Theory of Criminal Justice. Oxford: Clarendon Press. Braithwaite, John and Philip Petit. 1994. “Republican Criminology and Victim Advocacy: Comment,” Law & Society Review, Vol. 28, No. 4 (1994), pp. 765-776. Braithwaite, John and Valerie Braithwaite and Eliza Ahmed, “Reintegrative Shaming,” in Lanier, Mark M. and Stuart Henry, Editors.2006. The Essential Criminology Reader. Boulder: Westview Press. Braithwaite, Valerie. 2004. “The Hope Process and Social Inclusion,” Annals of the American Academy of Political and Social Science, Vol. 592. pp. 128-151. Cao, Liqun. 2004. Major Criminological Theories: Concepts and Measurements. Belmont, California: Wadsworth Group. Cochran, Robert F., Jr. 2000. “The Criminal Defense Attorney: Roadblock or Bridge to Restorative Justice,” Journal of Law and Religion, Vol. 14, No. 1 (1999 - 2000), pp. 211-228. Delgado Richard. 2000. “Goodbye to Hammurabi: Analyzing the Atavistic Appeal of Restorative Justice,” Stanford Law Review, Vol. 52, No. 4 (Apr., 2000), pp. 751775.

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