RESTORATIVE CRIMINAL JUSTICE

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This Article develops a model that integrates restorative justice within the conventional punitive system of criminal responsibility and punishment. Contrary to the conventional wisdom, we demonstrate that restorative justice should form a synergy with retributivism, deterrence, incapacitation, and other punitive goals of criminal law. We show how this synergy can be formed, illustrate its operation and identify its potential contribution to social welfare.

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RESTORATIVE CRIMINAL JUSTICE
Hadar Dancig-Rosenberg & Tali Gal


ABSTRACT
This Article develops a model that integrates restorative justice within the
conventional punitive system of criminal responsibility and punishment.
Contrary to the conventional wisdom, we demonstrate that restorative justice
should form a synergy with retributivism, deterrence, incapacitation, and
other punitive goals of criminal law. We show how this synergy can be
formed, illustrate its operation and identify its potential contribution to social
welfare.
TABLE OF CONTENTS
INTRODUCTION .............................................................................................................. 2314
I. CRIMINAL JUSTICE: PUNITIVE VERSUS RESTORATIVE ......................................... 2316
A. Understanding and Responding to Crime ............................................... 2317
B. Punitive and Restorative Approaches Compared ................................... 2319
II. THE GOALS OF THE CRIMINAL PROCESS ............................................................... 2324
A. What Do Punitive and Restorative Approaches Try to Accomplish? ... 2325
B. Requital ....................................................................................................... 2333
III. INTEGRATION .......................................................................................................... 2335
A. Synergizing Punitive and Restorative Approaches ................................. 2336


† Hadar Dancig-Rosenberg is an Assistant Professor at Bar-Ilan University Law School,
Israel. Tali Gal is an Assistant Professor at the School of Criminology, University of Haifa,
Israel. We would like to express our gratitude first and foremost to Alex Stein for his detailed
comments and critical insights. We are also grateful to Ori Aronson, Michal Alberstein, Ittai
Bar-Siman-Tov, Briana Barocas, Richard Bierschbach, John Braithwaite, Nerya Cohen, Tsilly
Dagan, Rashmi Goel, Anat Horovitz, Shahar Lifshitz, James Ptacek, Dana Pugach, Leslie Sebba,
Ron Shapiro, David Wexler, Uri Yanay, and participants in workshops and presentations at the
Bar-Ilan University Law School, Hebrew University of Jerusalem Law School, the Israeli Law
and Society Association 2011 Annual Meeting, Osgoode Hall Law School, and the University of
Puerto Rico School of Law for many insightful comments and suggestions. Last but not least,
we thank Hadas Osher-Lahav for excellent research assistance and the Wexler Foundation for
financial support.
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B. Practical Implications ................................................................................ 2339
CONCLUSION................................................................................................................... 2345
INTRODUCTION
The last three decades marked the ascendance of restorative justice
as a crime-control mechanism. Restorative justice has been developed as
a supplement to, or a replacement for, the traditional criminal process.
Although both approaches try to develop a socially optimal response to
criminal behavior, each of them represents a distinct ideology.
Academic literature cultivates this separationist stance by treating the
two approaches as conflicting paradigms.
1
Much of this literature
focuses on the pros and cons of restorative versus punitive modes of
criminal justice, while trying to appraise empirically the efficacy of
specific restorative programs.
2
The interplay between restorative and
punitive justice in the normative and conceptual domains of criminal
law remains under-theorized. This Article fills this gap.
We posit that restorative justice is a viable community-based
mechanism for regulating criminal behavior. Contrary to the common

1 See, e.g., Gordon Bazemore, Restorative Justice and Earned Redemption, 41 AM. BEHAV.
SCI. 768 (1998); Lode Walgrave, Restoration in Youth Justice, 31 CRIME & JUST. 543 (2004).
More recent scholarship acknowledges commonalities, as well. See, e.g., Kathleen Daly,
Conventional and Innovative Justice Responses to Sexual Violence, 12 AUSTL. CENTRE FOR
STUDY OF SEXUAL ASSAULT ISSUES 1 (2011); Barbara Hudson, Restorative Justice and Gendered
Violence: Diversion or Effective Justice?, 42 BRIT. J. CRIMINOLOGY 616 (2002); Daniel W. Van
Ness, New Wine and Old Wineskins: Four Challenges of Restorative Justice, 4 CRIM. L.F. 251
(1993).
2 See, e.g., HEATHER STRANG, REPAIR OR REVENGE: VICTIMS AND RESTORATIVE JUSTICE
(2002) (presenting findings from the Reintegrative Shaming Experiments (RISE) comparing
cases randomly assigned to either court or conference in Canberra, Australia); James Bonta et
al., Restorative Justice and Recidivism: Promises Made, Promises Kept?, in HANDBOOK OF
RESTORATIVE JUSTICE: A GLOBAL PERSPECTIVE 108, 114–15 (Dennis Sullivan & Larry Tifft eds.,
2006) (presenting a meta-analytic review of findings regarding recidivism rates following
punitive and restorative processes, and concluding that restorative interventions have an
approximately seven percent reduction impact on recidivism). For a meta-analytic review of
findings regarding the effectiveness of restorative justice programs in comparison with formal
punitive processes, see Jeff Latimer, Craig Dowden & Danielle Muise, The Effectiveness of
Restorative Justice Practices: A Meta-Analysis, 85 PRISON J. 127 (2005). Effectiveness in this
study was measured by victim and offender satisfaction, restitution compliance, and recidivism
rates. The meta-analysis concluded that restorative justice interventions resulted in small, but
significant reductions in recidivism and were more effective with low-risk offenders. Id.
Program effectiveness improved during the mid-nineties as programs became more structured
and more theoretically anchored within restorative justice theory. Id. For a systematic review of
evidence drawn from reasonably unbiased tests comparing restorative justice with conventional
criminal justice, see LAWRENCE W. SHERMAN & HEATHER STRANG, THE SMITH INST.,
RESTORATIVE JUSTICE: THE EVIDENCE (2007). The review reveals that, with only one exception,
rigorous tests of restorative justice showed significant reductions in recidivism rates. Id. at 68–
71. Restorative justice reduces crime more effectively in more serious crimes, in violence rather
than in property crimes, and when there is a personal victim. Id.
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wisdom, we show that the punitive approach is not the only means by
which society can respond to and reduce crime. Indeed, we demonstrate
that restorative justice provides an equally efficacious, if not superior,
social response to crime. Most important, we develop a model that
integrates the punitive and the restorative approaches within criminal
law.
Our proposed model re-conceptualizes criminal liability by making
it ideologically more inclusive and multifaceted and, consequently,
more responsive to the needs of politically complex society. This re-
conceptualization tracks the well-known criticism made by Professors
Bibas and Bierschbach that criminal procedure leaves virtually no room
for apology and repentance, and provides no opportunities for victims
and offenders to engage in a dialogue.
3
Our analysis, however, goes
beyond that criticism and shows that restorative justice is criminal
justice. We posit that, institutionally, restorative mechanisms monitored
by state agencies and implemented under the formal legal framework
form an integral part of criminal law. As far as substantive criminal law
is concerned, we demonstrate that a synergetic application of the
punitive and restorative mechanisms can achieve a different—and
socially beneficial—blend of the criminal law objectives.
We capture the relationship between the punitive and restorative
approaches in the form of two alternatives. One alternative is embedded
in two partly overlapping circles: the intersecting part represents the
goals of criminal law potentially achievable by both punitive and
restorative approaches. These common goals include rehabilitation,
deterrence, incapacitation, and denunciation of crime. The separate
parts of the circles represent the approaches’ distinct goals: retribution
(as a distinct goal of punitive justice) and reparation of harm and
community empowerment (as two distinct goals of restorative justice).
Another alternative situates itself within two concentric circles. The
small circle represents the goals of punitive justice. The large circle
represents restorative justice, which, in appropriate cases, promotes the
goals of punitive approach as well (including retribution in a broad
sense, which we term requital) in conjunction with the restorative
objectives that include reparation of harm and community
empowerment.
This scheme has many methodological advantages: It uncovers
numerous points of intersection between the punitive and the
restorative approaches to criminal law; it enables a more precise
definition of the relationship between restorative and punitive justice;

3 See generally Stephanos Bibas & Richard A. Bierschbach, Integrating Remorse and
Apology into Criminal Procedure, 114 YALE L.J. 85 (2004).
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and it also helps identify the virtues and the vices of each respective
approach across a variety of contexts.
Structurally, our Article proceeds as follows. In Part I, we present
the restorative and the punitive approaches as competing paradigms,
reflecting the way they have largely been described in the literature. In
Part II, we analyze the goals that the two approaches strive to achieve
and identify the points of intersection between those goals. In Part III
we present our model and discuss its advantages over other models of
criminal justice. As part of this discussion, we consider the recent New
Jersey Superior Court decision in State v. Ravi.
4
We show that in this
high-profile case, all of the parties involved—the defendant, the victims,
and the entire community—could benefit from a restorative procedure
that could bring about a socially desirable resolution of the case at hand.
We conclude this Article by outlining future applications of our
integrative model in theory and in practice.
I. CRIMINAL JUSTICE: PUNITIVE VERSUS RESTORATIVE
Restorative justice grew out of disappointment with the punitive
approach.
5
The criticism of the criminal justice system related both to
its ineffectiveness in reducing criminality
6
and to its failure to address
victims’ needs.
7
Influenced by other emerging approaches such as
Alternative Dispute Resolution (ADR)
8
and community justice,
9
local
initiatives sprang up aspiring to provide better responses to crime.
10


4 N.J. Super. No. 11-04-00596, 2012 N.J. Super. Unpub. LEXIS 1757 (App. Div. May 21,
2012).
5 STRANG, supra note 2, at 43.
6 See Andrew Ashworth & Lucia Zedner, Defending the Criminal Law: Reflections on the
Changing Character of Crime, Procedure, and Sanctions, 2 CRIM. L. & PHIL. 21 (2008)
(summarizing the criticism against punitive justice as being ineffective, unneeded, expensive,
and unjust); John Braithwaite, A Future Where Punishment Is Marginalized: Realistic or
Utopian?, 46 UCLA L. REV. 1727 (1999); Robert Martinson, What Works? Questions and
Answers About Prison Reform, 35 PUB. INT. 22 (1974) (showing punitive measures, as well as
rehabilitative ones, to be largely ineffective); Heinz Steinert, Is There Justice? No—Just Us!:
Justice as an Attempt to Control Domination and the Problem of State-Organized Pain Infliction,
25 ISR. L. REV. 710 (1991) (describing the claims made by abolitionists against the punitive
approach).
7 LESLIE SEBBA, THIRD PARTIES: VICTIMS AND THE CRIMINAL JUSTICE SYSTEM 25, 55–56
(1996) (describing the punitive paradigm as ignoring victims’ needs, considering them as
“evidentiary tool” and frequently causing secondary victimization).
8 See Nils Christie, Conflicts as Property, 17 BRIT. J. CRIMINOLOGY 1 (1977) (coining the
term “conflict as property” and arguing that conflicts should be handled largely by the direct
stakeholders rather than by the state).
9 See DANIEL W. VAN NESS & KAREN HEETDERKS STRONG, RESTORING JUSTICE 12–19 (3d
ed. 2006) (summarizing the ideological movements that contributed to the evolution of the
restorative justice movement).
10 See Rashmi Goel, Aboriginal Women and Political Pursuit in Canadian Sentencing
Circles: At Cross Roads or Cross Purposes?, in RESTORATIVE JUSTICE AND VIOLENCE AGAINST
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Gradually these programs’ modus operandi was conceptualized and
abstracted, resulting in the construction of restorative justice as the
“antithesis” of punitive justice.
11

A. Understanding and Responding to Crime
Punitive justice perceives crime largely as harm to protected social
values. The perception of crime as causing a conflict between an
individual and society is one of the distinct characteristics of criminal
law. Liberal theory provides an explanation for the great importance of
defendants’ rights. The role of the sovereign is to regulate behavior, and
in doing so, to determine guilt and punishment. Defendants’ rights were
developed to protect the individual against the mighty sovereign and its
potentially arbitrary, harmful exertion of power.
12

Punitive justice authorities ask three questions in their reaction to
crime: Who committed it; whether the elements of criminal offense
exist; and which penalty should be imposed on the perpetrator. When
the perpetrator’s guilt is proved, sentencing is carried out in as
structured and uniform a manner as possible by state-appointed
courts.
13
Punishment is proportional to the severity of the crime and is
influenced by mitigating and aggravating circumstances.

WOMEN 60 (James Ptacek ed., 2010) (describing justice circles operated by aboriginal
communities in Canada); Allison Morris & Gabrielle Maxwell, Restorative Justice in New
Zealand, in RESTORATIVE JUSTICE AND CRIMINAL JUSTICE: COMPETING OR RECONCILABLE
PARADIGMS 257 (Andrew Von Hirsch et al. eds., 2003) (describing family group conferences in
New Zealand, conducted pursuant to the 1989 Children, Young Offenders and their Families
Act); Mark S. Umbreit et al., Restorative Justice: An Empirically Grounded Movement Facing
Many Opportunities and Pitfalls, 8 CARDOZO J. CONFLICT RESOL. 511 (2007) (describing the
first victim-offender mediation processes and their development).
11 Compare CHARLES K.B. BARTON, RESTORATIVE JUSTICE: THE EMPOWERMENT MODEL 15–
16 (2003) (arguing that the punitive approach inherently disempowers the primary
stakeholders in the conflict while restorative justice empowers them), HOWARD ZEHR,
CHANGING LENSES: A NEW FOCUS FOR CRIME AND JUSTICE 180 (1990) (defining restorative
justice as a “new lens” through which to look at crime and reactions to it), and Bazemore, supra
note 1 (describing restorative justice processes as ceremonies of “earned redemption” for
offenders and positioning restorative justice against the retributive/rehabilitative dichotomy),
with MARK S. UMBREIT & MARILYN PETERSON ARMOUR, RESTORATIVE JUSTICE DIALOGUE: AN
ESSENTIAL GUIDE FOR RESEARCH AND PRACTICE 8 (2011) (explaining that after over twenty-five
years of practice and research, Zehr and others have come to the understanding that the “sharp
polarization” between the punitive and restorative approaches is “somewhat misleading”), and
Paul McCold, Toward a Holistic Vision of Restorative Juvenile Justice: A Reply to the Maximalist
Model, 3 CONTEMP. JUST. REV. 357 (2000) (presenting a purist approach of restorative justice).
12 Ashworth & Zedner, supra note 6.
13 Andrew Ashworth, Responsibilities, Rights and Restorative Justice, 42 BRIT. J.
CRIMINOLOGY 578, 581–82 (2002).
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The restorative approach, in contrast, emphasizes the personal and
relational harms caused by crime. Crime is perceived primarily as an act
of personal harm. Accordingly, processes create space for discussing the
actual harm caused to the direct and indirect victims, and for
considering ways to promote a sense of safety and belonging among
community members.
14
The restorative justice approach focuses,
therefore, on three questions: Who has been harmed; what are their
resulting needs; and who is responsible for meeting those needs.
15
These
questions are answered directly and jointly by the stakeholders: The
offender and the victim, members of their families and representatives
of their surrounding communities.
The formal definition of the offense is no more than a starting
point in restorative processes; its concrete significance is shaped by the
victim and others describing the way it affected them. At the same time,
the severity of the offense is not defined exclusively by its direct
outcome, nor is it regarded merely as a private conflict. Whereas the
punitive approach ascribes importance to the negative message
conveyed by the perpetrator in committing the crime to society as a
whole,
16
the restorative approach emphasizes the feeling of contempt for
human dignity, rights or needs, which was experienced by the victim
and others who have been affected. The emphasis on the ripple effects
created by crime explains the community’s interest in responding to the
crime.
According to some restorativists, restorative justice reflects a
republican worldview,
17
in which community members regulate their
own behavior.
18
Accordingly, the participants of restorative processes

14 The different terminologies used by the restorative and punitive approaches are also
indicative of the vast differences between the two. Whereas punitive justice vocabulary includes
terms such as “offense,” “defendant/criminal,” and “suspect,” restorative justice terminology
uses alternative terms such as “wrong/harm” and “wrongdoer.” The frequent shifts from one
approach to the other in this Article, in the course of comparing them, made it difficult to
remain faithful to the respective terminologies. We emphasize, however, that restorative justice
jargon excludes stigmatizing labels that associate the crime with the person who committed it,
such as “criminal.”
15 HOWARD ZEHR, THE LITTLE BOOK OF RESTORATIVE JUSTICE 20 (2002). We thank John
Braithwaite for commenting on an earlier draft that at times the person who is expected to take
responsibility is someone other than the person accountable for the crime, such as in cases of
child offenders.
16 See Dan M. Kahan, The Anatomy of Disgust in Criminal Law, 96 MICH. L. REV. 1621,
1641 (1998) (portraying crime as an act of communicating the offender’s disregard of social
values).
17 See JOHN BRAITHWAITE & PHILLIP PETTIT, NOT JUST DESERTS: A REPUBLICAN THEORY
OF CRIMINAL JUSTICE (1990); see also Walgrave, supra note 1, at 561–63 (describing restorative
justice as a communitarian approach).
18 See BRAITHWAITE & PETTIT, supra note 17 (emphasizing that unlike liberal theory, which
focuses on protecting individuals against the sovereign, republican theory relates to protection
against other forms of domination resulting from social injustice and violence); see also Erik
Luna, Punishment Theory, Holism, and the Procedural Conception of Restorative Justice, 2003
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jointly and actively make decisions concerning the harm, its
implications, and the proper responses to it. The role of the sovereign is
restricted to preserving basic human rights in addition to defining
substantive criminal law. As long as there is no deviation from the “red
lines” set by the state, the community is free to manage behavior as it
wishes.
19

The two theories also have different approaches to the nature of the
reaction to crime. Restorative justice considers penal sanctions as
administrative aggression, imposed by the state in response to the
aggression by the offender. Conversely, restorative justice processes seek
to achieve restorative, corrective measures that can “put right” the harm
done.
20
Focusing on restoration does not mean abstaining from a
response, or even providing a milder response; rather, it reflects a
reaction which combines high social control with high social support.
21

B. Punitive and Restorative Approaches Compared
The criminal process opens with an investigation of the reported
crime. The investigative material is passed on to the prosecution for
indictment. Once an indictment has been filed, the legal process begins,
with adjudication as its first stage and sentencing as the second.
Adjudication becomes unnecessary in many cases, when the parties
agree to a plea bargain. The decision on whether a trial is to be
conducted is forced on both the victim and the offender.
22
The process

UTAH L. REV. 205, 231 (explaining the differences between restorative justice, which is based on
republicanism, and punitive justice, which is based on liberalism); Walgrave, supra note 1, at
554–55.
19 John Braithwaite, Holism, Justice, and Atonement, 2003 UTAH L. REV. 389 (discussing the
role of state-issued rules in ensuring victims’ ability to express their positions freely, as well as
provisions for minimal emotional and physical support); John Braithwaite, Setting Standards
for Restorative Justice, 42 BRIT. J. CRIMINOLOGY 563 (2002) (discussing state-imposed
boundaries that proscribe any violent or coercive expressions); Luna, supra note 18, at 289
(explaining that while lawmakers are least capable of making suitable decisions in concrete
cases, they are most capable of setting general boundaries for punishment in different
categories of crime, reflecting widely shared values and constitutional constraints; the
stakeholders are then free to reach an agreeable outcome within these boundaries).
20 ZEHR, supra note 11, at 186.
21 See Ted Wachtel & Paul McCold, Restorative Justice in Everyday Life, in RESTORATIVE
JUSTICE AND CIVIL SOCIETY 114, 116–17 (Heather Strang & John Braithwaite eds., 2001)
(explaining that the restorative reaction to crime differs from the punitive approach, which
reacts to crime through high social control and low social support, and that both approaches
differ from a neglectful approach, which provides both low social support and low social
control, and a permissive, or rehabilitative approach, which provides high social support but
low social control (the “social discipline window”)).
22 This description is limited to Anglo-American legal systems in which adversarial
criminal processes are customary. Criminal justice processes in Continental legal systems carry
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culminates in the imposition of punishment, which often ravages the
defendant’s freedom and dignity.
23

The restorative justice approach offers processes that differ
substantially from the criminal processes.
24
A precondition for a
restorative justice process to take place is the offender’s admission of the
crime. Secondly, both the offender and the victim are required to
consent to a face-to-face restorative dialogue, and this voluntarism is
reexamined throughout the process.
25
The practical significance of these
two conditions is that restorative justice is inapplicable in many cases.
26

In restorative processes the interested parties themselves—as well
as affected community members—are direct parties to the process. The
professionals involved act largely as suppliers of information and service
providers rather than as decision-makers. Attorneys are generally not
invited to be part of the process, and if they are present, their role is
limited to the provision of information. Each participant’s voice is heard
in its authentic form, without being processed through procedural or
evidentiary filters. The only restriction is a prohibition against pressure,
violence, and domination.
27

Crime victims are called to speak of their needs and the damage
which they incurred as well as to propose ways of repairing the harm
and preventing additional damage.
28
Offenders are expected to take
explicit responsibility for their actions, to listen and respond to what the

entirely different characteristics, affecting, among other things, the status of the victim.
23 Nils Jareborg, Criminalization as Last Resort (Ultima Ratio), 2 OHIO ST. J. CRIM. L. 521,
526 (2005).
24 See TONY F. MARSHALL, RESTORATIVE JUSTICE: AN OVERVIEW 5 (1999) (defining
restorative justice as a process “whereby parties with a stake in a specific offence collectively
resolve how to deal with the aftermath of the offence and its implications for the future”).
25 Different restorative justice programs define the requirement for the victim’s consent
differently. See, e.g., SHERMAN & STRANG, supra note 2, at 36 (stating that victims involved in
the RISE experiments in Canberra, Australia, “were simply asked to name a time and date they
could attend . . . a conference,” instead of being formally requested to give their consent to the
process); Gabrielle Maxwell & Allison Morris, Youth Justice in New Zealand: Restorative Justice
in Practice?, 62 J. SOC. ISSUES 239, 253 (2006) (presenting findings that victims participate in
about a half of the New Zealand youth justice family group conferences, which take place even
without the victim’s consent to the process, but the victim is free to decide whether to
participate in them or not); see also E.S.C. Res. 2002/12, ¶ II(7), U.N. Doc. E/2002/INF/2 (Aug.
3, 2002) (providing that restorative justice processes should not be used without the free and
voluntary consent of the victims and that they should be able to withdraw their consent at any
time during the process).
26 “Mostly-restorative” processes, however, are possible when there is no specific victim,
such as in cases of vandalism, tax fraud, and drunk driving. For a typology of “fully,” “mostly,”
and “partly” restorative justice processes, see Paul McCold & Ted Wachtel, In Pursuit of
Paradigm: A Theory of Restorative Justice, RESTORATIVE PRACTICES E-FORUM (Aug. 10–15,
2003) (presented at the thirteenth World Congress of Criminology), available at
http://www.iirp.edu/iirpWebsites/web/uploads/article_pdfs/paradigm.pdf.
27 Braithwaite, Setting Standards for Restorative Justice, supra note 19, at 565.
28 The conception of the victim as a partner in the decision-making process following a
crime is one of the key innovations of restorative justice. See David Miers, Situating and
Researching Restorative Justice in Great Britain, 6 PUNISHMENT & SOC’Y 23 (2004).
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victims have to say, and to propose their own ways of repairing the
harm and preventing any recurrence of the offenses. Consequently, the
outcomes of restorative justice processes are shaped by the parties
themselves according to their needs and can be unique in nature.
29
The
restorative process has therefore often been described as an empowering
experience, by contrast to the criminal process, which is commonly
criticized as reawakening the trauma and disempowering the victim.
30

Finally, the restorative process is not adversarial. Because
restorative justice processes follow the offender’s admission, there is no
need to convince anyone present of the veracity of one party at the
expense of the other, or to agree on a plea bargain.
31
Since the objective
of the process is not to penalize, the offender may take off the mantle of
defense and engage in a sincere dialogue toward the formulation of a
reparation plan.
32
A reparation plan typically includes both monetary
reparation and a rehabilitative program. Community work is also often
agreed upon by the participants.

There are several models of face-to-face restorative justice
processes, the most common being Victim-Offender Mediation (VOM),
Conferencing, and the Circle. The models differ primarily by the
number of participants and the level of community involvement in
them. VOM involves an intimate encounter between the victim and the
offender, together with a mediator.
33
Conferences include the victim, the
offender, and their respective communities of support, as well as
community representatives and professionals.
34
Circles are practiced
mainly in native communities.
35
They often involve members of an

29 Joanna Shapland et al., Situating Restorative Justice Within Criminal Justice, 10
THEORETICAL CRIMINOLOGY 505 (2006).
30 See, e.g., BARTON, supra note 11, at 15, 16.
31 See Bazemore, supra note 1, at 797 (suggesting that restorative justice only applies to
offenders who have admitted guilt or who have been found guilty, in contrast with punitive
justice which, despite due process protections, is often based on "bargaining in the service of
retributive ends" and attorneys’ interests).
32 Id. (portraying restorative justice as leading to “win-win” solutions; only by attending to
the needs of the victim and the community following the crime can the offender be
rehabilitated); see also STRANG, supra note 2, at 155–91 (providing a statistical proof for the
“win-win” outcome of restorative justice: When victims responded positively to restorative
justice conferences offenders responded positively as well in the majority of cases. Win-win
results relating to dimensions such as participation, legitimacy, emotional restoration, and
procedural justice occurred significantly more often in conferences than in court, while win-
lose occurred significantly more often in court.).
33 Mark S. Umbreit, Crime Victims Seeking Fairness, Not Revenge: Toward Restorative
Justice, 53 FED. PROBATION 52, 53 (1989).
34 See Shapland et al., supra note 29, at 520–21 (describing conferences as strengthening the
social bonds between offenders and their family members, between victims and their relatives,
and among the various supporters).
35 Julian V. Roberts & Kent Roach, Restorative Justice in Canada: From Sentencing Circles to
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entire community, and include spiritual and traditional elements
representing the uniqueness of the specific community. In all three
models, the processes are conducted by a neutral, professional
facilitator. Before the encounter, a thorough preparation phase takes
place, administered by the facilitator. During the gathering the
participants discuss the offense and its implications, and collectively
shape the reparation plan. When necessary, an additional meeting is
held. After the gathering, the implementation of the decisions is
monitored and reported to the state authorities. When a criminal
process has begun, the state authorities decide whether or not to pursue
it according to the results of the restorative process. In cases where the
reparation plan has not been carried out, the case is transferred to (or
remains in) the criminal process. Although the community plays a
dominant role in all of these models, state officials participate in the
processes and monitor their implementation, thus retaining the state’s
involvement.
Beyond the practical differences between restorative and criminal
processes, proponents of each approach have emphasized the
weaknesses of the respective rivals, continuing to portray the two
approaches as irreconcilable with each other. Restorativists argue that
the criminal process is based on a confrontational paradigm that
excludes victims. The trial is perceived as a rivalry between the
prosecution and the defense, and the binary structure of the verdict in
the criminal process creates a “zero-sum game,” whereby the victory of
one party is perceived as the failure of the other.
Punitivists, on the other hand, have raised serious concerns
regarding the ability of restorative justice processes to protect offenders’
due process rights, and in particular the presumption of innocence. The
admission requirement creates a risk of false admissions, particularly
among offenders belonging to minority groups, those with mental
illnesses, and juveniles.
36
When restorative processes begin after the
admission or finding of guilt, due process rights protect the offenders’
interests other than maintaining their innocence.
37
But when restorative

Sentencing Principles, in RESTORATIVE JUSTICE AND CRIMINAL JUSTICE: COMPETING OR
RECONCILABLE PARADIGMS?, supra note 10, at 237, 237, 240.
36 Arthur L. Rizer III, The Race Effect on Wrongful Convictions, 29 WM. MITCHELL L. REV.
845 (2003). But see Gina Villar, Joanne Arciuli & Helen M. Paterson, Remorse in Oral and
Handwritten False Confessions, 18 LEGAL & CRIMINOLOGICAL PSYCHOL. (forthcoming 2013)
(showing that expressions of remorse are significantly more elaborated and more common in
cases of true confessions compared with false ones).
37 But see Tamar M. Meekins, Specialized Justice: The Over-Emergence of Specialty Courts
and the Threat of a New Criminal Defense Paradigm, in REHABILITATING LAWYERS: PRINCIPLES
OF THERAPEUTIC JURISPRUDENCE FOR CRIMINAL LAW PRACTICE 46, 77 (David B. Wexler ed.,
2008) (considering the role of defense attorneys in drug courts as the promoters of their clients’
“best interests”); Mae C. Quinn, Whose Team Am I on Anyway? Musings of a Public Defender
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justice is used as a diversion from the criminal process or takes place
before the admission or finding of guilt, the risk of false admission raises
constitutional concerns.
38
Punitivists also question the ability of
restorative justice to provide deterrent, effective, and “just” reactions to
serious crimes. Restorative justice, in other words, is perceived as a “soft
option” by punitivists.
In practice, restorative justice processes are currently being used in
thousands of programs throughout the world.
39
Many studies
consistently indicate the effectiveness of restorative processes in
reducing recidivism rates.
40
Empirical findings also indicate the
satisfaction of victims and the improvement in their emotional state as a
result of their participation in restorative processes.
41
Therefore,
irrespective of one’s position toward restorative justice, it is clearly “here
to stay.” Our purpose in this Article is to identify the position of
restorative justice vis-à-vis punitive justice, focusing on their respective
goals.

About Drug Treatment Court Practice, 26 N.Y.U. REV. L. & SOC. CHANGE 37, 58–59 (2000)
(discussing similar concerns relating to problem-solving courts).
38 But see SHERMAN & STRANG, supra note 2, at 13 (proving that, in fact, offenders who
were referred to restorative justice processes were more likely to experience the process as fair
than those who were referred to court); STRANG, supra note 2, at 126–29; see also ADAM
CRAWFORD & TOM BURDEN, INTEGRATING VICTIMS IN RESTORATIVE YOUTH JUSTICE 58, 70–71
(2005) (demonstrating that even young offenders who met directly with their victims felt that
the process outcomes were fair and that they were treated with respect by their victims);
Kathleen Daly, Mind the Gap: Restorative Justice in Theory and Practice, in RESTORATIVE
JUSTICE AND CRIMINAL JUSTICE: COMPETING OR RECONCILABLE PARADIGMS?, supra note 10, at
219 (providing similar results for juvenile offenders).
39 Mark S. Umbreit, Robert B. Coates & Betty Vos, The Practice of Victim Offender
Mediation: A Look at the Evidence, in INTERNATIONAL HANDBOOK OF PENOLOGY AND
CRIMINAL JUSTICE 691, 692 (Shlomo Giora Shoham, Ori Beck & Martin Kett eds., 2008).
40 SHERMAN & STRANG, supra note 2, at 68–71 (comparing court and conferencing
processes in Canberra, Australia); Bonta et al., supra note 2, at 113–15 (reviewing thirty-nine
restorative justice studies in various jurisdictions, and presenting small, but significant and
consistent reductions in recidivism rates); Latimer, Dowden & Muise, supra note 2, at 137–39
(conducting a meta-analysis of findings from twenty-two studies regarding recidivism rates
following restorative justice programs and showing a significant reduction of crime compared
with recidivism rates following court processes).
41 STRANG, supra note 2, at 132–39 (presenting findings regarding enhanced satisfaction
and healing for victims whose cases were randomly assigned to conferences instead of court in
Canberra, Australia); Barton Poulson, A Third Voice: A Review of Empirical Research on the
Psychological Outcomes of Restorative Justice, 2003 UTAH L. REV. 167 (combining data from
seven evaluation studies comparing restorative justice and court processes, and showing that in
all psychological measures restorative justice produced significantly better outcomes for
victims); Caroline M. Angel, Crime Victims Meet Their Offenders: Testing the Impact of
Restorative Justice Conferences on Victims’ Post-Traumatic Stress Symptoms (Jan. 1, 2005)
(unpublished Ph.D. dissertation, University of Pennsylvania), available at http://repository.
upenn.edu/dissertations/AAI3165634 (presenting findings regarding reduced post-trauma
symptoms among robbery and burglary victims whose cases were randomly referred to
conferences).
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II. THE GOALS OF THE CRIMINAL PROCESS
Whereas the punitive approach generally considers retribution,
deterrence (general and personal), rehabilitation, incapacitation, and
denunciation of the crime
42
as the goals of penal sanctions, many
restorative justice scholars present it as promoting entirely different
goals.
43
Restorative justice, however, can in fact achieve the punitive
goals in addition to its unique consequentialist objectives. Section A
presents the arguments explaining how both approaches may achieve
the goals of criminal law as well as those presenting the unique
objectives of restorative justice. The dispute largely revolves around the
question of whether requital
44
is either attainable or desirable within the
restorative philosophy. We will address this question in Section B.

42 Denunciation does not always appear as a separate traditional goal of punitive justice.
We chose, however, to present it in this Article as one of the punitive justice goals because of its
centrality for both deontologists and utilitarians. See BRAITHWAITE & PETTIT, supra note 17, at
48 (presenting denunciation as a utilitarian justification for punishment); ANDREW VON
HIRSCH, CENSURE AND SANCTIONS (1993) (presenting “censure” as a justification for
punishment within a retributivist approach). For simplicity we categorize denunciation as a
utilitarian goal since it encapsulates, inter alia, utilitarian components. We acknowledge,
however, that denunciation also involves, at least for some writers, other meanings, as well.
43 See, e.g., BRAITHWAITE & PETTIT, supra note 17, at 54–85, 91–92 (arguing that the goal of
restorative justice is promoting equal dominion among all members of society).
44 We choose the term “requital” for its broad meaning which includes the various
interpretations on retribution. Requital is also a neutral term which has been left outside the
academic discourse about punishment and its justification. See, e.g., BRAITHWAITE & PETTIT,
supra note 17 (using, critically, the term “retribution”); JOEL FEINBERG, DOING AND
DESERVING: ESSAYS IN THE THEORY OF RESPONSIBILITY 98 (1970) (proposing the term “hard
treatment”); VON HIRSCH, supra note 42 (considering censure as a goal of punishment).
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A. What Do Punitive and Restorative Approaches Try
to Accomplish?
Table 1
The goals of the retributive and restorative paradigms
Restorative Justice Punitive Justice
Internal incentives:
reintegrative
shaming and
procedural fairness
encouraging self-
regulation
External
incentives:
escalating
punishments
combined
with strict
enforcement
Personal
Deterrence
Utilitarian Goals:
Crime Reduction
Increasing
reporting rates and
strengthening
community ties
Consistent and
predictable
sanctions
General
Deterrence
Focusing on the
crime, not the
criminal; offender’s
involvement in
decision-making;
rehabilitation
within the
community
Rehabilitation
programs as
alternatives or
supplements to
punishment
Rehabilitation
Spreading
responsibility on
many among
offender’s
community
Imprisonment;
death penalty
Incapacitation
Authentic
expressions by
process participants
backed up by
reparation plan;
offender’s remorse
Public judicial
decisions
Denunciation,
Norm-Setting
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Addressing needs of
anybody affected by
crime

Reparation of
Harm
Additional
Consequential
Goals
Recruiting
communities of
support in crafting
and implementing
reparation plan

Community
Empowerment
Illegitimate goal;
reparation plan as
burden;
reparation as
restoration of
justice
Just desert,
proportionality
Requital

Deontological
Goals
In what ways can restorative justice serve the utilitarian objectives
of the punitive approach?
45
Punishment, according to utilitarianism,
may be justified only when it is imposed in order to attain objectives
which result in benefit to society: for the sake of deterrence, the
prevention of recidivism and the rehabilitation of the offender.
46
As
Table 1 demonstrates, restorative justice can potentially achieve the
objectives of the classic utilitarian school in addition to its own stated
goals.
47
Accordingly, criticism is not directed principally at the
utilitarian goals themselves, but rather at the inefficient, unjust, and
coercive methods that the punitive approach adopts in pursuing them.
48

Punitive justice justifies punishment for its deterrent effect.
Deterrence theory assumes rationality,
49
but at least in certain types of
offenses and certain segments of the population, it is doubtful whether

45 See JOHN STUART MILL, UTILITARIANISM (1861), reprinted in UTILITARIANISM, LIBERTY
AND REPRESENTATIVE GOVERNMENT 1, 6 (Wildside Press 2007) (1910) (defining the utilitarian
ethical theory, which holds that the criterion for examining the worthiness of any given action
is its ability to achieve the maximization of happiness and minimization of suffering).
46 See JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND
LEGISLATION (J.H. Burns & H.L.A. Hart eds., Univ. of London 1970) (1789) (arguing that
punishing a first-time offender when reoffending is unlikely to occur is immoral and
unjustified).
47 See BRAITHWAITE & PETTIT, supra note 17, at 64–65; Philip Pettit, Republican Theory and
Criminal Punishment, 9 UTILITAS 59 (1997) (presenting a republican approach which adopts
the consequentialist goal of dominion or freedom as non-domination).
48 MICHAEL H. TONRY, MALIGN NEGLECT: RACE, CRIME, AND PUNISHMENT IN AMERICA
(1995); LUCIA ZEDNER, CRIMINAL JUSTICE 94 (2004). But see BRAITHWAITE & PETTIT, supra
note 17, at 52–53, 202 (criticizing utilitarianism as vague and preferring a consequential theory
the goal of which is the promotion of personal dominion).
49 Gary S. Becker, Crime and Punishment: An Economic Approach, 76 J. POL. ECON. 169
(1968) (explaining that a person committing an offense considers whether the expected utility
of the crime exceeds its anticipated damage, and that the damage is a function of the probability
of conviction and the estimated punishment).
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the severity of the punishment affects the future behavior of offenders.
50

In a reality of high case attrition,
51
the certainty of enforcement is low as
well. What actually deters people from committing crimes, according to
restorativists, is shame. According to Braithwaite’s reintegrative
shaming theory, restorative justice provides a more efficient personal
deterrent, because it creates a space in which the community shames
offenders for their deeds, while expressing commitment and concern
toward them. The combined message of denunciation of the wrongful
act with the acceptance of the wrongdoer enables the offender to
reintegrate into society after having taken measures to repair the harm
caused by the crime.
52

Tom Tyler‘s procedural justice theory establishes that respectful
and inclusive processes are more effective than threatening, aggressive
discourses.
53
Offenders who took part in restorative justice processes
reported feelings of fairness, attentive listening, neutrality, and the
ability to influence, which encouraged them to fulfill their
undertakings.
54
The theory of procedural justice and the theory of
reintegrative shaming provide two prominent explanations for the
empirical findings that restorative justice is generally more efficient than
the criminal process in reducing recidivism rates.
55

Consistent and predictable penal sanctions are also intended to
achieve general deterrence, according to punitivists. Proponents of
restorative justice, however, question the validity of the punitivists’
general deterrence theory. Instead, they suggest that systemic use of
restorative justice processes will lead to general deterrence and to a
decrease in the crime rate. The alliance between victims and community
members that is created through restorative processes produces greater
satisfaction and trust, consequently increasing the percentages of
reported new crimes. The rise in the reporting rates increases the risk of

50 See Luna, supra note 18, at 212–13.
51 JOAN R. PETERSILIA, ALLAN ABRAHAMSE & JAMES Q. WILSON, RAND CORP., POLICE
PERFORMANCE AND CASE ATTRITION (1987), available at http://www.rand.org/pubs/reports/
R3515 (aiming to examine the reasons for the high case attrition rate in the United States,
where less than half of all felony arrests result in conviction, and identifying some police
practices and community characteristics which explain approximately half of the variation in
attrition rates across different police agencies).
52 JOHN BRAITHWAITE, CRIME, SHAME AND REINTEGRATION (1989).
53 Tom R. Tyler, Restorative Justice and Procedural Justice: Dealing with Rule Breaking, 62 J.
SOC. ISSUES 307 (2006).
54 STRANG, supra note 2, at 170–77.
55 These findings were verified in randomized-assignment tests. See SHERMAN & STRANG,
supra note 2; Latimer, Dowden & Muise, supra note 2. Other studies have identified diversity in
the effectiveness of restorative justice in reducing reoffending. See Bonta et al., supra note 2.
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being caught and hence the reluctance of potential offenders to commit
offenses.
56

Indeed, punitivists question the ability of restorative justice to
achieve general deterrence because restorative processes are contingent
upon the victim’s consent. This variability decreases the certainty of
legal reactions to crime and reduces public trust in the justice system.
The restorativist response is that as restorative practices become more
visible and more attuned to victims’ expectations, victims’ consent rates
increase, thus increasing the probability of enforcement through
restorative processes.
57
Yet, as long as restorative justice remains at the
margins of legal systems, it is impossible to expect a “critical mass” of
cases handled restoratively and an increase in reporting rates thereby;
and as long as the general deterrent effect of restorative justice is not
substantiated by empirical evidence it is unlikely that it would become
the mainstream enforcement mechanism. A realistic view of restorative
justice, then, acknowledges its limitations in achieving general
deterrence. At the same time, a realistic view of punitive justice
acknowledges its own weakness in achieving this goal.
58

Offenders’ rehabilitation is another utilitarian goal of punitive
justice. Imprisonment is expected to provide rehabilitative measures in
addition to its incapacitative roles, while other (non)-punitive measures
involve even more explicit rehabilitative goals. But according to critics
the criminal process condemns offenders, not only their deeds;
59
their
imprisonment removes them from the law-abiding community, and
prison is known as “the best school of crime.”
60
In restorative justice

56 John Braithwaite, Restorative Justice: Assessing Optimistic and Pessimistic Accounts, 25
CRIME & JUST. 1, 60 (1999).
57 See LAWRENCE W. SHERMAN & HEATHER STRANG, RESTORATIVE JUSTICE: THE
EVIDENCE, supra note 2, at 15.
58 See RYAN S. KING, MARC MAUER & MALCOLM C. YOUNG, THE SENTENCING PROJECT,
INCARCERATION AND CRIME: A COMPLEX RELATIONSHIP 4 (2005) (explaining that no more
than twenty-five percent of the crime reduction of the 1990s can be attributed to increased
incarceration); Francis T. Cullen, Cheryl Lero Jonson & Daniel S. Nagin, Prisons Do Not Reduce
Recidivism: The High Cost of Ignoring Science, 91 PRISON J. 48S (2011); see also Steven D. Levitt,
Understanding Why Crime Fell in the 1990s: Four Factors that Explain the Decline and Six that
Do Not, 18 J. ECON. PERSP. 163, 178–79 (2004) (estimating that approximately one-third of the
crime reduction of the 1990s was related to increased incarceration, but that this can be
attributed to the incapacitation effect rather than future deterrence).
59 See Braithwaite, supra note 56, at 68–70 (arguing that even when the sanction is
rehabilitative, the outcome is still one of labeling offenders—if not as “evil,” then as “sick”; if
not as “criminals,” then as “crazy”; in addition, the imposition of “rehabilitative” sanctions
leaves offenders in a passive position after having been “diagnosed” as in need of recovery,
passiveness that reduces the prospects for successful rehabilitation).
60 JEFFREY REIMAN & PAUL LEIGHTON, THE RICH GET RICHER AND THE POOR GET PRISON:
IDEOLOGY, CLASS, AND CRIMINAL JUSTICE (2010) (arguing that the difficulties in finding
employment, as well as the societal and familial troubles encountered by ex-convicts push them
back into criminal behavior and prevent their reintegration into society); ZEDNER, supra note
48, at 94; Michael A. Hallett, Race, Crime and For-Profit Imprisonment: Social Disorganization
as Market Opportunity, 4 PUNISHMENT & SOC’Y 369, 379–81 (2002) (explaining that the
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processes, by contrast, the active involvement of offenders and their
supporters in selecting the rehabilitation program, along with the
strengthening of their own familial and societal bonds, make restorative
justice an effective means of rehabilitating offenders.
61

Incapacitating offenders is considered an additional utilitarian goal
of punitive justice. Proponents of restorative justice, however, point out
the high percentage of violence in prisons and the increase in recidivism
post-release.
62
Erroneous identifications and speculative risk
assessments are additional obstacles toward effective incapacitation.
63
In
restorative justice, it is suggested, the community can incapacitate
offenders in creative ways, such as placing in-house inspectors in
scofflaw businesses, having a relative move into the offender’s home, or
taking away the offender’s car keys on weekends.
64
If activity at this level
does not accomplish prevention, it will be necessary to move up in the
enforcement pyramid
65
toward more coercive measures.
66

Another utilitarian objective of punishment is denunciation of
crime.
67
More broadly, and more recently, a goal of exchanging
messages between the various parties to the criminal process has been

negative effects of prisons are greater than their positive impact on prisoners); Martin H.
Pritikin, Is Prison Increasing Crime?, 2008 WIS. L. REV. 1049, 1054–56.
61 In the Canadian province of Newfoundland and Labrador, for instance, restorative
conferences that were used in family violence cases strengthened family ties considerably. See
Joan Pennell & Gale Burford, Family Group Decision Making: Protecting Children and Women,
79 CHILD WELFARE 131 (2000).
62 ZEDNER, supra note 48, at 94 (explaining that the stigmatizing effects of imprisonment
and the intrusion in family life increase the likelihood of reoffending); Ezzat A. Fattah, A
Critical Assessment of Two Justice Paradigms: Contrasting the Restorative and Retributive Justice
Models, in SUPPORT FOR CRIME VICTIMS IN A COMPARATIVE PERSPECTIVE 99, 99–100 (Ezzat A.
Fattah & Tony Peters eds., 1998) (describing the detrimental implications of imprisonment).
63 Luna, supra note 18, at 211.
64 As Professor Braithwaite vividly describes:
[T]he Uncle Harrys of this world come up with ideas more attuned to the reality of
the offender’s circumstances than can a judge, and are better monitors of their
implementation than police officers because one Uncle Harry might have more
contacts with the offender in a month than all the police in the city during a year.
Intimates, in short, can incapacitate more intensively, more creatively, more
sensitively, more consensually, and in a more dynamically responsive way than the
criminal justice system.
Braithwaite, supra note 56, at 67.
65 JOHN BRAITHWAITE, RESTORATIVE JUSTICE AND RESPONSIVE REGULATION 30 (2002)
(presenting the regulatory pyramid which has at its base the most restorative dialogue-based
approach for securing compliance with the law; as we move up the pyramid more coercive
methods are used to enforce the law).
66 Braithwaite, supra note 56, at 53–56. Many abolitionists hold a similar view. See Jim
Thomas & Sharon Boehlefeld, Rethinking Abolitionism: “What Do We Do with Henry?” Review
of de Haan, The Politics of Redress, SOC. JUST., Fall 1991, at 239.
67 ANDREW ASHWORTH, PRINCIPLES OF CRIMINAL LAW 18 (6th ed. 2009).
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identified. Moving beyond the traditional goals of punitive justice,
expressive theories emphasize the negative message that the crime
conveys and the condemning message that punishment
communicates.
68
Punishment, from this perspective, is perceived as a
way to express negative emotions held by the public at large.
69

Restorative justice processes attain the goal of social condemnation as
well, when all those present express their sorrow, shame, or anger at
what happened, provide details of the damage caused, and formulate a
multidimensional reparation plan.
70
Such a message is arguably more
credible and more effective than a sentence handed down by an
unfamiliar judge.
71
Moreover, offenders typically express remorse,
72

thereby validating the denunciatory message even further. In fact, the
distinction made in restorative justice processes between the
denunciation of the crime and acceptance of the offender enables
offenders and their supporters to condemn the criminal act
wholeheartedly, by contrast to the criminal process, which incentivizes
defendants to minimize their responsibility.
A claimed limitation, however, of restorative justice is that, while it
can educate and strengthen micro-communities, such as an extended
family, a school or a social circle,
73
it falls short of transforming whole
communities. Our response to this argument is that, when there is a
need to convey a clear public message, reparation plans can be made
public while maintaining the anonymity of the participants.
One of the concerns against restorative justice is that strengthening
the status of traditional community institutions as law enforcement
agents might hinder the promotion of “acceptable” norms of behavior.
74


68 See, e.g., FEINBERG, supra note 44, at 98–99; Kyron Huigens, On Commonplace
Punishment Theory, 2005 U. CHI. LEGAL F. 437, 441.
69 See Kahan, supra note 16, at 1641 (discussing punishment having the function of
reflecting the repugnance of the community, i.e., the “emotions of the community”).
70 Kay Pranis, Conferencing and the Community, in FAMILY GROUP CONFERENCING: NEW
DIRECTIONS IN COMMUNITY-CENTERED CHILD & FAMILY PRACTICE 40 (Gale Burford & Joe
Hudson eds., 2000).
71 Barbara Hudson, Restorative Justice: The Challenge of Sexual and Racial Violence, 25 J.L.
& SOC’Y 237, 252 (1998) (emphasizing that the message is especially powerful when the
reparation plan is backed by community and government services and supervised by the
enforcement authorities).
72 Expressions of remorse and requests for forgiveness occur in many restorative processes.
See SHERMAN & STRANG, supra note 2; STRANG, supra note 2, at 114–15.
73 Braithwaite, supra note 56, at 37.
74 See, e.g., Nadera Shalhoub-Kevorkian & Edna Erez, Integrating a Victim Voice in
Community Policing: A Feminist Critique, 9 INT’L REV. VICTIMOLOGY 113 (2002) (describing
the complexity of policing domestic violence in Arab communities); Julie Stubbs, Domestic
Violence and Women’s Safety: Feminist Challenges to Restorative Justice, in RESTORATIVE
JUSTICE AND FAMILY VIOLENCE 42, 49 (Heather Strang & John Braithwaite eds., 2002)
(discussing the problems in some restorative justice programs addressing family violence in
indigenous communities where the safety of women was placed at the hands of local men, some
of whom were themselves abusers).
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“Traditional customs” such as female genital mutilation and violence
against women and children may be overlooked or even justified, and
the victims and their stories silenced.
75
It is important, therefore, to
involve state authorities as “watchdogs” in community-based restorative
processes, to warn against violations of basic human rights.
76
The
question whether restorative processes are successful in resolving these
problems depends largely on how they are practiced.
77

Beyond the utilitarian goals of punitive justice, the restorative
approach has its own unique consequential objectives.
78
By contrast to
the punitive approach, restorative justice focuses on victims, and the
reparation of the harm done to them and to others constitutes its
primary goal.
79
The restorative approach criticizes punitive justice for
taking a high toll from victims in the promotion of societal goals. As an
alternative, it offers processes that can empower victims, strengthen
social bonds, and heal, irrespective of their outcomes.
80
In fact, findings
have shown that victims who participated in restorative justice processes
experienced a dramatic decrease in their post-trauma symptoms. The
therapeutic effect was so dramatic that those processes were compared
to cognitive-behavioral therapy, an effective psychological treatment
method for reducing post-trauma symptoms.
81
Victims’ rights reforms
across the globe have brought the punitive approach closer to restorative
justice in terms of empowering victims. But the gap between the two
approaches is still significant; promoting the wellbeing of victims is not
a primary goal of punitive justice.
82


75 But see Braithwaite, supra note 19 at 564 (arguing that empirical evidence indicates that,
in fact, women’s voices are heard more frequently than males’ in restorative justice processes, in
contrast with the reality in formal courtrooms).
76 An example is the involvement of judges in sentencing circles in Canada and in the
United States. The judge is passive during the circle but it is within his (or her) authority to
decide whether or not to accept the outcome plan as a part of the sentence or as a replacement
to it. See Goel, supra note 10, at 64–65.
77 See Barbara Hudson, Beyond White Man’s Justice: Race, Gender and Justice in Late
Modernity, 10 THEORETICAL CRIMINOLOGY 29, 29–30 (2006) (suggesting that restorative
processes should meet the principles of discursiveness, relationalism and reflectiveness to
address this concern).
78 See BRAITHWAITE & PETTIT, supra note 17, at 25–53 (explaining why it is a consequential
theory of justice).
79 ZEHR, supra note 11, at 184; Fattah, supra note 62, at 104; Martin Wright, The Court as
Last Resort: Victim-Sensitive, Community-Based Responses to Crime, 42 BRIT. J. CRIMINOLOGY
654 (2002).
80 See BARTON, supra note 11, at 16, 21, 27(explaining the notion of empowerment in
restorative processes as therapeutic).
81 Angel, supra note 41.
82 Hadar Dancig-Rosenberg & Dana Pugach, Pain, Love, and Voice: The Role of Domestic
Violence Victims in Sentencing, 18 MICH. J. GENDER & L. 423 (2012).
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An additional stated goal of restorative justice is to repair and
strengthen community ties.
83
While the punitive approach focuses on
offenders as individuals and considers the community a passive victim
at most, the restorative approach places the community at the center of
the process. Indeed, “community” is a vague, illusive concept in our
modern urban society. A “community” in the restorative sense is not an
entity defined by geography. Rather, it is a network of different social,
familial, and professional ties.
84
Restorative justice processes awaken
inactive ties and strengthen functioning ones by recruiting
acquaintances of offenders and victims to sit together and discuss the
crime and the appropriate reactions to it.
85
The community is perceived
as (secondarily) responsible for the occurrence of the offense and as a
(secondary) victim.
86
Community members, representing the shared
responsibility of the community, are invited to restorative processes to
take part in the design of the restoration plan. As a (secondary) victim,
the community needs are strengthening social bonds, regaining
residents’ sense of security, and reducing crime rates.
87
Community
bonds are strengthened through the intensive discussion of the
consequences of the offense, as well as by the active participation in, and
supervision of, the reparation plan.
88

Restorative justice, then, can potentially address the utilitarian
goals of the punitive approach, all aimed at reducing crime. Restorative
justice deters offenders from committing additional crimes through the
use of fair and rehabilitative shaming ceremonies. System-wide
restorative justice may potentially achieve general deterrence as well, by
raising the level of certainty that offenses will be reported and handled.
Restorative justice processes also constitute effective community
mechanisms for censuring offenses and confirming norms.
Incapacitation can be achieved through the recruitment of family,
community, and governmental enforcement mechanisms that prevent
offenders from reoffending. Restorative justice also provides a response

83 Albert W. Dzur & Susan M. Olson, The Value of Community Participation in Restorative
Justice, 35 J. SOC. PHIL. 91, 96 (2004).
84 Mimi Kim, Alternative Interventions to Intimate Violence: Defining Political and
Pragmatic Challenges, in RESTORATIVE JUSTICE AND VIOLENCE AGAINST WOMEN, supra note
10, at 193, 195–96.
85 See RANDALL COLLINS, INTERACTION RITUAL CHAINS (2004) (describing restorative
justice processes as a “social ritual”). Collins explains how such rituals reinforce a sense of
belonging among their participants, strengthen social norms, create “group energy” and reduce
anger among the participants. Id.
86 Bazemore, supra note 1.
87 LODE WALGRAVE, RESTORATIVE JUSTICE, SELF-INTEREST AND RESPONSIBLE CITIZENSHIP
76 (2008) (portraying the community as both a means and an end).
88 Robert White, Social Justice, Community Building and Restorative Strategies, 3 CONTEMP.
JUSTICE REV. 55, 68 (2000) (demonstrating how community empowerment can be achieved
through the assignment of voluntary activities to minors participating in restorative justice
conferences).
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to two additional distinct consequentialist objectives, namely the
reparation of harm and community empowerment.
B. Requital
While the dispute between the restorative and the punitive
approaches regarding the utilitarian purposes focuses on the ways to
achieve them, the dispute around requital is fundamental to the very
concept.
89
The theory of retribution is derived from the deontological
moral philosophy,
90
which holds that, irrespective of the outcome of the
penal sanction, it is morally necessary to ensure that the punishment is
proportionate to the severity of the offense. Causing harm to a person
who harmed societal values has intrinsic positive moral value.
91

Restorativists differ about the deontological theory.
92
Some utterly
reject the notion of justifying punishment through requital
93
and hold
that punishment can only be justified when it promotes the common
good. The desire to revenge, although natural, is irrational and
unworthy.
94
Consequently, if there is evidence that restorative justice is
likely to reduce criminal behavior while severe punishment is not, it is
preferable to take a pragmatic approach and waive the “primitive” urge
for requital or revenge.
95
Another school of thought opposes the
deontological approach on the grounds that the existence of a “public
desire” to requite offenders is not supported by findings; rather, crime
victims seek to achieve entirely different objectives—principally those of
a fair and respectful process, compensation, acknowledgment of their
suffering, and opportunities to influence the outcome of the process.
96


89 By “requital” we mean both the goal of achieving proportionality in punishment (“just
deserts”), and the goal of “making offenders pay” for their deeds (retribution).
90 Deontological moral theories highlight the intrinsic value of actions and norms. See
GEORGE P. FLETCHER, THE GRAMMAR OF CRIMINAL LAW: AMERICAN, COMPARATIVE, AND
INTERNATIONAL 198–99 (2007).
91 See John Rawls, Two Concepts of Rules, 64 PHIL. REV. 3, 5 (1955) (explaining that,
according to the retributivist approach, “[t]he state of affairs where a wrongdoer suffers
punishment is morally better than the state of affairs where he does not”).
92 For a review of the various positions regarding retribution within restorative justice see
MICHAEL KING ET AL., NON-ADVERSARIAL JUSTICE 44–45 (2009).
93 See MARTIN WRIGHT, JUSTICE FOR VICTIMS AND OFFENDERS: A RESTORATIVE RESPONSE
TO CRIME 133–35 (Waterside Press 2d ed. 1996) (1991); Daniel Van Ness, supra note 1, at 251–
52, 258–59.
94 Lode Walgrave, Restorative Justice for Juveniles: Just a Technique or a Fully Fledged
Alternative?, 34 HOW. J. CRIM. JUST. 228, 233, 235, 242 (1995).
95 Id.
96 STRANG, supra note 2, at 9–23; Jo-Anne Wemmers, The Meaning of Justice for Victims, in
THE INTERNATIONAL HANDBOOK OF VICTIMOLOGY 27 (Shlomo Giora Shoham, Paul Knepper
& Martin Kett eds., 2010).
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Indeed one could argue that retributivism is normative and should not
be subjected to the influence of empirical arguments. Anyone who
attributes at least some significance to empirical findings, however, will
have difficulty ignoring the changes in the perception of justice by the
public in general and by victims in particular.
Other restorativists acknowledge the legitimacy of requital and
hold that the restorative approach includes components of
punishment.
97
While requital is not an objective of restorative justice,
reparation plans constitute, in practice, a burden on the perpetrator that
is a function of the severity of the offense.
98
Furthermore, a detailed
discussion of the implications of the offense and of the offender’s
liability potentially results in fairer and more proportional sanction than
the sentence pronounced by a judge.
99
More importantly, the
“punishment” is more constructive and more significant than the
standard punitive justice sentence, as it can meet the actual needs of the
victim, the community, and the offender.
100

The difficulty arising from this line of argument is that the tailor-
made treatment produces highly distinct outcomes, violating the
equality requirement.
101
The restorativist response to the inequality
concern is that referring every admitting offender to restorative justice
processes according to known criteria represents equal treatment.
Equality in its restorative meaning is followed through the respectful
and fair treatment of all participants during the process,
notwithstanding its outcomes. Furthermore, restorativists argue that by
involving crime victims in various junctions of the criminal process it is

97 See R.A. Duff, Alternatives to Punishment—or Alternative Punishments?, in
RETRIBUTIVISM AND ITS CRITICS 43 (Wesley Cragg ed., 1992) (arguing that restorative justice
processes do not offer alternatives to punishment but rather alternative forms of punishments);
Luna, supra note 18, at 295, 299 (arguing that successful restorative justice processes may lead
to agreed-upon resolutions that represent the participants’ varying interests and punishment
ideologies).
98 See, e.g., ZEHR, supra note 11, at 210; Walgrave, supra note 1, at 558–59; Kathleen Daly,
Professor, Griffith Univ., Address before the Australia and New Zealand Society of
Criminology Annual Conference: Does Punishment Have a Place in Restorative Justice? (Sept.
28–30, 1999).
99 JOANNA SHAPLAND ET AL., RESTORATIVE JUSTICE: THE VIEWS OF VICTIMS AND
OFFENDERS—THE THIRD REPORT FROM THE EVALUATION OF THREE SCHEMES 44–45 (2007),
available at http://www.restorativejustice.org.uk/resource/ministry_of_justice_evaluation_
does_restorative_justice_affect_reconviction_the_fourth_report_from_the_evaluation_of_
three_schemes/#.USeHUqVTEUU (stating that approximately three-quarters of victims and
offenders found conference outcomes satisfying).
100 Michael Wenzel et al., Retributive and Restorative Justice, 32 LAW & HUM. BEHAV. 375,
376–77 (2008).
101 Andrew Von Hirsch & Andrew Ashworth, Not Just Deserts: A Response to Braithwaite
and Pettit, 12 OXFORD J. LEGAL STUD. 83, 92–94 (1992). But see Michael Moore, Victims and
Retribution: A Reply to Professor Fletcher, 3 BUFF. CRIM. L. REV. 65, 77 (1999) (explaining why
victims’ wishes regarding the appropriate punishment should not be considered according to
retribution theory).
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the punitive approach that has moved away from the strictly just desert
ideology.
102

Another stream in the restorative justice literature does not rule
out the deontological approach, but rather confers a broad, “positive”
interpretation of requital, beyond the classical understanding of justice
inspired by Hegelian and Kantian thinking. The attainment of justice
and the rectification of moral balance can be obtained by having the
stakeholders agree on the appropriate reaction instead of imposing
forcible punishment.
103
The offender’s efforts to make amends and the
promotion of the victim’s wellbeing are likely to restore the moral
balance which was disrupted by the offense (“righting the wrong”),
104

thus becoming the offender’s secular penance,
105
without imposing pain
upon him. This is how justice in the restorative sense is achieved.
106

III. INTEGRATION
This part proposes a model for re-conceptualizing the relationship
between the restorative and the punitive approaches. While we echo
those who criticize punitive justice for failing to provide opportunities
for apology and repentance,
107
we argue that symbolic reparation can
indeed occur within our criminal law system once we understand
restorative justice as part of it. Restorative justice is not private justice.
Admittedly, the community takes over most of the facilitative role
traditionally allotted to the state. Nonetheless, the state retains the
possibility of intervention. The state refers cases to restorative processes;
it often monitors the fulfillment of the reparation plan; and state
representatives have the authority to decide whether or not to drop the
case after a restorative process has been completed. Accordingly,
criminal law does not axiomatically imply the punitive approach as its
sole executor. Criminal law constitutes a procedural and substantive
platform for regulating behavior in response to the perpetration of
crimes; as such, it represents a framework into which various types of
values-oriented content may be injected through different procedures.
Restorative justice provides another tool—in addition to punitive

102 Cf. Moore, supra 101, at 77 (arguing that the involvement of victims in the criminal
process contradicts the principles of just desert).
103 Wenzel et al., supra note 100, at 377.
104 Stephen P. Garvey, Restorative Justice, Punishment, and Atonement, 2003 UTAH L. REV.
303, 317 (explaining that punishment is the way for offenders to right the wrongs they have
committed, and that restorative justice transforms punishment into penance).
105 See id. at 315.
106 See id.
107 Bibas & Bierschbach, supra note 3, at 87–92.
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justice—through which socially desirable values may be injected into
criminal law. The restorative justice tool is capable of promoting societal
and therapeutic objectives; but it can, at least to some extent, also
achieve requital in its restorative sense. This means that both
approaches may find shelter under the wings of the criminal law system.
In other words, in appropriate cases, criminal justice is restorative
justice.
Our analysis in the previous Part showed that the restorative
philosophy can potentially attain the utilitarian objectives of deterrence,
condemnation, incapacitation, and rehabilitation, although they are not
its stated goals. The principal instrument of the punitive approach is
punishment. The principal instrument of the restorative justice
approach is social capital—the community surrounding the offender
and the victim. Restorative justice also promotes its own stated and
distinct goals—reparation of harm and community empowerment.
Notwithstanding the empirical question as to which of the philosophies
can better achieve the utilitarian goals of criminal law, at the end of the
day, much of the debate eventually boils down to the question on how
each approach views requital as a goal.
A. Synergizing Punitive and Restorative Approaches
Given the ambivalence displayed by restorative justice proponents
to requital, the relationship between the two paradigms—punitive and
restorative—may be described in two alternative ways. The first is in
terms of two equal, partially intersecting circles (see Figure 1). The
intersecting area reflects the goals that both approaches can potentially
achieve. The separate areas reflect the distinct goals of each paradigm.
108

This version seems preferable for anyone who remains faithful to
requital in its strict retributive meaning, which only the punitive
approach seeks to promote. The second alternative portrays the
relationship in two concentric circles. The smaller circle, which
represents the goals of the punitive approach, is encompassed by the
larger, which represents the goals of the restorative approach (see Figure
2). According to this description, restorative justice can potentially
attain the objectives of punitive justice in their entirety, including that of
requital in its restorative sense, as well as its own. This version may
seem appealing for those who assign a broad, “positive” meaning to

108 We chose “retribution” in the part representing the distinct goals of punitive justice to
clarify its purely retributive meaning, in contrast with “requital,” which can enclose the
different restorative meanings of punishment. We return to the broader word “requital” in
Figure 2, below, to emphasize its capacity to include both retributivist and restorativist
meanings of deontological reactions to crime.

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requital. Punitive justice, by contrast, assigns little or no weight to the
reparation of harm.
109
Although it does not object to the promotion of
victims’ wellbeing, this goal is relegated when in conflict with others.
Community empowerment is likewise not one of the goals of punitive
justice, which considers the community as a passive victim.
Accordingly, it is the restorative justice circle that encompasses the
punitive justice circle, and not the opposite.















109 Bruce J. Winick, Therapeutic Jurisprudence and Victims of Crime, in THERAPEUTIC
JURISPRUDENCE AND VICTIM PARTICIPATION IN JUSTICE: INTERNATIONAL PERSPECTIVES 3
(Edna Erez, Michael Kilchling & Jo-Anne Wemmers eds., 2011) (explaining the tension
between the needs of the criminal justice system and victims’ needs). In the last decades states
have introduced far-reaching reforms providing legal and constitutional rights to crime victims
concerning their participation in the legal process, their privacy and safety. Nevertheless,
despite the substantial “softening” of the pure adversarial criminal process it is still far from
being victim-oriented. See generally DOUGLAS E. BELOOF, PAUL G. CASSELL & STEVEN J. TWIST,
VICTIMS IN CRIMINAL PROCEDURE (3d ed. 2010); Erin Ann O’Hara, Victim Participation in the
Criminal Process, 13 J.L. & POL’Y 229 (2005) (describing recent developments in victims’
rights); Erin C. Blondel, Note, Victims’ Rights in an Adversary System, 58 DUKE L.J. 237 (2008)
(arguing that despite victims’ reforms the adversarial process is not victim-centered).

Deterrence
Incapacitation
Rehabilitation
Condemnation
Goals of
Punitive
J ustice
Reparation of
harm

Community
empowerment

Retribution
Goals of
Restorative
J ustice
Figure 1
Relationship between the goals of the restorative and the
punitive approaches: partially overlapping circles
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2338 CARDOZO LAW REVI EW [Vol. 34:2313




















Emphasizing the retributiveness in requital distances restorative
justice from that purpose while emphasizing the component of
proportionality (just deserts) or of “justice” in its positive sense brings it
closer. Generally speaking, in most offenses, reparative measures may be
considered as the infliction of pain on the offender in proportion with
the severity of the offense. Reparative measures may also be considered
steps for “righting the wrong” or rebalancing the imbalance created by
the offense. This tool is distinct from punishment, but its purpose is
similar—the restoration of justice. Emphasizing the punitiveness of
requital accentuates the gap between punitive and restorative tools, in
light of the fundamental objection to considerations of revenge which is
inherent to the restorative philosophy.
The debate among restorativists about the meaning and legitimacy
of requital becomes acute when considering crimes of the most serious
nature, such as murder, rape, or extreme violence. The more serious the
crime, the more difficult it is to regard the burdens imposed on the
offender through the reparation plan as just deserts. It is equally difficult
to regard the reparation measures as restoring justice or “righting the
wrong” in those severe crimes. When restorative processes lead to
symbolic and material reparation for victims and community but are
unable to achieve requital there is no escape from a value-based decision
on whether to prioritize punitivism or restorativism.
110


110 Cf. Luna, supra note 18 (presenting a holistic perception of restorative justice processes,
according to which participants holding different punishment theories, including that of just
desert, may be satisfied with the process outcomes once its core procedural principles have
Deterrence
Incapacitation
Rehabilitation
Condemnation
Requital

Figure 2
Relationship between the goals of the restorative and the
punitive approaches: concentric circles
Goals of
Punitive
J ustice
Reparation of harm
Community empowerment


Goals of
Restorative
J ustice
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Accordingly, the model predicts that in the most serious types of
crime the part of the punitive circle representing the goal of retribution
will be pushed out of the restorative circle, and the two circles will
overlap only in part (Figure 1). In most offenses, however, the model
illustrates how the restorative justice philosophy addresses the full scope
of the goals. Requital can also be achieved through restorative justice,
because the reparative measures may be perceived as a proportional
infliction of burden and as acts of “righting the wrong,” thus restoring
the balance of justice (Figure 2).
The model does not reflect a sweeping preference for either one of
the philosophies, nor does it imply that either one of them can fully
attain the stated goals of criminal law in every case. Rather, it presents
the theoretical explanations each philosophy provides for its potential in
addressing the various goals. Similarly, we do not intend to determine
the proper interpretation of requital nor do we wish to make conclusive
statements about its appropriateness as an independent justification for
punishment. Rather, our goal is to demonstrate the way in which the
meaning and significance assigned to requital affects the relationship
between the restorative and punitive approaches. The proposed
typology holds that, the more we accept a broad understanding of
requital, the greater the degree to which restorative justice may be
perceived as attaining the full scope of criminal law goals. Alternatively,
a strictly retributive interpretation of requital amplifies the tension
between retribution and restoration.
B. Practical Implications
Our model highlights that restorative justice is suitable for systemic
use not only in jurisdictions that prioritize victim empowerment and
offender rehabilitation; it can equally fulfill criminal law objectives in
legal systems that assign prominence to deterrence and incapacitation.
Many states in America, therefore, might find restorative justice at least
as (if not more) suitable for achieving these goals as the punitive justice
approach.
111
Moreover, even jurisdictions that explicitly construct

been met). We agree that the individual stakeholders in a certain case might indeed hold
conflicting punishment ideologies and still share similar levels of satisfaction with the process
and its outcomes. Other community members, however, and the public in general, may object
to the use of restorative justice processes in cases of crimes of the most serious nature even
when these processes yield satisfactory results for their participants.
111 See, e.g., Umbreit et al., supra note 10, at 551–54 (reviewing the range and types of
legislative provisions relating to victim-offender mediation in the United States). According to
the review, as of 2005, statutes in twenty-nine states have at least a reference to victim-offender
mediation or a similar program. Id. Seven of these states provide comprehensive guidelines for
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retribution as their primary punitive goal in their sentencing
guidelines
112
can re-construct the definition of their “just desert” policies
to include both the restorative and the punitive meanings.
113
Such a
broadened understanding enables a synergy between the restorative and
retributive philosophies and thus extends the achievable goals beyond
their traditional scope to include socially beneficial outcomes such as
victim healing and community empowerment.
The model is helpful in pinpointing the virtues and the vices of
each philosophy across a variety of contexts. Accordingly, either one of
the paradigms can be used in different circumstances reflecting the
estimations regarding their level of success in attaining the preferred
goals. First, restorative justice is applicable only when the preconditions
of offender’s confession and the parties’ consent have been met.
114

Beyond these essential preconditions, however, other parameters
emerge identifying the relative effectiveness of each paradigm in
achieving the criminal law goals across a variety of contexts.
The level of commitment of the local community to address crime
is a useful parameter in deciding which of the paradigms is more likely
to achieve the various criminal law objectives. The community’s ability
to provide active assistance for the parties involved affects the level of
success of restorative processes in attaining victim healing and
preventing the future perpetration of crime by the offender. Without the
active involvement of the community in the fulfillment of the reparation

victim-offender mediation programs in their statutes. Id. Seven additional states have a clear
statutory authority for victim-offender mediation with fewer detailed requirements. Id. In nine
states, victim-offender mediation is included as one among a list of options for courts to
consider. Id. Finally, seven states have statutes that allow the establishment of victim-offender
mediation programs and reflect strong commitment to restorative justice principles, but do not
explicitly discuss victim-offender mediation. Id.
112 In California, for instance, sentencing policies were altered in 1976 with the enactment of
article 1170 of the Penal Code, reflecting preference to retributive considerations. CAL. PENAL
CODE § 1170 (West 2013). The most recent legislation we are aware of concerning sentencing
policy is amendment no. 113 of the Israeli Penal Code, enacted in January 2012, which makes
proportionality the guiding principle for determining sentencing. Penal Law (Amendment No.
113), 5737-1977, 2337 LSI 170 (Isr. 2012).
113 In Israel, for instance, just desert is the guiding principle in sentencing policy as was
stated in the recent criminal code amendment of 2012. See Penal Law (Amendment No. 113),
5737-1977, 2337 LSI 170.
114 Although restorative justice processes are held in cases without a direct victim (such as
drunk driving, drug related, and vandalism offenses), there is far less empirical evidence that
they actually achieve the goals of criminal law. See SHERMAN & STRANG, supra note 2, at 70
(showing that restorative justice had no effect on offenders’ recidivism in drunk driving and
shoplifting offenses). Victim safety might be seen as an additional precondition for restorative
justice. When a restorative process puts the victim at risk of violence or in a threat thereof,
safety measures must be taken to minimize that risk before the process takes place. Punitive
justice, however, might increase the risk of re-victimization of victims as well. See Judith Lewis
Herman, The Mental Health of Crime Victims: Impact of Legal Intervention, 16 J. TRAUMATIC
STRESS 159, 160 (2003) (explaining that beyond the psychological risks, legal processes also
place victims at risk of retaliation by the perpetrator).
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plan restorative justice may fail to achieve rehabilitation and
incapacitation. Similarly, the attainment of a clear norm-setting
depends, among other things, on the willingness of community
members to condemn the crime expressly. Without a wall-to-wall
agreement on the wrongfulness of the act expressed by community
members, restorative justice is less likely to achieve the goals of
denunciation of the crime and victim healing. Without the willingness
of at least some community members to condemn the crime and take
part in fulfilling the restorative outcomes many of the advantages of
restorative justice are lost.
115
The centrality of the State as the sole
decision-maker in punitive justice becomes virtuous in these cases.
The importance and feasibility of a sincere apology provide an
additional parameter. The exchange of an apology and forgiveness
between victims and offenders is one of the central assets of restorative
justice.
116
In cases where the sincerity of the apology is inherently
questionable,
117
or when the victim does not assign importance to it,
118

restorative justice loses much of its advantage over punitive justice.
The seriousness of the crime is another factor for selecting the
preferable philosophy in concrete cases. The more serious the offense,
the greater the difficulty in achieving requital through the restorative
approach alone. At the same time, the level of emotional harm caused to
the victim is a predictor for the success of restorative justice processes.
119

In other words, when the crime is heinous in nature and has caused
significant harm to the victim, restorative justice has the most to offer in
terms of victim healing—but has the least to offer in terms of
retribution. In these cases there would be a need for a value-based

115 The concern regarding community involvement is particularly salient in cases of
gendered violence. See, e.g., Loretta Frederick & Kristine Lizdas, The Role of Restorative Justice
in the Battered Women’s Movement, in RESTORATIVE JUSTICE AND VIOLENCE AGAINST
WOMEN, supra note 10, at 39, 50 (discussing concerns related to community members excusing
violence against women as private or as deserved by the victim); Stubbs, supra note 74, at 54–55
(considering “the community” as both source of the problem and its solution).
116 See Heather Strang & Lawrence W. Sherman, Repairing the Harm: Victims and
Restorative Justice, 2003 UTAH L. REV. 15, 28 (presenting findings from the RISE experiments
showing that in the vast majority of conferences victims received apologies from their offenders
and many of the recipients later forgave the offenders).
117 This is common in many domestic violence cases. See, e.g., Stubbs, supra note 74, at 51
(“[W]hile restorative justice literature emphasizes participation, apology and reparation,
victims of domestic violence have emphasized safety and external validation of their attempts to
stop the abuse, together with deterrence and rehabilitation, over other possible outcomes.”).
118 This is common in victimless shoplifting offenses. See SHERMAN & STRANG, supra note 2,
at 69–70 (showing that restorative justice did not reduce recidivism rates following victimless
shoplifting offenses in Canberra, Australia).
119 SHERMAN & STRANG, supra note 2, at 68 (“The key finding is that [restorative justice]
may work better with more serious crimes rather than with less serious crimes, contrary to the
conventional wisdom.”).
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decision in selecting between retribution and healing. In practice, this
means that, for major offenses, three possibilities exist: 1) the restorative
approach will not be used, reflecting a preference for retribution over
the therapeutic goals of restorative justice; 2) only the restorative
process will take place, and the goal of requital will be relinquished for
the benefit of the other goals; and 3) the criminal process and the
restorative process will be combined, in order to achieve both requital
and victim healing.
120

Admittedly, integrating restorative processes into the formal
punitive system may not always resolve the tension between retribution
and victim healing. A prime example for that tension is the Clotworthy
case of the Supreme Court of New Zealand. In that case the victim and
the offender participated in a mediation process following a violent
attack. The parties reached an agreement, according to which the
offender took it upon himself to pay a significant amount of money to
the victim in order to finance a cosmetic surgery that would have treated
the scars the attack left on him. The Auckland District Court accepted
the agreement.
121
The Supreme Court, however, decided, following an
appeal by the prosecution, that the public interest for a deterring
sentence overrides the victim’s individual interest for reparation. The
offender was sentenced to three years of incarceration and the
restitution amount was significantly reduced.
122

Notwithstanding the potential tension between the various social
goals, synergizing the restorative and retributive perspective may
achieve a different—and a socially beneficial blend—of criminal law
objectives. The recent trial of State v. Ravi
123
provides a useful example
of a formal criminal process leading to lose-lose outcomes. In this high-
profile case, Rutgers University student Dharun Ravi was convicted of
fifteen counts of second degree bias intimidation and invasion of
privacy after placing a webcam that documented his dormitory

120 Restorative justice processes are used as an addition to the formal legal process in many
parts of the world including in Britain, the United States, Europe, Australia, New Zealand, and
Israel.
121 R. v Clotworthy (unreported) District Court, Auckland, T 971545, 24 April 1998.
122 R. v Clotworthy (1998) 15 CRNZ 651 (CA) (delivering the sentence, Justice Tipping
explained: “We record that Mr. Cowan was present at the hearing. We gave him the
opportunity to address us. He reiterated his previous stance, emphasising his wish to obtain
funds for the necessary cosmetic surgery and his view that imprisonment would achieve
nothing either for Mr. Clotworthy or for himself. We can understand Mr. Cowan’s stance. He is
to be commended for having forgiven Mr. Clotworthy and for the sympathetic way he has
approached tile matter. It must be said, however, that a wider dimension must come into the
sentencing exercise than simply the position as between victim and offender. The public
interest in consistency, integrity of the criminal justice system and deterrence of others are
factors of major importance.”).
123 N.J. Super. No. 11-04-00596, 2012 N.J. Super. Unpub. LEXIS 1757 (App. Div. May 21,
2012). For an overview of the case, see Ian Parker, The Story of a Suicide, NEW YORKER, Feb. 6,
2012, at 36–51, available at http://nobetty.net/lab/readings/TylerClementi_TheNewYorker.pdf.
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roommate Tyler Clementi during an intimate encounter with a man.
Ravi consequently tweeted about what he saw and invited others to
watch a planned second encounter. A few days later, the victim
committed suicide by jumping off the Washington Bridge. Ravi was not
charged with causing Clementi’s death. After his jury convictions and
facing up to ten years in prison for second degree hate crimes, Superior
Court Judge Glenn Berman sentenced him to only thirty days in the
county jail, three years probation, 300 hours of community service, and
a $10,000 fine and counseling.
In this case, the criminal process failed to provide healing for the
victims, provided no space for a sincere apology, and sent a mixed
message to the public. The victim’s parents stated early during the
process that Ravi did not deserve harsh punishment.
124
The other victim,
the man who visited Clementi (and remained anonymous throughout
the trial), submitted a victim impact statement stating that he had not
wanted Ravi to go to prison, only that he had wanted him to take
responsibility.
125
The defendant, however, threatened by the risk of
being found guilty for committing hate crimes, refused to confess,
denied any responsibility for the outcomes, and opted to remain silent
at the sentencing hearing. His “letter of apology” released publicly just
before the sentencing hearing was accepted with distrust and anger by
the victims as it did not mention either of them.
126
The public interest
was particularly strong in this precedential case as it was an opportunity
to convey a clear message of norm-setting regarding gay rights, hate
crimes and cyber-bullying. Nevertheless, the lenient thirty days sentence
handed by the judge mocked the jury’s decision to convict Ravi in all
bias intimidation counts.
Could restorative justice provide a better legal reaction in this case?
And if so, what goals would it have achieved? Surely, victim healing was
not achieved in this litigation. Apologies granted within the criminal
process are suspect of insincerity, as this case vividly illustrates.
127
More
broadly, this lawsuit illustrates that despite the far-reaching reforms

124 Lisa W. Foderaro, Parents of Rutgers Student in Suicide Say No “Harsh” Penalty Is
Needed, N.Y. TIMES, Mar. 23, 2011, at A24.
125 Kathleen O’Brien, Dharun Ravi Sentencing: Clementi Visitor M.B.’s Victim Impact
Statement, STAR-LEDGER (May 21, 2012), http://www.nj.com/news/index.ssf/2012/05/dharun_
ravi_sentencing_clement.html.
126 Karen Sudol, Clementis Dismiss Apology from Dharun Ravi, Say His Jail Sentence Should
Be Longer, NORTHJERSEY.COM (May 31, 2012), http://www.northjersey.com/news/Ex-Rutgers_
student_Dharun_ravi_reports_for_jail_in_webcam_case.html?c=y&page=1.
127 See Bibas & Bierschbach, supra note 3, at 98 (explaining that, for most defendants, the
sentencing hearing is their first chance to apologize, and therefore, it is “no wonder that, when
apologies do occur at sentencing, they often are stilted, forced, or ‘not enough.’ Many
defendants simply read from a piece of paper.” (citations omitted)).
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2344 CARDOZO LAW REVI EW [Vol. 34:2313

made in recent decades enhancing victims’ participation in the criminal
process, victims’ need for symbolic reparation is not met even when
they are able to submit victim impact statements. The formal criminal
process similarly did not promote retribution, nor was it considered an
important goal in this case, as the sentence revealed. In fact, Ravi
demonstrates that the dichotomous nature of guilty/innocent verdicts
may produce exceedingly lenient sentences which in turn fail to convey
a clear denunciating message to the public. Consequently, other goals of
criminal law are also left behind due to the leniency of the sentence.
Had restorative justice been used sometime along the criminal
process, in contrast, all of the parties involved—the defendant, the
victims, and the community—could have potentially benefitted from its
outcomes. The victims could have confronted the offender, talked about
their loss and engaged in an emotional dialogue. The offender, liberated
from the threat of imprisonment and granted an opportunity to explain
his deeds, could have taken responsibility for his actions and freely
apologized. Members of the gay community and the public in general
could have benefitted from a constructive discussion regarding the
devastating outcomes of intimidating acts against people belonging to
minority groups even when they are not knowingly intended to bias the
victim. A meaningful reparation plan and a public apology could have
overcome the legal questions arising in this case, providing a more
suitable platform for condemning hate crimes even in disputed cases
such as this. In other words, a restorative process could have provided a
tailor-made, multifaceted reaction to the specific offense promoting
both victims’ needs, community interests, and offender accountability.
Analyzing this example through our proposed model, it becomes clear
that once retribution cannot, or should not be pursued in its
conventional form, alternative approaches should be considered,
promoting the goals of victim healing and community empowerment.
Moreover, instead of compromising criminal law goals, we see that
restorative justice can promote these goals in addition to its own stated
objectives. Restorative justice, therefore, does not replace criminal
justice nor does it abandon its traditional goals;
128
it is used within the
criminal justice system.

128 Contra Bibas & Bierschbach, supra note 3, at 123 (arguing against the ability of
restorative justice to address punitive justice goals that “[r]estorative justice requires no amends
to right the imbalanced scales of justice and no bite to underscore society’s condemnation of
the crime”).
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CONCLUSION
Accepting restorative justice as a possible philosophy alongside the
punitive philosophy broadens our understanding of substantive
criminal law. Restorative justice offers a different blend of the various
goals of punishment, compared with the one offered by mainstream
punitive philosophy. The utilitarian and consequential goals, some of
which go beyond those of punitive justice, are prioritized. Requital is
granted a substantially different meaning. In this context, this Article
also seeks to contribute to the debate surrounding the role and meaning
of punishment within criminal law. Our re-conceptualization of
criminal liability enables a versatile, dynamic, and responsive set of
instruments from which to select tailor-made reactions to crime in
different contexts.
Defining restorative justice as a legal instrument within the diverse
toolbox of criminal law extends the ability of criminal law to provide
multifaceted solutions for different cases. The specific circumstances of
each case dictate the appropriate weight granted to each of the various
goals and hence the desirable application of the synergy between the
different approaches. Certain parameters, such as those discussed in the
previous Part, may be helpful in predicting which of the paradigms
would be more suitable in specific circumstances. They may also give
some inkling of the effectiveness of each of the approaches in achieving
the various objectives. Given that legal systems assign different weight to
the varying criminal law goals, our analysis is useful for making
informed decisions based on a combination of factual estimations and
value-based selection of objectives.
Methodologically, the proposed model describes the relationship
between the two paradigms focusing on their shared and distinct
objectives under the framework of criminal law. This type of analysis
opens the door for integrating other non-adversarial processes as part of
the toolbox of criminal law and for developing new ones.
129
Just as it is
possible to envision a restorative criminal justice, perhaps one could
think of other platforms for achieving criminal law goals. Perhaps it is
possible to expand the aspirations of criminal law beyond its traditional
goals to include other socially beneficial outcomes.
130
The proposed

129 See KING ET AL., supra note 92 (gathering different nonadversarial reforms such as
restorative justice, therapeutic jurisprudence, alternative dispute resolution, managerial justice,
preventive law, problem-solving courts, and holistic law under the roof of “nonadversarial
justice,” and outlining the diversities and commonalities between them).
130 See David B. Wexler & Bruce J. Winick, Introduction to LAW IN A THERAPEUTIC KEY:
DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE xvii (David B. Wexler & Bruce J. Winick eds.,
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model can assist in the development of guiding parameters for
identifying the preferred approach in various circumstances and in
accordance with the various criminal law objectives. Empirical studies
may be helpful in providing insights toward the identification of
additional parameters for choosing between the two paradigms. For
instance, it would be interesting to see whether the reason for
committing a crime—be it expressionist or instrumentalist—is a
predictor of the success of either paradigm. Notwithstanding the need
for empirical examinations of “what works,” in what circumstances, and
under which conditions, our analysis envisions an eclectic use of values
and procedures within a pluralistic criminal law framework.

1996) (explaining that therapeutic jurisprudence seeks ways to promote therapeutic
consequences of the law without trumping other goals).

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