May 13, 2009

Restorative Justice

author_brad By Bradley Wright

Have you ever embarrassed someone intentionally? If so, why did you do it? Maybe it was an accident or a joke taken too far. Maybe you wanted to get back at them for something wrong they had done to you. If you’ve ever done this, you’re not alone, for the criminal justice system also uses embarrassment and shame to accomplish its goals.

Perhaps the most common use of shame regarding crime involves the government or other officials shaming rule-breakers as a form of punishment. The logic of rational choice theory suggests that threatened shame should increase the costs of crime and thus deter future crime.

Thus shame gets added to a list of potential punishments, including prison and fines that keep people from committing crime. A wide variety of shame is used in criminal justice as a punishment. Arrestees have their mug-shots published (and they are never flattering). Some communities publish the names of men arrested as johns in prostitution stings. There have even been attempts to require sex offenders to use a special color license plate for their car.

clip_image002Shaming wrong-doers isn’t limited to the criminal justice system. It is also used as a strategy for dealing with everyday rule-breakers. A business professor at Texas A&M International University caught six of his students plagiarizing on a research paper, and he wanted to teach them a lesson, so he published their names as plagiarizers on the class website for the whole class to see.

He explained his public humiliation of these students as follows: "Plagiarism is manifestly unfair and disrespectful to your classmates," Young wrote on his blog. "There are students taking the course who are working very, very hard to learn a subject that in many cases is foreign to them. A plagiarizer is implicitly treating the honest, hard-working student as a dupe. Of course, the plagiarizer is the dupe or else would not need to plagiarize." So, not only did  these students flunk the class, they were also called “dupes”. Bummer. (By the way, the professor was immediately fired for revealing the course grades of those six students—that’s a big no-no at most universities and colleges).

Shaming is taking on a new and very different role in criminal justice with the increased popularity of restorative justice. In traditional, adversarial justice systems, crimes are viewed as occurring against the states. So, if person A assaults person B, it’s the state, rather than person B, who prosecutes them. Restorative justice, however, focuses on the offender, victim, and community collectively. The goal is not to punish offenders, per se, but rather to make amends to the victim and to restore the offender.

There are various forms of restorative justice, but they tend to have several things in common. The victim of the crime actively participates in the proceedings and they have the opportunity to express how the crime has affected their lives and to have a say in what happens to the offender. The offender, in turn, gets to tell their side of the story and are given a chance to make things right with the victim. So, the offender might pay for damages the victim occurred or offer free labor to assist the victim.

Sometimes just the offender and victim meet to work things out, but other times families and friends of both offender and victim participate as a way to help keep the offender accountable and to support the victim.

Various studies have looked at the effectiveness of restorative justice, and the overall picture is positive. A summary by Sherman and Strang found that victims who went through the restorative justice process were better able to deal with the negative consequences of the crime. Relative to victims going through a traditional justice, those participating in restorative justice were able to function better at work and in other daily activities and they slept better at night. Furthermore, it seems likely that offenders who go through restorative justice are less likely to commit future crimes. It’s also important to note that there is little evidence that bringing the offender and victim together again results in any more violent or abusive behavior against the victim.

Even if proven effective, I doubt that restorative justice would ever become the dominant approach in our criminal justice system because, if nothing else, the current system makes too much money for too many lawyers. Still, the idea of holding a guided conversation, rather than a juried trial, for some crimes is appealing. Who knows, maybe someday that will be the fate of students who plagiarize.

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Comments

I feel that it is important for some wrong doers to be acknowledged and for it to be known what they did in cases where it is really bad. The blog uses sex offenders as on of its examples. For this specific topic I agree with the article in saying that sex offenders should have to let others around them know that they have doe something like that. It is important for people to know they have someone like that living near them for safety for themselves and also to prevent the sex offender from trying to sneak around and do it again.
Then the article compares this to a teacher who had six students plagiarize. Rather than just turning them in he decided to humiliate them by posting up their name for the other students to see. The teacher was then fired for posting the students names with their grades for breaking school policy. I agree that the teacher should not have posted the names of the students who plagiarized. However, the students did bring it upon themselves and my have never learned their lesson without the embarrassment that was received from their peers. For this very reason I feel that there has to be some sort of medium between humiliation and learning a lesson.
Max Webber talks about the process of rationalization that is the application of human activity through economic logic shaping it. This is applied to criminology through the rational choice theory. This theory states that man has reason to weigh means and ends, costs and benefits, and therefore make rational choices. If a man is unwilling or can’t do something then it should be made public in order to show others in order to help correct and make public of the problem and the solution.

For another take on "shaming" in restorative justice practice, see my article, Shame by Any Other Name: Lessons for Restorative Justice from the Principles, Traditions and Practices of Alcoholics Anonymous 5 Pepp. Disp. Resol. L.J. 299 here: http://www.ninetymeetingsinninetydays.com/Restorative_Justice_Page.html.

Thanks for the illuminating post.

Best,

Vickie Pynchon

I think the idea of embarrassment as punishment is an excellent one. By embarrassing a person you aren't hurting them, and yet you can reach them on a deeper level. Many people don't respond to other forms of punishment like incarceration and fines. However, the feeling of embarrassment is something far more difficult to simply brush aside. For my little brother, just about the only way to punish him is to embarrass him. He doesn't mind being grounded, but threaten to do something embarrassing to him in front of his friends, and he acts like an angel.
Embarrassment is also effective because it usually means making others aware of something. Like the fact that someone is a sex offender, or that they did something unjust. In order to make a person regretful about the deed they did you must inform others of it, so that they feel judged.
Embarrassment as punishment, however, can have negative consequences. For some, being embarrassed could lead to increased crime or violence. In order to gain back the respect of certain groups, many find it necessary to act radically. They feel it is necessary to prove they aren't actually the things they've been labeled.
Some people, on the other hand, choose to embrace whatever is supposed to embarrass them. They take the negative, like being labeled a criminal, and make it seem like it is something to be proud of. This can lead to increased criminality.
This is why restorative justice seems like the best solution. By getting people to work out their own way to deal with problems, you are getting them to create their own punishments and solutions. The offender not only gets what they deserve, but can also feel positive about the situation and turn it into a learning experience instead of something to regret and worry over. This can also reduce people's resentment of the government and the law.

I found this blog posting very interesting, and very insightful regarding restorative justice. I had never heard of that type of proceeding, and I believe it would be a very useful tactic. Also, I completely agree that it may not ever completely surface simply due to the fact that the court system makes such an immense amount of money off of any type of violation.
I believe the tactic of embarrassing a criminal is a little extreme, although I am not denying it happens, by any means. The law goes to such extraordinary lengths to make sure criminals get punished, that sometimes it goes beyond justice. I have gone to court before for throwing a lit cigarette out of a car window when pulled over by an officer and he had told me to throw it out, and I still ended up getting eight hours of cal-trans. It is amazing what the court system will do to anyone.
However, I found the scenario with the professor posting the names of the students who plagiarized amusing, maybe a little over the top and highly embarrassing, but at the same time, they should have known better. Teachers spend a great deal of time throughout middle school and high school telling students repeatedly not to plagiarize.
I found this article easy to relate to the labeling theory. It is easy to see that by having sex offenders have a different color license plate or posting the mug shots of those who have been arrested that they are inherently being labeled as deviant. It is also no secret that once one gets into the court system, it is difficult to get out of it; just as once one is stuck with a label, it is hard to overcome.

This was an interesting article to read because I actually have seen this form of justice trial shown in a tv show of murderers. They showed the process, where the criminal gives his side of the experience and the victim then expresses her anger and pain.
I think restorative justice is a great practice or way of serving justice for minor cases. It can decrease the over flow of jails and open the door for a new system of punishing those who are currently arrested for minor offenses dealing with pot. In addition, follow the idea of the restorative justice program to create more effective programs in jails.

In connection to Sociology, restorative justice can be considered as a form of rehabilitation. In addition, the labeling of sex offenders, could be interpreted as a positive deviance if sex offenders where labeled by their license plate. It would be heroic in a sense that it would make those offenders stand out preventing any more people from being victims.

If shame will decrease the acts performed in the criminal justice system, so be it. A green license plate to mark that someone is a sex offender seems fairly appropriate to me for the despicable choices and behavior one such individual has engaged in. There are consequences that come with committing crime, and maybe shame is the only way of demanding change from these individuals. If you get arrested I think a bad looking mug shot should be the least of your problems. I think cases should be treated differently based on the severity of the offense, as in the class of the plagiarizing and students having their names published on the class website, seems like a minor offense and a lesson learned. It would shame me to have my name posted on that website, but then again the shame might prevent me from doing the same thing again.

It’s interesting to think that we can learn from embarrassment and shame. There is a thin line though, as to when the use of shame is appropriate, and then upright cruel. I believe in the restorative justice system, it is a more positive way to seek change and feel optimism and hope for these offenders. We all make mistakes, some people make big ones, and those who wish to redeem themselves should be awarded the opportunity to do so. The idea of holding a guided conversation rather than a juried trial seems like an effective approach at recovery and personal growth as an offender, though a little more complicated and probably utterly frustrating at times, in comparison to the tradition trial of the criminal justice system.

I agree that restorative justice will not become the court's main approach to punishing offenders. Like the article said lawyers make too much money...I do like the idea though about sex offenders having to have a certain color liscense plate. As eerie as it may be to see how many you'll actually see, people will be more aware of the people that surround them. Well deserved I think..

I can't imaging that shaming could be effective for serious crimes. After all, if a person is willing to risk losing their freedom for 10 years or more, how could a little embarrassment or shame work as a deterrant.

On the other hand, the idea of the victim getting involved in the punishment is brilliant. Currently we have the criminal and civil legal systems split. The victim might find themselves criticized and discredited in criminal court. But they have civil court to use to sue.

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