Asking the Restorative Question in Response to Criminal Wrongdoing - Widening the Scope for Legal and Restorative Integration

Abstract

This thesis poses a normative question. It asks how a response to criminal wrongdoing should be reframed so as to achieve justice. The question is asked in the context of debates on the role of restorative justice and within a conceptual framework that sees justice as primarily concerned with distribution. Conventional responses to wrongdoing accept that offenders must be given their deserts and treated equally, and that all persons affected by the wrongdoing must have their rights promoted and protected. What is distributed to meet these aims is mostly in the form of burdens, primarily coercively imposed punishment. This thesis offers new insights into how well such conventional responses meet the needs of justice. It says that not all of what is required to mark such distributions as just is currently acknowledged. What is missing is a focus on removing the burdens imposed as a consequence of wrongdoing. There is an explicit failure to accept that benefits as well as burdens need to be distributed, primarily benefits of repair necessary to restore damaged individuals and relationships. What is also lacking is a more effective means to trigger crime prevention. This thesis argues that it is only by asking ‘the restorative question’ in all responses to wrongdoing that institutional responses can be rendered more effective in meeting these deficiencies. This thesis considers the benefits that the restorative practice of justice brings to this issue. Empirical evidence gathered from sites of practice shows that restorative responses provide many missing elements. They address the need to re-establish iv harmonious social relationships and to consider the imposition of necessary burdens through means other than punishment. Restorative practice nonetheless has its own inadequacies as a form of justice practice in response to wrongdoing. These limitations are highlighted when the seriousness of the wrongdoing calls for a strongly retributive response. Consequently rather than representing a replacement discourse, restorative practice acts best in a complementary role to conventional legal justice. Using methodology which integrates a normative/doctrinal/philosophical approach with ethnographic methods and legal and historical studies, this thesis offers a fundamental reworking of the justice response to wrongdoing. By means of this analysis, the thesis develops a set of institutional design ideas about how best to restructure the response to criminal wrongdoing. ...