Responding to wrongdoing

From retributive justice to restorative justice

The last three posts have focussed specifically on the adjudication process in adversarial courts of law. Looking at the dynamic of this process it is clear that there is an extraordinary gap between the enactment of law and the pursuit of justice in such courts. And sadly this extraordinary gap can continue post adjudication.

The pursuit of justice in legal settings does not stop when a decision as to guilt or otherwise has been made. When it has been decided that there has been a wrongdoing of some sort, there is still the question of what is to be done with the wrongdoer.

What types of responses to wrongdoing are possible to whom, and how are they enacted? And what can we say about the pursuit of justice in all of this?

This is an issue both in courts and outside of them.

It is an issue for both criminal and civil matters that are processed within a court setting. It is also an issue for the various alternative legal processing systems that have emerged in response to the many recognized problems of the adversarial process in courts. And, it goes beyond specific legal contexts into civil society generally, as well as into the international arena of peace negotiation processes and the like.

Why do we punish?

The most common response to wrongdoing of all sorts has been, and continues to be, punishment. Punishment as a response to wrongdoing has been such a predominant form of response under the law for centuries, that it seems to be a ’natural’ response.

This natural-seeming response is, amongst other things, reflected in a common complaint of injustice arising from a judicial hearing. If, in the views of various aggrieved parties, the wrongdoer is not punished or not punished enough, it is commonly claimed to be a miscarriage of justice.

What is it, though, that drives this belief that justice calls for punishment? Why do we punish? Why do we imprison? And, whatever does it have to do with justice?

When pressed, people come up with all sorts of arguments about the value of punishment varying from retribution, to deterrence, incapacitation, and rehabilitation.

At one extreme, the retributive justification for punishment is that the criminal deserves to be punished simply because (s)he has committed a crime—regardless of any presumed beneficial consequences of punishing. Simply put, they did it, so they deserve it. This justification calls on the old idea of “just deserts” and comes closest to the administrative view of justice I wrote about in the post on reimagining justice.

The incapacitation justification is no more than saying that we need to punish with imprisonment so that the “problem” is removed. This type of justification is the equivalent of the ostrich putting its head in the sand and has as much impact.

Deterrence is a little more interesting because it is premised on the belief that if you punish people for a particular wrongdoing they will, in the future, desist from that wrongdoing in order to avoid the previously experienced punishment. Sadly, while this may seem like a rational way of responding to punishment, it is unsupported by empirical evidence. In particular, the argument fails to take into account the complex environmental factors in which much wrongdoing occurs and over which many wrongdoers have little capacity to control.

Then there is the argument for rehabilitation. This model of criminal justice has been the most influential school of thought in criminology in the past 200 years. Progressive thinkers both in England and the United States, argued that it was important to segregate the criminal from the criminalizing environment and thus the idea of prisons as a “penitentiary”, or place of penitence, was born. Progressively, though, it has been realized that basically the idea of punishment by imprisonment acting as rehabilitation does not work.

The end consequence of the cultural insistence on, and belief in, punishment—for whatever reason—is that the population of prisoners in the Western world continues to grow and often alarmingly so.

The current US incarceration rate is unprecedented. As of early 2026, the United States continues to hold one of the highest incarceration rates in the world, with over 1.8 million people in federal and state prisons and local jails. Similarly, in Australia the percentage of adults in prisons continues to grow. And in both countries, a significant percentage of the increase includes Blacks and People of Color.

Yet another entrenched way of thinking

Our current prison system has turned into a holding pen for the poor and disenfranchised. Our current prison system is living proof of untold instances of social injustice. And there is no good reason to continue it on the outmoded and unsubstantiated belief that it works to deter wrongdoing.

On the other hand, I can think of a few not-good reasons why we continue to punish by imprisoning. There is the incapacitation justification so that the “problem” is removed. Out of sight, out of mind. On top of this, there is the more cynical response that it is a good way of removing many social injustice problems.

Then I guess there is the more generous—on my part—justification that so many continue to believe that punishment is a natural response. However, this seeming ‘naturalness’ is no more than yet another example of an entrenched cultural way of thinking, especially about crime and punishment. Rather than punishment being seen as a natural response—i.e. pre-determined by ‘nature’—we are better served to think of it as arising from a certain predominant cultural frame of mind.

That predominant frame of mind takes crime to be lawbreaking and, as laws are set by the state, all lawbreaking is against the state. As such, the state is in sole charge of the response to wrong doing and it has enshrined punishment as the legally defined and sanctioned response.

Contemporary criminal practices ignore all aspects of the wrongdoing other than the question of legal guilt and punishment. In focusing on the lawbreaker and the state, the contemporary criminal justice system ignores the broader, and more significant, impact of law-breaking, especially on the victim. It also ignores the broader impact of law-breaking on, and in, society at large.

This approach to wrongdoing is part of the established view of justice. It is the justice of the bureaucrats, of the administers of rules and regulations. This administrative story relies on the idea of justice as an ideal standard to be held aloft and well separate from the people themselves.

The problem with the administrative story of justice and its impact on responses to wrongdoing becomes particularly apparent when considering violent crimes. In such instances, it is not the state that has been assaulted, raped or criminally abused in some other way, and yet the state takes it upon itself to ignore the injuries on the victim, while punishing the lawbreaker. You only have to recall any number of reported instances of the way in which female rape victims are treated by the state—police and legal representatives alike—to appreciate the implications here.

Beyond punishment to restoration

Despite the often seeming naturalness of punishment and incarceration, it is being increasingly realized that that response to wrongdoing is problem-laden—for so many reasons. The restorative justice movement has developed from just such an appreciation of the real problems associated with our administrative view of justice and our consequent response to wrongdoing.

The overall intent of the restorative justice movement is to change the way society views and responds to crime and related forms of troublesome behaviour. Specifically, the movement seeks to replace our highly professionalized system of punitive justice and state control with community-based reparative justice and social control.

In stark contrast to administrative justice, restorative justice is relationship-focused. Restorative justice sees criminal behavior as something that is, first and foremost, a violation of people’s rights and relationships. This is in direct contrast to the current retributive scenario where criminal behavior is a violation of state laws.

The restorative justice approach takes the view that wrongdoing occurs in a relational context and responding to the said wrongdoing calls for a relational response. The relational response called for is one that tries to restore the harm done by the identified wrongdoing, rather than punishing the wrongdoer, per se.

In a criminal context, this restorative-relational response is oriented to the repair necessary to fix the relationships broken by the crime, between victim and offender and between victim and their community, both narrowly and broadly conceived.

This commitment calls for a forward-looking mindset that is focused on how to restore damage following the harm caused by a crime or other form of wrongdoing. By way of contrast, retributive justice is aimed backwards, with the sole intent of giving the wrongdoer what they deserve; without any regard for the consequences of the punishing act.

Restorative justice proponents argue that the imposition of punishment is neither necessary nor sufficient to make things right. What makes it right, or righter, is attending to the broken relationships and repairing the harm done.

Great principle but what about in practice?

There is a great deal of merit in the idea of restorative justice and, at its best, it demonstrates a form of relationally responsible justice. However, it could not be expected to always work and it is often not at its best.

Despite the (often implicit) belief in the punishment-is-bad story, even the strongest proponents of restorative justice acknowledge that we cannot do away with prisons altogether—they will always be needed. But, from a restorative stance, the retributive/deterrent response to wrongdoing and its direct link to prisons, should be the last option, not the first.

Even when restorative justice practices have been seen as an early option, they have not evolved into a real alternative to the criminal justice system as envisaged. Instead, the programs have been institutionalized in such a way that there is a clear co-option of restorative practices by the extant legal justice system. The end consequence is that the legal/administrative goals of the justice institution override those of restorative justice and/or implicitly redefine the restorative practices and values.

Outside of the contemporary criminal justice system, restorative practices have flourished and a number of different specific forms and types of practices have evolved. Typically, a restorative approach calls for the involvement of the parties affected in some form of relational work, often referred to as conferencing. While the protocols and forms vary significantly, they all share in common a determination to help the offender and the victim engage in a communication process that enables some form of restoration to take place.

The nature and degree of management of this communication process, however, varies considerably. From experience and empirical assessments over the years, it has become very apparent that badly run restorative conference processes can actually make matters worse. The characteristics of the enactment of a restorative procedure are critical to the outcome.

As always seems to be the case, not just any form of communicating will do, however well intended. Reading through the protocols, scripts and training manuals of a number of restorative programs, it is apparent that, in way too many instances, communicating is being treated as a straight-forward technical process. If you just follow the rules, it will work.

Unfortunately, just following the rules is usually the last thing that will work. Just following the rules, or the pre-determined script as is often the case, does not take account of the real complexity of a communication process aimed at restoring. And just following the rules is absolutely no guarantee that justice will ensue.

For restorative justice to really work as intended, the needs of relationally responsible justice call for a form of communicating in which there is no struggle over the control of meaning. From a relational-communication world view, the justice implicated is characterized, generally speaking, by relationships in which the emergent meanings are constructed collaboratively and, by implication, a better form of communicating co-created. In other words, a non-oppressive approach requires that victim, wrongdoer, and other relevant parties need to be, in their own respective ways, freely able to negotiate what it means to each of them to have their relationships “restored”.

The requirement for a form of communication that ensures there is no unilateral control of meaning is a challenging one—as is the underlying requirement for a relational-communication mindset that takes communicating seriously. In the next post I will lay out the backbone of a restorative justice strategy based on a relational-communication mindset that increases the chances of a genuinely restorative justice process.