Stanford Law Professor Herbert Packer has argued that two opposing justice orientations dominate U.S. policy debates: crime control vs. due process. Could a restorative justice orientation provide a “third way?” that transcends these poles? The following identifies some assumptions of each.
Crime control orientation: emphasis on order and security
- Order is essential in society so repressing crime is the most important function of justice. This is best done by the certainty of punishment and prison (incapacitation).
- Police powers should be broad so that crime can be aggressively addressed.
- Due process safeguards impede justice and should be minimal; protecting defendants’ rights should not be the priority.
- Constitutional rights are often technicalities that interfere with justice.
- Victims’ needs are best addressed by convicting and punishing offenders.
- The system is basically reliable. If someone is charged and brought to trial, one can assume that they are probably guilty.
- The focus of justice us on creating order by convicting and punishing and/or incapacitating the guilty.
Due process orientation: emphasis on preventing misuse of the punishment system.
- Personal freedoms and rights are more important than order.
- Because the state is so powerful, mistakes and inequities so likely, and the consequences for defendants so dire, the most important function of the justice system is to safeguard rights though due process.
- Because of the above, and because the Bill of Rights specifically provides for it, emphasis should be on defendants’ rather than victims’ rights.
- Whether guilty or not, defendants should “put the state to the proof” – i.e. make the state prove guilt.
- Police powers should be carefully limited and monitored to prevent misuse.
- Constitutional rights are not mere technicalities but rather a way to hold authorities accountable and to provide for fairness and equity.
- The focus of justice is on safeguarding defendants’ and citizen’s rights.
These two orientations have in common:
Although in some ways these represent polar opposites, the two orientations above
share some common assumptions.
- “Crimes” are categorically different than other harms and conflicts and thus are subject to different processes (criminal law) than other harms (civil law, conflict resolution processes, etc.).
- Offenses are defined by lawbreaking more than actual harm.
- The state is the victim and justice is primarily the state’s business.
- Offenders are the central focus of justice; victims are often sidelined.
- The process is adversarial; outcomes are win/lose and victim and offender interests are diametrically opposed to one another.
- Justice focuses on the act and the intent but not the contributing causes.
- Justice is done by professionals who represent defendant, state and society at large (but not the victim).
- The focus of justice is on establishing guilt, meting out the punishment offenders deserve, and on the rights and processes involved.
(Aaron Lyons, on reviewing this, commented: “…it’s not just that crime control and
due process orientations have common elements – it’s that each seems to require the
other for its own existence. They are in fact two sides of the same coin of a justice
system which pits the supposed interests of the state against that of the offender.”)
A “third way” –
Restorative justice orientation – emphasis on repair and responsibility
- Crime is one of many forms of harm that occur in communities. Appropriate responses to harm have common elements whether or not they are considered crimes.
- The essence of wrongdoing is the harm it does to individuals, relationships, communities and to trust.
- Justice should seek to repair harm and hold offenders accountable for the harm by taking responsibility for it.
- Offenders can be encouraged to take responsibility and to be accountable for their actions. Real accountability as defined by Anne Coehlo is “…the ability to respond to relationships and obligations when mistakes and failures cause harm.”
- Such accountability is often a better deterrent than punishment.
- To the extent possible, those who have a stake in the harm and wrongdoing should be invited to participate in the resolution through collaborative processes.
- Victim and offender needs and issues should be equally addressed in the justice process.
- Victim and offender needs and perspectives are not necessarily in direct conflict with each other. Win/win outcomes are possible.
- Ideally justice addresses not only the act and its consequences but also the causes of wrongdoing.
- Both rights and security are important. Needs as well as rights of both victims and offenders must be considered, however. Rights should be defined relationally, not just individually. Security issues should be balanced against other concerns.
- The focus of justice is on reducing and repairing harm and encouraging responsibility for harm.
