CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, January 13, 2022

Brooks on Nussbaum on Restorative Justice

Thom Brooks (Durham University) has posted The "Transition" to Restorative Justice (In T. Brooks (ed), Political Emotions (Palgrave, 2022)) on SSRN. Here is the abstract:
Two of the biggest challenges for advocates of criminal justice reform concern victims and public confidence. Many victims can feel like spectators to what can seem like “their” crime, or in other words the crime committed against them. Most cases never go to trial and victims rarely have a chance to express how a crime impacted them. In the United States, the figure can be as low as six percent and it can be lower still elsewhere: only about two percent of cases in Scotland go to trial. More than nine in ten avoid trial through plea arrangements. Campaigners have become more vocal in calling for changes in the criminal justice system that allow a voice for victims who wish to participate in the process at trial.

At the same time, various governments have struggled to win over a sceptical public on sentencing sometimes appealing to tougher sounding, but counter-productive measures like “Three Strikes and You’re Out.” However attractive this might sound to an uncritical public as an effective deterrent, this policy has had little, if any, discernible deterrent effect and has led to skyrocketing incarceration costs as more individuals are imprisoned for longer. So, the challenges are two-fold: how to improve the satisfaction of victims in how crimes are handled while improving the effectiveness of the criminal justice system?

In Anger and Forgiveness, Martha C. Nussbaum grapples with these issues and more through the lens of understanding the essential place of emotions in the legal system more widely and their value in improving the criminal justice system in particular. This work defends a novel and compelling understanding of anger (as ‘transition-anger’) which is applied to excellent effect across several policy areas, such as sentencing and restorative justice conferences. While Nussbaum finds restorative justice promising, she stops short of advocating for its greater rollout. Focusing on work primarily by leading Australian criminologist John Braithwaite, Nussbaum claims restorative justice is too idealised for widescale use and too restricted in application to youth offenders. Instead of promoting restorative justice as an alternative to the formal trial, Nusbaum focuses instead on pre-crime uses such as greater use of restorative justice in schools and other settings.

While I agree that restorative justice can and should be used more widely outside of the criminal justice system, I closely examine Nussbaum’s concerns about how restorative justice is used. I argue that a greater use of restorative justice would help maximise the constructive engagement with transition-anger benefiting victims, offenders and local communities alike. However, it is not a panacea. Not every crime has a victim and not every victim may wish to take part. But there are compelling reasons for why we should advocate for more, not less, wherever possible and plausible. Restorative justice offers a way forward in how to better include victims while improving public confidence, in a way that is consistent with and reinforces Nussbaum’s views on emotions and criminal justice.

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