Goodbye to Hammurabi: Analyzing the Atavistic Appeal of Restorative Justice

Abstract

A recent innovation in criminal justice, the restorative justice movement has serious implications for the relationship among crime, race, and communities. Restorative justice, which sprang up in the mid-1970s as a reaction to the perceived excesses of harsh retribution, features an active role for the victims of crime, required community service or some other form of restitution for offenders, and face-to-face mediation in which victims and offenders confront each other in an effort to understand each other's common humanity.

This article questions whether restorative justice can deliver on its promises. Drawing on social science evidence, the author shows that the informal setting in which victim-offender mediation takes place is apt to compound existing relations of inequality. It also forfeits procedural rights and shrinks the public dimension of disputing. The article compares restorative justice to the traditional criminal justice system, finding that they both suffer grave deficiencies in their ability to dispense fair, humane treatment. Accordingly, it urges that defense attorneys and policymakers enter into a dialectic process that pits the two systems of justice, formal and informal, against each other in competition for clients and community support. In the meantime, defense attorneys should help defendants find and exploit opportunities for fair, individualized treatment that may be found in each system.

Keywords: restorative justice, civil rights, inequality, victim-offender mediation, common humanity, federal criminal justice system, alternative justice, informal justice