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 mid1970s 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 facetoface mediation in which victims and offenders confront each other in an effort to understand each others common humanityThis article questions whether restorative justice can deliver on its promises Drawing on social science evidence the author shows that the informal setting in which victimoffender 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

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