All The More Reason

Do You Really Want To Hurt Me? Yes.
August 20, 2006, 8:23 pm
Filed under: Uncategorized

The recent public defenestration of George O’Dowd was instructive, not only because it demonstrated the folly of a middle aged, overweight man sporting a spider tattoo on his head, but because it also, rather unexpectedly, sparked a minor debate as to the proper role of punishment in the administration of justice.

Mr O’Dowd’s curious and, as yet, unexplained waste of NYPD police time earned him a date with a New York trash trolley as part of a ‘community service’ sentence. The idea that a criminal who ‘punishes’ the community through his selfish or thoughtless behaviour should compensate that community in kind is entirely consistent with the contractual nature of our social architecture. O’Dowd argued at the sentencing stage that his labour could be used for a more profitable purpose: a free concert; a charitable concert; a free DJ set (for charity)- the alternatives struck something of a one note symphony: can I do something that I enjoy, which will arguably provide greater utility for the community I wish to repay than a few mornings’ street-sweeping?

The uneasiness expressed at O’Dowd’s attempt to upgrade himself to a ‘better class’ of punishment was widespread. But why the unease? Surely this offer was entirely consistent with the notion of ‘putting something back’? In this, as in many other respects, the law is institutionally ddisingenuous. Punishments of this kind are not, as the label would have us believe, ‘community’ based. They are focused squarely on the individual.

They are also the norm. Prisons are full to bursting in the UK. This is not because incarceration is an effective way of reforming the character of burglars, drug dealers and the antisocial, but because of the mistaken idea that ‘prison works’ as a deterrent. If this rotten utilitarian plank is the basis for the blanket use of custodial sentences, a mere glance at the latest crime statistics should shake the edifice sufficiently for us to consider a structural overhaul of a system that egregiously wastes both capital and human resources.

It would be more intellectually honest for supporters of these types of punishment to admit that their support is based upon a personal sense of vengeance. One need not see this as pejorative. Retribution does not have to be malicious. It can be considered as an expression of justice, a vindication of ‘moral truth’- the way in which society states what is right and what is wrong.

It is because justice is, for most people, synonomous with punishment that any suggestion that things could be done differently is often met with suspicion. The Northern Ireland Youth Justice Agency has recently introduced a new scheme called ‘Youth Conferencing’. All young offenders are now obliged to sit down with their victims, ‘providing the opportunity for all those who have a stake in the offence to come together to resolve how to sort the consequences for the future.’ 

This exercise in ‘restorative’, as opposed to retributive, justice is not new and has been employed in jurisdictions across the world. The standard argument in favour of such schemes is that taking a more conciliatory, rather than a confrontational, approach to the adminstration of justice will truly effect a change in the offender’s behaviour; the self-justificatory rationale for their actions will be broken down as they are made to face the tangible consequences of their crimes. Rather than being institutionally isolated from the community, offenders are officially reintegrated after apologising and putting their side of the story forward to their peers.

This rather utopian view of restorative justice may appear to stand up to scrutiny within the coffee-stained pages of an undergraduate dissertation. but the weight of one thousand years of history is unlikely to facilitate a smooth transition to an entirely ‘restorative’ framework of justice. Its advocates often cite the practices of aboriginal communities who operated similar, concilatory systems of justice for thousands of years before being ‘civilised’ by the colonial powers. As well as harking back to the sentimental myth of the noble savage, this narrative conveniently leaves out the many acts of brutality – ceremonial spearing of tribal miscreants, to name but one- that did take place in all these years. In karma, even Buddhism has its own spiritual brand of retribution. It will be interesting to see how the experiment in Northern Ireland progresses, but removing ‘just deserts’ from the legal system goes against the grain of an innate sense of justice that most would recognise.

Michael P


2 Comments so far
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The danger with restorative justice, in my opinion, is that for some criminals it doubly rewards their behaviour: first for the gold, and then to tell the tale.

Comment by Jonathan Smith

In the case of ‘pure’ restorative justice, where retributive punishment is never employed, there is obviously scope for the cynic who will gleefully play the system. That is why proposals for such schemes are deeply flawed. However, a hybrid form of retributive justice ‘plus’- one which integrates some form of retribution as an ancillary- may, in some contexts (I’m thinking, in particular, of non-violent offences) have some advantages over the present set-up.

The point of restorative justice is not to punish but to look at the root causes of offending. Often it may simply be because X is ‘bad’. But there may be other causes that, whilst not detracting from the moral agency of the individual, may be better addressed in a less adversarial forum.

Offenders would not be acting with impunity since under their ‘behaviour agreements’ (or whichever awful, pseudo-contractual label you want to stick on it)any further infringements of the law would resultin a custodial sentence. In my view, the risk of punishment always has to loom in the background. The carrot can do so much, but the stick has a central role to play.

Comment by allthemorereason

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