Talking punishment

I have heard it said that restorative justice is just ‘sitting around talking’, instead of appropriately punishing the offenders. In the article Talking Punishment I explore the relationship between restorative justice and punishment from victim-survivor perspectives. Victims often achieved a sense of justice through talking about punishment as part of a restorative justice process. Some victims appreciated hearing the offenders’ reaction to their punishment. Some even saw talking with the offender as a form of punishment. I describe here the details of this research and briefly tackle some of the difficult questions it raises.

1. What was the problem that you were looking to address?

Early advocates suggested that restorative justice was the opposite of retributive justice. Since then, many scholars have argued that the two approaches are overlapping, interlinked or compatible, including the Oxford Law Faculty’s own Professors Carolyn Hoyle and Lucia Zedna. Kathleen Daly memorably describes the ‘myth’ that they are opposing as a ‘nonsense’.[1]

However, the view that restorative justice is the opposite of retributive justice is extremely persistent. For example, restorative justice is often described as ‘non-punitive’, and some restorative justice facilitators say they would not proceed with a victim–offender meeting if the victim had ‘punitive’ motivations.

2. What was your argument and how did you make it?

The most useful contribution to this ongoing debate, I reasoned, would be empirical evidence about the nature of the relationship between restorative justice and punishment. I interviewed forty victims of crime who considered meeting the offender, as part of a restorative justice scheme. The majority of victims suggested that their view of the offender’s punishment changed through communicating with them – in other words that restorative justice and punishment were intrinsically linked.[2]  

The participants considered restorative justice to be connected to punishment in three main ways. First, communication with the offender enabled some victims to receive information about the offender’s punishment. In many cases, this was information that the victim was entitled to receive through the criminal justice system, but for a variety of reasons they had not been able to access it. For example, facilitators or offenders gave victims information about sentence length, license conditions, or prison activities.

Secondly, communicating with the offender enabled some victims to receive feedback about the offender’s response to the punishment. For example, one participant said they felt better after the offender had said he was ‘not having the time of his life’ in prison. This supports laboratory studies in which psychologists have found people are most satisfied by punishment when they receive feedback about how the offender has responded.[3]  

Thirdly, some victims felt that communication with the offender in a small way constituted punishment, as it made the offender ‘suffer’ for their crime.

3. What do you think are/will be the consequences of this research and its impact?

If victims felt that they were participating in offenders’ punishments, we must ask ourselves whether restorative justice processes could undermine a supposedly neutral and independent state justice system. Are we on a slippery slope towards letting victims loose on offenders with the proverbial baseball bat?

I argue this is not the case. The criminal justice system also often leaves victims feeling responsible for offenders’ punishment, for example when the victim has called the police or decided to press charges. If victim ‘participation’ is unavoidable within a system designed precisely to eliminate it, then simply attempting to avoid it is not the solution. Nor is the solution to be found through arbitrarily claiming that participation within formal criminal justice systems is acceptable, whereas participation through more informal restorative justice processes is unacceptable.

It is only by gaining a better understanding of the nature of the relationship between restorative justice and punishment that we can make the process fair for all involved. Acknowledging there is a relationship and exploring its nature, as I have done in this study, enables us to:  

• Monitor the type and extent of victim participation in offenders’ punishments, to assess the benefits and harms to all parties.
• Mitigate the risks of referrers’ and facilitators’ implicit bias towards individuals or groups who express anger or punitive motivations differently.[4]
• Make it clearer that restorative justice does not necessarily entail victims forgiving the offender or waiving a right to see them punished, thereby making the process more inclusive.
• Enable victims and offenders to make informed choices about participation, through preparation which includes open discussion about all parties’ attitudes towards punishment.

Going beyond the immediate conclusions of this study, these findings also make a small contribution to a bigger issue: the use and misuse of victim dissatisfaction as justification for repeated increases in prison sentence-length. While victims may indeed be generally dissatisfied with current sentences, simply increasing sentence-length is not the solution. We have seen here that (at least some) victims are more satisfied with offender punishments when they receive information, feedback and are given a voice in the process. On this particular issue, then, politicians and policymakers may be pleasantly surprised to hear that a better solution for both victims and offenders requires less action and more talk.

Batchelor, D. (2021). Talking punishment: How victim perceptions of punishment change when they communicate with offenders. Punishment and Society, Online edition 1–18. https://doi.org/10.1177/14624745211054748 (Open Access)

[1] Daly K (2016) What is restorative justice? Fresh answers to a vexed question. Victims & Offenders 11(1): 9–29.

[2] This was not the case for all the participants. Some victims wanted to meet the offender to forgive them, and some did not mention punishment at all. While these people may see restorative justice and punishment as opposing or independent, this study focused on those who saw them as related, in order to explore the nature of the relationship.

[3] Funk F, McGeer V and Gollwitzer M (2014) Get the message: Punishment is satisfying if the transgressor responds to its communicative intent. Personality and Social Psychology Bulletin 40(8): 986–997.

[4] See also, Willis R (2018) ‘Let’s talk about it’: Why social class matters to restorative justice. Criminology & Criminal Justice: 1–20.