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2005 J. Disp. Resol. 349 (2005)
Justifying Restorative Justice: A Theoretical Justification for the Use of Restorative Justice Practices

handle is hein.journals/jdisres2005 and id is 355 raw text is: Justifying Restorative Justice: A Theoretical Justification for the Use of Restorative Justice Practices Zvi D. Gabbay* It is no secret that the criminal justice system, society's means for responding to crime, is far from perfect. Crime victims often feel neglected and ignored by prosecutors and judges, the public does not perceive the system as just and fair, and the system's effectiveness in combating crime is questionable. Despite this reality, an alternative process has emerged, based on a new and entirely different paradigm of justice-the restorative justice paradigm. Empirical evidence sug- gests that restorative processes, which empower crime victims, offenders and communities to take an active part in the formulation of the public response to crime, increase public trust in the justice system and may even reduce re-offense rates. However, questions still remain as to whether employing such processes within the realm of criminal law can be justified and whether these processes con- flict with governing theories of punishment. This paper analyzes the premises of the two main theories of punishment that influence sentencing policies in most Western countries-retributivism and utili- tarianism-and compares them to the basic values that structure the restorative justice theory. It then makes clear distinctions between restorative justice and the rehabilitative ideal and addresses the criticism that, like rehabilitation, restorative justice results in different punishments to equally culpable offenders. The paper concludes that restorative justice does not contradict retribution and utility as theoretical justifications for penal sanctioning. Moreover, it suggests that restora- tive practices rehabilitate the basic notions of retribution and deterrence that have been neglected in modern sentencing schemes, that restorativism contributes new and deeper meaning to those notions and values, and that in doing so restorative justice practices improve and promote society's response to crime. I. PREAMBLE It was a dry winter evening in January 2000. R., a young fighter pilot in the Israeli Air Force, was driving his car way home to one of the suburbs of Tel Aviv. Despite rush hour, traffic was moving smoothly, and R. was in no hurry. Sud- denly the brake lights of the car in front of him came on and the car quickly came to a full stop. R. hit the brakes and tried to steer the car aside to avoid colliding with the car in front of him. He was unable to stop and the passenger sitting in the * The writer is a former prosecutor for the Tel Aviv District Attorney's Office (Criminal Division) and is currently a doctorate (JSD) candidate at Columbia University School of Law. I am very grateful for the comments and contributions of John Braithwaite, George Fletcher, James Liebman, Jeffrey Fagan, Carol Liebman, and Robert Ferguson. I would also like to thank my mother, Shoshana, who tirelessly read through drafts of this article and my wife, Dafna, for her wisdom and encouragement.

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