The notion that fair procedures are the best guarantee for fair outcomes is a popular one. Procedural justice is concerned with making and implementing decisions according to fair processes. People feel affirmed if the procedures that are adopted treat them with respect and dignity, making it easier to accept even outcomes they do not like.http://www.beyondintractability.org/essay/procedural_justice/?nid=1016
Not only is it easy to assume that 'justice' is only of one flavour - but it may be assumed also that procedural justice is also only of one kind. Wrong again. (read Wikipedia or other sources for more information http://en.wikipedia.org/wiki/Procedural_justice). But, it is not necessary to get too complicated here and I will continue using the term in its general sense.
Retributive and Restorative Justice - Procedural Fairness
A justice situation can be judged as procedurally fair by several criterion. By one text (http://www.set-up-to-fail.org/pdf/justice.pdf), they enumerated six and they are represented in the table below. In the table, I have tried fairly to compare retributive and restorative justice using these criterion. Beneath the table I have put some annotations for my opinions which are probably controversial in some quarters.
Let me give some commentary to my opinions represented in the table:
Firstly, both 'justices' could be considered consistent - but in entirely different ways. Retributive Justice in schools seeks consistent outcomes for each act of wrong-doing - e.g., for swearing at a teacher in circumstance X, the student is stood-down for Y days. In Restorative Justice, consistency is sought in the process. Because the context of the wrong-doing is different in every situation, the outcome from Restorative Justice processes can often be different, even between apparently similar events.
Secondly, 'Unbiased' - Restorative Justice wins this one with its eyes closed! Let us use the example of a student vandalising school property. In a retributive process within a school setting, the person who will investigate the event, pass judgment upon that person and ultimately decide their punishment will be a representative of the school - even if this person is of supremely ethical standards and can distance themselves from the harm done to his or her own workplace, it is likely that the offending student will feel intimidated by the immense power this one staff member has over his or her life at school. Conversely, in a restorative process, it will be a collective voice that the offending student has to answer to, with a school representative being just one of the opinions (albeit an important one) heard.
Thirdly, I have suggested that a restorative process will be accurate and a retributive process less so. I have made this opinion on the basis that, generally speaking, restorative processes invite honesty and retributive processes discourage honesty. Every restorative practitioner has been witness to restorative events where courageous honesty on behalf of some participants has significantly changed the path of the justice process - exonerating innocent students for example. And of course, once students are honest about their involvement in a harm event, accuracy is a natural follow-on.
Fourthly, it seems as though both 'justices' are correctable within a school setting, but with an advantage to RPs. It will be the case that the restorative processes are more likely to have students, their families and the school working together to resolve a harm event - which means that the communication is already open between family and school should correction be required. In a retributive event, it can sometimes be the case that the student has been either excluded from the school community or has been placed in an adversarial position to the school - in both circumstances, discouraging the communication required for a 'correction' to take place, should it be required.
Fifthly, 'representative' - this is not a contest. The retributive process does not seek to involve representation (or 'participation') from every person involved in a harm event. For example, victims are given little or no voice in a traditional justice event - this is one reason why retributive processes can leave victims feel reoffended against. Conversely, RPs encourage the involvement of all parties in the resolution of the harm event - including the offending students and his/her family.
Lastly in the all important matter of ethics - I give the bronze medal to Retributive Justice and the gold to Restorative J. Why? Because the premise behind a retributive process is that if the institution can introduce sufficient deterring pain to a student, that student will have 'cleared their debt' that that institution and will be discouraged from repeating their act. This appears fundamentally to be a flawed ethical position because most people would agree that there is already excess suffering in the world without deliberately introducing more! If we can use justice processes (such as restorative ones) that satisfy the requirements of all parties without inflicting deliberate harm, then we should employ them - and this is especially the case for schools who are in the role of caring for young people. This of course is not to say that offending students find restorative processes 'comfortable' - in some circumstances, restorative processes are some of the most difficult moments of their lives. But emotional challenges (and thereby, 'pain') are a byproduct of the process, not a primary focus.
The Damage of Ignoring Procedurally Fair Processes
What damage can result by an organisation using justice procedures that are inherently unfair?
"...breaches of procedural justice can result not just in the withdrawal of citizenship behavior, but in negative behaviors specifically designed to punish the organisation and its representatives." (http://www.set-up-to-fail.org/pdf/justice.pdf)I am sure that all of us working in schools know what the authors mean here! "Withdrawal of citizenship behavior" seems to be a perfect description for the sulking, obstructive student behaviour that can cripple a class or school climate. And, "negative behaviors" appears to me to be a good description of the disheartening property damage in schools that is so hard to stop.
To provide a clear illustration (albeit from a commercial perspective), please read below:
A striking example occurred in a company announcing pay cuts of 15 percent in two sister plants.
In neither plant were the employees given any say in the matter; they were just told that the loss of two large contracts were to blame. Yet in one plant the person making the announcement expressed remorse, clearly described the basis for the decision and the alternatives considered, and fielded employee questions.
In the other plant, the announcement simply warned employees that the pay cut would take effect from the following week and would probably last ten weeks. Employee theft rates in both plants increased but in the plant where procedural justice was not respected they increased by more than twice as much as in the other plant.A follow up study showed that although all underpaid people stole, those who were treated in a perceived disrespectful manner stole objects that were no value to themselves, but that were of value to their employers.