Punishment-What's in it for the Victim?
A Restorative Justice Discussion for Crime Victims and their Advocates
by Marty Price, J.D.
In our society's criminal justice system, justice equals punishment. You do
the crime, you do the time. You do the time, you've paid your debt to
society and justice has been done. But justice for whom? Certainly not the
victim. Some background about the author and about victim-offender
mediation will be helpful before proceeding with a discussion about crime
victims and punishment.
About the author....
I am one of the small minority of victim-offender mediators who work with
cases of severe violence, including homicides. My qualifications for this
work include training and experience as a social worker and as a lawyer,
fifteen years as a mediator, trainer and program consultant, founding and
directing a Juvenile Court-based Victim-Offender Mediation Program,
training in work with trauma victims and last, but not least, my own
About victim-offender mediation....
The vast majority of victim-offender mediation programs work only with
juvenile offenders and only with non-violent offenses. The mediation of
severely violent crimes is not commonplace. Such offenses are usually
mediated upon the initiation of the victim, and only after many months
(sometimes even years) of work with a specially trained and qualified
mediator, collaborating with the victim's therapist and/or other helping
professionals. Participation must be completely voluntary, for both victim
and offender. Every aspect of the mediation process has the safety of the
victim as its foremost concern. Only offenders who admit their guilt and
express remorse and a desire to make amends are candidates for mediation.
A growing number of victims of severely violent crimes are finding that
confronting their offender in a safe and controlled setting returns their
stolen sense of safety and control in their life. Victims (who are largely
ignored by the traditional criminal justice system) have the opportunity to
speak their minds and their feelings to the one who most ought to hear
them, contributing to the process of healing and closure for the victim.
Victims get answers to the often haunting questions that only the offender
can answer. (The most common questions are, "why did you do this to me?"
and, "was this my fault or could I have prevented this?") With their
questions answered, victims commonly report a new peace of mind, even when
the answers to their questions were even worse than they had imagined or
In mediation, crime is personalized as offenders learn the real human
consequences of their actions. Offenders are held meaningfully and
personally accountable to their victims. Most mediation sessions result in
a restitution agreement to, in some way, make amends or restore the
victim's losses. Obviously, there is no way to restore the lost life of a
loved one. Restitution may be monetary or symbolic; it may consist of work
for the victim, community service or anything else that creates a sense of
justice between the victim and the offender. Sincere apologies are often
made and words of forgiveness are sometimes spoken. Forgiveness is not
"prompted," in recognition that forgiveness is a process that must occur
spontaneously and according to the victim's own timing, if at all. For some
victims, forgiveness may never be appropriate.
In cases of severely violent crime, victim-offender mediation seldom if
ever is a substitute for punishment and sentences are not typically reduced
as a result of victim-offender mediation.
About the need for punishment....
I am not talking about the need to incapacitate the most violent of
felons-those who seem to be intractably hazardous to our health and safety.
Incapacitation, unfortunately, must continue until we can learn how to
generate change in such individuals. However, the need for incapacitation
must be understood as separate and distinct from the need for punishment.
When we focus on punishment and incarcerate offenders who are not
dangerous, including those who have committed victimless crimes, we consume
precious correctional system resources which should be reserved for those
offenders who must be incapacitated for our protection.
I am not talking about punishment as a deterrent to crime. The punitive
approach to justice has resulted in the United States becoming the largest
jailer (per capita) in the world, with a violent crime rate that is also
second to no other country in the industrialized world. (Until just a few
years ago, the United States was the number three jailer in the world,
falling behind the former Soviet Union and the Union of South Africa.)
Prisons have become one of our fastest growing industries and some states
now have a punishment budget that is larger than their education budget.
If punishment deters crime, then the answer to an out-of-control crime
problem must be that we need to lock up more people still. How far should
we go with this approach?
I'm not talking about punishment for the purpose of rehabilitation. That
theory was abandoned by our criminal justice system in the 1980's.
Relatively few offenders are rehabilitated in prison. Offenders are
"warehoused" in institutions where violence, meanness, deceit,
manipulation and denial are rewarded by the culture within. In most cases,
offenders return to the community as individuals who are then even more
antisocial than before they were incarcerated.
Then why punishment?
If punishment is not really about incapacitation, deterrence or
rehabilitation, then what is it about? Punishment is primarily for revenge
(or retribution.) Victims of heinous crimes commonly demand revenge. It
seems like a natural response. Some may argue that the desire for revenge
in response to victimization is "hard-wired" into the human animal. History
suggests this may be true.
Our criminal justice system is a system of retributive justice. Our policy
of inflicting pain (i.e., punishment or retribution) upon those who harm
others commonly leaves offenders feeling like they are victims, then those
"victims" may seek their own revenge. Unless they are executed or put away
for life without possibility of parole, they will eventually come back to
us, often with their need for revenge screaming for satisfaction.
So punishment does not work as deterrence or as rehabilitation and it often
exacerbates the circumstances we are trying to fix. Still the public
(sometimes) and the politicians (more often) cry out for more punishment
and more prisons. (A well-known anthropologist once said that human beings
are the only species on earth that recognizes what isn't working and then
does more of the same.)
If not punishment, then what?
As I stated above, I think the desire for revenge may be a natural reaction
to victimization. But, should we act on all of our natural impulses? I
submit that when our criminal justice system begins to take the healing
needs of victims seriously, and does a good job of meeting those needs,
meaningfully addressing the victims' losses and injuries, at that time,
victims may no longer be so concerned with how severely an offender is
punished. Currently, victims receive little else. Our society tells us that
justice equals punishment. But justice for whom? Certainly not the victim.
I have asked many victim advocates, "How many victims/families of victims
do you know who have felt satisfied, justified and healed when the offender
was put to death or put away for a life sentence without possibility of
parole?" The typical answer is that it helped a little. They felt like they
got something. But overall, they still felt like they had been
re-victimized by the workings of a criminal justice system that didn't give
a damn about them. They needed much more than this kind of justice. The
system told them they should feel satisfied, even lucky if they got this
I'm thinking about a victim advocate (I shall call him John) whose parents
were murdered in his presence when he was a teen-ager. John and his sister
were shot and left for dead. Some years later, after witnessing the
execution of one of the murderers, John experienced no relief from the hate
and bitterness which had been burning inside him for so many years. This
disappointment led him to seek a mediated confrontation with the other
murderer (I shall call him Ralph), who was serving two consecutive life
After months of preparation with the mediator, John came face-to-face with
Ralph, behind prison walls. In a three hour mediation session, Ralph
learned from the lips of his victim of the terrible devastation he had
brought upon a family. He told John of his daily shame and pain, and his
wish that he could have been executed along with the other murderer. John
learned of the brutal victimizations Ralph had suffered throughout his
childhood and teen-age years. They cried together. John reported that the
mediation and the months he spent preparing for it changed his life,
bringing him release from the thoughts and feelings which had seemed
inescapable and freeing him to move on in his life.
Punishment is not for the benefit of victims. Our society exacts punishment
in response to the notion that crime is a violation against the state and
it creates a debt to the state. "The People of the State of California vs.
John Doe." The prosecutor represents the state, not the victim. The system
is offender-focused. Its attention is upon punishing the offender, while
protecting the rights of the offender. The victim is typically nowhere to
be found in the equation. Crime Victims' Bills of Rights, now law in most
states, seem to affect the balance only slightly.
What is restorative justice?
If our system of retributive justice is not working and not meeting our
needs, then what is more effective? Victim-offender mediation is but one of
many approaches to restorative justice. Restorative justice sees crime as a
violation of human relationships rather than the breaking of laws. Crimes
are committed against victims and communities, rather than against a
Our offender-focused system of retributive justice is designed to answer
the questions of, "what laws were broken, who broke them and how should the
law-breaker be punished?" Focusing on obtaining the answers to these
questions has not produced satisfying results in our society. Instead,
restorative justice asks, "who has been harmed, what losses did they
suffer, and how can they be made whole again?"Restorative justice
recognizes that, to heal the effects of crime, we must attend to the needs
of the individual victims and communities that have been harmed. In
addition, offenders must be given the opportunity to become meaningfully
accountable to their victims and must become responsible for repairing the
harms they have caused. Merely receiving punishment is a passive act and
does not require offenders to take responsibility.
The traditional criminal justice system treats offenders as "throwaway
people." Restorative justice recognizes that offenders must be given
opportunities to right their wrongs and to redeem themselves, in their own
eyes and in the eyes of the community. If we do not provide those
opportunities, the offenders, their next victims and the community will all
pay the price.
Restorative justice is not just victim-offender mediation. It is not any
one program or process. It is a different paradigm or frame of reference
for our understanding of crime and justice. Some other restorative justice
responses to crime include family group conferencing, community sentencing
circles, neighborhood accountability boards, reparative probation, and
restitution and community service programs.
About victim advocacy and victim-offender mediation....
Over the years, there has sometimes been an uneasy relationship between
victim advocates and the growing restorative justice/victim-offender
mediation movement. Victim advocates objected loudly (and rightly so!) when
early victim-offender programs were overly persuasive or even coercive, in
their well-meaning but misguided efforts to enlist the participation of
victims. Victims' assistance programs are now co-training with
victim-offender mediation programs, teaching mediators how to work
sensitively and respectfully with victims.
Victim advocates have sometimes seen mediation as "soft on crime" and
not in the best interests of victims. Those victim advocates who have
observed mediation sessions, taking note of the trepidation of offenders as
they face their victims, know that mediation is not soft on crime.
The recognition of common ground between victim advocates and restorative
justice advocates has led to alliances and partnerships. For example:
*In 1995, the National Organization for Victim Assistance (NOVA) published
a monograph entitled, Restorative Community Justice: A Call to Action
*In 1996, NOVA and the Center for Restorative Justice and Mediation jointly
published a thorough, comprehensible and extremely accessible educational
document called, "Restorative Justice for Victims, Communities and
Offenders." It is without a doubt the best restorative justice educational
document I have seen.
*In 1995 and 1996, NOVA collaborated with the Center for Restorative
Justice and Mediation at the University of Minnesota, to produce
nationally-focused, advanced training programs for the mediation of
seriously violent crimes.
*In 1996, NOVA, along with the U.S. Department of Justice Office for
Victims of Crime convened a Restorative Justice Summit Conference in
Washington, D.C., gathering leaders of the field to develop national
restorative justice policy.
*In the fall of 1996, Mothers Against Drunk Driving (MADD) published in its
quarterly, The MADDvocate, an article by restorative justice experts, Mark
Umbreit and Gordon Bazemore (of the Balanced and Restorative Justice
Project). The Winter 1996 MADDvocate published an article by a victim, who
along with her family, chose to mediate with the drunk-driving offender who
killed her sister.
*MADD's National Director of Victims' Services, Janice Harris Lord, a
recognized authority who has written numerous books on working with
victims, spoke at the 1996 Conference of the Victim Offender Mediation
Association (VOMA) and presented workshops on working sensitively with
crime victims. She also co-presented (with me) a workshop on the mediation
of drunk-driving fatality cases.
A call to action for criminal justice reform....
I suggest to victims and victim advocates that you stop letting the
criminal justice system sell you its party line; stop letting it sell you
punishment as the cure for what ails you. In our mainstream criminal
justice system, punishment is the "bone" that the system throws to victims,
while offering little else. Victims and their advocates would do better to
let go of their demands for more prisons and more punishment. Those demands
are not serving the needs of victims or society. They are instead helping
to perpetuate a system of retributive justice that is failing all of us. A
restorative approach that focuses on righting the wrongs, repairing the
damage and restoring the lives affected by crime has much more hope to
Marty Price, J.D., a "recovering attorney" and social worker turned to
mediator, is the founder and former director of the Victim Offender
Reconciliation Program of Clackamas County (Oregon) and is currently the
Co-Chair of the international Victim-Offender Mediation Association (VOMA).
He provides victim-offender mediation, consultation and training to courts,
mediation programs and individuals, specializing in the mediation of drunk
driving fatality cases and other crimes of severe violence. He may be
2315 NE Mason, Portland, OR 97211, (503) 281-5085.
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