So I was abruptly awakened out of my 18th-century research daze by Kristin’s post this morning entitled “Blackstone”–until I realized, sheepishly, that she was discussing the very modern Blackstone IPO (along with Vic Fleisher at Conglomerate). Foolish me–who would be posting about Blackstone today?
Well, me, for one. Lately my writing has taken me into the heady realms of 18th-century authors such as Blackstone, Beccaria, and even James Fitzgerald Stephen as I research how the pre-Revolutionary colonial community understood punishment. I’ve been surprised about what I’ve found, and how it could apply to sentencing reform today.
Most surprising to me was how the 18th-century community, in proto-America, viewed their role in punishing a criminal offender. I assumed it would be a straight retributive jurisprudence–you err, you are punished (harshly). But this was not at all the case. Even the most Puritan of communities (I’m looking at you, New Haven!) had a two-fold view of punishment, what I call expressive restorative retribution (the contours of which I explored in this piece). In other words, there was interest in publicly punishing wrongdoers (to make the community whole), although much less harshly than in England (where death was the sentence for many felonies). But there was also a great interest in restoring the offender back to the community after he or she had finished their sentence–a restorative aspect. Calling the sinner back to the fold, as it were.
Now, this is all very interesting, I can (hopefully) hear you saying, but what relevance does it have towards today? Well, that’s where modern sentencing reforms come in. Any impartial critic of our current sentencing regime can see that we have a continuing problem in our released criminal offenders, who are effectively exiled from the community due to their felon status. Once you are branded a felon, you can no longer vote (except in Florida), serve on a jury, work as a professional, or even be hired for the most routine of jobs. This has resulted in an ever-growing underclass of ex-convicts who are completely shut out of the polity as well as much of everyday life. That many of these ex-cons are young, male and minority just makes it worse.
So why not take a page from our 18th-century forbearers, and add some restorative justice to our current regime of punishment? If we are going to have fidelity to the historical origins of the jury trial right, as the Supreme Court has held in Apprendi, Blakely and Booker, then let’s be fully faithful, and implement more than just the straight retributive understanding of punishment and sentencing to our current system.
Posted by Laura I Appleman on June 15, 2007 at 03:51 PM
Comments
For those not familiar with the restorative justice literature, much of the current interest in the subject among those in criminal law is due almost single-handedly to the work of John Braithwaite, beginning with Crime, Shame and Reintegration (1989). Of late, Heather Strang has been writing extensively on this topic, often in conjunction with Braithwaite.
Posted by: Patrick S. O’Donnell | Jun 15, 2007 6:43:20 PM
As to “who would be posting about Blackstone today?” Probably Nate Oman over at Concurring Opinions.
“md” makes an important point, although I would put a different twist on it: much of the restorative justice model relied on presuppositions, assumptions and values about human nature and psychology, about human institutions and professionalism, about private life, about emotions (e.g. shame and trust), etc., that were intrinsic to a Quaker (or Quaker-like) ethic that a majority of members of contemporary society might not find palatable or persuasive (indeed, if they did, we would have eliminated capital punishment by now) however much any one of us might find this or that aspect of this ethic attractive (e.g., the perfectibility part intrigues me). On the other hand, if we can find justifications for a restorative justice model from within the motley worldviews out there, then perhaps there are indeed elements of restorative justice that could have a role to play. I imagine such justifications contributing to a Rawlsian-like overlapping consensus. In such a case, the individual justification (which helps with the motivational part) might indeed come from within a religious worldview but serve to endorse values or principles and practices that are shared by many, that are in fact “universal.”
Posted by: Patrick S. O’Donnell | Jun 15, 2007 6:31:44 PM
Interesting post. Some of the ‘restorative’ themes you mention seem to have a religious hue (just reading into your post, so please let me know if I’m off). How, if at all, do you think that might be translated into today’s restorative model, or do you think it needs any translation at all…i.e., how do we get the restorative fruit without the religious husk, as it were?
(also, do you mean James Fitzjames Stephen?)
Posted by: md | Jun 15, 2007 4:04:06 PM