Ashworth, Andrew. "Responsibilities, Rights and Restorative Justice". The British Journal of Criminology, Vol.42, No.3 (2002): 578-595.

Ashworth, Andrew. "Responsibilities, Rights and Restorative Justice". The British Journal of Criminology, Vol.42, No.3 (2002): 578-595.

• Because restorative justice is largely defined by practice rather than firm theoretical grounding and takes on multiple different manifestations, the author suggests a simple definition: "a process whereby parties with a stake in a specific offence collectively resolve how to deal with the aftermath of the offence and its implications for the future" (578).
• The big difference with the current forms of justice is that restorative justice need not necessarily be professionalized, and even then the voices of direct stakeholders like the victim and the offender should be dominant in the process. Similarly, the outcomes of cases are not evaluated by official standards, but on the satisfaction of victims and perpetrators (578).
• The role of the state in restorative justice is unclear, although it is obvious that some role must remain for the state because its role in establishing the criminality of acts and deterring further crimes remains central (579).
• Other statist arguments retain that the state must remain central to the criminal justice process because the alternative of citizen-directed justice would both put unnecessary burdens on victims and open the way to vigilante violence and a breakdown of public order (580).
• Others would argue that the presence of the state is necessary for ensuring consistency in punishment, a societal good, and guaranteeing that the human rights of the offender are protected during the process. Accordingly, even in restorative justice, some guidelines from the state must be followed to safeguard these principles (581-582).
• There are some who question the traditional arguments for maintaining a statist system of criminal justice, some claiming that the focus on criminal justice allows states to ignore its larger responsibilities for citizen well-being. A more applicable argument is that in many states, like South Africa, the current criminal justice system has effectively collapsed, meaning that decentralization could allow for some restoration of functionality with limited resources (580-581).
• Some of these scholars suggest that the state should limit itself to a facilitative role, providing resources for proceedings and pledging to enforce any agreements (581).
• The role of the wider community in restorative justice is unclear, although it almost always includes the family of both parties. People belong to many 'communities', and selecting their representatives is difficult. Including the local community raises further problems, as it sacrifices consistency in the criminal justice system for localized results (582-583).
• Hate crimes also raise another type of community that has ostensibly been hurt by the crime and requires restoration, but for which there is currently no clear method of paying back that specific community (583).
• Communities very frequently, and more so than the professionalized state, contain bias and there is a large risk that racial, religious, or sexual inequalities will become reflected in punishment under a system of restorative justice (583).
• A number of advocates of restorative justice argue that the 'victim-centric' system of justice has ancient roots, claiming that the victim only became marginalized in the modern era following a power play by the emerging state. Many disagree with this romantic notion of pre-modern criminal justice (584).
• In most criminal justice systems, it is recognized that the victim is entitled to some form of compensation from the offender, however, very often the offender lacks the financial resources to pay such compensation and is instead punished. Outside of compensation, there is a question of what role the victim should play in deciding punishments, especially because this can limit the positive impartiality that the state provides (584-585).
• The greater involvement of victims in the sentencing process may severely undermine impartiality and consistency, because victims vary as people. Whereas some many be lenient, other will be vindictive, and victims of the same crime may find different types or severities of punishment appropriate (586).
• Some proponents of restorative justice would argue that it actually increases the proportionality of punishment, by assessing the punishment based on the harm actually done to the victim rather than an legal estimate of damage (586).
• Others contend that limitations on the types and severity of punishment that can be inflicted upon offenders would provide the restorative justice system with the checks it requires. However, most restorative justice proponents want to decrease the punitive nature of the criminal justice system, whereas restorative justice may increase it (586).
• Many modern human rights conventions demand trial by an impartial tribunal, something that a restorative justice system based on victims and their families cannot provide. While some contend that this simply legitimates a flawed standard practice, this complaint does not address the serious issues of procedural justice raised by a restorative justice system based around the input of partial parties (586-588).
• The arguments for not grounding sentencing in the amount of perceived harm is cemented in the judicial decision in the Nunn case: "We mean no disrespect to the mother and sister of the deceased, but the opinions of the victim, or the surviving members of the family, about the appropriate level of sentence do not provide any sound basis for reassessing a sentence. If the victim feels utterly merciful towards the criminal, and some do, the crime has still been committed and must be punished as it deserves. If the victim is obsessed with vengeance, which can in reality only be assuaged by a very long sentence, as also happens, the punishment cannot be made longer by the court than would otherwise be appropriate. Otherwise cases with identical features would be dealt with in widely differing ways, leading to improper and unfair disparity, and even in this particular case . . . the views of the members of the family of the deceased are not absolutely identical" (588).
• Almost all advocates of restorative justice recognize that it cannot be the sole criminal justice system, and that there must be some alternative procedure. Dr. Braithwaite suggests that if restorative justice fails, then the offender is treated like a rational actor who must be deterred, or, failing that, an irrational criminal to be incapacitated (589).
• The justice of these background systems of criminal justice are certainly not guaranteed by the existence of a restorative justice system, and in fact the emphasis on the 'lack of virtue' in offenders moved to the alternative system raises concerns over the proportionality of such measures (590).
• Where a restorative justice system does co-exist alongside a conventional criminal justice system, the connections between the systems must be designed as to avoid injustice and guarantee that fundamental legal principles and protections are guaranteed throughout the system (592).
• "It should remain the responsibility of the state towards its citizens to ensure that justice is administered by independent and impartial tribunals, and that there are proportionality limits which [...] ensure some similarity in the treatment of equally situated offenders. If the state does delegate certain spheres of criminal justice to some form of community-based conference, the importance of insisting on the protection of basic rights for defendants is not diminished" (591).