Carter Budwell† | 4 Regent J. Glob. Just. & Pub. Pol. 1

“But to punish and not to restore, that is the greatest of all offences.”††

INTRODUCTION

We have a problem in the United States: the juvenile incarceration rate is the highest among . . . developed nations.1 Since the 1990s, the juvenile justice system in America, from a global context, has followed a more punitive trajectory in dealing with young offenders, in comparison to international trends.2 Indeed, internationally, countries are seeking to incorporate the United Nations Convention on the Rights of the Child (CRC), which “requires states to use alternatives to incarceration whenever possible . . . [and] prioritizes rehabilitation over retribution.”3 Currently, the United States has not ratified the CRC.4

In the United States, one “of the primary criticisms of juvenile incarceration . . . [is] its inability to effectively address recidivism.” 5 The national recidivism rate in the United States has at times exceeded 50%.6 By contrast, there is evidence that “restorative justice [programs] tend to decrease” recidivism levels.7 Restorative justice is a “model[] of conflict resolution” that treats crime as an opportunity and “emphasizes healing rather than punishment.”8

While restorative justice may be effective, this Article asserts that the answer to America’s incarceration problem is not replacing the current system with one based on restorative justice, but rather incorporating restorative justice principles into our system. After all, punishment is not bad in and of itself. Indeed, punishing criminals “treats [them] as . . . dignified human being[s] by responding to [their] conduct in a way that respects [their] choice to engage in wrongful behavior.” 9 Punishment in the form of retribution is “intended to vindicate the value of the victim denied by the wrongdoer’s action.” 10 However, the success of restorative justice at preventing future crimes and its satisfaction rates, both of which will be discussed in this Article, cannot simply be ignored. Restorative justice involves both the offender and the victim and searches for solutions for reconciliation,11 which can be very beneficial for our system. In short, the point of this Article is that a proper approach to juvenile detention involves both punishment and restoration.

This Article is divided into four parts. Part I will explain both the theories of retributive justice and restorative justice, so that the reader will understand the underlying rationales of both. Part II briefly discusses the development of the juvenile justice system in the United States and the current status of juvenile law therein. Part III will look at how restorative justice has developed in Germany, and Part IV will evaluate how principles of restorative justice from Germany could potentially be incorporated into United States law to supplement punishment.

I. THEORIES OF RETRIBUTION AND RESTORATIVE JUSTICE

In order to lay a foundation for the rest of this Article, it is important to first discuss what is meant by the theories of retributivism and restorative justice.

A. Retributivism

The criminal theory of retribution generally focuses on “revenge for the past violation of a law.”12 Typically, it is concerned with punishing a past offense rather than deterring a future one.13 The retribution sought in a criminal case may be viewed as “social condemnation” of a criminal’s act and an affirmation of appropriate social norms. 14 The position of retributivism is that “punishment is necessary,” as society must mete out some kind of “retribution against [lawbreakers].” 15 Punishment, rather than being valuable as a deterrent, is valuable in and of itself, as the person who has “committed a crime . . . simply deserve[s] to be punished,” and there is no further justification needed.16

This theory has been around for quite some time. From ancient times until the middle ages, numerous “criminal justice systems were . . . [built around a] concept of retribut[ion].”17 It can also be found in both “biblical and Talmudic forms of justice.” 18

Those who argue in favor of this theory have said that punishment is not a means of “promoting another [g]ood,” but rather is “to be pronounced over . . . criminals proportionate to their [deeds].” 19 Furthermore, it has been argued that crimes must “be negated in order to re-establish equivalence” within a society, and that can only be done through punishment.20

† Carter Budwell graduated cum laude from Regent University School of Law in 2016. While at Regent, he worked as a Managing Editor with this Journal, and as a Graduate Assistant for the Center for Global Justice, Human Rights, and the Rule of Law. He also interned for the National Legal Foundation and the United States District Court for the Eastern District of Virginia. A native of Colorado, Carter worked for Youth With A Mission Strategic Frontiers for three years before attending law school. During this time he worked with missionaries in Central Asia, the Caribbean, Africa, and Europe. He is currently practicing law in Norfolk, Virginia.
†† ALAN PATON, TOO LATE THE PHALAROPE 264 (1953).
1 Sandra Newcombe, The DOJ Comes to Town: An Argument for Legislative Reform When the Juvenile Court Fails to Protect Due- Process Rights, 44 U. M EM . L. R EV . 921, 925–26 (2014). I acknowledge that not all juveniles who go through the American system are incarcerated. The principles discussed in this Article should therefore be applied to those who are.
2 Beth Caldwell, Globalization and Juvenile Life Sentences: Creating Meaningful Opportunities for Release for Juvenile Offenders, 2014 J. INST. JUST. & INT’L STUD. 1, 2.
3 Id. at 1–2.
4 Id. at 1.
5 Judy C. Tsui, Breaking Free of the Prison Paradigm: Integrating Restorative Justice Techniques into Chicago’s Juvenile Justice System, 104 J. CRIM. L. & CRIMINOLOGY 635, 641 (2014).
6 Connie de la Vega & Michelle Leighton, Sentencing Our Children to Die in Prison: Global Law and Practice, 42 U. S.F. L. REV . 983, 1022 (2008). See generally MATTHEW R. DUROSE ET AL ., U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS (2014), https://www.bjs.gov/content/pub/pdf/rprts05p0510.pdf (conducting a study from 2005 to 2010 which found high rates of recidivism for offenders).
7 Tsui, supra note 5, at 641.
8 Paul Clark, Restorative Justice and ADR: Opportunities and Challenges, 44 ADVOCATE , Nov. 2001, at 13, 13.
9 David A. Starkweather, The Retributive Theory of Just Deserts” and Victim Participation in Plea Bargaining, 67 IND. L.J. 853, 855 (1992).
10 Jean Hampton, Correcting Harms Versus Righting Wrongs: The Goal of Retribution, 39 UCLA L. REV . 1659, 1686 (1992).
11 See Mary Ellen Reimund, Mediation in Criminal Justice: A Restorative Approach, 46 ADVOCATE , May 2003, at 22, 22 (discussing how reconciliation can be achieved from various means such as restitution and mediation).
12 Maria Foscarinis, Toward a Constitutional Definition of Punishment, 80 COLUM. L. REV. 1667, 1679 (1980).
13 Id.
14 Id. at 1681.
15 Matthew Haist, Deterrence in a Sea of “Just Deserts”: Are Utilitarian Goals Achievable in a World of “Limiting Retributivism”?, 99 J. CRIM. L. & CRIMINOLOGY 789, 793 (2009).
16 Id. at 793–94.
17 Id. at 795.
18 Id.
19 Id.
20 Id.