Michael Cavadino

Reparation, Retribution and Rights

This article explores the relationship between the idea that offenders should make reparation to their victims and the principle of ‘just deserts’ or strict proportionality between seriousness of offence and severity of punishment. Some have queried whether these notions are compatible with each other, suggesting that there is relatively little scope for reparative measures in a criminal justice system soundly based on the principle of just deserts. We defend the reparative principle, arguing that reparation should play a significant rôle in a criminal justice system based on the human rights of victims as well as offenders. Such a rights-based approach also has an important place for the retributive notion of just deserts, but strict proportionality is rejected in favour of an approach whereby the offenders just deserts set upper and lower limits on the sanctions which may be imposed on the offender. Within these limits there should be scope for both victims and offenders to have a say in the nature, form and amount of reparation which is appropriate.

Towards a Framework for Conceptualizing and Evaluating Models of Criminal Justice from a Victim's Perspective

In this article we outline a typology of ‘models’ or conceptual contexts within which a variety of victim-based measures has been proposed, and in many cases adopted, in various common law jurisdictions. The purpose of the typology is to clarify some of the confusion surrounding these measures and, in particular, the scope they offer for reparative and restorative approaches to operate either within or alongside the mainstream criminal process. Drawing on recent empirical findings and theoretical writings we also seek to evaluate the victim-oriented measures that are associated with each of the models. Within the typology three distinct models of restorative justice are examined and we argue that one of these, the Communitarian Model, emerges as the most coherent, credible and constructive challenger to the hitherto predominant Retributive Model.

Penal policy in comparative perspective

Continued on next page Globalisation notwithstanding, the severity of punishment – as measured by the admittedly crude but nevertheless useful measure of rates of imprisonment – and also the methods by which offenders are punished, continue to vary considerably in different societies. A recent study of comparative penal policy in 12 different countries (Cavadino and Dignan, 2006a and b) suggests that these variations are not arbitrary but may be related to significant differences in the political economies to which those countries belong. For the purposes of the study the twelve countries were grouped into four families of political economy: neo-conservative (the USA, Australia, England and Wales, New Zealand and South Africa); conservative corporatist (Germany, France, Italy and the Netherlands), social democratic corporatist (Sweden and Finland) and oriental corporatist (Japan). As can be seen from Table 1, these four ʻfamily groups ̓are strongly differentiated with regard to a range of criteria including their form of economic and welfare state organisation, extent of income and status differentials, degree of protection afforded to social rights, political orientation and degree of social inclusivity. In brief, neo-liberal societies are characterised by their strong support for free market capitalism, a minimalist and residual welfare state, marked disparities of income and wealth, and high levels of social exclusion, a term which encompasses the denial of full effective rights of citizenship and participation in civil, political and social life. The general ethos is thus one of individualism rather than communitarianism or collectivism. Conservative corporatist societies tend to offer their citizens somewhat greater protection against the vagaries of market forces; but the social rights they bestow are both conditional and hierarchical rather than egalitarian since they enshrine and perpetuate traditional class, status and economic divisions between different groups of citizens. The overall philosophy and ethos of conservative corporatism is a communitarian one which seeks to include and integrate all citizens within the nation, with individuals ̓membership of interest groups and other social groupings providing a vital link between the individual and the nation state. Another typical feature of the conservative corporatist state is its strong support for, and reliance upon, other traditional institutions such as church and family. The social democratic version of corporatism is characterised by an egalitarian ethos and its generous system of universal welfare benefits goes furthest in acknowledging unrestricted rights of social citizenship. One of the most distinctive features is the extent to which the state itself has assumed responsibility for discharging welfare functions that in other polities are left to other social organisations (in the case of conservative corporatist societies) or private employers (in the case of Japan) to undertake. The oriental version of corporatism exemplified by Japan displays a form of authoritarian communitarianism in which individuals are expected to behave in accordance with the informal obligations that stem from the dense network of hierarchical relationships to which they belong. Although status